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# Revisions to the Definition of Solid Waste Final Rule
Response to Comments Document
Summaries and Responses

December 10, 2014- 2

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Note: This Response to Comments Document contains the Agency’s summaries of the comments received on various topics related to the rulemaking and the Agency’s responses to those comments . A fter each comment summary is a code linking the summary to the final digits of the RCRA D ocket number for the individual comment n umber s linked to that summary. The commenters on this rulemaking and their comment numbers can be found in the Appendix to this document. Many of the comments submitted for this rulemaking are addressed in multiple sections of the Response to Comments.- 3

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## Contents

1.0 General Comments on 2011 DSW Proposal

................................ ................................ ............. 6 1.1 General support for 2011 DSW proposal

................................ ................................ ............. 7 1.2 General opposition to 2011 DSW proposal

................................ ................................ ........... 8 2.0 EPA's Legal Authority to Regulate Recycling

................................ ................................ .......... 9 3.0 Environmental Justice Analysis

................................ ................................ .............................. 39 3.1 General comments

................................ ................................ ................................ ............... 39 3.1.1 General comments in support of the analysis

................................ .............................. 3 9 3.1.2 General comments that do not support the analysis

................................ .................... 40 3.2 General comments on the methodology

................................ ................................ .............. 44 3.2.1 Hazard characterization

................................ ................................ ............................... 45 3.2.2 Identification of potentially affected communities

................................ ...................... 53 3.2.3 Demographics of potentially affected communities

................................ ..................... 58 3.2.4 Assessment of disproportionate impacts

................................ ................................ ...... 60 3.2.5 Information synthesis and identification of potential preventative and mitigation strategies

................................ ................................ ................................ ................................ 63 4.0 Withdrawal of the Transfer

- Based Exclusion

................................ ................................ ........ 66 4.1 Withdrawal of the transfer

- based exclusion

................................ ................................ ....... 66 4.2 Specific wastestreams that should be excluded

................................ ................................ ... 91 5.0 Alternative Subtitle C Regulation for Hazardous Recyclable Materials

............................... 92 6.0 Revisions to the Exclusion for Hazardous Secondary Materials that Are Legitimately Recycled Under the Control of the Generator

................................ ................................ ............. 94 6.1 General comments

................................ ................................ ................................ ............... 94 6.1.1 Su pport

................................ ................................ ................................ .......................... 97 6.1.2 Do not support

................................ ................................ ................................ .............. 98 6.2 Contained Standard

................................ ................................ ................................ ........... 101 6.3 Notification

................................ ................................ ................................ ........................ 116 6.4 Recordkeeping for speculative accumulation

................................ ................................ ... 121 6.5 Revisions to tolling and same

- company

................................ ................................ ............ 127 7.0 Comment on Revisions to the Definition of Legitimacy

................................ ....................... 131 7.1 General comments on legitimacy

................................ ................................ ...................... 131 7.2 Comments on codifying legitimacy for all recycling

................................ ......................... 134 7.2.1 Support

................................ ................................ ................................ ........................ 134 7.2.2 Do not support

................................ ................................ ................................ ............ 135- 4

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7.3 Comments on all legitimacy factors being mandatory

................................ ..................... 141 7.3.1 General comments on all legitimacy factors being mandatory

................................ . 141 7.3.2 Specific comments on making legitimacy factor 3 mandatory

................................ .. 148 7.3.3 Comments on making factor 4 mandatory

................................ ................................ 151 7.3.4 Petition process for legitimacy

................................ ................................ ................... 162 7.3.5 Specific examples where a factor is not met but recycling is legitimate

.................... 165 7.4 Proposed new language for legitimacy factor 3

................................ ................................ 167 7.5 Proposed new language for legitimacy factor 4 (“comparable” instead of “not significantly higher”)

................................ ................................ ................................ ............... 172 7.6 Comments on documentation of legitimacy

................................ ................................ ...... 177 8.0 Revisions to Solid Waste Variances and Non

- Waste Determinations

................................ .. 180 8.1 Requirement that applicant re

- apply for a variance in the event of a change

................. 184 8.2 Notification requirement for variances and non

- waste determinations

.......................... 185 8.3 Proposed revisions to partial reclamation variance

................................ ......................... 188 8.3.1 Comments on introductory text

................................ ................................ ................. 188 8.3.2 Comments on proposed criterion 1: Whether the degree of partial reclamation the material has undergone is substantial

................................ ................................ ................ 193 8.3.3 Comments on proposed criterion 2: Whether the partially

- re claimed material has sufficient economic value that it will be purchased for final reclamation

......................... 195 8.3.4 Comments on proposed cri terion 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

................................ ................................ ........... 197 8.3.5 Comments on proposed criterion 4: Whether there is a guaranteed end market for the partially

- reclaimed material

................................ ................................ ......................... 198 8.3.6 Comments on proposed criterion 5: Whether the partially

- reclaimed material is handled to minimize loss

................................ ................................ ................................ ..... 198 8.3.7 Comments on eliminating existing criterion 6: Other relevant factors

..................... 199 8.3.8 General comments on proposed changes to partial reclamation variance

............... 200 8.4 Require applicant explain why they cannot meet an existing DSW exclusion

................. 203 8.5 Regional administrator to approve variances and non

- wast e determinations

................ 204 8.6 Require periodic renewals

................................ ................................ ................................ . 205 8.7 Require states to share copies of the petitions and tentative decisions with EPA

........... 208 9.0 Remanufacturing Exclusion

................................ ................................ ................................ .. 210 9.1 General comments

................................ ................................ ................................ ............. 210 9.1.1 Support

................................ ................................ ................................ ........................ 212 9.1.2 Do not support

................................ ................................ ................................ ............ 212 9.2 Conditions for exclusion

................................ ................................ ................................ .... 214- 5

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9.2.1 Designated solvents

................................ ................................ ................................ ..... 217 9.2.2 Chemical functions

................................ ................................ ................................ ..... 221 9.2.3 Manufacturing sectors

................................ ................................ ................................ 221 9.2.4 Notification

................................ ................................ ................................ .................. 223 9.2.5 Remanufacturing plan

................................ ................................ ................................ 224 9.2.6 Record of shipments

................................ ................................ ................................ ... 224 9.2.7 Management in tanks and containers

................................ ................................ ........ 225 9.2.8 No speculative accumulation

................................ ................................ ...................... 226 9.2.9 Other suggested conditions

................................ ................................ ......................... 226 9.3 Potential rulemaking variance process to add candidates

................................ ............... 228 9.3.1 General comments

................................ ................................ ................................ ...... 228 9.3.2 Specific candidates

................................ ................................ ................................ ...... 229 9.4 Other issues

................................ ................................ ................................ ........................ 233 9.4.1 Intermediate facilities

................................ ................................ ................................ . 233 9.4.2 Exports

................................ ................................ ................................ ........................ 234 9.4.3 Financial assurance/Public participation

................................ ................................ ... 234
9.4.4 Record of environmental benefits

................................ ................................ .............. 236 10.0 Comment on Revisions to Other Recycling Exclusions and Exemptions

.......................... 236 10.1 General comments

................................ ................................ ................................ ........... 236 10.2 Specific comments

................................ ................................ ................................ ............ 250 10.2.1 Contained standard

................................ ................................ ................................ .. 250 10 .2.2 Notification

................................ ................................ ................................ ................ 254 10.3 Correlation of recycling damage cases

................................ ................................ ............ 258 11.0 Spent Petroleum Catalysts

................................ ................................ ................................ .. 262 12.0 Implementation Issues

................................ ................................ ................................ ......... 268 13.0 State Authorization

................................ ................................ ................................ .............. 273 14.0 Administrative Rulemaking Requirements

................................ ................................ ........ 275 14.1 EO 12866 and 13563: Reg planning and review and Regulatory Flexibility Act (RFA)

................................ ................................ ................................ ................................ .................. 275 14.2 Paperwork Reduction Act (ICR)

................................ ................................ ..................... 293 14.3 Unfunded Mandates Reform Act (UMRA)

................................ ................................ ..... 298 14.4 EO 13132: Federalism

................................ ................................ ................................ ..... 298 14.5

- Executive Order 12898: Environmental justice

................................ ........................... 299 15.0 Miscellaneous Comments

................................ ................................ ................................ .... 304 Appendix: Commenters and Submission Numbers

................................ ................................ ... 315- 6

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## 1.0 General Comments on 2011 DSW Proposal

(a) COMMENTS : I've listened to the testimony so far, and my take on it is that what we really need is balance. I like rayon. I like synthetic rubber. I like automobiles, and in order to have these things, we have to have industry. In order to have industry, we've got to be able to operate. From my point of view, illegal dumping is a problem, and it has nothing to do with proper recycling. It's a completely different issue. That's illegal. It's against the law, and it doesn't really have anything to do with proper recycli ng. The same thing with improperly maintained pipes and improperly sited facilities. It doesn't follow that just because those things are happening that we shouldn't have recycling at all and that those two go hand in hand. I would just like to ask you t hat if you're going to limit waste or materials or whatever that can be recycled, base it on science and base it on proper and achievable controls. If you're going to expand things that can be recycled, base it on science and base it on proper and achievab le controls. [TRANS

- IL

- 0008]
(a) RESPONSE : EPA agrees that the DSW rulemaking (and rulemaking in general) should take a balanced approach based on the best understanding of the relevant facts and science. In developing the final rule, EPA has taken into c onsideration both how the 2008 DSW rule has been operating to date, and concerns about the potential for mismanagement in the future, in order to achieve a balanced rule. In particular, by requiring that recycling outside the control of the generator be do ne at a facility that either has a RCRA permit or that has received a verified recycling exclusion from the state, the verified recycler exclusion allows legitimate recycling to continue while providing a mechanism for proper oversight of facilities to ens ure they do in fact legitimately recycle and not mismanage their hazardous secondary materials.
(b) COMMENTS : S o I just challenge you as you're making changes to the rules to truly think about, again, my theme, which is, how does this actually work on the ground? How does it

ac tually work on the ground? And if you're not sure, call up the states. Call up folks, you know. In California, we've got local agencies that do enforcement of hazardous waste laws. Some of local agencies do a great job. Some of these local agencies do a terrible job. So you also have to think about variable enforcement of these laws and these regulations. Some agencies in some states will do a great job. Some agencies in some states will do a terrible job, and all the communities that are affected by hazardous waste recycling or secondary material recycling or

co

- product or byproduct use, whatever it is, the material still is hazardous when it's released. And so taking into account that there's variable enforcement on the ground of wha tever regulations you put in place is very important. [TRANS

- IL

- 0009]
(b) RESPONSE : EPA agrees that states, as EPA’s partners in implementing the RCRA regulations, are important stakeholder in rule development. In developing today’s final rule, EPA has ca refully considered comments provided by the states, including states currently implementing the 2008 DSW rule. In addition, by including notification and public participation requirements in the final verified rec ycler exclusion, EPA is providing potential ly affected communities tools to help engage the state agencies regarding the recycling practice s that may affect them.- 7

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(c) COMMENTS : So I'm here to oppose any definition that's not going to protect human health and to look at the priorities of the commun ity that's already been impacted by so many industrial or recycling or any type of hazardous waste facilities that's in our neighborhood. We have to really be concerned because communities like ours, we already bear the burden, and most likely, any to this rule is going to have a quality effect on the life of the residents in my community and in communities around the country just like ours.
So I hope that when you take into consideration whatever decision that you look at human health impact first, and t

hat's foremost. You cannot recycle your soul. You cannot recycle your health. Once your health is affected, you need to get treated and maintain it, but it will never be the

same. And I'm here just to testify on their behalf and for my community that we are really concerned about the definition of the solid waste proposed rule, and we're not for it. Because anythin g that's going to jeopardize the quality of life of my community or any community is just not right. [TRANS

- IL

- 0014]
(c) RESPONSE : EPA agrees that protection of human health and the environment from practices that are within EPA’s regulatory authority is the most important consideration in a RCRA rulemaking. By limiting recycling under the verified recycler exclusion to facilities that either ha ve RCRA permits or have obtained verified recycler variances from the state or EPA, EPA has worked to protect communities from the potential mismanagement of hazardous secondary materials from facilities that have not demonstrated to a regulatory authority and the public that they can safely and legitimately recycle their hazardous secondary materials.


### 1.1 General support for 2011 DSW p roposal

(a) COMMENTS : EPA received several comments in general support of the 2011 DSW proposal. [0022] Commenters in parti cular supported the goals of the 2011 DSW proposal to address flaws in the 2008 DSW final rule, and to increase oversight and environmental protection. [161, 165, 167, 173, 178, 244, TRANS

- IL

- 0001, TRANS

- IL

- 0007, TRANS

- PA

0004, TRANS

- PA

- 0006, TRANS

- PA

- 0007 , TRANS

- PA

- 0009. TRANS

- PA

- 0010, TRANS

- PA

0012 TRANS

- PA

- 0014] Commenters also supported the goals of the 2011 DSW proposal to increase safe and legitimate reclamation. [173, 174, 177, 179, 181, 192, 209, 239, 240, 250, 251, 257, 272, 290, 312, 333, 351, TRANS

- IL

- 0006] Many comments provided information on specific cases of mismanaged recycled hazardous secondary materials and expressed appreciation for EPA’s effort to increase environmental protection, [245, TRANS

- PA

- 0005, TRANS

- PA

- 0008, TRANS

- PA

- 0011, TR ANS

- PA

- 0015 TRANS

- PA

- 0016]. Comments also stated that the proposed rule is more likely to be adopted by the states, and EPA should encourage state adoption of the final rule. [0063, 146] One commenter expressed the opinion that the proposed rule would make the regulations more thorough and clear. [0155]
(a) RESPONSE : EPA appreciates comments in support of the goals of the 2011 DSW rule to address regulatory gaps in the 2008 DSW rule in order to encourage safe recycling while protecting human health and th e environment, including protecting the most vulnerable- 8

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populations, from potential risks from discarded hazardous secondary materials. While the 2014 DSW final rule has included changes from the proposal, the basic goal has remained the same. (Comments on specific provisions of the 2011 proposal are addressed in the relevant sections of this response to comments document.)



### 1. 2 General o pposition to 201 1 DSW p roposal

(a) COMMENTS : Commenters specifically were concerned that the 2011 DSW proposal would disc ourage legitimate recycling, hurt small businesses, cost jobs and damage the economy, without yielding any environmental benefit. [0020, 0040, 0048, 0049, 0050, 0067, 0071, 0072, 0076, 0104, 0111, 0115, 0125, 0133, 0159, 0168, 0171, 0172, 0175, 0182, 0186, 0189, 0193, 0194, 0196, 0198, 0199, 0201, 0210, 0211, 0214, 0216, 0219, 0221, 0223, 0225, 0234, 0236, 0241, 0242, 0243, 0246,0250, 0252, 0254, 0255, 0256, 0260, 0264, 0266, 0269, 0277, 0283, 0317, 0355, 0359, 0360, 0363, 0367, TRANS

- IL

- 0011] Other comment ers stated that the proposal runs counter to the RCRA goal of resource conservation and would increase the use of natural resources [0084, 0168, 0169, 0171, 0175, 0177, 0199, 0203, 0204 0241, 0255, 0355] Many commenters discussed how the 2011 DSW proposal would negatively affect their particular industry, including scrap metal [0036, 0042, 0050, 0137, 0261], aluminium [0194, 0229, 0233], batteries [0196 0350], mining [0162, 0210, 0361, 0363], pulp and paper [0168], solvents [0203], fertilizer [218], fibergl ass [0241], and cement [0269]. One commenter felt that the 2011 DSW proposal would favor China’s metal industry over the United States. [0026] Commenters also stated their support of the 2008 DSW final rule, saying that it was protective and that the propo sed revision of the rule has created uncertainty and is unnecessary [0104, 0125, 0133, 0154, 0156, 0177, 0198, 0201, 0219, 0225, 0285, 0350, 0355, 0359, 0364, TRANS

- IL

0012 TRANS

- PA

- 0003].
(a) RESPONSE : The goal of the 2014 DSW rule is to encourage safe r ecycling while protecting human health and the environment, including protecting the most vulnerable populations, from potential risks from discarded hazardous secondary materials. Environmental protection and economic well

- being are both achievable goals, but that cost savings cannot be accomplished at the expense of protecting human health and the environment. EPA has carefully considered all comments and has made changes to the 2011 DSW proposal to both encourage legitimate recycling and achieve protecti on of human health and the environment from potential risks posed by discarded materials. (Comments on specific provisions of the 2011 DSW proposal are addressed in the relevant sections of this response to comments document.)
(b) COMMENTS : Other commente rs opposed the 2011 DSW proposal

. T hey argued that the proposal did not do enough to protect human health and the environment from hazardous waste recycling, particularly minority and low

- income populations. [0033, 0215, 0236, 0244, TRANS

IL

- 0002, TRANS

- PA

- 0005, TRANS

- IL

- 0010]
(b) RESPONSE : The 2014 DSW rule includes specific provisions designed to protect communities potentially affected by recycling of hazardous secondary materials, including requiring that off

- site recyclers have a RCRA permit or a verified recycler variance. (Comments on specific provisions of the 2011 DSW proposal are addressed in the relevant sections of this response to comments document.)- 9

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(c) COMMENTS : One commenter stated that the proposed definition of solid waste is inade quate because it does not allow a calculation of percent contamination by weight, that there is no central decision

- tree to determining what tests are needed, and there is no definition of how mixed biological and haza rdous waste should be managed. [0020]
(c) RESPONSE : Comments on the types of sampling and analysis needed to determine if a solid waste is hazardous are outs ide the scope of this proposal.


## 2.0 EPA's Legal Authority to Regulate Recycling

(a) COMMENTS : Many commenters argued that EPA exceeded it s RCRA authority in the 2011 DSW proposal by regulating hazardous secondary materials that have not been discarded. Specifically, EPA has placed on the materials new requirements, including imposing Subtitle C hazardous waste requirements on materials tran sferred to third parties for legitimate reclamation, which were previously excluded, and notification, and recordkeeping and reporting requirements on materials that it has also previously excluded from the universe of RCRA discarded materials. Commenters noted that RCRA 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 agric ultural operations, and from community activities ...’’ (RCRA Section 1004 (27) (emphasis added)). The court first dealt with EPA’s definition of the term “discarded material” in American Mining Congress v. EPA (AMC I). [F. 2d 1177 (D.C. Cir. 1987)] There th e mining and petroleum industries successfully challenged EPA's definition of solid waste where it restricted the use of valuable secondary materials that had been removed from other industrial processes and were then being used as raw materials in a produ ction process. In addressing the Agency's statutory obligations, the court wrote:
“RCRA was enacted, as the Congressional objectives and findings make clear, in an effort to help States deal with the ever

- increasing problem of solid waste disposal by encouraging the search for and use of alternatives to existing methods of disposal (including recycling) and protecting health and the environment by regulating hazardous wastes. To fulfill these purposes, it seems clear that EPA need not regulate "spent" materials that are recycled and reused in an ongoing manufacturing or industrial process. These materials have not yet become part of the waste disposal problem ...” [Id. at 1186.
Comments go on to note that the court draws a clear line to limit the univers e of materials that may be considered solid waste. That holding is clear and unyielding:
Congress clearly and unambiguously expressed its intent that "solid waste" (and therefore EPA's authority) be limited to materials that are "discarded" by virtue of being disposed of, abandoned, or thrown away. [Id. at 1193.]
Commenters stated that the D.C. Circuit’s use of the word "unambiguous" is important. Where the court finds that Congress has unambiguously expressed its intent on an issue before it, the court resolves the issue as Congress intended. If the court finds that Congress has not spoken to the precise issue, it will defer to the Agency's interpretation

-- so long as that Agency- 10

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interpretation is reasonable and consistent with the statutory purpose at hand. [Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 698 (1984).] While the court has made clear that EPA jurisdiction is limited to materials that are “disposed of, abandoned, or thrown away,” commenters stated that the 2011 DSW proposal asser ts that the term “discarded material” extends well beyond the court’s definition.
Many commenters go on to describe two cases that followed on the heels of AMC I that help in defining "discarded." In American Petroleum Institute v. EPA (API I), [906 F.2d 729 (D.C. Cir. 1990)] the Court upheld the Agency's finding that a listed hazardous waste that was part of a mandatory waste treatment plan described by EPA" [Id. at 741.] was indeed a discarded material. In American Mining Congress v. EPA (AMC II) [907 F .2d 1179 (D.C. Cir. 1990)], the court again upheld EPA's designation of a material precipitated out of wastewaters collected in surface impoundments that "may" be reclaimed in the future as discarded. In both cases, the court found the issue of discard to be ambiguous and deferred to the Agency under the Chevron test. Commenters go on to describe the Association of Battery Recyclers v. EPA [208 F3d 1047 (D.C. Cir. 2000)] (ABR), which deals with mineral processing materials and again the Court found them to be unambiguously not discarded. The court repeated its limitation on RCRA's jurisdiction to "discarded material" and, quoting directly from AMC I, defined discarded material as synonymous with material that is "disposed of, abandoned or thrown away." [Id. at 1051.] The ABR court ruling reminded the Agency that the Court's "interpretation of RCRA binds not only this court, but also EPA." [Id. at 1052.]
Commenters claimed that the type of material that the ABR court explicitly excludes from this list of syn onyms is "recycled" material, ["Secondary materials destined for recycling are obviously not of that sort. Rather than throwing these materials away, the producer saves them; rather than abandoning them, the producer reuses them." ABR, supra at 1051.]. Com menters stated that the 2011 DSW proposal makes it clear that EPA considers recycling of a material to be equivalent to, and a subset of, solid waste disposal unless that material is explicitly excluded by another regulatory provision. [40 C.F.R. § 261.2 ( c) states that: "Materials are solid wastes if they are recycled

-- or accumulated, stored, or treated before recycling."] However, commenters stated that the first AMC I quote above makes clear that the recycling of spent materials is not part of the sol id waste disposal problem. Recycling is an alternative to waste disposal, not a subset of it, as it appears in EPA’s regulations. The ABR court indicated its frustration with this continued disconnect. ["EPA nevertheless insists that RCRA may be applied to materials that are not disposed of, abandoned, or thrown away, but are destined for reuse in an

on

- going industrial process." ABR, supra. at 1052.]
The next case discussed in many of the comments is American Petroleum Institute v. EPA [216 F.3d 50 (D.C. Cir. 2000)] (API II), which focused on two streams of materials: oil

- bearing wastewaters and petrochemical recovered oil. In the former case, the dispute revolved around whether primary treatment of oily wastewater was predominantly a step in recovering th e oil or a step in making the wastewater ready for disposal. The court was willing to defer to EPA, but found no explicit reasoning for EPA's judgment on the issue in the rulemaking. It remanded the "discard" issue to EPA to resolve in a method that was no t arbitrary. In the second case, it found EPA's reasoning that conditions were necessary to avoid “sham recycling” of petrochemical recovered oil to be sufficiently clear and deferred to the Agency's judgment that it was discarded.- 11

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Commenters stated that, based on the 2011 DSW Proposal, that EPA is disregarding the limits of its RCRA authority as articulated by the court since AMC I by proposing to regulate under Subtitle C hazardous secondary materials (i.e., spent materials, listed byproducts, and listed sludges) transferred to third parties for legitimate reclamation, which are the same materials and transfers that EPA previously determined do not involve “discard” and therefore are conditionally excluded from RCRA.

Commenters noted that the Court in Sa fe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003), addressed transfers of materials between generators and third party recyclers. In this case, the Agency sought to exclude from the definition of “solid waste,” material being reclaimed outside the industry that generated it. Petitioners argued that AMC I and ABR limited the definition of “discarded material” such that recyclable material transferred to another firm or industry for recycling must always be viewed as discarded. The court rejected this argument holding:

“Petitioners have misread our cases. We have held that the term “discarded” cannot encompass materials that “are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.” (AMC I and ABR c itations omitted). We have also held that materials destined for future recycling by another industry may (emphasis in the original) be considered “discarded”; the statutory definition does not preclude application of RCRA to such materials if they can rea sonably be considered part of the solid waste problem. (API I and AMC II citations omitted). But we have never held that RCRA compels the conclusion that material destined for recycling in another industry is necessarily “discarded.” Although ordinary lang uage seems inconsistent with treating immediate reuse within an industry’s ongoing industrial process as a “discard,” (AMC I, citation omitted) the converse is not true. As firms have ample reasons to avoid complete vertical integration, (citation omitted) firm

- to

- firm transfers are hardly good indicia of a “discard” as the term is ordinarily understood.”
Commenters argued that in order to harmonize its regulations with the AMC I and ABR holdings, EPA must exclude from the definition of solid waste all non

- discarded secondary materials that are being legitimately recycled. It can only do this by revising its definition of “discarded material” at 40 C.F.R. §261.2(a)(2) to mirror the holding of the court, i.e., “discarded material” is material that is "dispos ed of, abandoned or thrown away." [0104
, 0111
, 0113
, 0115
, 0125
, 0133
, 0154
, 0168, 0169
, 0171
, 0175
, 0 177 , 0183
, 0186
, 0193
, 0196
, 0198
, 0199
, 0201
, 0202
, 0205
, 0208, 0211
, 0219
, 0236
, 0238
, 0242
, 0252, 0255
, 0260
, 0266
, 0277
, 0283
, 0317
, 0340
, 0350
, 0355
, 0359
, 0361
, 0363
, 0366, IL

- 0011]
(a) RESPONSE : EPA’s response to these general legal comments are discussed below and in the rulemaking record. As a general matter, the Agency disagrees that it is regulating as wastes materials that have not been discard ed.
EPA disagrees with comments asserting that hazardous secondary materials that are legitimately recycled are never discarded. Recycling, by itself, cannot be used to determine whether a material is a solid waste or a hazardous waste and, conversely, t he Agency in no way equates all recycling with discard. EPA, in this final 2014 DSW rule, has struck a balance among the- 12

-

various principles
, expressed in cases described by the commenters and the Agency in the rulemaking record (further discussed by EPA in the preamble to the 2011 DSW proposal and 2014 DSW final rule and, below, in this response), to appropriately identify when recyclable hazardous secondary materials are solid waste

. EPA’s decisions based on these principles are provided in the rulemaking record as are the legal basis for the decisions. The basic discussion of the legal underpinning of this rule is described in the rulemaking record and, below, in this response. The ultimate point of this rulemaking is to allow determinations as to which ma terials are “disposed of, abandoned, or thrown away.”

It is useful to note that both materials that have been discarded and materials that have not been discarded may be legitimately recycled. The final rule regulations, to the extent they exclude materi als from the definition of solid waste, deal with secondary materials that are not discarded in the first instance and are recycled by being reclaimed. EPA has determined that various restrictions and conditions are needed to assure that these materials ar e not discarded. The sections of the rulemaking record discussing these restrictions and conditions provide the reasons why these restrictions and conditions are needed. However, discarded materials that are, therefore, solid wastes, and are also hazardous wastes by virtue of their effects on human health or the environment, may also be recycled. Recycling of hazardous wastes must be legitimate, but also must comply with applicable RCRA Subtitle C regulations.
Ultimately, the comments described above badly misread RCRA in claiming that recycling may not be regulated under RCRA. The RCRA statute and the legislative history state that Congress expected EPA to regulate as solid and hazardous wastes certain materials that are destined for recycling (see 45 FR 33091, citing numerous sections of the statute and U.S. Brewers' Association v. EPA, 600 F. 2d 974 (D.C. Cir. 1979); 48 FR 14502

- 04, April 3, 1983; and 50 FR 616

- 618). Moreover, the case law clearly shows instances where EPA properly regulated the recy cling of solid and hazardous wastes.
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 (45 FR 33090

- 95, May 19, 1980; 50 FR 604

- 656, Jan. 4, 1985 (see in particular pages 616

- 618)). EPA has offered three arguments in support of this approach:
(1) The statute and the legislative history suggest that Congres s expected EPA to regulate as solid and hazardous wastes certain materials that are destined for recycling (see 45 FR 33091, citing numerous sections of the statute and U.S. Brewers' Association v. EPA, 600 F. 2d 974 (D.C. Cir. 1979); 48 FR 14502

- 04, April 3, 1983; and 50 FR 616

- 618).
(2) 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 dispos al. In fact, EPA 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 sub stantial- 13

- endangerment authority, and in 20 of the initial sites listed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (48 FR 14474, April 4, 1983). Congress also cited some damage cases which involve recycling. (H.R . Rep. 94

- 1491, 94th Cong., 2d Sess., at 17, 18, 22). More recent data (i.e., information on damage incidents occurring after 1982) included in the rulemaking docket for today's final rule corroborate the fact that recycling operations can result in signif icant damage incidents.
(3) Unconditionally excluding all hazardous secondary materials claimed to be destined for recycling would allow materials to move in and out of the hazardous waste management system depending on what any person handling the haza rdous secondary material intended to do with them. This is inconsistent with the mandate to track hazardous wastes and control them from "cradle to grave."
Hence, RCRA confers jurisdiction over at least certain hazardous secondary materials destined for recycling.
EPA has always asserted that hazardous secondary materials are not excluded from its jurisdiction simply because someone claims that they will be recycled. EPA has consistently considered hazardous secondary materials destined for "sham recycl ing" to be discarded and, hence, to be solid wastes for Subtitle C purposes (see 45 FR 33093, May 19, 1980; 50 FR 638

- 39, Jan. 4, 1985). The U.S. Court of Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded and, c onsequently, are solid wastes under RCRA (see American Petroleum Institute v. EPA, 216 F.3d 50, 58

- 59 (D.C.Cir. 2000)).
EPA, under RCRA, only has jurisdiction over material that can be defined as a solid waste, which under RCRA § 1004(27) means ". . . a ny garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material, resulting from industrial, commercial, mining, and agricultural operations, and from community activities. . . ." 42 U.S.C. § 6903(27)
This definition turns on the meaning of the phrase, "other discarded material," which is the term that encompasses all other examples provided in the definiti on. The courts have focused on this term in deciding whether EPA has properly considered a material a solid waste.
The basic formulation of what constitutes a solid waste under RCRA is provided in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"), where the court noted that the ordinary plain

- English meaning of the term discarded means "disposed of," "thrown away," or "abandoned." The court rejected the more expansive meaning, advocated by EPA at the time, that discard under RCRA w ould encompass any materials "no longer useful in their original capacity" even if they were not destined for disposal. 824 F.2d at 1185

- 87. If these materials do not become part of the waste disposal problem (i.e., they are not discarded), they are not so lid wastes. Id.- 14

-

Because certain materials destined for recycling are saved and reused by the producer, rather than thrown away or abandoned, the court set aside an EPA rule regulating secondary "materials reused within an ongoing industrial process." 824 F.2d at 1182. This formulation was reiterated and confirmed in Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1052 (D.C. Cir. 2000) ("ABR"), as well as in American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000) ("API II"). The plain

- English meaning of the term, "discard," thus provides the operable jurisdictional standard for determining whether a material is a solid waste and the D.C. Circuit, which is the primary court that deals with these issues, has been very clear that EPA need s to show that materials are discarded to consider them solid wastes.

Thus, m ost importantly, the holding in AMC I is that the Agency's regulations were too broad because they regulated materials that are clearly not solid wastes because they are not "di scarded" within the ordinary meaning of the term, which is "disposed of," "abandoned," or "thrown away." There is no further holding in that case, although some statements by the court are useful for defining solid waste.
By example the court referred to material reclaimed in a continuous process within a generating industry to show that EPA's regulations were too broad. These materials are outside of EPA's jurisdiction. However, and this is critical, AMC I did not provide any general framework to determi ne when materials would be solid wastes, nor did the court provide any specific examples of how to determine whether recycled materials are wastes or not, even though the court did note that certain waste materials could be recycled

- used oil that is disc arded and material that is recycled as part of a waste management p rogram.
In fact, as discussed below, when industry attempted in the subsequent API II case to make the argument that the AMC I case had declared a particular material to be not discarded, the Court rejected the argument in no uncertain terms. See API II at 216 F.3d at 56 (citing AMC I and ABR

-- "we did not address the discard status of any of the particular materials discussed in the briefs;" "all we can say with certainty is that at least some of the secondary material EPA seeks to regulate" is not discarded).
EPA wishes, at this point, to disabuse persons who comment on definition of solid waste rules of the notion that there is a magical meaning to the terms "unambiguous" or "ambiguous ." The D.C. Circuit said as much in ABR by its statement that "[a] term may be ambiguous as applied to some situations, but not as applied to others." ABR 208 F.3d at 1056. While the court in AMC I noted that Congress unambiguously expressed its intent to give EPA jurisdiction only over materials that are "discarded" (AMC I, 842 F.2d at 1190), the court does not provide guidance as to how to determine whether any particular material is in fact discarded. Thus, commenters would do well to put discussion of " ambiguity" aside, as EPA has also.
Subsequent to AMC I, the Court of Appeals had the opportunity to clarify the meaning of discard. In American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990) ("API I"), plaintiffs challenged EPA's decision not to regulate zinc

- bearing slag generated from air pollution control equipment in steel industry electric furnaces that was subsequently transported to a metals reclamation facility. EPA reasoned that the waste "ceases to be a 'solid waste' when it arrives a t a metals reclamation facility because at that point it is no longer 'discarded material.'"- 15

-

906 F.2d at 740. The Agency concluded, based almost entirely on the Court's decision in AMC I, that RCRA leaves it no choice but to disclaim regulatory authority o ver the recycled slag, even though the material was clearly discarded when it came out of the electric furnace. Id. The court, however, found that "Congress has not spoken precisely on the question of EPA's authority to regulate the slag." 906 F.2d at 741. Because EPA improperly decided it had no discretion to cover the recycled slag, the court remanded the rule to the Agency. Id.
The court rejected EPA's position that it was precluded from regulating the slag as a solid waste when it arrived at the metal s reclamation facility. 906 F.2d at 741. In fact, the court opined that it is at least an equally plausible interpretation of the statute that the slag remains discarded throughout the process. 906 F.2d at 740. The court distinguished AMC I because, unlike the materials in that case which were part of an ongoing industrial process, the materials in API I were part of a mandatory waste treatment plan for hazardous wastes prescribed by EPA. 906 F.2d at 741.
Nevertheless, there are other court pronouncements that suggest certain limitations on EPA's ability to define what is and what isn’t a solid waste. For example, the API I opinion specifically rejected the argument made by interveners in the lawsuit that EPA could not regulate the recycling of the slag be cause treatment at the smelter "results in the production of something of value, namely, reclaimed metals." 906 F.2d at 741 n.16 (citing AMC I for the fact that discarded oil sold for value may be regulated as a waste). The court, thus, rejects a reading o f RCRA that says a material is not a waste simply because the material has value. Wastes can have value. See also United States v. ILCO Inc., 996 F.2d 1126, 1131 (11th Cir. 1993) discussed below. In American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir . 1990) ("AMC II"), industry groups challenged EPA's authority to regulate three hazardous waste sludges from copper, lead and zinc production that the Agency had listed. See 907 F.2d at 1183. Petitioners argued that these materials are "beneficially reuse d in mineral processing operations." 907 F.2d at 1185. They claime d that these wastewater sludges stored in surface impoundments "may at some time in the future be reclaimed" and, therefore, are not discarded. 906 F.2d at 1186. The agency, however, conclud ed that, because these sludges are the product of wastewater and are stored in impoundments that threaten harm, these materials are discarded. 906 F.2d at 1187.
As in API I, the court determined that Congress had not spoken to the precise question at iss ue, so the Court had to decide whether the EPA's interpretation of discard was reasonable and consistent with the statute. 907 F.2d at 1186

- 87. The Court, accordingly, deferred to EPA's expert judgment that this secondary material that "may" in the future be reclaimed was discarded. 907 F.2d at 1186. In fact, the court noted that "API explicitly rejected the very claim that petitio ners assert in this case,... that under RCRA, potential reuse of a material prevents the agency from classifying it as 'discarded.' " Id. The Court could find nothing in the statute or legislative history to show that the meaning of the term discard was "any less ambiguous regarding sludges stored in surface impoundments than it was regarding the materials at issue" in API I, and reje cted the applicability of AMC I because in that case the materials were "destined for beneficial reuse or recycling in a continuous process by the generating industry itself" and, thus, were not discarded. Id.- 16

-

The point that a material does not cease to be a waste solely because it has value is supported by United States v. ILCO Inc., 996 F.2d 1126 (11th Cir. 1993). In ILCO, an enforcement case against a lead smelter that recycled car and truck batteries to produce lead ingot product for sale, the issue w as whether lead components of the batteries recycled by the smelter were solid wastes. Clearly, the lead ingots were products and not wastes, but the issue was whether the recycled components were solid wastes because they were discarded previously. If the components were solid wastes, they would be subject to RCRA regulation as hazardous wastes (because of the lead constituent) and the waste materials from the smelter would be hazardous wastes. The court found that the batteries and their components were s olid wastes (and hazardous wastes) because they were discarded "within the everyday sense of the word" as noted in AMC I and their "character as recyclable material is irrelevant to that determination." 996 F.2d at 1132.

As in the case of API I and AMC I I, the Court found that Congress had not spoken to the precise question at issue. 996 F.2d at 1130. The Court found that EPA had reasonably construed recycled batteries to be solid waste because they had been previously discarded. 996 F.2d at 1131. However , the fact that the materials are solid wastes by virtue of having been discarded "does not change just because a reclaimer has purchased or finds value in the components." Id. Again, consistent with API I and AMC II the Court stated,

"Were we to rule oth

erwise, waste such as these batteries would arguably be exempt from regulation under RCRA merely because they are potentially recyclable. Previously discarded solid waste, although it may at some point be recycled, nonetheless remains solid waste." [Id]

O wen Steel v. Browner, 37 F.3d 146 (4th Cir. 1994), was another case in which the court deferred to EPA's determination that certain material is a solid waste under RCRA and, as in ILCO, found that subsequent recycling did not "divest EPA of jurisdiction." 37 F.3d at 150 n.4 (noting that in ILCO "once the batteries were discarded, . . . subsequent treatment is irrelevant."). At Owen Steel's plant, certain materials were used in the steel

- making process but afterwards floated to the surface of the molten meta l and were removed. 37 F.3d at 147. This "slag" then underwent a six month "curing" process in which it was placed in holding bays, lay on bare soil for tempering and weathering, underwent changes where its bulk increased substantially, became stable and, as a result, became amenable for use as a construction aggregate. Id. The material was sold for use as a road base material and other commercial construction purposes. The court found that, because the material was not "immediately" recycled, as the materi al of concern in AMC I, but sat for six months before it was sold to another party, EPA did not abuse its discretion in finding the material was discarded. 37 F.3d at 150.
The next significant RCRA definition of solid waste case was Association of Batter y Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) ("ABR"). This case was a review of an EPA rule covering residual or secondary materials generated in mining and mineral processing operations. Under EPA's rule, if materials were properly stored under cond itions imposed by EPA, they could be recycled without being considered solid wastes (and also hazardous wastes). 203 F.3d at 1051. Industry petitioners claimed EPA exceeded its statutory authority because the rule said that secondary material held for recy cling in production is a waste. Id. The court held that EPA's rule violated the principles expressed in AMC I because the manner of storage imposed by the rule- 17

-

resulted in regulating materials that were reclaimed within a continuous industrial process. 203 F.3d at 1053

- 4.
The value of ABR for our purposes is that it reviewed the previous definition of solid waste

cases. 203 F.3d at 1054

- 6. The court clarified the point that AMC I recognizes EPA authority over "discarded" materials, such as discarded used oil, but emphasized that EPA goes beyond its authority when it covers material that is "undiscarded," such as oil not discarded at petroleum refineries. 203 F.3d at 1054

- 5. The court did not opine on whether there could be "undiscarded" used oil sold by on

e entity to another.
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). It is this latter quotation that shows where the comments are incorrect. The D.C. Circuit in no sense under the ABR decision ever said that any particular recycling, and certainly not all recycling, makes a material a solid waste or not. The fact of the matter is that the court was extremely disappointed in both industry and government arguments that presented "this aspect of the case in broad abstraction, providing little detail about the many processes throughout the industry that generate residual material of the sort EPA is attempting to regulate under RCRA." ABR 208 F.3d at 1056. Cases should not be cited for br oader propositions than they actually stand for. The fact of the matter is that recycled material may or may not be waste. This
, the court has made very clear. No particular material may be considered a waste, or not, based on the ABR decision. Recycling may be an alternative to waste disposal for materials not discarded, but recycling of discarded materials is, indeed, part of the disposal problem.
As mentioned above, the ABR court also noted that the term, discard, "may be ambiguous as applied to some situations, but not as applied to others." 203 F.3d at 1056. This indicates that EPA needs to exercise its discretion with care. The court expressed its concern that the rule in ABR was essentially too broad. Storage conditions imposed clearly would result in regulation of material that is part of a continuous process as in AMC I. However, other materials would be properly regulated because they were more like the materials in AMC II

- abandoned or thrown away. 203 F.3d at 1056.
The court also distinguish ed AMC II and API I by stating that the point of those cases ". . . is that once material qualifies as "solid waste," [footnote omitted] something derived from it retains that designation even if it might be reclaimed and reused at some future time. In co ntrast, the [rule at issue in ABR] seeks to regulate materials that are not a by

- product of solid waste, but a direct byproduct of industrial processes." 203 F.3d at 1056.
American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000) ("API II"), decided shortly after ABR and considered by the court at the same time, provides further guidance for defining solid waste but in the context of two specific waste streams in the petroleum refining industry. Thus, the principles of defining solid waste her e have a more concrete application. In API II, EPA issued a rule that stated oil

- bearing wastewaters are solid waste (and hazardous waste) under RCRA and that recovered oil from petrochemical facilities is excluded from the- 18

-

definition of solid waste only w hen specified conditions are met. 216 F.3d at 55. The court overturned EPA's determination on the oil bearing wastewaters, 216 F.3d at 55

- 58, and upheld the petrochemical recovered oil exclusion, 216 F.3d at 58

- 59.

For the oil

- bearing wastewaters, EPA ha d determined that the first phase of treatment, primary treatment, results in a waste being created. 216 F.3d at 55. This phase removes certain materials from the wastewaters, including the oil in them. This treatment meets regulatory requirements that was tewaters must not have oil in them when discharged but also allows refineries to recover oil, which is cycled back into the refinery production process.
Industry petitioners claimed discard did not happen until after primary treatment when the oil had be en recovered. EPA found discard occurred before primary treatment. No one disputed discard at later treatment phases. EPA argued that the oil recovered from the wastewater is insignificant, that removal of the oil was mandated by regulation and therefore, wastewater treatment is the main purpose of the systems in question, not oil recovery. Id.
The court reviewed all the previous cases and explained how they were all consistent for the basic reasons noted above. 213 F.3d at 55

- 57. The court noted that the ultimate determination that had to be made was whether primary treatment is "simply a step in the act of discarding? Or is it the last step in a production process before discard?" 213 F.3d at 57. The prior cases did not draw a line for deciding when disc ard has occurred because they had only drawn broad principles or dealt with materials that were either clearly discarded (as determined by EPA within its discretion) or clearly not discarded. Id.
The API II court stated that AMC I only held that in

- proce ss secondary materials are not discarded and rejected industry arguments that AMC I decided that oil

- bearing wastewaters were not wastes because industry had argued that point in their AMC I briefs. 213 F.3d at 56. The court was clear that AMC I did not ad dress the discard status of any of the particular materials discussed in the briefs. The API II court also noted that industry had argued that primary treatment yields valuable oil and that oil recovery operations were common long before regulations requir ed oil removal from wastewaters. 213 F.3d. at 56

- 57.
The court found that EPA had not engaged in reasoned decision

- making in its determination that primary treatment is a waste process. To the Agency's argument that primary treatment only recovers a smal

l amount of oil compared to refinery output, the court noted the oil "is still valuable and usable, so that reason alone cannot show discard." 213 F.3d at 57. The court noted that diamonds are only a small portion of mine output and that industry claimed t hat it could recover up to 1,000 barrels of oil a day in primary treatment and, thus, EPA needed more explanation than only the small relative amount of recovered oil to consider it discarded. Id. To EPA's argument that oil needs to be removed by regulation before discharge, the court still noted that the Agency had not explained why it "concluded that the compliance motivation predominates over the reclamation motivation." 213 F.3d at 58. Thus, the court vacated EPA's decision not to exclude oil

- b earing wastewaters from the definition of solid waste and remanded that portion of the rule for more reasoned decision

- making.- 19

-

The API II court next dealt with petrochemical recovered oil. 213 F.3d at 58

- 59. Petrochemical manufacturers use petroleum prod ucts to produce other products, such as organic chemicals, in processes that may not use all the oil and, therefore, result in residuals known as "petrochemical recovered oil," which can be reinserted into the petroleum refining process. 213 F.3d at 58. EP A's regulation excluded the petrochemical recovered oil from the definition of solid waste, as long as the oil was not adulterated with non

- refinable hazardous materials and imposed temporal conditions such as a requirement that the oil not be speculativel y accumulated. 213 F.3d at 58

- 59. Failure to meet these requirements would indicate that the recycling was really a sham

- an act of discard and not recycling of a valuable product. Id. On the other hand, EPA allowed the petrochemical recovered oil to exhi bit various hazardous characteristics

- such as ignitability or toxicity for the presence of benzene because, even though these properties indicate hazards, these properties are "typical of or very similar to basic petroleum refining feedstocks." 213 F.3d at 58.
As one might expect, industry persisted in arguing that "EPA has no authority to regulate any petrochemical recovered oil under any circumstances" since this material is not discarded. Id. As may be further expected, the court summarily rejected t his argument and came out in favor of EPA, saying that the Agency is "correct that abandoning a material is discarding even if labeled recycling. . . . " and the rule was upheld "precisely because it is meant to regulate only discarded materials." 213 F.3d at 59. "Speculatively accumulated recovered oil is a clear example of a condition imposed under the exclusion which shows that some petrochemical recovered oil can indeed be considered as discarded." Id. Further, the court upheld the rule in the face of t he fact that, even if it "incidentally" regulated non

- discarded material, a company could show that in a specific case, materials in the recovered oil "are not a product of adulteration, not discarded," and thus, not solid wastes. Id.

Note that the reaso ning in API II, in addition to being consistent with previous cases, does not make a distinction between materials recycled on site or within a company, and materials transferred between companies. Whether material is recycled within a company (oil

- bearing wastewaters) or between companies (petrochemical recovered oil), the relevant inquiry is still whether the material was discarded in the first instance.

The next time the D.C. Circuit considered whether material is discarded was in Safe Food and Fertili zer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) ("Safe Food"). This was a challenge to an EPA rule that excluded from the definition of solid waste certain recycled materials used to make zinc fertilizers and the fertilizers themselves as long as they were not speculatively accumulated and met certain handling, storage and reporting conditions and as long as the fertilizers had concentration levels for certain chemicals that fall below specified thresholds. 350 F.3d at 1265. If these conditions are met, the recy cled materials have not been discarded.

These conditions apply to a number of materials not produced in the fertilizer production industry, including electric arc furnace dust generated in steel production. 350 F.2d at 1266. The court rejected the argument that, as a matter of plain meaning, recycled material destined for immediate reuse within an ongoing industrial process is never considered "discarded," whereas material that is transferred to another firm or industry for subsequent recycling must always be solid wastes. 350 F.3d at 1268.- 20

-

As with previous cases, the court evaluated "whether the agency's interpretation of ... 'discarded' . . . is, reasonable and consistent with the statutory purpose. . . ." Id. However, in this case, the court eva luated the validity of EPA's explanation that market participants treat the exempted materials more like valuable products than like negatively

- valued wastes, manage them in ways inconsistent with discard, and that the fertilizers derived from these recycl ed feedstocks are chemically indistinguishable from analogous commercial products made from virgin materials. Id.
The court specifically 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." Id. The market participation theory was not challenged. Thus, it left open the question of whether market participation could, by itself, lead to classification of a material as not being a solid waste. The court only det ermined whether the combination of market participation and "identity" is enough to establish that the recycled fertilizers are not discarded, even when used on the land. The court found that this was a reasonable interpretation of the statute. Id. Much of the Safe Food opinion discusses EPA's particular analyses regarding whether EPA's specific chemical contaminant levels in the recycled products are "identical" to the levels in products made with virgin materials. 350 F.3d at 1269

- 72.
EPA's reasoning wa s that market participants, consistent with the EPA required conditions in the rule, would treat the exempted materials mo re like valuable products than negatively

- valued wastes and, thus, would manage them in ways inconsistent with discard. In addition, t he 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 mater ials in ways inconsistent with discard, and the fact that the levels of contaminants in the recycled fertilizers were "identical" to the fertilizers made with virgin raw materials. The Court held that this interpretation of "discard" was reasonable and con sistent with the statutory purpose. The Court noted that the identity principle was defensible in this case because the differences in health and environmental risks between the two types of fertilizers are so slight as to be substantively meaningless.

H owever, the Court specifically 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 mark et participants' treatment of the materials, EPA required management standards, and the "identity principle" are a reasonable set of tools to establish that the recycled hazardous secondary materials and fertilizers made from such materials are not discard ed. In addition, the Court noted that "materials destined for future recycling by another industry may be considered 'discarded' “(350 F.3d at 1268).
EPA's record for today's rulemaking demonstrates that third

- party recycling of hazardous secondary materi

als may, indeed, be discarded and, therefore, may continue to be part of the waste disposal problem. Without the conditions being finalized today, these hazardous secondary materials would be solid wastes. Of the 250 damage cases in EPA's study of environm ental problems associated with post

- RCRA, post

- CERCLA hazardous secondary materials recycling, 94% appeared to take place at off

- site facilities. Moreover, EPA's study of how market forces- 21

-

impact recycling demonstrates that these damages are consistent wit h our understanding of how the business model for commercial recycling can lead to sub

- optimal results. As opposed to manufacturing, where the cost of inputs, either raw materials or intermediates, is greater than zero and revenue is from the sale of the p roduct (i.e., output), recycling conducted by commercial hazardous secondary materials recyclers involves generating revenue primarily from receipt of the hazardous secondary materials, as well as from the sale of output. Recyclers of hazardous secondary m

aterials in this situation can have a short

- term incentive to accept more hazardous secondary materials than they can economically or safely recycle, resulting in the hazardous secondary materials eventually being discarded.
(b) COMMENTS : Several commente rs disagreed with EPA’s statement in the 2011 DSW proposal that “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.” 76 Fed. Reg. at 44108 Commenters argued that t his statement contradicts the D.C. Circuit’s analysis of the RCRA definition of solid waste and the types of criteria that can be used to det ermine whether a material has been discarded.
Specifically, commenters noted that in Safe Food and Fertilizer, the D.C. Circuit addressed this argument by the petitioners in the case that “material that is transferred to another firm or industry for subseq uent recycling” is discarded and subject to RCRA regulation. 350 F.3d 1263, 1268 (D.C. Cir. 2003). The court reviewed its earlier cases, namely AMC

- II and API

- I, and determined that “we have ... held that materials destined for future recycling by another in dustry may be considered ‘discarded’; the statutory definition does not preclude application of RCRA to such materials if they can reasonably be considered part of the waste disposal pro blem.” Id. The court continued:

“ [W]e have never said that RCRA compel s the conclusion that material destined for recycling in another industry is necessarily ‘discarded.’ .... Although ordinary language seems inconsistent with treating immediate reuse within an industry’s ongoing industrial process as a ‘discard’ ... the conver se is not true. As firms have ample reasons to avoid complete vertical integration ... firm

- to

- firm transfers are hardly good indicia of a ‘discard’ as the term is ordinarily understood. ” Id.

Commenters stated that t

he court simply found that transfers betw een companies were irrelevant for determining whether a recycled material was properly viewed as a solid waste subject to hazardous waste regulation. If a secondary material is deemed to be a solid waste, it must be on the basis of relevant factors indicat ing that t he material has been discarded. Intercompany transfer of materials

— an ordinary and necessary element of commerce

— is not a relevant factor according to the commenters about the reasoni ng of Safe Food and Fertilizer.

Commenters noted that EPA stat es in its discussion of the history of the solid waste rule that decisions of the D.C. Circuit “indicate that some materials destined for recycling may be considered ‘discarded.’” Id. at 44098. This assertion mirrors a statement in Safe Food and Fertilizer in which the court noted that “materials destined for future recycling by another industry may be considered ‘discarded.’” 350 F.3d at 1268

. However, commenters argued that- 22

-

EPA misreads those cases. As noted above, Safe Food and Fertilizer unambiguously s tates that “firm

- to

- firm transfers are hardly good indicia of a ‘discard’ as the term is ordinarily understood.” 350 F.3d at 1268.
Commenters concluded that, p rovided hazardous secondary materials are recycled in a manner consistent with EPA’s legitimacy criteria, they have not been discarded and are not part of the waste disposal problem, and that E PA’s reliance on third

- party transfer as a de facto determining factor for when a hazardous secondary material is discarded improperly extends the Agency’s RCR A jurisdiction to materials that have not been discarded and are thus not solid wastes. [0115
, 0125
, 0 133, 0171
, 0183
, 0186
, 0201
, 0202
, 0277 ]
(b) RESPONSE : Comments specific to EPA’s proposed withdrawal of the transfer

- based exclusion are addressed in Section 4 of this response to comments document and in the entire rulemaking record, which includes the various preambles to the proposed and final rules. However, in r esponse to commenters’ specific legal argument that the transfer of hazardous secondary material to third

- party recyclers is an “irrelevant” consideration in determining whether the hazardous secondary material is a solid waste, EPA strongly disagrees. In making this argument, commenters misread both EPA’s language and that of the court.
In taking issue with EPA’s statement in the 2011 DSW preamble that “it is reasonable to conclude that transfers of hazardous secondary materials to third

- party recyclers ge nerally involve discard except for instances where EPA has promulgated a case

- specific exclusion that a hazardous secondary material is not a solid waste,” commenters not only take this quote out of context, they also blithely ignore every word in the quot e except the word “transfers.” When examined in context, it becomes clear that EPA’s statement is entirely consistent with case law.
First, there is the fact that EPA’s statement only applies to hazardous secondary materials, which, by definition, are chem ically and physically indistinguishable from haz ardous wastes. [40 CFR 260.10 Hazardous secondary material means a secondary material (e.g., spent material, by

product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter.] As EPA notes in the 2011 DSW proposal, “[b]ecause of the low commercial value and the high potential liability associated with most types of ha zardous secondary materials... generators will typically pay the reclamation facility to accept th ese 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 material and the entity receiving such materials may not have the same incentive to management them as a useful product.” (76 FR 44108) This is reiterated in Section VI.B. of the preamble to the 2014 DSW final rule.
Which raises a second point ignored by the commenters, which is that EPA’s sta tement is specific to hazardous secondary materials sent to third

- party recyclers

. The 2011 DSW proposal goes on to differentiate transfers to third

- party recyclers from other types of transfers in

commerce. “

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 mat erials. Recyclers of hazardous secondary materials in this- 23

-

situation may thus respond differently from traditional manufacturers to economic forces and incentives, accumulating more inputs (hazardous secondary materials) than can be processed (reclaimed). In addition, commercial recyclers have less flexibility than in

- house recyclers in changing how they manage their hazardous secondary materials (e.g., during price fluctuations, in

- house recyclers can more easily switch from recycling to disposal or from r ecycled inputs to virgin inputs, while commercial recyclers cannot switch to disposal without obtaining a RCRA permit) .” (76 FR 44108) As the 2011 DSW proposal also notes, the results of these backwards economic incentives can be seen in the DSW damage cas e study. “ Of the 208 damage cases discussed in the 2008 DSW final rule, 195 (or approximately 94%) were from reclamation activities of off

- site third

- party recyclers, with clear instances of discard resulting in risk to human health and the environment, in cluding cases of large

- scale soil and ground water contamination with remediation costs in some instances in the tens of millions of dollars .” (76 FR 44108) EPA has confirmed these findings in Section VI.B of the preamble to today’s final rule.

That is not to say that all cases of third

- party hazardous secondary material recycling must involve discard. The 2011 DSW proposal is also clear on that point, noting that some types of hazardous secondary material recycling are more like managing valuable commodities than solid waste, and that the act of transferring to a third

- party does not automatically involve discard. (76 FR 44110) Many of the solid waste exclusions in 40 CFR 261.4(a), including the fertilizer exclusion upheld in Safe Food , involve the se types of transfers, and, as is discussed in Sections 4 and 9 in this response to comment document, EPA is finalizing additional exclusions for verified recyclers and for certain types of re

- manufacturing.
However, that does not change the fact that, as noted in the 2011 DSW proposal and confirmed in Section VI.C of the preamble to today’s DSW final rule, “[b] efore excluding materials that have already been determined to be hazardous wastes, the Agency needs adequate assurance that the conditional exclusi

on 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). ” (76 FR 44109). Given the phy sical and chemical nature of hazardous secondary materials, the economic forces that apply to third

party recyclers, and the evidence of the recycling damage cases, where the overwhelming majority include third

- party recycling, EPA's authority to regulate such transfers is clear: as the Court noted in Safe Food , "materials destined for future recycling by another industry may be considered 'discarded'; the statutory definition does not preclude application of RCRA to such materials if they can reasonably be considered part of the waste disposal problem" (350 F.3d at 1268).
(c ) COMMENTS : One commenter stated that EPA does not have the authority to protect human health and the environment from the mismanagement of hazardous secondary materials, because such a goal would assert RCRA jurisdiction over secondary materials in general, not just those that are discarded. The commenter noted that tens to hundreds of thousands of products ranging from gasoline to household chemicals to pharmaceuticals can pose risks t o human health and the environment if discarded and mismanaged, and went on to say that EPA lacks RCRA jurisdiction over these materials because they are not discarded and not wastes; the fact that at some point in- 24

-

their life cycle they could potentially b e mismanaged and discarded does not create RCRA jurisdiction over them. [111 ]
(c) RESPONSE : EPA disagrees with this comment. EPA has not said that any product that could be mismanaged is discarded, but rather has focused on hazardous s econdary materials (e .g., spent material, by

- product, or sludge, see 40 CFR 260.10) going to be reclaimed (see 40 CFR 261.1(c)(4)). In other words, the materials subject to this rule are not themselves products, but come from industrial processes that produce another material as a product, or are otherwise not able to be directly sold as a product. The issue is to determine whether conditions under which these secondary materials are recycled makes them more product

- like than waste

- like. As discussed in more detail above in Sec tion 2(b), this type of recycling activity has different types of economic incentives than other types of manufacturing, increasing the likelihood that the hazardous secondary materials will be over

- accumulated, mismanaged and abandoned. This is also refle cted in the recycling damage cases, where, as EPA noted in the 2011 DSW proposal and confirmed in Sections IIID and VIB of the preamble to this DSW final rule,
“[T] he 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

rem oval 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 abandone d 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 (includi ng 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 f rom the mismanagement of recyclable hazardous secondary materials, while mismanagement of recycling residuals was the primary cause in 71 cases (34%). Often, in the case of mismanagement of recycling residuals, reclamation processes generated residuals in which the toxic components of the recycled materials were separated from the non

- toxic components, and these portions of the hazardous secondary material were then mismanaged and discarded. Examples of this include a number of drum reconditioning facilitie s, 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. ” (76 FR 44109

- 10)
In other words, the pa ttern of mismanagement confirms the fact that the hazardous secondary materials have been discarded.
Moreover, EPA needs to be especially vigilant regarding these types of hazardous secondary materials because, in many cases, the underlying economics of r ecycling can, absent regulation, lead to hazardous secondary materials and residuals being over

- accumulated, mismanaged and- 25

-

abandoned

– in other words, discarded in a way that can pose risk to human health and the environment.
(d) COMMENTS : One commenter argued that EPA lacks legal authority to regulate scrap recycling, including recycling of scrap metal and shredded circuit boards excluded under exclusions in 40 C.F.R. §§ 261(a)(13) and (14) and the exemption in 40 C.F.R. § 261(a)(3)(ii). The commenter no ted that EPA was not accepting comments addressing the substance of any exclusion, and felt this statement was unclear. The commenter stated that by asking for comment on imposing the requirements discussed in Section XIII of the 2011 DSW proposal, EPA was proposing to exercise its Subtitle C authority and impose substantive requirements on recycling activities that do not involve discard. The commenter felt that EPA may be foreclosing those directly affected from commenting and would, thereby, violate Sect ion 553 of the APA which requires an agency to provide a meaningful opportunity for comment. See Nat’l Mining Ass’n v. Mine Safety & Health Admin., 116 Fd 520, 549 (D.C. Cir. 1997) (stating that an agency is required to respond to comments that are relevan t to the agency’s decision and which, if adopted, would require a change in an agency’s proposed rule because they cast doubt on the reasonableness of a position taken by the agency); Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 Fd 1209, 1217 (D.C . Cir. 2004) (holding that the failure to consider an important aspect of the problem was alo ne “dispositive” and required).
The commenter argued that the exclusions in 40 C.F.R. §§ 261(a)(13) and (14) and the exemption in 40 C.F.R. § 261(a)(3)(ii) are co nfirmation that the recycling of scrap metal and shredded circuit boards is excluded from RCRA jurisdiction because there is no discard and, therefore, no waste. The commenter stated that the 2011 DSW proposal converts the current exclusions and exemption into a presumption that recycling of scrap metal and shredded circuit boards is discarded, unless the proposed requirements are met, and must be reported as a hazardous waste activity even if it is intended to be recycled and is not discarded. By imposing regulatory requirements on scrap recycling activities, the commenter stated that the 2011 DSW proposal attempts to extend EPA’s RCRA authority beyond the bounds set by Congress. The commenter noted that Congress’ intent when it amended the “Solid Waste Dis posal Act,” and renamed it the “Resource Conservation and Recovery Act” in 1984, was to reduce the creation of waste by encouraging recycling and recovery, and stated that RCRA Subtitle C does not authorize regulation of scrap recycling activities because scrap is not a waste and recycling is not disposal.
Specifically, the commenter argued that Congress intended to omit scrap from the definition of solid waste based on Congress’ findings at 42 U.S.C. § 6901, which included a reference to “a rising tide of scrap, discarded, and waste materials,” thus clearly recognizing that “scrap” and “waste” are different and that scrap is not waste. To read the statute any other way nullifies the plain and unambiguous language chosen by Congress, not to mention the poli cy choices and context within which this language was crafted.
The commenter argued that further reflecting Congress’ distinction between scrap and waste, the definition of “solid waste” at 42 U.S.C. § 6903 expressly mentions “waste” and “discard” but not “scrap.” That definition states:- 26

-

The term “solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or co ntained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return fl

ows or industrial discharges which are point sources subject to permits under section 1342 of title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C. §§ 2011 et seq.]. 42 U.S.C. § 6903(27).
The commenter stated that it is clear, based on the deliberate distinction among “scrap, discarded, and waste materials” in its findings, that Congress intended to omit “scrap” from the definition of “solid waste.” While the commenter acknowledges that it is true that scrap, if discarded, becomes solid waste, that is no different from the unremarkable proposition that anything and everything such as a toy, furniture, clothes, and even our homes, may well become waste, if someday, it is no longer useful in its “original” product form, and is intended for discard. EPA does not have the authority under RCRA to regulate everything as a waste simply because someday someone might decide to discard it.

The commenter also noted that in the Octob er 2008 response to comment document for the 2008 DSW final rule, EPA noted its disagreement with this reading of the statute.
“EPA disagrees with the comment that Congress intended that “scrap” should never be considered a solid waste. The reference to “ a rising tide of scrap, discarded, and waste materials,” at 42 U.S.C. 6901 is an indication that Congress did consider scrap as a category of materials that may be of concern. While EPA agrees that some types of scrap materials being recycled are not solid wastes, the Agency has already addressed these materials with a specific exclusion at 40 C.F.R. 261(a)(13). (EPA

- HQ

- RCRA

- 2002

- 0031

- 0604) at 30 (Oct. 1, 2008).
The commenter argued that simply because Congress may have been “concern[ed]” about scrap does not mean that Congress intended for scrap to fall within the definition of solid waste as matter of law, regardless of whether it is discarded. Rather, it must be presumed that Congress carefully chose the words it used when defining “solid waste” for purp oses of RCRA, especially in light of the clear distinction that Congress made among “scrap, discarded, and waste materials” elsewhere in the statute, and its paramount intent to encourage recycling. See, e.g., Keene Corp. v. United States, 508 U.S. 200, 20 8 (1993) (“Where Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (citation omitted)). [0208]

A nother commenter claimed that t he EPA cites the Chevron case in support of its contention that it has the legal authority to regulate scrap metal as a solid waste. The commenter stated that EPA's reliance on Chevron is both misplaced and an unsupportable extension of the Court's acknowledgment that certain recycled materials , such as used oil, could be regulated as discarded materials. To extend that holding to conclude that scrap metal generated from the destruction of- 27

-

military equipment is akin to used o ils is beyond any reasonable extension of the Court's holding in Chevron and consequently results in an unsupportable overreach of regulatory authority by the EPA. (231

- 1, 261

- 2)
(d) RESPONSE : EPA agrees that materials legitimately recycled under the scrap metal and shredded circuit board exclusions at 40 C.F.R. §§ 261(a)(13) and (14) are not solid wastes, and scrap metal recycled under the exemption in 40 C.F.R. § 261(a)(3)(ii) is not subject to regulation under 40 CFR parts 262 through 268, 270, or 124. I n stating in the 2011 DSW proposal that the Agency was not accepting comments on the substance of these and other recycling exclusions and exemptions, EPA was explicitly not reopening these provisions. Today’s rule does not change the language of these pro visions or otherwise affect the regulatory status of any of the materials currently excluded or exempted under these provisions. For further discussion on the pre

- 2008 DSW exclusions, see other sections of the rulemaking record, including Section 10 of thi s response to comment document.
However, EPA disagrees that the reference in the background findings to “a rising tide of scrap, discarded, and waste materials,” at 42 U.S.C. 6901 is an indication that Congress intended for scrap to be excluded from the de finition of solid waste under all situatio ns. If that were the case, the Congress could have easily included scrap in the list of materials not covered by the definition of solid waste, as it did with domestic sewage, irrigation return flows or point sourc e discharges, and special nuclear or byp roduct material. Given that the RCRA statute does not even define “scrap” or otherwise mention it besides this passing reference, it strains credibility to assume that the Congress intended all “scrap” to be excluded even when discarded.
For example, in one of the recycling damage cases, SA Recycling in Los Angeles, CA, normal operations caused metal dust and debris to fall into the Los Angeles Harbor water, reportedly causing polychlorinated biphenyl (PCB) contamina tion. Discharging metal shredding waste into a harbor is discard and such wastes would not be excluded under 40 C.F.R. § 261(a)(13) or exempted under 40 C.F.R. § 261(a)(3)(ii) (either prior to or after today’s rule) because they are clearly abandoned and n ot being recycled.
In response to the commenter who claimed that EPA’s reliance on “Chevron” in regulating scrap metal like used oil was misplaced, the Agency believes the commenter may be misreading the 2011 DSW preamble language, which summarizes the cas e law history for RCRA recycling. In any case, as stated earlier, EPA is not changing the language of the scrap metal provisions at 40 CFR §§ 261(a)(13) and 261(a)(3)(ii) or otherwise changing the regulatory status of scrap metal recycled under these provi sions.
(e) COMMENTS : Several commenters stated that EPA has no jurisdiction under RCRA to regulate in any manner in

- process secondary materials that are generated and then reclaimed for metals values by the mining and mineral processing industry (including the precious metals sector) , citing several D.C. Circuit cases , including American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987) ("AMC I” ); Association of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) ("ABR"); and Safe Food & Fer tilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) ("Safe Food").- 28

-

Specifically, commenters stated that t he term "discarded material" cannot under any circumstances encompass metals

- rich in

- process secondary materials that are destined for beneficial reuse or recycling by the mining industry. AMC I, 824 F.2d at 1186; ABR, 208 F.3d at 1 051

- 56; Safe Food, 350 F.3d at 1268. The secondary materials over which EPA cannot exercise jurisdiction include "valuable metal

- bearing and mineral

- bearing dusts [that] are ofte n released [in the primary minerals industry] in processing a particular metal. The mining facility typically recaptures, recycles and reuses these dusts, frequently in production processes different from the one from which the dusts were originally emitte d." ABR, 208 F.3d at 1053; AMC I, 824 F.2d at 1181. See also ABR, 208 F.3d (pointing to converter slag and matte from a Cyprus facility destined for reclamation, and to emission control dust from a zinc smelting furnace, as examples of secondary materials that are beyond EPA's jurisdiction to regulate); AMC I, 824 F.2d at 1193 ('"[By regulating in

- process secondary materials, EPA has acted in contravention of Congress' intent.").

Commenters stated that t

hese materials are generated and reclaimed within the same industry (i.e., the primary precious metals mining industry) either immediately or at most within a matter of days of their generation, normally on the site of their generation and in the same units utilized for processing of virgin ores and as part of ongoing production operations. Thus, although some of these materials may be stored for a very short period of time prior to being processed for metals recovery, they simply cannot be considered "disposed of, thrown away, or abandoned" regardless of ho w they are managed prior to or as part of the metals recovery process. Commenters noted that in ABR, the D.C. Circuit specifically overturned EPA's attempted imposition of notice and storage requirements upon in

- process mineral processing byproducts and sl udges recycled to primary beneficiation and mineral processing units. Commenters stated that in ABR , the Court held squarely that EPA had no jurisdiction under RCRA to impose storage, notice, or any other requirements upon such secondary materials. ABR, 208 F. 3d at 1051, 1056.

Commenters noted that i

n the preamble to the July 22 Proposal [See 76 Fed. Reg. at 44098.] as well as in its Response to Comments Document on the 2008 DSW Rule, [See Response to Comments Document at 25

- 26.] EPA attempts to diminish the import of ABR by arguing that, due to deficiencies in the administrative record, the Court did not i n that case determine whether every single secondary stream generated by the mining industry might or might not be beyond EPA's jurisdiction to regulate under RCRA. Commenters claimed that EPA ignores, however, that the D.C. Circuit stated clearly that the term “discarded” cannot encompass materials that “are destined for beneficial reuse or recycling in a continuous process by the generating industry itself.”

Commenters also noted that in

- process material, if considered to be a secondary material, also q ualifies for certain other exemptions from the definition of solid waste (e.g., characteristic by

products or sludges being reclaimed [40 C.F.R. § 261.2(c)(3)], use/reuse of material as an ingredient or substitute for a commercial product [40 C.F.R. § 261. 2(e)(1)(i) and (ii)], return to the process [40 C.F.R. § 261.2(e)(1)(iii)],and closed loop recycling [40 C.F.R. § 261.4(a)(8)]), and would not be subject to any RCRA requirements when recycled (assuming recycling was legitimate). Thus, under current rules, considering a material as a hazardous secondary material,- 29

-

even if it is a non

- discarded in

- process material, imposes little, if any, additional administrative burdens.

However, commenters stated that the 2011 DSW proposal potentially changes this result , by sub jecting all forms of recycling to the new “contained” standard and to mandatory application of all four legitimacy criteria. EPA also requested comment on whether it should subject all forms of recycling to new requirements or conditions (e.g., not ification, a requirement to document legitimacy in advance, speculative accumulation labeling and recordkeeping). See 76 Fed. Reg. at 44139. Commenters stated that if EPA adopted the new standards, mandatory criteria and requirements, in

- process/secondary materials that previously were not subject to any RCRA requirements would be subject to these additional requirements. More importantly, EPA stated that failure to comply with any of these requirements could result in EPA treating the material as a hazardo us waste, potentially subjecting the material and the facility to a wide array of costly and burdensome regulations. [0162
, 0193
, 0210
, 0363]
(e) RESPONSE : EPA agrees that, as the courts have clearly stated, materials recycled in a continuous process by the generating industry are not solid wastes, and that many in

- process materials are excluded from the definition of solid waste under the pre

- 2008 recycling

exc lusions, including exclusions for characteristic by

- products or sludges being reclaimed [40 C.F.R. § 261.2(c)(3)], use/reuse of material as an ingredient or substitute for a commercial product [40 C.F.R. § 261.2(e)(1)(i) and (ii)], return to the process [4 0 C.F.R. § 261.2(e)(1)(iii)], and closed loop recycling [40 C.F.R. § 261.4(a)(8)]. The 2011 DSW proposal explicitly did not reopen these provisions, and the 2014 DSW final rule does not change the language of these provisions or otherwise affect the regula tory status of any of the materials currently excluded or

exe mpted under these provisions. For further discussion on the pre

- 2008 DSW exclusions, see Section 10 of this response to comment document. In addition, as noted in the 2008 DSW final rule, the gen

erator

- controlled exclusion also excludes from the definition of solid waste hazardous secondary materials recycled in a continuous industrial process (74 FR 64668). In effect, hazardous secondary materials reclaimed in a continuous process are a subset of the hazardous secondary materials reclaimed under the control of the generator that are excluded under today’s rule.

However, EPA disagrees that applying a “contained” standard (or other conditions of the various exclusions) result s in unlawful regulatio n of materials recycled in a continuous process by the generating industry itself. Commenters have failed to demonstrate how hazardous secondary materials that are not contained could in any way be considered "reclaimed in a continuous process." It is a se lf

- evident fact that hazardous secondary materials released to the environment (e.g., causing soil and groundwater contamination) are not "destined for recycling" or "recycled in a continuous process"; they are part of the waste disposal problem. Moreover, to the extent that significant releases to the environment from a unit remain unaddressed, it is reasonable to conclude that the material remaining in the unit is also actively being discarded.

F or those applicants who do not believe that the restrictio ns imposed by the current solid waste exclusions are applicable to their materials, the non

- waste determination process in 40 CFR 260.34(b) provides an administrative procedure for receiving a formal determination that their- 30

-

hazardous secondary materials a re not discarded and, therefore, are not solid wastes when recycled.
In regards to comments on the applicability of the definition of legitimate recycling, EPA has long articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” (i.e., fake) recycling, beginning with the preamble to the 1985 regulations that established the definition of solid waste (50 FR 638, January 4, 1985). The prohibition on sham recycling being finalized in this rulemaking is consistent with the Agen cy's longstanding policy and interpretation of legitimate recycling that has been expressed in earlier preamble discussions and policy statements. The January 4, 1985, preamble to the definition of solid waste regulations established EPA's concept of legit imacy and described several indicators of sham recycling. On April 26, 1989, the Office of Solid Waste (OSW) issued a memorandum that consolidated preamble statements concerning legitimate recycling that had been articulated previously into a list of crite ria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This memorandum, known to many as the “Lowrance Memo,” has been a primary source of guidance for the regulated community and for implementing agencies in distinguishing between legitimate and sham recycling for many years. The October 2003 and March 2007 DSW proposals and the October 2008 DSW final rule also all include extensive discussio ns of EPA’s legitimacy policy. In the 2008 DSW final rule, EPA promulgated a codified legiti macy requirement for the specific exclusions in that rulemaking. Today’s final rule simply codifies that fact that legitimacy has always applied to all hazardous secondary material recycling.
However, in codifying the requirement that all recycling must b e legitimate, EPA has, in response to comments, revised the fourth legitimacy factor to make it clear that recycling processes in which the hazardous secondary materials are returned to the original process meet factor 4 and no further demonstration would be needed. Further discussion of comments on the definition of legitimate recycling and the prohibition of sham recycling can be found in Section 7 of this response to comments document.
(f) COMMENTS : One commenter noted that in the American Mining Congres s v. EPA , 824 F.2d 11 77, 11 79 (D.C. Cir. 1987) ("AMC I'), the U.S. Court of Appeals for the D.C. Circuit granted the petition of an off site, transfer

- based third

- party precious metal reclaimer, Engelhard Corporation. While this ruling was not prominent in the court's explanation of its reasoning, the commenters said that it is well established that an explanation is not determinative of the scope of a judicial ruling. Petitioner Engelhard made it clear in its filings with the court that it was challengi ng the Agency in regard to its receipt of off site transfers of spent precious metal

bearing mater ials from unrelated industries.
"As part of its precious metal operations, the Company [Engelhard] operates plants for the recovery, refining and recycling o f precious metals from spent materials, scrap, and other precious metals

- bearing recyclable material. Much of such reclamation is done pursuant to tolling agreements with original product customers, providing economic benefit for the customer as well as pr eserving scarce and valuable resources." AMC I, Petitioners Brief, page 4.- 31

-

That filing with the court by Engelhard defined the scope of its petition: off

- site transfer by a generator of precious metal

- bearing material to an unrelated precious metal reclaim er for economic benefit to the transferor. That claim not only defined the claim of Petitioner Engelhard, it defines the legal impact of the court's ruling in favor of Engelhard.
The commenter stated that, by well

- established rule of law, the granting of Engelhard's petition in AMC I, although without detailed explanation, nevertheless established that an off

- site transfer of precious metal

- bearing material to an unrelated reclaimer for economic benefit to the transferor is not a discard of that material. The commenter explained that the Agency acknowledged this ruling in subsequent proceedings of AMC I before the court, when it was required to address and respond to the court's decision. When pressed by AMC I petitioners to act upon the ruling, the EPA rep resented to the Court of Appeals that it would address all of petitioners' issues in a new rulemaking, including third

- party off

- site transfers of precious metals:
"The Agency believes it worthy of public comment to determine whether [precious metal

- bearin g] materials are discarded when they are spent and given up to an unrelated industry for recovery." AMC I, EPA's Opposition to Motions to Enforce Mandate, July 14, 1988, at p. 34
The commenter claimed that, twenty

- three years later, EPA has still not direc tly re

- addressed off

- site transfers of precious metal

- bearing materials and that therefore the ruling in favor of Engelhard in AMC I thus continues to stand as prevailing federal law

- an off

- site transfer of precious metal

- bearing material to an unrelated third party for reclamation for the economic benefit of the transferor is not a discard. The commenter stated that the U.S. Court of Appeals for the D.C. Circuit has subsequently reinforced that ruling of AMC I both on the general point of discard and spec ifically on the issue of off

- site transfer. It has repeatedly held that "discard" actually means "disposed of' or "abandoned," see, e.g., Ass'n of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000). The commenter stated that the transfer of precious metal

- bearing material for the economic benefit of the transferor is not an abandonment and the specific issue of off

- site transfer to an unrelated industry was directly addressed in Safe Food and Fertilizer v. EPA , 350 F.3d 1263 (2003).

“As fi rms have ample reasons to avoid complete vertical integration, see generally Ronald Coase, "The Nature of the Firm," 4 Economica 386 (1937), firm

- to

- firm transfers are hardly good indicia of a "discard" as the term is ordinarily understood.”

The commenter stated that the court's citing of reasons to avoid complete vertical integration cannot be more true than in the circumstances of highly specialized and expensive precious metals reclamation, which few if any unrelated generators have elected to internaliz e. Thus, the commenter stated that the AMC I granting of the petition of Engelhard

- that an off

- site transfer of precious metal

- bearing material to an unrelated third party for reclamation for the economic benefit of the transferor is not a discard

- was a ffirmed and reinforced by the ruling in Safe Food.
The commenter also stated this conforms to the reality of precious metal reclamation

- it is- 32

-

profit

- based upon the value of the recovered content

- and EPA's long history of positive statements about prec ious metal reclamation. EPA has long ago found that the value of precious metal

- bearing secondary material creates an "imperative incentive to avoid leaks and spills" (50 FR 617, Jan. 4,1985; 51 FR 10169, March 24, 1986), and has long recognized that secon dary precious metal

- bearing material is not mi shandled because of that value: "By 'precious metal reclamation,' we mean to include any reclamation operation recovering gold, silver, iridium, palladium, platinum, rhodium, ruthenium (or any combination of th

ese). Examples are certain electroplating wastewater treatment sludges, solutions and sludges from electroplating and heat treating operations, and certain silver bearing scrap and silver

- containing photographic films and solutions. Generally, the value o f the metal in these materials is so great that they will not be mishandled. Indeed, many of these materials are never disposed of because of their value.” 48 FR 14472, April4, 1983.
In 1994, the Agency added that precious metals are, by definition, "metal s whose value assures adequate control." (Land Disposal Restrictions

- Phase II, Federal Register: September 19, 1994, Section XIII.C.2)
The commenter then went on to argue that EPA, by once again addressing the issue of off

- site transfer for reclamation, has once again not directly addressed precious metals. The commenter stated that instead EPA is making an overly

- broad declaration that all off

- site transfer is discard, subject to RCRA. EPA's rationale, contrary to decades of court decisions, deviates fro m AMC I and is legally wrong: EPA claims that "transfers of hazardous secondary materials to third

- party reclaimers generally involve discard" and therefore, the Congressional jurisdictional term "discard" can be redefined for all such transfers according to "potential adverse impacts to human health and the environment." (75 FR at 44110, emphasis added) The commenter stated that this is counter

- intuitive; many materials that are unquestionably products also carry hazardous characteristics, with potential a dverse impacts to human health and the environment, and are nevertheless not subject to RCRA. A potential for adverse impact is, of course, a guiding principle for Congress in enactment of appropriate environmental law, and so Congress has passed a number of laws to protect against such impacts, e.g., CAA, CWA, CERCLA, etc. But Congress clearly distinguished the scope of EPA's authority under RCRA, as opposed to its authority under other environmental laws, not by the potential for harm from a substance, bu t by the reality of discard of that substance, i.e., the higher risk of bad management, release and exposure when a material has actually been discarded by being "disposed of' or "abandoned." The commenter stated that these circumstances of discard have no t arisen in an off

- site transfer of precious metal

- bearing materials for reclamation for the economic benefit of the transferor.
The commenter goes on to explain that the administrative process under 40 CFR 260.34(c), by which precious metal

- bearing mater ials that are not discarded might be confirmed by EPA to be

non

- wastes, does not address the issue at hand. The commenter argued that EPA cannot bootstrap its legal authority in this way, i.e., simply assert that any material is subject to its RCRA jurisdi

ction, whether or not discarded, unless and until EPA itself decides otherwise. If a material is not a waste, as Congress intended that word to be defined, EPA has no authority under RCRA to make that material subject to any part of RCRA decision making.- 33

-

The commenter noted, that as a practical matter, EPA might on occasion question the management of a precious metal

- bearing material, and in such cases EPA has assigned parties to that precious metal reclamation transaction the burden of proof under 40 CFR 261.2(f): Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation. Respondents in actions to enforce regulations implementing subtitle C of RCRA who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation (such as contra cts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recyc ling materials must show that they have th e necessary equipment to do so.
The commenter noted that this provision is quite different from a blanket declaration that all off

site transfer to an unrelated reclaimer is discard. Parties to secondary precious m etal transactions can meet the 261.2(f) burden of proof for a questioned transaction. Generators transfer precious metal

- bearing materials under contract, and typically retain ownership of those materials through transport and receipt by a reclaimer, and t hrough several stages of reclamation: homogenization, representative sampling, assay, determination of commercial value, and purchase by the reclaimer according to contractual terms. At that point, where the reclaimer has created a homogenous assayed mater ial comparable to an ore concentrate, the material has become an intermediate product with a very large, stable, worldwide market. All of these steps and characteristics can be demonstrated by standard precious metal industry documentation, created and mai ntained in the ordinary course of business.
Given this background, the commenter stated that it is appropriate for EPA to consider clarification of the legal circumstances for precious metal

- bearing material. [0183]
(f) RESPONSE : In the first instance, the commenter is incorrect that the DC Circuit in any way granted its petition for review with respect to precious metals. The DC Circuit very clearly stated in API II at 216 F.3d at 56 (citing AMC I and ABR )

-- "we did not address the discard status of any of the particular materials discussed in the briefs;" "all we can say with certainty is that at least some of the secondary material EPA seeks to regulate" is not discarded.

Nevertheless, EPA has made no f inding, determination or otherwise with respect to the materials discussed in this comment. The status of these specific materials under any specific conditions cited by the commenter is beyond the scope of this rulemaking. EPA explicitly did not reopen th e substance of these provisions in the 2011 DSW proposal. Any new material

- specific exclusion from the definition of solid waste for precious

- metal bearing materials is beyond the scope of this rulemaking. Regardless, however, EPA notes that parties dealin g with precious metal recycling may want to consider whether such materials would be eligible for the verified recycler exclusion at 40 CFR 261.4(a)(24), which is being finalized in today’s rule.
EPA further notes that transfers of recyclable materials fo r precious metals recovery are covered by the RCRA regulations at 40 CFR 266.70.- 34

-

(g) COMMENTS : Several commenters stated that EPA has not presented adequate evidence to justify changes to the 2008 DSW Rule. One commenter noted that under Motor Vehicle Man ufacturers Ass’n v. State Farm Mutual Automotive Insurance Co., 463 U.S. 29 (1983) (State Farm), a federal agency may change its interpretation of the law and its policy positions. However, a change in interpretation or policy must be supported by a reason ed analysis. Id. at 42. The commenter stated that EPA offers no new record information to support its proposed changes to the 2008 Rule and that EPA appears to rely on its Environmental Justice analysis to support its proposal. However, the commenter state d that this analysis does not provide the requisite “reasoned analysis” to support the proposed rule changes because, to find disproportionate harm to minority and low income populations, EPA’s Environmental Justice analysis assumes that persons will opera te in violation of the law. The analysis then suggests new regulations and posits that persons will comply with new regulations thus eliminating that harm. The commenter stated that nowhere does EPA allege that compliance with the 2008 Rule or previously p romulgated exclusions will result in harm to public health or the environment and that nowhere does EPA explain the basis for its assumption that the regulated community will fail (or has failed) to comply with the 2008 Rule or previous exclusions but will be in full compliance with the 2011 Proposal.
Another commenter stated EPA has simply failed to justify its abandonment of the Final Rule because it has failed to “examine the relevant data and articulate a satisfactory explanation for its action”

– in o ther words, EPA has not adequately identified the new information that caused it to change course, or explained why it promulgated the now supposedly defective Final Rule. As Justice Scalia has noted, the APA requires an agency to “examine the relevant dat a and articulate a satisfactory explanation for its action” when changing a rule or policy. See FCC v. Fox Television, (2009)(citations omitted). The agency must generally account for prior fact

- finding or certain reliance interests created by a prior poli cy, and then demonstrate that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates. See generally 129 S. Ct. at 1811. The commente r also stated that the agency fails to account for prior fact

- finding or acknowledge the reliance interests created by its long

- standing (but abandoned) support for recycling.

The commenter also stated that, under the Administrative Procedure Act (“APA”), EPA’s withdrawal of the transfer

- based exclusion is arbitrary and capricious agency action. Much like the conditional zinc fertilizer exclusion upheld in Safe Food & Fertilizer, the conditions under the 2008 transfer

- based exclusion achieved the same rea soned outcome based on the same market

- participation, management, and identity principles. Specifically, the containment, speculative accumulation, reasonable due diligence, and financial assurance requirements, among others, were designed to prevent disca rd and thus prevent secondary materials transferred for recycling or reclamation from becoming part of the nation’s waste disposal problem. In fact, EPA concluded in the 2008 rule that “[r]eclamation that conforms to these standards would not involve disca rd”

— a conclusion which has been corroborated by the notification facilities using the exclusion since 2008. See 73 Fed. Reg. at 64,683. EPA acknowledges in its DSW Proposal that each of the conditions under the 2008 transfer

- based exclusion “were developed in a reasoned manner.” The commenter stated that under Safe Food & Fertilizer, withdrawal of that- 35

-

reasoned approach requires a finding that HSMs transferred for legitimate reclamation or recycling under the 2008 conditions are part of the nation’s waste d isposal problem (i.e., the mere fact of transfer is insufficient). Given EPA’s numerous and reasonable conditions in the 2008 Rule, EPA’s finding must be based on additional information over and above what was contained in the 2008 rulemaking record. The c ommenter stated that not only is the withdrawal not supported by the record, it is contradicted by the record. While acknowledging that the 2008 conditions were reasonable, the Agency states it cannot be assured “without specific evidence,” those condition s would not result in significant risk to human health and the environment. 76 Fed. Reg at 44,109. Yet, that specific evidence now exists

— the notification facilities

— and resolutely demonstrates that the conditions work (i.e., “[t]o date, no environmental p roblems have been reported at facilities claiming DSW exclusions.”). Courts will overturn an agency decision as arbitrary and capricious where the agency

— as EPA has done here

—has offered an explanation for its decision that runs counter to the evidence bef ore it. See Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

- 44 (1983).
[0154
, 0168, 0198]
(g) RESPONSE : EPA disagrees with comments that state that EPA has not supported its decision to re

- evaluate the 2008 DSW final rule wit h a “reasoned analysis.” In the preamble to the 2011 DSW rule, EPA lays out its reasoning quite clearly:

“ Before excluding materials that have already been determined to be hazardous wastes, the Agency needs adequate assurance that the conditional exclusio n 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 evalua ted 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 secondar y material being discarded.

. . 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. T hese 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 stan dards 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- 36

-

increased likelihood of environmental and public health hazards, including fires/ex plosion, soil and water contamination, air emissions, and abandoned hazardous secondary materials. ” 76 FR 44109.

EPA reiterated this determination in Section VI.C. of the preamble to today’s DSW final rule and provides responses to comments specific to the proposed withdrawal of the transfer

- based exclusion in Section 4 of this response to comments document.
(h ) COMMENTS : One commenter stated that several aspects of the 2011 DSW proposal violate the Administrative Procedure Act ("APA") and the Due Process Clause of United States Constitution. The commenter claimed that EPA has not provided fair notice of the proposed changes or adequate time to respond to the proposal, and that several key terms in the proposal are void because they do not adequately descri be the standard of conduct the regulations require. Finally, the commenter claimed that several aspects of the proposal are not supported by the administrative record.
The commenter claimed that EPA is misleading the public by stating, in regards to the definition of legitimate recycling, that "EPA continues to believe that the four legitimacy factors we are proposing to codify for all recycling are substantively the same as the existing policy found in previous Federal Register preamble statements and it s longstanding policy memo on the subject." The commenter stated that because EPA is making all four legitimacy factors mandatory and will apply those factors to all recycling, many materials that were previously excluded will now be considered solid waste s. However, the commenter stated that EPA failed to warn the regulated community that the proposed revisions will alter the RCRA regulatory status of hazardous secondary materials being recycled under existing exclusions by emphasizing its belief that the new codified legitimacy factors are substantively the same as the existing legitimacy policy. The commenter stated that because EPA does not adequately explain the substance of its proposed revisions, the changes (if adopted as proposed) will violate the D ue Process Clause of the Constitution.

The commenter also stated that because EPA only provided 60 days for those potentially affected by the revisions to evaluate the impacts of the proposal and provide meaningful comment, the Agency violated the APA. Se ction 553 of the APA sets forth the procedures that an agency must follow in promulgating rules, requiring that a NPRM be published in the Federal Register and that a period of time be provided in which the public can participate in the rulemaking and subm it comment on the NPRM. The commenter stated that sixty days is inadequate to properly evaluate the NPRM and provide meaningful comment on such a broad rulemaking and, therefore, the NPRM is invalid.
Finally, the commenter noted that a rule is impermissib ly vague if it imposes obligations that are not susceptible to a clear interpretation by the persons it purports to regulate. [See, e.g., City of Chicago v. Morales, 527 U.S. 41, 56 (1999) (explaining that a statute is impermissibly vague if it "fail[s] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits" or "authorize[s] and even encourage[s] arbitrary and discriminatory enforcement"); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Lanzetta v. New Jersey, 306 U.S. 451,453 (1939).] Such impermissible vagueness can exist with respect to the persons regulated- 37

-

by the rule, or the obligations actually imposed upon them. [See, e.g., Winters v. New York, 333 U.S. 507, 515

- 16 (1948) ("The vagueness may be f rom uncertainty in regard to persons within the scope of the act ... or in regard to the applicable test to ascertain guilt.")] In other words, a rule must provide "fair notice" of the conduct it proscribes so that the regulated community can conform its c onduct to the law. Both statutes and agency regulations can be void due to vagueness, whether or not the sanctions imposed are civil or criminal in nature. [See Viii of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498

- 99 (1982) (allowi ng "greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe"); Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000); Chafin v. Coombe, 186 F.3d 82, 86

- 87 (2d Cir. l999) (scrutinizing "closely" a particular regulation because its penalties were more like criminal penalties).] As such, any final rule must "clearly define" all prohibited acts such that the regulated community is given "fair notice that [their] contempl ated conduct is forbidden." [See Grayned, 408 U.S. 104, 108

- 09 (1972) (A rule is void if it "impermissibly delegates basic policy matters to [enforcement officers] for resolution on an ad hoc and subjective basis"); see also Parker v. Levy, 417 U.S. 733,77 5 (1974); Papachristou etc. v. City of Jacksonville, 405 U.S. 156, 162 (1972).]

The commenter stated that the 2011 DSW proposal does not provide a meaningful basis for determining, under the TARs legitimacy factor, whether the product of a recycling proc ess contains concentrations of those constituents identified in 40 C.P.R. Part 261, Appendix VIII, at levels that are comparable to or lower than those found in analogous products (or raw materials). The commenter stated that without additional guidance a nd clarification on how the TARs factor is intended to apply, any final rule based on the proposal will be impermissibly vague because it imposes obligations that are not susceptible to a clear interpretation by the persons it purports to regulate. [ 0202 ]
(h ) RESPONSE : EPA disagrees with comments stating that 2011 DSW proposal violated the Administrative Procedure Act ("APA") and the Due Process Clause of United States Constitution by stating its intention that the four legitimacy factors it was proposing to codify for all recycling were substantively the same as the existing policy found in previous Federal Register preamble statements and its longstanding policy memo on the subject

. The commenter has provided no evidence that the proposal did not provide fair notice or adequate time to provide comments on the impact of the proposed legitimacy requirements. In fact, EPA specifically solicited comments in the 2011 proposal on many specific aspects of the legitimacy definition and whether they would affect cu

rrent recycling practices, and has been able to address those comments in the final rule. The commenter’s own comments, and those of many other commenters on the subject, is evidence that the proposal provided enough detail to allow meaningful comments.

E PA also disagrees that the Agency provided inadequate time for public comment. In addition to the initial comment period of 60 days, EPA also provided a 30

- day extension to ensure interested parties had enough time to comment, and in fact, the Agency recei ved hundreds of thoughtful, detailed comments within the comment period timeframe.
EPA also disagrees that the 2011 DSW proposal was “impermissibly vague,” given the proposal included specific regulatory language as well as illustrative preamble language to explain how the new regulations were intended to work.- 38

-

(i ) COMMENTS : One commenter argued that EPA does have the broad authority to revisit the 2008 DSW Rule to address unacceptable threats to communities in adopting states and to vulnerable low

- income and minority communities in particular.
As the D.C. Circuit has made clear, EPA is not precluded from regulating simply because a hazardous residual is destined for reuse. [See American Petroleum Inst. v. EPA, 906 F.2d 729, 740

- 41 (D.C. Cir. 1990) (holding that “materials designed for future rec ycling by another industry may be considered ‘discarded’; the statutory definition does not preclude application of RCRA to such materials if they can reasonably be considered part of the waste disposal problem).
Congress expressly included “resource rec overy” in RCRA’s cradle

- to

- grave regulatory scheme. [See, e.g., 42 U.S.C. § 6903(7) (The term ‘‘hazardous waste management’’ means the systematic control of the collection, source separation, storage, transport, processing, treatment, recovery, and disposa l of hazardous wastes); id. § 6903(22) (the term “resource recovery” means a solid waste management system which provides for collection, separation, recycling, and recovery of solid wastes.]
The commenter stated that under governing case law, the only h azardous secondary materials that necessarily fall outside the statutory definition of “solid waste” subject to EPA’s authority under RCRA are those materials that are looped into a continuous industrial process “for beneficial reuse or recycling . . . by the generating industry itself.” [American Mining Congress v. EPA, 824 F.2d 1177, 1186 (D.C. Cir. 1987) (“AMC I”).] While EPA may carve out exclusions for HSMs that are recycled, its discretion is limited to circumstances where HSMs have positive value, ar e managed “in ways inconsistent with discard” and are “chemically indistinguishable from analogous commercial products made from virgin materials.” [Safe Food and Fertilizer v. EPA, 350 F.3d 1263, 1269

- 1270 (D.C. Cir. 2003) (holding that the difference bet ween an HSM and an equivalent product must be “so slight as to be substantively meaningless” from “a perspective based on health and environmental risks”).]
The commenter stated that RCRA’s overarching goals compel the rulemaking changes that EPA is now proposing, including elimination of the transfer

- based exclusion and additional strengthening amendments.
(i ) RESPONSE : EPA agrees with the commenter’s b road analysis of the case law. The Agency has, after appropriate notice and comment, amended the 2008 DSW rule. The Agency has eliminated the transfer

- based exclusion, but for reasons explained in the rulemaking record, including in this response to comment document, has modified the regulation generally to allow recycling of hazardous secondary materials under conditions more stringent than provided in the 2008 rule.- 39

-



## 3.0 Environmental Justice Analysis

3.1 General c omments
3.1.1 General comments in support of the a nalysis

COMMENTS:
Several commenters stated that the environmental justice analysis performed for the 2011 DSW proposal represents a vast improvement in precision and usefulness from the analysis conducted for the 2008 DSW final rule

. The analysis was designed to be based on sound science and was thoroughly peer

- reviewed.

Unlike the efforts in support of the 2008 DSW rulemaking, t he approach taken in the 2011 environmental justice analysis and the rule itself recognize the importance and protectiveness of the RCRA Subtitle C program EPA and the states have administered for decades. EPA’s own stu dies have shown that its Subtitle C program has worked to deter creation of remedial sites [ Office of Solid Waste, Analysis of 40 Pot ential TSDs (January 17, 2007).]

T he basic approach in EPA’s new environmental justice analysis reflects the literature ci ted by environmental just ice representatives, uses a similar approach to other analysis of demographics around waste management facilities, and i t responds to the direct requests of community members for information about the distribution of facilities of potential environmental concern. T his information is useful to inform the public and respond to concerns raised by environmental justice communities and their policy advocates. Commenters were encouraged by the use of the areal apportionment method and the “demographic ratio” method of analysis, which follow those employed the report, Toxic Wastes and Race at Twenty . In addition, the consideration of other factors that affect vulnerability, including multiple and cumulative impacts proximal to the 40 Notifi cation Facilities, are a noteworthy attempt to move toward a more comprehensive analysis of environmental justice concerns

.
I n the proposed rule, EPA appears to be using its environmental justice analysis to inform the way the Agency evaluates regulatory o ptions. Having determined that the pattern in siting of the definition of solid waste (“DSW”) “damage cases” raises potential environmental justice concerns, the Agency throughout the rule takes particular care to (1) assure that public information and par ticipation will be robust and (2) that there will be sufficient assurance of achievement of standards to protect human health and the environment (an issue of particular importance where the materials in question may be considered RCRA hazardous waste). [ 0 174
, 0206
, 0244 , IL

- 0002, PA

- 0006 , PA

- 0009, PA

- 0009, PA

- 0012
, PA

- 0013
, PA

- 0014 , PA

- 0014 ]

RESPONSE:
EPA appreciates the comments in support of the analysis. EPA agrees that one of the major shortcomings of the 2008 DSW environmental justice analysis was the lack of in

- depth examination of the protections afforded by the Subtitle C regulations, and the Agency has corrected that approach for the 2014 DSW final rule. As commenters have noted, the DSW- 40

-

environmental justice analysis incorporates the areal apporti onment methodology that had been established in the landmark study, Toxic Wastes and Race at Twenty
, 1 and was supported by the peer review comments. EPA agrees that this continues to be the consensus approach for evaluating demographic impacts around facil ities of concern and has retained it in the final analysis.

3.1.2 General comments that d o not support the analysis
(a) COMMENTS : Commenters questioned the validity of the draft environmental justice analysis findings, stating that it is a high

- level subjective and completely non

- quantitative assessment of possible outcomes allegedly associated with the 2008 Rule that are based on speculation, not facts

. T

he analysis relies upon so many assumptions and situations that “might” or “could poss ibly” occur as to render it effectively meaningless, particularly in light of the fact that EPA gives no justification for a number of these assumptions, nor any consideration to how likely

– or unlikely

– they are to occur. [111 , 196, 355 ]
(a) RESPONSE : W hile the finding of the DSW environmental justice analysis that the 2008 DSW rule may increase risk to human health and the environment from discarded hazardous secondary material is qualitative rather than quantitative, analysis has been presented in a sy stematic manner that includes a clear description of assumptions and uncertainties

. Moreover, the demographic analysis documenting potential disproportionate effects of the rule is quantitative, and includes a detailed statistical analysis establishing the fact that the results are statistically significant.
In addition, EPA strongly disagrees with the comment that the Agency’s analysis of the possible outcomes associated with the 2008 DSW rule are not based on facts.
As documented in detail the Chapter 2.2 of Volume 1 of the DSW environmental justice analysis, hazardous secondary materials eligible to be recycled under the rule are physically and chemically similar, if not identical, to many of the hazardous wastes sen t 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 associated with storage o f liquids containing volatile organic chemicals and include both halogenated and non

- halogenated organic chemicals, which represent a broad range of chemicals and associated hazards. Electric arc furnace dust is usually in a solid state and presents a diff

erent management challenges, including storage in waste piles and the potential for wind

- blown dust, and can contain high concentrations of toxic metals.
These two classes of hazardous secondary materials (as well as other hazardous secondary materials that are recycled) can pose risks via a wide variety of exposure routes and include a range of potential adverse health effects, both carcinogenic and non

- carcinogenic, and a potential for acute impacts such as fire and explosions for certain types of haza rdous secondary materials, such as solvents.

1 Mohai, P. and R. Saha. 2007. Toxic Wastes and Race at Twenty

- 1987

- 2007: Grassroots Struggles to Dismantle Environmental Racism in the United States. United Church of Christ. pp. 175- 41

-

Moreover, as documented in detail in Chapter 2.3 of Volume 1 of the DSW environmental justice analysis, a detailed regulatory comparison of the 2008 DSW rule with RCRA Subtitle C requirements reveals the 2008 D SW rule lacks measures to ensure compliance, includes incentives to accumulate larger volumes of hazardous secondary materials, lack s specific

s tandards for waste storage and containment, and reduc es access to information and the opportunity for public par ticipation.
Finally, as documented in the recycling market forces study and referenced in Chapter 2.5 of Volume 1 of the DSW environmental justice analysis, the economics of recycling hazardous secondary material, particularly at third

- party recyclers, cr eates an incentive for over

accumulation, mismanagement, and abandonment of the hazardous secondary material.
In determining the potential for adverse impacts to communities, including the potential for disproportionate impacts to minority and low

- income p opulations, from hazardous secondary materials recycled under the 2008 DSW rule, EPA has considered the best available information, documented its assumptions including the associated uncertainties, and made an appropriate determination that the 2008 DSW r ule does have the potential to increase risk to human health and the environment from discarded hazardous secondary materials, including a potential disproportionate risk to minority and low

- income populations.
(b) COMMENTS : One commenter objected to the i mplication that if the risks associated with the 2008 DSW rule were equally distributed, there would not be a risk

- based reason for revising the definition of solid waste. [171]
(b) REPONSE : EPA strongly disagrees with this comment. A finding of significan t risk to human health and the environment from discarded material would in itself be reason for EPA to revise the 2008 DSW rule, whether or not those risks were disproportionately impacting minority and low

- income populations.
(c) COMMENTS : Two commenters expressed concern about the complexity of the draft DSW EJ analysis. The document contains an excessive amount of information that may overwhelm most readers. It may be necessary to condense the document contents or provide technical assistance to the gen

eral public. Not only is the discussion of statistical significance difficult for the non

- specialist to follow, but it is not clear this level of analysis is necessary given the use of the environmental justice analysis in the regulatory context. The envir onmental justice analysis appears to be used to bring special attention to regulatory changes that might impede community members’ public participation opportunities as well as their assurance of necessary governmental oversight of sound regulatory standar ds. Elaborate statistic assessments of significance may not be required where the result is merely to flag rulemakings that warrant particular scrutiny to assure the community perspective is understood and respected. [174, 257]
(c) RESPONSE : EPA strongly disagrees with this comment. There is no requirement for the Agency to be “less” detailed in any analysis regardless of the nature of the rule. T he level of detail in this analysis is appropriate given the complexities of the rulemaking. In addition, EPA has included an Executive Summary to the analysis, providing a more general overview of the- 42

-

findings of the analysis for those who do not need the detailed statistics underpinning the conclusions.
(d) COMMENTS : S everal commenters stated that the analysis d id not address baseline environmental justice impacts under Subtitle C, noting that Subtitle C landfills are often located in minority and low

- income neighborhoods . I nstead of spreading these materials among numerous recyclers and reclaimers, they could no w be sent to a "limited" number of hazardous waste sites. If a reduction in hazardous waste recycling leads to additional dumping of hazardous materials into landfills or incinerators, the negative effects are likely to outweigh any positives derived from tightening restrictions on recycling.
Additionally, some materials (e.g. spent acids), can be sent via pipeline to a reclaimer (which could also be a manufacturer of chemical products). These would now be potentially sent via tanker truck through an EJ ne ighborhood, which is something the EJ community is currently complaining about in port cities.

While EPA’s draft Environmental Justice Analysis acknowledges that there are potential environmental justice benefits from the 2008 DSW rule, such as “reduced ri sk in communities surrounding existing off

- site treatment/disposal facilities” and “reduced transportation risk ,” EPA does not quantify such benefits or explain whether or not th ey outweigh any increased risks. [076, 104, 175, 359]
(d) RESPONSE : The purpos e of the DSW environmental justice analysis is to examine the environmental justice implications as compared to the status quo, so the use of the Subtitle C regulations as the baseline was appropriate, since, absent the DSW rulemaking, Subtitle C regulatio ns would apply. While EPA agrees that Subtitle C facilities are often located in communities with disproportionately minority and/or low

- income populations, and has documented that information in the final analysis , the risks posed by additional shipments to these already

- established facilities are not comparable to the potential risks from the establishment of new recycling facilities without the Subtitle C controls. The RCRA Subtitle C facilities are already integrated into the community, and have gone th rough the appropriate RCRA permitt

ing process, including public participation, and are subject to requirements necessary to ensure protection of human health and the environment. In contrast, the potential for recycling facilities without RCRA permits to b e established without prior regulatory oversight or community involvement carry a high risk of over

- accumulation and abandonment of hazardous secondary materials, due to the economic incentives of commercial recycling and lack of restrictions on these mate rials that a permit would provide

. Moreover, the lack of preventative

measures under the 2008 DSW rule, such as emergency preparedness and response plans (in contrast to those applicable to RCRA Subtitle C facilities), increases the potential for risks of fires, explosions and spills.

Moreover, w hile EPA acknowledge s in the analysis that the additional miles traveled to these facilities does have some environmental impact, this is no different from any other hazardous material in commerce and is directly ad dressed by the Department of Transportation regulations.- 43

-

EPA has added additional language explaining baseline assumptions and tradeoffs to the environmental justice analysis in response to these comments.
(e) COMMENTS : One commenter requested USEPA recogn ize contemporary land use planning, siting, and zoning when addressing the concept of environmental justice. Nearly all industries and businesses are required to be zoned and locally approved. This process involves public participation and decisions at the local level as to whether or not a facility meets specific requirements with respect to land usage. It seems that USEPA highlights problems that can occur from industry occupying areas that are underserved. Has USEPA balanced this notion with potential be nefits to the underserved community such as increased tax base, charitable programs, employment within the community, etc.? [156]
(e) RESPONSE : EPA does not agree that the Agency should defer to local land use planning to balance potential risks to minori ty and low

- income communities with economic benefits such as an increased tax base. A

ny potential monetary benefits to affected neighborhoods does not affect EPA’s obligation to protect human health and the environment from risk s posed by discarded hazardo us secondary materials, nor can EPA defer to local regulations on this issue. Moreover, EPA has determined that basic environmental protections, which help protect public health and local resources, also help protect the overall economic health of the community.
(f) COMMENTS : One commenter said that EPA should consider how the draft environmental justice anal

ysis impacts the Agency’s overall strategy for considering environmental justice in rulemaking and solicit comment on that approach. This is the first thorough environmental justice analysis EPA has conducted for a major rulemaking. The methodology used an d the impact such analysis will have on future rulemakings are important topics deserving review and comment by more stakeholders than those interested in the definition of solid waste. It would be helpful for EPA to articulate and solicit comment on the f actors it will use in environmental justice analysis, and the way these analyses will be used to impact the shape of the rules themselves. [174]
(f) RESPONSE : The DSW environmental justice analysis is specific to this particular rulemaking and EPA has a se parate process for developing more general guidance for the use of environmental justice considerations in rulemakings. More information on the development of EPA’s overall environmental justice policy can be found at http://w ww.epa.gov/environmentaljustic e.
(g) COMMENTS : Several commenters stated that the draft environmental justice analysis does not support possible changes to the pre

- 2008 recycling exclusions as suggested in the preamble to the proposed rule (76 FR at 44138). The analysis expressly exclu des all recycling that is carried out under pre

- 2008 exclusions. ( Environmental Justice Analysis, at 15, 16 ) . Thus, this analysis does not even purport to support changes to any pre

- existing exclusions or variances.
Specifically, EPA's Environmental Justic e document provides no support for the proposition that additional measures are needed to protect low

- income or minority communities from precious metals mining and mineral processing facilities that are covered by the pre

- 2008 DSW exclusions . Such facilit ies have not, and are not likely to, use the new generator

- based or- 44

-

transfer

- based exclusions. Rather, such facilities will continue to rely on pre

- 2008 DSW exclusions

- primarily the exclusions from solid waste regulation contained in Section 261.2(c)(3) (characteristic byproducts and sludges destined for reclamation), Section 261.4(a)(17) (characteristic mineral processing spent materials destined for reclamation in beneficiation or mineral processing units), and Section 261.2(e) (secondary materials used as a substitute for a commercial product). In any event, as EPA must surely be aware, precious metals mining and mineral processing facilities are overwhelmingly located in sparsely populated areas of the Western United States, far from population centers , and normally in whole or in part upon federal land managed by the Bureau of Land Management or U.S. Forest Service , and therefore are not likely to adversely impact minority and low

- income communities

. [133, 193, 255 , 355 ]
(g) RESPONSE: EPA agrees that t he DSW environmental justice analysis is specific for potential regulatory changes based on concerns with the generator

- controlled exclusion and the transfer

- based exclusion promulgated under the 2008 DSW rule and does not generally apply to the pre

- 2008 D SW exclusions. EPA’s discussion of the response to comments on EPA’s decision not to impose additional requirements to the pre

- 2008 recycling exclusions, including discussion of record support, can be found in Section 10 of this response to comment documen t and Section XIX of the preamble to the 2014 DSW final rule

. (h) COMMENTS : One commenter stated that the term "disproportionate," should be clearly defined to ensure that the readers understand the meaning of the term. There are also a number of terms in Attachment G, the glossary, that are vague and should be expanded (e.g., the listed waste codes including the unconventional terms "F1_5" and "KXXX"). (290)
(h) RESPONSE : EPA has updated the analysis to include an explanation of how the term “disproportio nate” is applied in the DSW EJ analysis and has clarified the additional terms in the glossary, as the commenters suggested.


### 3.2 General comments on the methodology

(a) COMMENTS : One commenter urged EPA to adopt the peer review recommendations for the report. [244]
(a) RESPONSE : EPA has carefully consider the peer review comments and has revised the analysis to address the comments where appropriate. A full discussion of peer review comments and EPA’s response can be found in Ap pendix D to the analysis.
(b) COMMENTS : O ne commenter stated that because the DSW EJ analysis is draft that it could not be used to support revisions to the DSW rule until it was finalized. Since the Environmental Justice Analysis is only a draft, it is p remature to use it as a basis for revising the 2008 final rule. EPA is getting the “cart before the horse” and must abandon such shortcuts. If the time and resources are not available to do something correctly, then it should not be done. It is somewhat od d that the draft analysis has a date of June 30, 2011, and the pre

- publication version of the proposed rule has a date of July 6, 2011. The dating of the documents suggests the proposed rule was already written before the draft analysis was completed. [19 9]- 45

-

(b) RESPONSE : The reason the 2011 DSW environmental justice analysis is marked “draft” and was published along with the proposed rule was to solicit public comment and allow EPA to make changes to the analysis in response to comments before finalizing i t. The information included in the draft analysis was appropriately considered during the development of the proposal and also underwent peer review prior to publication. The public comment draft has been further revised based on public comments and the fi nal DSW environmental justice analysis is in docket for the final rule.

3.2.1 Hazard characterization

(a) COMMENTS : Several commenters suggested that the analysis be expanded to include additional vulnerable populations, including pregnant women, those wit h existing health conditions, and the elderly. [IL

- 0004, 141, 248]
Specifically, one commenter included detailed comments regarding t he elderly

. The elderly are vulnerable due to various reasons including health or physical impediments, information deficits, social or economic issues, or political shortcomings. The prevalence of health problems increases sharply with age with associated costs for medical care , social services, and long

- term care. The worst off one

- fifth of the elderly are disproportionately unmarried women, minorities, and the physically impaired. Elderly people are particularly vulnerable when a disaster strikes, and take a relatively high sh are of the disease burden associated with emergencies. The DSW EJ analysis would stronger analysis if along with children under five, adults over 65 were included in the detailed analysis [141]
(a) RESPONSE : EPA agrees that pregnant women, people with pre

- existing health conditions, and the elderly are population s of concern and the Section 4 of Volume 2 of the analysis discusses these and other susceptible populations under the DSW rule. However, the demographic analysis is responsive to the requirements o f EO 25898 and EO 13045 and continue to focus on minority and low

- income populations and children, respectively.
(b) COMMENTS : Several commenters objected to using electric arc furnace dust (K061) as an example waste stream for the hazard characterization portion of the analysis. The risk assessment for EAF dust is based solely on the assumption that this dust is managed in open waste piles, thereby creating an unacceptable wind

- blow exposure risk
, Remarkably, EPA provides no “real world” instances where du st is managed in this manner, or where such dust poses management challenges. Neither does EPA quantify how much of the EAF dust generated is actually stored in “waste piles.” EPA has not (and cannot) justify these statements because they are not represent ative of current management practices. Such a complete lack of substantiation of a fundamental assumption does not meet minimum standards for rulemaking and will not be upheld upon judicial review.
Current practices at the generating facilities (i.e., in steel mills where such dust is generated) are tightly regulated in a number of respects, and do not include the open

- air storage of EAF dust. There are approximately 100+ such mills producing both carbon and stainless steel products in the United States. T o our knowledge, not a single generator stores EAF dust or K061, as it is classified in RCRA, in waste piles at the steel mill. Rather, K061 is typically evacuated into- 46

-

baghouses attached to the EAF or the meltshop or both. Emissions from this process are tightly regulated under the Clean Air Act. Once collected in the baghouse, the EAF dust is directly transferred to railcars or trucks for off

- site disposal. All railcars and trucks used in the transport of such dust are covered. To the extent that there ar e any fugitive emissions of dust associated with the transfer of EAF dust from the baghouse to the truck/railcar, these are very minor

— both in terms of dust mass, and impact area (typically confined to the immediate vicinity of the baghouse transfer area). Such fugitive dust is also governed by permit and controlled under dust management plans where facilities are obliged to eliminate or minimize these releases as they

occur. Before relying on such assumptions, EPA must, at a minimum, document where such st orage piles exist and whether they are endemic to current K061 management and disposal processes. Regarding the latter, some K061 is treated at permitted metals recovery locations in the United States and in Mexico at the present time

— most of which are RCR A TSDF permitted facilities. At these facilities, because of its inherent value to the recovery process, the dust is not stored in waste piles, but rather carefully managed. Some K061 is disposed in permitted landfills. It is not managed or stored in waste piles at these sites either. To the extent there may be such dust in waste piles, it would be in the rare instance where K061 is neither sent to a landfill or for metals recovery. MIRC is not aware of any locations where this would be the case, and EPA ha s not identified any.
The risk assessment’s errant assumptions and overgeneralizations about the occurrence and management of K061 is a basic and fatal flaw, which renders the entire subsequent risk assessment unreliable, inaccurate, and a moot exercise [ 1 96, 198, 260, 355]
(b) RESPONSE : EPA disagrees with this comment. There are several documented examples of damage cases involving K061 mana ged in uncovered waste piles, and t he environmental justice analysis has been revised to include those examples in re sponse to this comment

. The fact that current management of K061 is now “tightly regulated” is not relevant to the EJ analysis, whose purpose is to examine the potential health impacts when hazardous secondary materials such as K061 are no longer “tightly regulated.”

EPA also notes that the K061 was just one example wastestream that may pose significant risk to human health and the environment, including risk to minority and low

- income populations , and EPA did not claim it would be recycled at all facilitie s identified in the analysis. The purpose of the site selection methodology was to capture the range of demographic information as a surrogate of the demographics likely to be found around the types of facilities that could potentially recycle hazardous se condary materials under the DSW rule

. EPA has added clarifying language to the EJ analysis in response to this comment.
(c) COMMENTS : Three commenters disagrees with using solvents as an example wastestream in the hazard characterization section of the analysis. It is not clear why EPA chose solvent recycling as a focus in this analysis. EPA’s June 2011 document, “Correlation of Recycling Dam age Cases with Regulatory Exclusions, Exemptions or Alternative Standards,” was an attempt to indicate what types of materials might have been “likely” contributors to damage cases. Noticeably absent in Tables 3, 4, and 5 of this document is any mention of solvents. In- 47

-

essence, EPA chose a material as a focus in the Environmental Justice Analysis that they do not actually show as a “likely” issue. One commenter stated that the analysis of correlation of exclusions with damage case does not show solvents to be a likely cause of environmental damages. [ 196, 199, 355]
(c) RESPONSE : Solvents were chosen as an example wastestream for the DSW EJ analysis not because they have a pre

- 2008 exclusion, but because they are a likely candidate for the new 2008 DSW exclus ion, are prev a l e nt in the recycling damage cases, and represent a range of cancer and

non

- cancer risks and risk pathways.
(d) COMMENTS : One commenter requested EPA include the potential adverse impacts of increase exports under the DSW rule to third worl d countries, noting that these populations are extremely vulnerable to pollution and often do not possess environmental policies consistent with the United States.
Environmental justice spans international borders. Limiting the scope of EJ analysis to mea sure only how the DSW rule enables purely domestic injustice is inherently flawed concept in the context of Hazardous waste disposal especially in regards to the reclamation of Hazardous Secondary materials. In fact, the problem of hazardous waste faciliti es in disadvantaged communities has been described as “a microcosm of the problem exporting hazardous waste to developing countries.”
In recent decades there has also been an increase in the Transboundary movement of hazardous waste to for the resource re covery or recycling of secondary raw material. Over 90% of hazardous waste originates in industrialized countries. As disposal facilities for hazardous waste become scarcer and more costly, less developed countries are being targeted as dumping grounds. Th

is dynamic poses a serious threat to the environment and human health in countries which lack the capacity to deal with the wastes in an environmentally sound manner, thus enabling the ultimate environmental injustice in which developing nations bear the c onsequences of industrialization and globalization without having received any benefit.
Companies from developed nations have incentive to export wastes including HSM to developing nations because they can do so at relatively low coasts. In the late 80’s o ne study showed that costs for disposing one ton of hazardous wastes in Africa was between $2.50

- $50.00 while cost of disposing a developed country ranged from $100 to $2,000.
The statistical data on exportation of HSM needs to be updated and the evalua tion of future threats must include increasing economic pressures and the instability of domestic and international recycling markets. In their 2007 Environmental Assessment EPA reported that economic pressure is the most common cause of hazardous waste ab andonment. Yet, the recent revisions and current EJ analysis does not address the loophole created by the DSW Rule whereby financially strained generators of HSW can export hazardous materials to foreign recycling facilities avoiding former permitting requ irements, Agency oversight, and a viable enforcement scheme

. Rather, the DSW Rule requires only that these generator/exporters make “reasonable efforts” to “audit” the legitimacy and financial stability of foreign importers once every three years.- 48

-

The rece nt EJ Analysis also fails to address the fear that the ease of exportation under the DSW Rule may actually undermine regulatory incentives to minimize domestic waste production and develop cleaner technologies. Increasing instability and current financial conditions could make exportation more cost efficient for generators currently sending HSW to permitted facilities or recycling it themselves. Without considering increasing economic instability, the EPA’s current analysis regards such scenarios “unlikely” and thus does not evaluate the potential risks.
Ultimately, the EPA’s most recent EJ Analysis inappropriately fails to address all potential ways in which the DSW revisions could create economic incentive for increased exportation of HSM to developing nat

ions. But, more importantly, it undervalues the severity of potential risks resulting from the transfer

- based exclusion and does not analyze potential health and environmental impacts that would occur abroad. Thus, the Analysis misses an opportunity to

cor rect a gross hypocrisy whereby most industrialized nation in the world refuses to include peoples of developing nations within the scope of its environmental justice policy regarding an activity that is unquestionably integrated into a global market.

Addit ionally, responsible waste management spans international borders. The absence of foreign communities as potentially affected populations in the environmental justice analysis conflicts with fundamental goals of the Resource Conservation and Recovery Act ( RCRA). RCRA is a comprehensive environmental statute that establishes a cradle

- to

- grave system for regulating the disposal of solid and hazardous waste. It is this cradle to grave scheme that enables RCRA to best achieve its primary goal of protecting huma n health and the environment

. Moreover, RCRA aims at technology forcing and permit requirements to ensure Treatment Storage and Disposal facilities to employ processes which “protect human health.” The 2008 DSW Rule contravenes these fundamental goals by r emoving RCRA protections and creating potential incentives for facilities to engage in the unregulated exportation of HSM to countries ill

- equipped reclaim or recycle such materials properly. The 2011 EJ Analysis inappropriately dismisses the potential for increased exportation as “unlikely” and thus fails to address how the solid waste revisions conflict with the fundamental goals of RCRA.
Developing nations often do not possess environmental policies consistent with our own nor do they possess the technol

ogy that would be required under RCRA if the HSM were treated as waste. The EPA’s 2007 Assessment clearly demonstrated off

- site recycling is far more dangerous than on

- site operations. In fact, 91% of damages cases reviewed involved off

- site recycling faci

lities. Yet, the EPA continues to support the relaxed standers for off

- site recycling under the DSW Rule including exporting to foreign recyclers where there is even less enforcement.
The failure of the EPA to fully analyze adverse impacts resulting from u nregulated exportation of HSM in 2011 EJ Analysis also conflicts with the purpose of RCRA’s permitting requirements. Under the previous scheme wastes accumulated before “reclamation recycling were subject to hazardous determination and permitting requireme nts. Congress amended RCRA in 1984 through the Hazardous and Solid Waste Amendment (HSWA). HSWA made it an illegal act to ship hazardous waste abroad without gaining express consent from recipient countries and notifying the EPA

— including in their notifica tion descriptions of how the waste was to be treated or disposed. Thus, HSM accumulated for foreign reclamation (as opposed to re

- use)- 49

-

would be regulated under RCRA as amended by HSWA. Therefore, the rule is not only unjust to vulnerable foreign populatio ns intended to be protected by HSWA, it may also be illegal.
The severity of the harm to be protected by RCRA’s foreign policy outweighs the argument that dangers are unlikely. According to the 2007 Analysis, the greatest threats posed by the DSW Rule arise from lifting permitting, transfer, and off

- site recycling restrictions pose the greatest threat to the environment and public health. Foreign facilities possess all the above criteria. Further, ensuring legitimate recycling of HSM in developing natio ns is unrealistic under the rule’s Transfer and Generator Based Exclusions. The 2011 EJ analysis notes that scenarios where Generators switch from off

- site disposal to exporting for recycling pose increased risk to recyclers do to “longer accumulation time s, greater quantities, and lack of explicit preventative measures.” What the report does not address is the vulnerability of exposure routs and media specific to developing regions where affected communities may rely entirely on fishing and/or agriculture.
The EJ Analysis demonstrates that the HSM have the potential to seep soil and contaminate groundwater or drinking water and aquatic life. Yet, the EPA does not consider that these countries don’t have the political or technical capacity to monitor these a ffects so communities living off the land have no way of knowing they are breathing, ingesting, and drinking toxic content.
Workers at foreign facilities may be handling HSM’s that can be absorbed through the skin while not wear proper protective gear as t here are no such regulatory requirements. Lack of regulation resulting in improper management could also lead to explosions and spills. Further, developing countries also have less access to adequate healthcare than do the vulnerable domestic communities.
Finally, the EJ analysis notes the increased risk of accidents occurring during transportation of HSM to off

- cite recycling facilities under the DSW Rule. The severity of this risk is increased under exportation scenarios because such accidents would poten tially occur in open water during shipment. Therefore, for all the reasons stated herein, the EPA’s dismissal of EJ Analysis on exportation risks on the bases that increased activity is “unlikely” is both unsupported by recent, comprehensive statistical an alysis as well as irresponsible considering the severity of the potential harms and the Legislative intent to include peoples of importing countries in RCRA’s protective scope. [141]
(d) RESPONSE : EPA agrees that exports of hazardous secondary materials fo r recycling has the potential for causing increased risk in the importing country. In response to this comment, EPA has expanded the discussion about exports to include the potential for increased trans

- boundary movements and exports. EPA also notes that b oth the generator

- controlled exclusion and the verified recycler exclusion in the 2014 DSW rule are limited to recycling in the United States.
(e) COMMENTS : T

wo commenters suggested adding the following exposure pathways: home gardens, fishing and e xposure from contaminated a ir ( dermal and oral )

. (004, 248)- 50

-

(e) RESPONSE : EPA has revised the discussion of exposure pathways to include these pathways.
(f) COMMENTS : Several commenters said that EPA’s presumption in the DSW EJ analysis of

non

- compliance with the conditions of 2008 DSW rule was not valid. The opposite is more likely: more stringent and costly regulations are more likely to cause bad actors to avoid regulations.
EPA presumes that facilities operating under the 2008 DSW Rule may not properly impleme nt the rule, which “could result in an increase in potential hazards under the DSW exclusions” that could possibly disproportionately impact low

- income or minority communities. [Draft EJ analysis at 46]
EPA, however, does not provide any evidence in suppor t of this assumption of widespread noncompliance with the 2008 DSW Rule. In fact, EPA instead acknowledges that none of the facilities that have actually reported their intent to utilize the 2008 DSW Rule exclusions are “damage case” facilities. See 76 Fed . Reg. at 44,109 (“To date, no environmental problems have been reported at facilities claiming the DSW exclusions.”); see also Draft EJ Analysis at 75 (acknowledging that none of the facilities reporting an intent to utilize the 2008 DSW Rule exclusions a re “damage case” facilities). (111
, 125, 133, 168, 225, 255)
(f) RESPONSE : EPA disagrees with this comment. The 2014 DSW EJ analysis does not “presume” non

- compliance under the 2008 DSW rule, but rather more closely examines the underlying presumption in t he 2008 DSW rule that Subtitle C requirements, such as permitting, are not required to ensure that the rule does not increase the potential risk to human health and the environment from discarded hazardous secondary material.

As documented in Chapter 2.2 of Volume 1 of the DSW environmental justice analysis, hazardous secondary materials eligible to be recycled under the rule are physically and chemically similar, if not identical, to many of the hazardous wastes sent for treatment and disposal. Before exc luding hazardous secondary materials that have already been determined to be hazardous wastes when discarded, the Agency needs adequate assurance that the conditional exclusion will not result in discarded hazardous materials posing significant risks to hu man 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 l isting determination) and determined them to be solid and hazardous wastes when discarded, the Agency must be able to reasonably expect that hazardous secondary materials managed under a conditional exclusion will not be discarded.

Moreover, as documented in detail in Chapter 2.3 of Volume 1 of the DSW environmental justice analysis, a detailed regulatory comparison of the 2008 DSW rule with RCRA Subtitle C requirements reveals the 2008 DSW rule lacks measures to ensure compliance, includes incentives to ac cumulate larger volumes of hazardous secondary materials, lack s specific

s tandards for waste storage and containment, and reduc es access to information and the opportunity for public participation.- 51

-

Finally, as documented in the recycling market forces stu dy and referenced in Chapter 2.5 of Volume 1 of the DSW environmental justice analysis, the economics of recycling hazardous secondary material, particularly at third

- party recyclers, creates an incentive for over

accumulation, mismanagement, and abandonme nt of the hazardous secondary material.
EPA agrees that, to date, there have been no reports of environmental problems associated with the 2008 DSW recycling exclusions. However, b ecause all recycling under the transfer

- based exclusion has been (to date) p erformed at RCRA

- permitted facilities, EPA is unable to extrapolate what would happen at facilities without RCRA Subtitle C permits if the transfer

based exclusion were fully implemented. Given the evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, additional oversight of recycling beyond the self

- implementing measures of the transfer

- based exclusion is needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.
EPA also disagrees th at Subtitle C requirements increases the likelihood that bad actors would avoid complying with regulation. Bad actors would avoid compliance regardless, and the role of compliance monitoring in influencing environmental behavior both as a specific deterren ce and a general deterrence to bad behavior is well documented. 2 Inclusion in the regulatory comparison consideration of how the 2008 DSW rule could impact the ability of EPA and the states to ensure compliance with the conditions of the rule is appropriat e. Such an analysis does not “presume”

non

- compliance, but it does provide additional information on the context of the 2008 DSW rule implementation and the potential for increased risk to human health and the environment from discarded hazardous secondary material.
(g) COMMENT : One commenter took issue with a statement in the draft DSW EJ analysis that “a generator acting under the 2008 DSW final rule could go out of business with potentially greater quantities of accumulated, non

- processed, and possibly n ot appropriately contain [hazardous secondary materials] on the property” as a basis for stricter accumulation requirements to address alleged issues with the 2008 DSW exclusions. Draft EJ Analysis at 52. No caveats are included concerning the odds of such a possibility, yet this consideration is seemingly given equal weight to other hazard characterizations. [111]
(g) RESPONSE : The statement that the commenter objects to is part of a longer discussion of the potential impacts of the longer accumulation tim es and lack of a specific contained standard. It is self

- evident that longer accumulation times can result in greater quantities stored at a facility, and that if that facility goes out of business that material is likely to be abandoned.
(h) COMMENT : One commenter objected to the fact that the DSW EJ analysis stated that “small independent generators may be more likely to miss indications that reclaimers are not legitimately recycling [hazardous secondary materials],” while at the same time admitting that “EPA did not analyze whether [hazardous secondary materials] reclaimers managing waste from

2 See 2010 EPA Definition of Solid Waste Rulemaking : Compliance Research Background Document , EPA

- HQ

- RCRA

2010

- 0742

- 0014

.- 52

-

small or independent generators were more likely to be located in EJ communities.” Draft EJ Analysis at 111). In other words, EPA makes an unsubstantiated presumpt ion about what might happen under the 2008 DSW Rule and then fails to even connect whether the impacts of that presumption are related to EJ communities. (111)
(h) RESPONSE : EPA disagrees that the statement the comment objects to is an “unsubstantiated pre sumption.” The statement is part of a longer discussion on the likely efficacy of the “reasonable effort” environmental audit condition under the 2008 DSW transfer

- based exclusion. As part of the “study of successful recycling practices,” 3 EPA documented t hat fact that many responsible generators examine the recycler's technical capabilities, business viability, environmental track record, and other relevant questions before sending hazardous secondary materials for recycling. However, as noted in Section X III.B of the 2014 DSW final rule, the fact that these companies are willing to incur the expense of auditing recyclers as a business practice is of itself a marketplace affirmation that sending hazardous secondary materials to other companies for recycling involves some degree of risk. It is self

- evident that smaller businesses are less likely to have the technical expertise and resources to conduct such an audit.
In regards to the question of whether small companies are more likely to located be in minorit y and low

- income communities, EPA acknowledges that this question cannot be answered with the available data. However, regardless as to whether the potential impact is disproportionate or not, the fact there is a potential impact that could result in risk to human health and the environment from discarded hazardous secondary material is an important consideration.
(i) COMMENT : One comment stated that the DSW EJ analysis says that the derived

- from rule would not apply under the 2008 Rule, without any conside ration of whether that rule would provide any added protections. EPA merely notes that the 2008 Rule allows residues to be evaluated based on a new point of generation and that is “contrary to the intent of the derived

from rule,” as if consistency with th at rule is a benefit in and of itself. Draft Environmental Justice Analysis, at A

- 12. (168)
(i) RESPONSE : EPA agrees that the discussion of the derived

- from rule in the DSW EJ analysis is not necessary. As noted in Section 15(g) of this response to comment document, EPA agrees with comments stating that modifications to the derived

- from rule are not necessary because treatment residuals would be evaluate d for exhibiting a hazardous waste characteristic and/or meeting the hazardous waste listing description. Therefore EPA has also removed the discussion of the derived

- from rule from the DSW EJ analysis.
(j) COMMENT : One commenter stated that the DSW EJ A nalysis points out in its comparison of the 2008 DSW requirements with Subtitle C requirements that, while many facilities will have Clean Air Act permits under Subtitle C , some may be too small to require a permit. But in pointing out this distinction, using the example of an auto body shop that may generate solvents, EPA fails to articulate any argument that air emissions from the small auto body shop need to be regulated or even that there is a difference between how the shop’s solvent would be managed under the 2008 Rule compared to subtitle C regulations as they existed before 2008. Draft

3 EPA (2008) An Assessment of Good Current Practices for Recycling of Hazardous Secondary Materials (EPA

- HQ

RCRA

- 2002

- 0031

- 0354 )- 53

-

Environmental Just ice Analysis, at A

- 5. The Environmental Justice analysis does admit that other federal statutes would regulate air emissions, emergency preparedness, personnel training, and transportation of hazardous materials. However, the analysis merely offers the con clusion that the regulation would not be identical to subtitle C regulation, without offering any support for the assumption that returning to full subtitle C regulation would provide additional environmental benefits. (168)
(j) RESPONSE : EPA agrees that t he auto body shop example is not particularly illustrative, since such an entity is likely to be a small quantity generator and not subject to Subtitle C air standard, and has removed it from the document

. However, EPA disagrees with the comment that the l arger issue of potential hazards posed by air emission standards under the 2008 DSW rule vs Subtitle C is not fully explained in the analysis. As explained in A

- 1 of Volume 1 of the analysis, under Subtitle C, large quantity generators must comply with sta ndards to control air emissions. These include standards for the design, operation, monitoring, testing, and recordkeeping of: (1) p rocess vents associated with specified treatment technologies (40 CFR Parts 264 and 265, Subpart AA); (2) e quipment leaks (4 0 CFR Parts 264 and 265, Subpart BB); and (3) missions from tanks, surface impoundments, and containers (40 CFR Parts 264 and 265, Subpart CC). While EPA acknowledges in the same table that Clean Air Act requirements will address some of the increased haza rds under the 2008 DSW rule, for some facilities, such as those that are not subject to CAA permits, they will not.

3.2. 2 Identification of potentially affected communities
(a) COMMENTS : Several commenters objected to the use of the recycling damage cases in the identification of potentially affected communities. Such facilities do not provide an accurate representation of operations likely to utilize the 2008 DSW Rule exclusions, and therefore should not have been used as part of the basis for EPA’s findin gs in the Draft EJ Analysis.
The facilities represented in that data set are the least representative

– because of their age

– of facilities likely to be in operation today. Only 20 of the 217 facilities (7%) are located in a jurisdiction that has adopted the 2008 Final Rule and thus the demographics of the other 93% are irrelevant to the current EJ analysis. N one of the facilities that have actually reported their intent to implement the 2008 DSW Rule exclusions are “damage case” facilities. See 76 Fed. R eg. at 44,109 (“To date, no environmental problems have been reported at facilities claiming the DSW exclusions.”); see also Draft EJ Analysis at 75 (acknowledging that none of the facilities reporting an intent to utilize the 2008 DSW Rule exclusions are “damage case” facilities). Indeed, EPA has pointed to no recorded evidence demonstrating that the 2008 DSW Rule would fail to regulate uncontrolled releases of hazardous substances of the type occurring at the other alleged damage case facilities cited in the Draft EJ Analysis, or legalize releases of hazardous substances that may have a disproportionate impact on low income or minority populations.
Furthermore, some of the allege d damage case facilities in EPA’ s study were associated with the recycling of hazardous waste regulated under RCRA, while others involved the recycling of hazardous materials under pre

- 2008 RCRA exclusions such as those found in 40 CFR 261.4. The 2008 DSW Rule, however, does not apply to regulated hazardous waste, nor is it clear th at facilities managing hazardous materials under pre

- existing exclusions will switch to the 2008- 54

-

DSW exclusions. Therefore, the facilities contained in EPA’ s damage case study are not clearly related to the 2008 DSW Rule and its exclusions, and as such they should not have been included in the Draft EJ Analysis of the 2008 DSW Rule.
Additionally, the alleged damage case facilities are not indicative of modern industrial recycling practices, and are therefore not germane to an analysis of the likely impac ts of the 2008 DSW Rule. EPA recognized that even in that case the alleged damages were attributable to multiple sources including a number not related to recycling. The damage case study therefore does not provide a fair assessment of how modern industria l recycling operations are conducted, particularly in the mining and mineral processing industry.
Thus, it was inappropriate for EPA to include damage case facilities unrelated to the 2008 DSW exclusions in its assessment of the potential impacts of the 20 08 DSW Rule on low

- income and minority populations. (111, 175, 198, 238, 350, 355)
(a) RESPONSE :

Note: Substantive comments related to the use of the damage case analysis in contexts other than in the demographic analysis, including its use in support of EPA’s decision to replace the transfer

- based exclusion, are addressed throughout the preamble to the 2014 DSW final rule, particularly in sections VI, XIII, and XV, and in throughout this response to comments document, particularly in Chapters 2, 4, and 15

. The commenters misunderstood how the damage case facilities were use d in the demographic analysis. As EPA has clarified in the Chapter 2 of Volume 2 of the final analysis, the recycling damage case sites (as well as the RCRA hazardous waste facilities, a nd the industrial non

hazardous waste recyclers) are surrogates for the types of communities where future facilities that would recycle under the DSW exclusion would likely be located. By including these facilities, EPA is not stating that the same types o f damages would automatically occur under the DSW rule, but rather than the communities surrounding these facilities are likely to reflect the same types of demographics as would be experienced under the DSW rule.

While EPA does have location information o n facilities that are actually operating under the DSW exclusion (the “notifiers”), these “early adopters” of the DSW exclusion are unlikely to be representative of the full universe of facilities that would operate under the DSW exclusions once they are f ully implemented for a couple of reasons. First, the notifiers are located in the small number of states that have adopted the 2008 DSW rule. EPA anticipates that once the 2014 DSW rule goes into effect and the regulatory uncertainty is removed, a much lar ger universe of facilities will adopt the rule, greatly expanding the potential universe of facilities. Second, the regulatory uncertainty has likely led to the fact that all off

- site recycling under the 2008 DSW transfer

- based exclusion has been at RCRA p ermitted facilities, who already have the infrastructure to recycling the materials. It is very unlikely that a new recycling facility would begin operations under the 2008 DSW rule given EPA’s reconsideration of the rule. That will likely change once the uncertainty is lifted.- 55

-

The recycling damage case facilities were used in the demographic analysis not because EPA predicts that any one of these facilities would begin recycling under the DSW rule, but rather because, as a class, these past recycling faci lities were subject to the same type of local siting restrictions and other political and social pressures as future DSW recycling facilities will also be subject to, and therefore the demographics surrounding these facilities are likely to be similar.

How ever, the DSW EJ analysis also acknowledges that the fact that these are damage case recycling facilities could also impact the demographics, which is why EPA presented the demographics for this class of facility separately and also included non

- damage cas e recycling facilities in the analysis (see comment summaries b and c below).
(b) COMMENT : One commenter objected to the inclusion of the RCRA facilities in the identification of potentially affected communities in the demographic analysis

. In compiling it s “hazardous waste facilities” database, EPA included all of the facilities on its 2007 RCRA Biennial Database that are “currently generating or managing hazardous secondary materials” in large quantities because it assumes that reclamation will be more ec onomical. It also included all facilities managing recyclable hazardous wastes that may be able to reclaim these wastes under the 2008 Final Rule.
The Agency considers this to be a useful surrogate to determine the make

- up of communities that will be affe cted by the rule despite the fact that almost all are within States that have not adopted the 2008 Final Rule. No examination has been made of the economics of reclamation versus disposal/treatment. Finally, although the analysis document does not contain enough information to discern it, it is highly unlikely that the 2,677 facilities it came up with are engaged in the management of the narrow subset of materials actually regulated by the 2008 Final Rule

– that is spent materials, listed sludges, and liste d byproducts. Examining the demographics of this data set tells us very little. (238)
(b) RESPONSE : The commenters misunderstood how the RCRA facilities were used in the demographic analysis. As EPA has clarified in the Chapter 2 of Volume 2 of the final analysis, inclusion of the RCRA facilities is a surrogate for the types of communities where future facilities that would recycle under the DSW exclusion would likely be located. The fact that many of these facilities are located in states th at have not yet adopted the 2008 DSW rule was intentional, in order to reflect the potential impact of the rule once it is fully implemented.
In addition, EPA disagrees with the comments that “n o examination has been made of the economics of reclam

ation ve rsus disposal/treatment” and “ it is highly unlikely that the 2,677 facilities it came up with are engaged in the management of the narrow subset of materials actually regulated by the 2008 Final Rule .” The analysis is specifically limited to those faciliti es that are already accepting hazardous secondary material for recycling, and those generators that generate enough recyclable hazardous secondary material (i.e., spent solvent) to make recycling economical.
(c) COMMENT : One commenter objected to the inclu sion of the industrial non

- hazardous waste recycling facilities in the identification of potentially affected communities in the demographic analysis . The data set devoted to industrial non

- hazardous waste facilities (25) was selected- 56

-

because EPA believed these facilities may choose to become reclaimers of hazardous secondary materials. No reason is given for believing that these companies will so choose. No economic evaluation of the switch from non

- hazardous waste recycling to hazardous secondary material s reclamation has been done. And no reference indicates that these 25 facilities are located in a State that has chosen to adopt the 2008 Final Rule. Examining the demographics of this data set tells us very little. (238)
(c) RESPONSE : The commenters mis understood how the industrial non

- hazardous waste recycling facilities were used in the demographic analysis. As EPA has clarified in the Chapter 2 of Volume 2 of the final analysis, inclusion of these facilities is a surrogate for the types of communities where future facilities that would recycle under the DSW exclusion would likely be located. The fact that many of these facilities are located in states that have not yet adopted the 2008 DSW rule was intentional, in order to reflect the potential impact of the rule once it is fully implemented.

The industrial non

- hazardous recycling facilities were used in the demographic analysis not because EPA predicts that any one of these facilities would begin recycling under the DSW rule, but rather because, as a c lass, these industrial recycling facilities were subject to the same type of local siting restrictions and other political and social pressures as future DSW recycling facilities will also be subject to, and therefore the demographics surrounding these fac ilities are likely to be similar.
In addition, these industrial recycling facilities were chosen in order to balance the use of the damage case recycling facilities. Because these facilities have similar industrial processes, any difference between the dem ographics surrounding the two classes of facilities may be attributable to the difference in environmental damage. Therefore, the demographic results are presented separately in order to provide the most complete information on potential demographics at th

ese facilities.
(d) COMMENT : One commenter objected to the inclusion of the 40 “notifying” facilities in the identification of potentially affected communities in the demographic analysis

. The 40 sites from Pennsylvania, Iowa, and New Jersey, which the EPA itself claims are likely subject to “bias,” are

non

- representative. There are nine other sites that are currently operating under the 2008 regulation that were not evaluated by the assessment. The analysis of the sites chosen, as compared to the location of other sites that are likely to either adopt the 2008 rule in the future or to be affected by the 2011 rule, would have been useful in determining the true impact of the rule. While the document does say that over 50% of sites selected were from low

- inco me or minority populations, it remains possible that the reason for this result was the self

- selection process of the research. The process for choosing the sites was unclear. (104)
(d) RESPONSE : The “notifying” facilities are self

- reported because they ar e the facilities that have notified EPA that they are actually operating under the 2008 DSW rule. While EPA agrees that these early adopters may not be representative of future facilities operating under the rule (and therefore has added the recycling dama ge case facilities, hazardous waste facilities, and industrial non

- hazardous waste recyclers as explained above), they are also the facilities that are- 57

-

indisputably affected by the rule and are therefore appropriately included in the demographic analysis.
(e) COMMENT : One commenter urged EPA to identify additional recycling damage case sites, saying that there are a lot more damage cases out there. (IL

- 0010)
(e) RESPONSE : EPA has updated the recycling damage case study and has included the updated set of facilities in the DSW EJ analysis.
(f) COMMENTS : Several commenters disagreed with EPA’s decision to use facility address information rather than physically verifying the locations of the DSW facilities. The accuracy of the facility location data and mappe d locations is a particular concern, because of the potential to affect the accuracy of the demographic analyses and conclusions with respe ct to disproportionate impacts. EPA used latitude

- longitude data in its FRS database to map facility locations for fa cilities for which data were available.
Although EPA acknowledges the potential inaccuracies with these data, it took no steps to evaluate the degree of inaccuracy or to correct for location inaccuracies. It states: EPA recognizes that facility addresses and location coordinate information sometimes are not the same as the location in which HSM generation, storage, or reclamation activities might occur. For example, the FRS may have location information for a corporate headquarters rather than production a nd processing facilities. However, field investigation of potentially thousands of facility locations to verify and correct GIS coordinates was beyond the scope of this analysis (p. 75). Although the EPA claims that cost

- prohibitive field investigations wo uld have been necessary to verify locations, there are other means of verifying locations that could have been used, such as directly contacting facilities. This could have been done for the 40 Notification Facilities without major difficulty and could hav e been done with some modest effort for the 218 Damage Case Facilities, and for a sample of the 2,677 facilities generating or managing hazardous wastes that may choose to operate under the 2008 DSW final rule. Such verification procedures were conducted f or an initial list of 499 commercial hazardous waste facilities examined in Toxic Wastes and Race at Twenty.

W hile EPA tacitly recognizes “that facility addresses and location coordinate information sometimes are not the same as the location in which [haza rdous secondary materials] generation, storage, or reclamation activities might occur,” the agency summarily dismissed this potential problem, stating that “field investigation of potentially thousands of facility locations to verify and correct GIS coordi

nates was beyond the scope of this analysis.” Draft EJ Analysis at 81. In other words, while the Draft EJ Analysis clearly illustrates that EPA feels that it is completely within the agency’ s authority to make any number of assumptions about potentially th ousands of facilities and base agency action on the demographic make

- up of communities surrounding those facilities, EPA also asserts that it has no duty to first verify that those facilities are actually located where EPA has assumed they are located. Thi s fact provides yet another example of the presumptive, non

- fact

- based nature of the Draft EJ Analysis, and yet another reason the agency should not base its proposals on the conclusions made in the report. [111, 206]- 58

-

(f) RESPONSE : Given the national level of analysis, as well as the uncertainties inherent in the analysis in predicting future facility locations, EPA has determined that using facility address information is adequate for general rulemaking purpose
, and that any additio nal refinement based on physical verification would not merit the additional resources needed

. EPA identified site locations based on the information reported to EPA as part of the Biennial Report (BR). Where such information was not available from the BR, EPA collected information from the Facility Registry System (FRS). Where such information was not available, EPA searched for the company website on

- line, and used the location where the actual recycling facility was located where available, or the addres s provided otherwise. These locations are therefore generally correct. For the few facilities where this process resulted in an incorrect facility location, while the demographic analysis for that particular facility may be incorrect , this is not expected to have a significant impact on the overall EJ analysis.
3.2.3 Demographics of potentially affected communities

(a) COMMENTS : One commenter objected to EPA’s choice of a 3

- kilometer radius to analyze the demographics of potentially affected facilities, pa rticularly in regards to electric arc furnace dust (EAF). There is no fire potential associated with EAF dust. Thus, for EAF dust, this impact radius must be based on some other pathway, presumably wind borne transport. EPA has failed to even discuss this issue or provide a justification specific to EAF dust. Because EPA’s subsequent demographics calculations and risk calculations rely on the “affected” populations within the 3

- kilometer radius, it can only be assumed that, without a proper substantiation o f this distance, all of EPA’s assumptions and calculations of affected demographics and risk are flawed. ( 141, 198)
(a) RESPONSE : EPA disagrees that the choice of a 3

- kilometer radius could not apply to electric arc furnace dust. Wind

- blown dust is a potential pathway that could impact a 3

- kilometer radius in some cases, and in particular EPA notes in one of the damage cases, the facility had ac cepted over 60,000 tons of the electric arc furnace dust (K061) and stored it on the gro und in piles up to 30 feet high

. However, to address the concern that the 3

- kilometer radius may not characterize all potential scenarios, EPA performed a sensitivity analysis using a 1

- kilometer radius, which did not impact the overall findings of the ana lysis.
(b) COMMENTS : One commenter agreed with the proposed 3

- kilometer radius to analyze the demographics of potentially affected facilities. However, the commenter requested that EPA take into account that some pollutants pollute more and worse than othe rs depending on weather conditions and nature of pollution.
One type of pollution, expansion air pollution, depends mainly on the physical and chemical activities that occur in the air, the wind direction and speed and general weather conditions. The

conc entration of pollution and how much pollution will be driven upwards primarily depends on the weight of compounds and at amount of pollution emitted into the air within a given period of time. Contaminants emitted into the air through tall columns of smoke will mix with air so that local concentrations are not particularly high. However, wind creates situation in which air pollution is highly dispersed.- 59

-

Taking into account parameters such as wind direction, temperature and cloudiness, the results of air po llution can be of a great importance to general public. This is especially true in cases where there are high concentrations of radioactivity in the air, or other health

- threatening factors. Rain is able to remove pollutants from the air. This causes a pro longed and concentrated pollution of soil, liquid water, and food sources. Water is a very different medium than air. Contamination of the Mississippi River, especially in the upper Mississippi, brings pollution to the Gulf of Mexico.

Pollution sources ma y be different, but they share a commonality: contaminants are transferred from one site to another by air, rain, climate change or water away from the center of TSDF. Therefore different cut

- off diameters for a specific TSDF should absolutely be taken int o account.
Potential adoption of the various parameters for large stations will be a lengthy, expensive, and difficult process. Given the differences in terms of landscape, climate zone number, each with its own characteristics, the number of states, the s etting of other specific parameters for all major emitters will be a demanding job and the new measures could lead to initial confusion.
It should be noted that the standard 3 km is not an empirical factor, which can serve as a standard for all hazards. P rescribing precise measurements, while not the best solution, generally speaking, is appropriate in the case of 3km. The introduction of 3km standard enables a clearer analysis that shows the impact of pollution on the demographic, sociological, economic, age structure of populations exposed to potential contamination.
(b) RESPONSE : EPA agrees with the commenter’s recommendation of the 3 km radius as a general assumption for the demographic analysis as generally appropriate for determining impacts from the types of hazards posed by hazardous recycling facilities. Given the national level of analysis, as well as the uncertainties inherent in the analysis in predicting future facility locations, EPA has determined that this information is appropriate for rulem aking purposes any additional refinement based on the types of variable analysis that the commenter suggests would not merit the additional resources needed

. (c) COMMENTS : EPA should, at a minimum, document the geocoding software it used (206).
(c) RESPON SE : EPA has added the documentation of the geocoding software.
(d) COMMENTS : EPA should indicate if water areas were cut out of the digitized Census tract it used. A failure to do so inevitably would contribute another source of error associated with popul ation estimates obtained using the areal apportionment method. (206).
(d) RESPONSE : EPA has added a discussion of how water areas are treated under the apportionment method. For areas with inland water bodies (e.g., lakes, ponds) found within the 3

- km radi us, water bodies were removed from the analysis in order to accurately calculate population and population density for the potentially affected community. In the instances where multiple facilities could affect the same persons within a population, as is t he case for generator and transfer

- based exclusion facilities, overlapping radii were extracted and the affected sub

-- 60

-

population was counted once to increase accuracy of the potentially affected community numbers used in the analysis.

3.2.4 Assessment of disproportionate impacts

(a) COMMENTS : One commenter stated that i naccuracies in the demographic analysis also arise from EPA’s reliance on older (i.e., 2000) census data for its analysis. EPA should address how its conclusions would change, if more curren t (i.e., 2010) data are used (198)
(a) RESPONSE : EPA has updated the analysis using 2010 census data. The new data has not affected the overall finding of the analysis.
(b) COMMENTS : Once commenter stated that EPA should define what it means by “minority” in its analysis. It is clear that with every passing year, the historically defined “minority” population of this country continues to increase, with many areas of the country now populated by majority of such minority populations. Under this dynamic scen ario, it would only be natural that there would be an increase in the exposed minority population, regardless of any other factor but simple population growth. (198)
(b) RESPONSE : Because the analysis compares the minority population in the potentially aff ected area with the overall reference population, any overall change in the minority percentage in the general population would be accounted for.
(c) COMMENTS : One commenter stated that the census

- defined poverty level, developed over forty years ago, fail

s to consider costs that are higher for the average family today than they were when the standard was created. The standard, which is based solely on food costs, does not take into account housing, childcare, health care, or transportation, among other thi ngs, which have “grown disproportionately.” As experts in this field have written, even families at 2x the poverty line are struggling just to provide food and shelter these days. Perhaps an even more significant and problematic deficiency in the census

- de fined poverty standard is that it does not take into account regional variations in cost of living, nor does it distinguish between rural and urban

– even the average lay person knows that there is a vast difference in cost of living between an urban metrop olis like New York City and a rural community in Iowa. Finally, income is counted before payroll, income, and other taxes are subtracted, which overstates income for some families.
Many government agencies, both federal and state, have moved to utilizing a multiple of the official poverty threshold in response to the inadequacy of the current measure, and Congress has even codified a higher level in some instances. For example, the WIC (food stamps) guidelines put forth by the USDA require recipients to be below 185% of the U.S. Poverty Income Guidelines. The U.S. Department of Education’s TRIO programs define “low

- income individual” as “an individual whose family's taxable income for the preceding year did not exceed 150 percent of the poverty level amount .” In a discussion of various alternatives to the typical poverty level, a guidance document for the Port of Los Angeles notes that the San Francisco Bay Area Metropolitan Transportation Commission identifies low

- income individuals as those at 200% or lowe r of the federal poverty level. Finally, in 2007, Congress amended the- 61

-

College Cost Reduction and Access Act to make the poverty threshold 150% of the federal standard.
Given this, it is clearly apparent that the EPA in its environmental justice analysis of the solid waste definition should utilize something higher than the federally defined poverty threshold. Two times the poverty level, a widely used number, would ensure that the analysis includes the population that it is aiming to protect

– there is a strong likelihood that individuals would be missed otherwise. Further, it is very important that geographical differences be taken into consideration. Raising the poverty level or taking into account regional differences would not be cost prohibitive

Beca use this is a precedent setting rule, it is critical that the EPA adopt the correct measure of poverty. EPA provides no evidence to suggest the near poor live in the same neighborhoods as the very poor. As there is little question that the near poor are ju st as vulnerable, it would be prudent to widen the scope of inclusion. There is no disadvantage to such an approach, since the data is readily available. (141)
(c) RESPONSE : EPA agrees that two times the poverty level is a widely used number for determinin g “low income” populations and would ensure that the analysis includes the population that it is aiming to protect and has updated the analysis using two times the poverty level.
(d) COMMENTS : One commenter stated that the “affected population ratio” is no t a meaningful measure and is also not a true measure of the probability of a population group living within a 3 kilometer (km) radius of a hazardous waste facility as claimed by EPA, and as such, cannot be considered a valid measure of disproportionality.
The affected population ratio is used extensively in the report, in over a dozen tables. The EPA asserts that the measure allows it to determine: Whether there was a substantially greater probability of members in a population group (e.g., minority populations) being affected than members of a comparison population group (i.e., non

- Hispanic White) (p. 86).

To calculate the affected population ratio, EPA examines only those individuals living within 3 km of a facility and divides the minority propor tion of the population in the 3 km area by the

non

- minority proportion of the population in the 3 km area. The measure essentially involves calculating and comparing the percentages of minorities and non

- minorities that reside within the 3 km areas around a facility or facility type. The measure does not consider the relative probabilities for minorities and non

- minorities of living in a 3 km area near a hazardous waste facility in the first place and is not a meaningful indicator of racial and socioeconomi c disparities or a valid means of assessing the p otential for disparate impacts.
The “affected population ratio” is a misleading indicator of racial and socioeconomic disparities associated with the location of facilities potentially affected by the DSW ru le. This is because even when minorities or those living below the poverty line are overrepresented in the 3 km areas, the “affected population ratio” can lead to a conclusion of “no disparities.” For example, if- 62

-

the minority percentage inside the 3.0 km a reas is 50% and the white percentage is 50%, the “affected population ratio” is then 1.0. According to EPA’s proposed DSW rule, this would be interpreted as “no disparity”, even though minorities made up only 30% of the U.S. population in the 2000 Census, and thus are overrepresented in the 3 km area (see footnote 39 on page 87).

Moreover, the affected population ratio is not a measure of the probability of living near a hazardous waste facility out of all of the other places to live. Calculating such a pr obability would involve dividing the number of people of color, for example, living within 3 km of a facility by the number of people living in the entire comparison area.

The Affected Population Ratio6 as described by the EPA should be:

pr1/pr2 where pr 1 = minority pop. within 3 km. / minority pop. in comparison area (nation or state), and
where pr2 = non

- Hisp. white pop. within 3km / non

- Hisp. white pop. in comparison area (nation or state)
An environmental justice racial disparity would exist:
if pr 1/pr2 > 1, where pr1 refers to the minority population and pr2 refers to the

non

- Hispanic white population.
(206)
(d) RESPONSE : EPA disagrees with this comment. As documented in Chapter 3.3 of the Volume 2 of the DSW EJ analysis, EPA selected this statistical analysis (sometimes referred to as a “Relative Ratio”) based on technical literature and historical use in EJ analyses and discrimination cases.

As documented in Appendix B to Volume 2 of the DSW EJ analysis
, the Mantel

- Haenszel method was used to estimate a common Affected Population Ratio (APR) under the assumption that all states have the same underlying ratios. These ratios are weighted averages of the state

specific ratios. They differ from the nationwide Affected Population Ratio because they only include states that have at least one facility and because the statistical calculation is different. The Cochran

- Mantel

- Haenszel test, a generalization of the standard chi

- square test, was used to test the null hypothesis of no disparity in every state against the alternative hypothesis of a disparity in one or more states. The p

- value for this test is provided in the documen tation.- 63

-

3.2. 5 Information synthesis and identification of potential preventative and miti gation strategies
(a) COMMENTS : Several commenters stated that EPA should therefore base its environmental justice conclusions on the community

- level analysis performed by the agency, rather than the population

- level analysis.
EPA performed two different d emographic analyses in conducting its EJ assessment

-- a community

- level analysis and a population

- level analysis. First, EPA explained that “for the community

- level analysis, the question is whether the communities in a facility category had a higher or l

ower percentage of minority and/or low

- income population as compared to the comparison population (i.e., national or state population.)” Draft EJ Analysis at xi. EPA found that “for all categories of facilities except the damage case facilities, the facili ties of concern do not appear to be disproportionately located in minority or low

- income communities.” Draft EJ Analysis at xiii. Therefore, EPA found that a potential disproportionate impact on minority or low

- income communities only occurred with respect to the damage case facilities. This result is particularly important given that, as previously mentioned, none of the facilities that notified under the 2008 DSW Rule were damage case facilities. In other words, EPA ’ s Draft EJ Analysis failed to show an E

J problem at the community level for those facilities operating under or likely to operate under the 2008 DSW Rule’s exclusions.
On the other hand, the population

- level EJ analysis examined “the demographics of the total potentially affected population as compared to the total comparison population to determine...[if] there is a potential for disproportionate impact to the population of concern.” Draft EJ Analysis at xii. This calculation took into account whether the population of communities that have a gre ater percentage of minority or low

- income individuals is higher in total than the population of communities that do not. According to EPA, the population

- level analysis showed potential disproportionate impact to all categories of facilities, presumably be cause, while most of the facilities are not located in low

- income or minority communities, those that are, are located in communities with dense populations. Draft EJ Analysis at xiii.
The concept of environmental justice, however, has always been firmly r ooted in the idea of community. By way of example, the three stated goals of “Plan EJ 2014” are to “Protect the environment and health in overburdened communities; Empower communities to take action to improve their health and environment; Establish partne rships...to achieve healthy and sustainable communities.” Pla n EJ 2014 at i.

I t is clear, therefore, that EPA’ s community

- level demographic analysis is the one more indicati ve of the problems at which EPA’ s EJ initiatives are aimed. This analysis showed that the potential hazards EPA associates with the 2008 DSW Rule were generally unlikely to disproportionately impact minority or low

- income communities, and therefore that the 2008 DSW Rule did not post significant EJ concerns. ( 111, 196, 198, 238)
(a) RESPO NSE : EPA disagrees with the comments stating that only the community

- level demographic analysis should be considered in the DSW EJ analysis. As noted in the first- 64

-

paragraph of EO 12898 Federal Actions To Address Environmental Justice in Minority Population s and Low

- Income Populations
,

“ To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency shall make achieving environmental justice part of its mission by identifying and ad dressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low

- income populations in the United States and its territories and possessions, the D istrict of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands. ” (emphasis added)

Thus, while the community

- level analysis provides useful information, it is actually the population

- level analysis that is most responsive to the requirements of the environmental justice executive order.
(b) COMMENTS : One commenter stated that because facilities located in environmental justice communities are usually in the densest communities, therefore, the total population nationwide fa cing the threat of toxic exposure is disproportionately low income and nonwhite. [PA

- 0009]
(b) RESPONSE : EPA agrees with this comment, and has included a population

- level analysis (as well as a community

- level analysis) of possible disproportionate adverse impacts of the DSW rule.
(c) COMMENTS : One commenter stated that even with the improvements contemplated in the Proposed Rule, there will still be unacceptable impacts to low

- income communities and communities of color that EPA has ample a uthority under R CRA to address.
It is essential that EPA fully analyze these potential impacts and revisit its conclusion that the “[P]roposed [R]ule will not have disproportionately high and adverse human health or environmental effects on minority or low

- income populati ons 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.” [F ootnote 17 Id.]
Just because the proposal is an improvement over the deregulatory scheme that is now in place under the 2008 DSW Rule, it is not justifiable to conclude that the revised rule will not have significant, disproportionate impacts on communiti es that are already over

- burdened with pollution. Fundamentally, the rule does not restore regulatory oversight and full and fair opportunities for public participation that RCRA would otherwise afford and which EPA has the discretion to require. EPA shoul d prepare an environmental justice analysis of the Proposed Rule that takes into account the remaining risks of proposed exemptions, using RCRA regulation

— n ot the 2008 Rule

— as a baseline.- 65

-

Based on the analysis that EPA already has completed, it is clear th at the Proposed Rule should be revised to be more protective of human health and the environment. However, there are several ways in which EPA can and should improve its environmental justice analysis to inform its final rulemaking.
EPA takes the position that the results of its environmental justice analysis “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.” [ Footnote 14 76 Fed. Reg. at 44,103.] However, under Executive Order 12,898, EPA is obligated to eliminate environmental inequities to the greatest extent practicable and permitted by law.
To meet this obligation, EPA must make significant regulatory change s including the following: (1) finalize its proposal to eliminate the transfer

- based and tolling

- based exclusions; (2) codify standards for containment that mirror the standards applicable under 40 C.F.R. Parts 264 and 265; (3) codify all four legitimacy f actors and require legitimacy determinations to be documented; (4) eliminate exclusions for land

- based units; (5) impose recordkeeping requirements to avoid speculative accumulations; (5) make notification a condition of all recycling exclusions; (6) requi re financial assurance; and (7) increase opportunities for public participation in the variance and petition processes.
All of these recommendations would serve to curb sham recycling, prevent releases in the first instance, and secure more expeditious cl ean

- ups in the event of damage.

In addition, EPA should act on its proposal to “monitor[] the facilities notifying under the 2008 DSW Final Rule, mak[e] information about the DSW facilities available to the public, and work[] with the states and EPA Regi ons to ensure they have the information they need to ensure compliance with the provisions of the rule, and mak[e] available to the public information about the facilities that have notified.” (244)
(c) RESPONSE : EPA disagrees that the results of the DSW E J analysis require the Agency to go beyond the revisions included in the 2014 DSW final rule. As EPA explained in the May 27, 2009, Federal Register notice announcing a public meeting on the 2008 DSW rule, and reiterated in the 2011 DSW proposal and in Sec tion III. H. of the 2014 DSW final rule, the scope of possible actions under this rulemaking 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.”

“ [ B ]ecause the final revisions to the definition of solid waste are closely tied to E PA's interpretation of the concept of “discard,” EPA does not plan to repeal the rule in whole or stay its implementation. Such an action could result in hazardous secondary materials that are not discarded being regulated as hazardous waste. In particular , EPA does not expect to repeal either the exclusion for hazardous secondary materials reclaimed under the control of the generator or the non

- waste determination petition process. However, EPA believes there may be other opportunities to revise or clarify the definition of- 66

- solid waste rule, pa rticularly with respect to the definition of legitimacy and the transfer

- based exclusion, in ways that could improve implementation and enforcement of the provisions, thus increase environmental protection, while stil l appropriately defining when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous waste regulation.” (74 FR 25203).
In finalizing revision to the 2008 DSW rule to address the potential for adverse impacts to human heal th and the environment hazardous secondary material recycling, including the potential for disproportionate impacts to minority and low

- income populations, EPA has retained the concept of “discard” as a guiding principle. As explain in the preamble to the final rule and throughout the rulemaking record, each of the conditions developed for the DSW exclusions and the revisions to the definition of legitimate recycling are explicitly linked to the concept of regulating discarded material that may pose a signi ficant risk to human health and the environment.

[ Note: The substance of EPA’s response to each of the specific recommendations raised by the commenter is discussed in the appropriate section of this response to comments document.]
In addition, with respect to implementation of the 2014 DSW rule, the notification condition will allow EPA (and the public) to know exactly who is operating under the DSW exclusions, and that EPA has the authority to inspect these facilities and enforce S ubtitle C regulations if the facilities are not meeting the conditions of the exclusions. This enforcement authority, coupled with the new condition that EPA is imposing requiring third

- party recyclers be verified prior to operating under the exclusion, wi ll help ensure that recyclers operating the DSW exclusion s are capable of safely and legitimately recycling hazardous secondary materials prior to beginning operations, and that they continue to do so as lon g as they operate under the exclusion s

. 

## 4.0 Withd raw a l of the Transfer

- Based E xclusion

4.1 Withdrawal of the transfer

- based exclusion

(a) COMMENTS :
Comments Opposing the Proposed Withdrawal of the Transfer

- Based Exclusion
EPA received many comments stating that the Agency should not replace the transfer

- based exclusion with an alternative Subtitle C regulation. Commenters argue that (1) the proposed alternative Subtitle C regulations for transfer

- based recycling disregard the concept of discard and are therefore beyond the scope of EPA’s authorit y under RCRA, (2) the proposed rule and its supporting documents do not justify an entirely new regulatory approach with additional restrictions and requirements for generators wishing to transfer hazardous secondary materials for reclamation, and (3) the proposed alternative Subtitle C framework provides little or no regulatory benefit, and therefore, many facilities may increase disposal of hazardous secondary materials that had been recycled.- 67

-

Specifically, commenters stated that the Agency’s rationale f or withdrawal is based on an arbitrary misreading and mischaracterization of its past findings and the record. Commenters stated that, without fresh evidence, EPA takes a new position based on the 2008 record, stating that “it is reasonable to conclude tha t transfers of hazardous secondary materials to third

- party recyclers generally involve discard . . . .” (76 Fed. Reg. at 44,108). Commenters claim that this is a new position and represents a dramatic and fundamental shift in how the Agency conceives of off

- site reclamation, and that it also mimics the rationale and arguments struck down by the D.C. Circuit in ABR and Safe Food. Commenters note that in 2008 the Agency concluded that “it often may be a sound business decision to ship the hazardous secondar y material to a commercial facility or another manufacturer for reclamation in order to avoid the costs of disposing of the material.” See 73 Fed. Reg. at 64,675, and that nowhere does this statement imply that discard occurs when HSMs are transferred. Com menters assert that by recognizing that “reclamation” is a preferred alternative to “avoid the cost of dispos[al]” this sentence establishes that reclamation and disposal are two distinct and different concepts

— whether transferred or not. Commenters state that EPA cannot now claim that transferring HSMs “generally involve[s] discard.” See 76 Fed. Reg. 44,108.
Commenters also indicated that the 2006 market forces study concludes that a variety of complex factors determine how secondary materials are recycl ed or reclaimed, including the value of the recycled product, the stability of prices in the marketplace, the net worth of the firm, and the costs of disposal. See A Study of Potential Effects of Market Forces on the Management of Hazardous Secondary Mater ials Intended for Recycling, November 21, 2006 at 42

- 43. In the context of off

- site reclamation, the commenters stated that this economic principle allows companies to capture economies of scale and realize other economic efficiencies (i.e., transfer hazar dous secondary materials to firms with specific expertise in recycling or reclamation to turn them into valuable products). This is particularly applicable to metals recycling, where facilities with specific equipment and expertise are better suited both e conomically and technically to conduct reclamation activities necessary for sound recycling. Id. at 49 (“Recycling of hazardous waste offers many potential benefits to firms and more generally to society through reducing waste and the use of virgin materia ls and landfill space.”). Commenters stated that this economic reality supports the Agency’s 2008 position, and that where the value of the recycled product is high, the market forces study concludes that generators often pay legitimate reclamation facilit ies to take secondary materials for legitimate reclamation. Id. at 42 (the value of the product, regardless of whether the generator pays an acceptance fee, is the determinative factor in legitimacy), which runs directly counter to EPA’s newly minted misch aracterization in the 2011 DSW Proposal that because “generators will typically pay the reclamation facility to accept” hazardous secondary materials, transfer equates with discard. 76 FR 44108. Therefore, commenters concluded that the 2006 market forces s tudy does not support withdrawal of the transfer

- based exclusion, nor are EPA’s revised characterizations of the report accurate or credible.
Commenters further claim that EPA illogically assumes violations of regulations in order to justify imposing new regulations, and that EPA has not provided adequate quantitative evidence that signifies facilities are or can be expected to violate the 2008 DSW rule, and the damage cases do not demonstrate that the 2008 DSW rule fails to regulate uncontrolled releases of hazardous substances.- 68

-

In particular, commenters point out that with the notification requirement, EPA or an authorized state would know exactly where the exclusions are used. Commenters cite as evidence EPA’s report on recycling under the 2008 DSW rule , which is based on notifications submitted under the 2008 DSW rule. (76 FR 44109) The report states that 27 facilities are operating under the 2008 rule, including 23 generators and 4 reclamation facilities. Out of the 23 generators, “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 i n 2009 or 2010 notified that they are sending their spent solvents for reclamation under the 2008 DSW final rule. It also notes that there have been no environmental problems reported at any facilities claiming the 2008 DSW exclusions. Commenters stated th at this demonstrates that the 2008 rule has been effective, and is producing solid results in line with the Agency’s intentions, and that removing the transfer

- based exclusion is unnecessary, according to EPA’s own report. Commenters also argued that the t ransfer

- based exclusion provides the greatest opportunity for increasing the recycling of secondary materials by removing unnecessary regulatory burdens for recycling valuable secondary materials, allowing generators to transfer secondary materials off

sit e for recycling. Commenters stated that allowing generators to transfer secondary materials off

- site for recycling will encourage recycling and therefore lead to more secondary materials recycled. This will create more opportunities for recycling facilitie s which will lead to more recycling facilities that accept secondary materials for recycling. More recycling facilities will give generators of secondary materials more options for recycling, causing more competition among recyclers and therefore, a drop i n recycling costs. The transfer

- based exclusion would empower the marketplace to create new and cost

- effective recycling options that would produce the win

- win situation of benefiting the environment and saving money. Commenters provided examples of recycl

ing that have been encouraged by the 2008 DSW rule and could be further expanded.
[068

- 1, 068

- 3, 069

- 2, 104

- 3, 133

- 9, 146

- 2, 146

- 9, 156

- 10, 157

- 1, 168

- 18, 175

- 15, 182

- 9, 186

- 3, 189

- 2, 198

- 5, 198

- 8, 199

- 29, 201

- 5, 202

- 7, 203

- 2, 204

- 2, 205

- 11, 214

- 12, 236

- 4 , 236

- 6, 238

- 9, 241

- 3, 246

- 9, 260

- 6, 283

- 3, 285

- 1, 359

- 3, 359

- 8, 363

- 11, 364

- 1, 364

- 2, 364

- 3]
In addition, EPA received comments from both generators and recyclers operating under the 2008 transfer

- based exclusion sharing their experiences with the exclusi on. Generators operating under the 2008 transfer

- based exclusion note that after the Agency's promulgation of the 2008 DSW rule and subsequent state agency adoption, they re

- evaluated their hazardous waste streams being generated from manufacturing, as wel l as their accumulation and disposal processes, and determined that many materials previously being sent offsite for RCRA treatment and disposal or energy recovery contained chemical compounds that could be recovered under specific conditions via certain t

hird

- party recycling companies. In doing so, these generators were able to convert hazardous wastes that were previously being discarded or destroyed into hazardous secondary materials that have been successfully reclaimed into marketable products using th e authority provided under the transfer

- based exclusion. Companies note that while the Agency does raise some legitimate concerns about some third party recyclers whose primary business is disposal (Subtitle C facility), their experience has been that the facilities that they selected operate under strict state regulatory and corporate oversight that promotes recycling over disposal where feasible. Companies expressed concern that the 2011 DSW proposal would- 69

-

unnecessarily remove these benefits. Companies n ote that the proof is in the results, in that they have been managing through a RCRA Subtitle C third

- party recycling company without incident and with good recovery efficiency, which has positively impacted their hazardous waste generator status and effor ts to promote environmental stewardship through resource conservation. [105

- 1, 128

- 1, 129

- 1, 138

- 1, 273

- 1, 305

- 1]
In addition, recyclers operating under the transfer

- based exclusion (all of which also have RCRA TSDF permits) also strongly opposed the elim ination of the existing transfer based exclusion for HSM, arguing that they have responsibly managed numerous waste streams for reclamation under the provisions of the rule, and that the current rule is effective in promoting the recycling of wastes and is protective of human health and the environment. One company reported having recycled approximately 85,000 gallons of solvent wastes without incident and in compliance with the DSW regulations, and for this reason the company disagrees with EPA’s assumptio n that the recycling of HSM when managed under the transfer based exclusion poses any substantial risk to the public when compared to its management as a fully regulated hazardous waste. Commenters stated when a RCRA TSDF manages hazardous secondary materi al, it does so under the same care and protection as is provided for fully regulated hazardous wastes. The material is received in accordance with a documented and approved waste analysis plan and the wastes are stored in a storage area designed to meet RC RA standards. Commenters stated that a RCRA permitted TSDF has advantages for handling hazardous secondary materials over all of the other options the Agency is proposing to allow, or continue to allow, under this exclusion. Commenters noted that RCRA TSDF recyclers have financial assurance and closure plans in place, are permitted and meet the strictest standards for safeguarding human health and the environment, and have been through a publi c participation process during permitting. Commenters stated that eliminating the transfer

- based exclusion actually elevates the risk as facilities meeting lesser standards are provided this exclusion, while the option of the most protective facilities is being eliminated under the current proposal. Commenters stated th at h aving the transfer based exclusion removed and repositioned to a special provision for hazardous waste takes the recycling “playing field” and splits it apart. The commenter stated that maintaining the “under the control of generator” provision, which excludes recycling by entities that the commenter maintains do not have the knowledge or expertise to distill solvents, while referring to the transfer to a RCRA permitted recycling facility as discard, is arbitrary, and that the materials sent to permitte d RCRA recycling facilities are no more “discarded” than the materials recycled by the generator. [184

- 1, 203

- 3, 243

- 4]
EPA also received comments from a couple of states either implementing the transfer

- based exclusion or that would like to implement it. In particular, the Pennsylvania Department of Environmental Protection (PA DEP) disagreed with EPA's proposal to replace the conditional exclusion for hazardous secondary materials that are transferred from the generator to third party facilities for the p urpose of reclamation with an alternative hazardous recyclable materials regulation. Sixteen of the 22 facilities that have notified PA DEP that they are operating under the 2008 DSW rule are shipping material to an off

- site, third party reclamation facili ty. PA DEP noted that they have experienced no compliance problems or issues of any nature with those generators or reclamation facilities operating under this conditional exclusion, known as the transfer

- based exclusion. In addition, under the transfer

- ba sed exclusion, large quantities of hazardous spent solvents have been diverted to reclamation and reuse rather than being burned- 70

-

for energy recovery, resulting in greater resource conservation. PA DEP stated that replacing the transfer

- based exclusion with the proposed alternative hazardous recyclable materials regulation, which only offers a longer on

- site accumulation period (up to one year) and requires off

- site transportation, storage and management to be conducted under full hazardous waste regulation, will eliminate much of the incentive for generators to operate under the DSW rule and recycle their secondary materials. Many of the larger generators will not be able to hold material on

- site for longer periods of time due to storage volume and transport ation limitations. PA DEP stated that the transfer

- based option should remain in the regulation, and that other aspects of this proposed rule, including making all legitimate recycling factors mandatory and strengthening documentation requirements to suppo rt legitimate recycling determinations, are sufficient to ensure protection of human health and the environment under the current transfer

- based option. 1n addition, PA DEP suggested adding a requirement to the existing transfer

- based option that third par ty reclamation facilities be fully permitted hazardous waste management facilities, as would be required under the proposed hazardous recyclable materials regulation. [271

- 1] In addition, the Northeast Waste Management Officials’ Association (NEWMOA) noted that New Jersey, the only state in Northeast that has implemented the 2008 DSW rule, has not experienced any difficulties with the transfer

- based exclusion to date. However, only permitted TSDF's have been involved, and Agency staff frequently inspects co mmercial TSDFs, at least once a month and sometimes once a week. They have not had any 'secondary facilities' involved and no situations with tolling agreements. (Note: NEWMOA does not support retaining the transfer

based exclusion and New Jersey did not c omment directly). [179

- 4, 272

- 4] Finally, Ohio EPA strongly supports retaining the 2008 DSW rule transfer

- based exclusion, stating that the current 2008 DSW recognizes the commodity

- like value contained in the hazardous secondary materials (HSM) that gener ators have either become accustomed, or forced by regulation, to dispose. Ohio EPA anticipated adopting the 2008 DSW rule when it was finalized, but did not because of lawsuits and the uncertain future of the rule. Ohio also disagrees with commenters that recycling facilities will not receive regulatory oversight, because the excluded materials would still be subject to codified conditions that overseeing regulatory agencies are charged with implementing and EPA could include inspection goals for these faci lities in st ate work plans. [157

- 1, 157

- 2]
Comments Supporting the Proposed Withdrawal of the Transfer

- Based Exclusion
Many commenters argued that, as a matter of both law and policy, EPA must finalize its proposal to eliminate the 2008 transfer

- based exc lusion and regulate off

- site recycling by third

- party reclaimers under RCRA subtitle C. Commenters agreed with the Agency conclusion that “transfers of hazardous secondary materials to third

- party reclaimers generally involve discard” and that “the conditi

ons 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.” [76 FR 44108] Commenters stated that analysis undertaken by EPA in connection with the 2008 rulemaking strongly supports these conclusions. The vast majority of damage cases (194 of 208 or 93 percent) documented by EPA occurred when hazardous wastes were sent off

- site for reclamation. [See id .] By EPA’s account, these “clear instances of discard”- 71

-

have “result[ed] in risk to human health and the environment, including cases of large

- scale soil and groundwater contamination with remediation costs in some instances in the tens of millions of doll ars.” [Id.] Moreover, commenters agreed that the Agency’s “market forces” study confirms that damage of this kind is virtually inevitable in the absence of effective RCRA regulation. [Id.] Because generators are most often paying off

- site reclaimers to acc ept HSMs that create a disposal liability, reclaimers have a strong incentive to stockpile these hazardous materials and to handle them in ways that are not consistent with management as valuable commodities. Commenters agreed that reclaimers are likely to “respond differently from traditional manufacturers to economic forces and incentives, accumulating more inputs (hazardous secondary materials) than can be processed (reclaimed).” [Id.] Commenters stated that in light of the inherent risks posed by third

- party reclamation, EPA should eliminate the transfer

- based exclusion and restore RCRA subtitle C’s safeguards. [032

- 2, 114

- 1, 165

- 9, 173

- 2, 177

- 8, 178

- 3, 179

- 2, 209

- 2, 233

- 1, 239

- 2, 244

- 11, 251

- 3, 257

- 4, 268

- 1, 270

- 2, 272

- 1, 290

- 3, 321

- 2, 333

- 3, 351

- 16, 35 1

- 2, PA

- 0006

- 17, PA

- 0012

- 20, PA013

- 5, PA

- 015

- 5]

Several commenters focused on the self

- implementing nature of the transfer

- based exclusion, stating that the most worrisome aspect of this exclusion is that it puts the generator in the position of being resp onsible to inspect and oversee destination facilities that reclaim the waste, and that the “reasonable efforts” condition for generator inspections is open to interpretation and not a measurable standard. Commenters note that generators, especially those t hat are small businesses, do not have the training, time or regulatory authority to meaningfully inspect destination facilities, particularly those that are not located near the generator, and that this unreasonably transfers a burden to small businesses t hat was and should be borne by the regulatory agencies, and that regular inspections help ensure compliance. [0063

- 2, 1114

- 2, 299

- 1].
One commenter noted that the EPA's 2008 DSW rule exempted 1.5 million tons of hazardous waste from the RCRA protective cr adle

- to

- grave management system and threatened to excuse thousands of companies from complying with longstanding regulations that protect human health and the environment. The commenter stated that under the rule, unlicensed and barely supervised companies handled hazardous industrial waste under very general, nonspecific hazards standards, and that materials are difficult to track. Many of these wastes are highly flammable, explosive, and corrosive and contain dangerous chemicals known to cause many seriou s illnesses. The commenter argued that the rule significantly increased the threat of fire or toxic exposure for many minority and low

- income communities who live near the 52 industrial facilities that are already operating under the exception and are thu s free to generate, store, and recycle these dangerous substances without permits, specific protective performance standards, or adequate oversight. Commenters also noted that the EPA has already identified 218 cases of serious contamination of air, water, and soil from unsafe hazardous waste recycling in the 2007 EPA environmental problems study, and that of the 218 cases, practically all occurred in the facilities that were not subject to RCRA permits and therefore were exempt from RCRA's strict oversight

. In contrast, only 4 percent of these cases occurred at facilities controlled by RCRA that set stringent standards for storage, transport, treatment, and disposal. [PA

- 0004

- 1]
One commenter discussed the 55 facilities that were operating under the DSW rul e (at the time of the 2011 DSW proposal) in Iowa, New Jersey, Illinois, Puerto Rico, the Virgin Islands, and- 72

-

Pennsylvania. The commenter stated that more than 1,804,505 people live within three miles of one of these facilities. [Enforcement & Compliance Hi story Online (ECHO), U.S. ENVT’L PROT. AGENCY, http://www.epa

- echo.gov/cgi

bin/get1cReport.cgi?tool=echo&IDNumber=110002531369 (last visited Oct. 17, 2011).] Collectively, the facilities handled an estimated 77,450 tons of waste annually. [Summary of Defi nition of Solid Waste Final Rule Notifications As of August 16, 2011, U.S. ENVT’L PROT. AGENCY, http://www.epa.gov/osw/hazard/dsw/notify

- sum.pdf (last visited Oct. 17, 2011).] The commenter noted that at least 11 of the facilities have been subject (or rem ain subject) to corrective action orders and 18 of these facility sites have been designated as Superfund sites under CERCLA. [ Cleaning Up Our Land, Water & Air, U.S. ENVT’L PROT. AGENCY, http://www.epa.gov/cleanup/index.html (last visited Oct. 17, 2011); (The commenter stated that Corrective Action sites are designated as in need of cleanup following “Accidents at facilities that house hazardous wastes release pollutants into soil, groundwater, surface water, and air,” according to EPA at http://www.epa.go v/waste/hazard/correctiveaction/index.htm.)]

. The commenter also stated that t he 55 facilities that are now taking advantage of the recycling exemption have collectively been the subject of at least 46 informal and 32 formal enforcement actions in the past five years alone. [Enforcement & Compliance History Online (ECHO), U.S. ENVT’L PROT. AGENCY, http://www.epa

- echo.gov/cgi

bin/get1cReport.cgi?tool=echo&IDNumber=110002531369 (last visited Oct. 17, 2011). (Data not available for the INMETCO and Cherokee Ph armaceuticals, LLC facilities; The Allegheny Ludlum Corp. Facility in Latrobe, PA sits on the site of, and shares a RCRA ID number with, a RCRA Corrective Action and Superfund site. The contamination, however, predates Allegheny Ludlum Corp.’s purchase of the land.)] All told, 36 of the 55 facilities (65 percent) have caused some type of known contamination in the past. More than 545,700 people live within three miles of the 11 RCRA Corrective Action sites, and more than 795,220 people live within three mi l es of the 18 Superfund sites.
The commenter provided the following state

- by

- state analysis:
1. Pennsylvania Five of the facilities in Pennsylvania are responsible for long

- term groundwater contamination: Cherokee Pharmaceuticals, LLC; Carpenter Technology Corporation; World Resources Company; Rohm & Haas; and BAE Systems, Land & Armaments. The Carpenter Technology Corporation, World Resources Company, Rohm & Haas, and BAE facilities are located in environmental justice communities.
Carpenter Technology Co rporation, which has at least 15,962 neighbors living within one mile, has been attempting to remediate heavy metals and volatile organic compounds pollution in groundwater since 1998. The facility provides updates to the EPA on its pump and treat system/w astewater treatment plant’s performance on a semi

- annual basis and has yet to stabilize the groundwater contamination to EPA’s satisfaction. Contaminants include 1

- dichloroethane, 1

- trichloroethane, and tetrachloroethene. [Carpenter Technology Corporation, U.S. ENVT’L PROT. AGENCY, http://www.epa.gov/reg3wcmd/ca/pa/pdf/pad002344315.pdf (last visited Oct. 17, 2011).] These contaminants have been shown to cause nervous system disorders, liver damage, and cancer, among other serious adverse health effects. [Ag ency for Toxic Substances & Disease Register, Toxicological Profiles, http://www.atsdr.cdc.gov/toxpro2.html .]- 73

-

BAE Systems, Land & Armaments in York, Pennsylvania has had spotty results with a groundwater cleanup system first implemented in 2005. The groundwater at the site remains unsuitable for use as drinking water due to the presence of the carcinogen tetrachloroethene. In addition to tetrachloroethene, the groundwater is also contaminated w ith trichloroethene. [BAE Systems (United Defense), U.S. ENVT’L PROT. AGENCY REGION III, http://www.epa.gov/reg3wcmd/ca/pa/pdf/pad003025418.pdf (last visited Oct. 17, 2011).] These contaminants, which can cause reproductive disorders, cancer, and immunosup pression problems, threaten the health of the 10,211 residents living within three miles of the facility

. The Rohm & Haas chemical manufacturing facility is located north of Philadelphia, in an area whose population is in the 95th percentile for non

- white population, and the 67th percentile for low

- income population in the commonwealth of PA. There are 70,636 people living within three miles of the facility, which, since at least the 1990s, has been contaminated with organic compounds, ammonium, sulfate, an d metals. [Rohm & Haas, U.S. ENVT’L PROT. AGENCY REGION III, http://www.epa.gov/reg3wcmd/ca/pa/pdf/pad002292068.pdf (last visited Oct. 17, 2011).]
Finally, the Cherokee Pharmaceuticals, LLC site in Riverside, Pennsylvania completed a Final Remedy for groun

dwater contamination in 2008, but the company continues to monitor groundwater following decades of contamination that began in 1983. The initial contamination released “various organic compounds” that “migrated off

- site and impacted some nearby residentia l wells,” forcing impacted residents to connect to the municipal water system. [Cherokee Pharmaceuticals, LLC, U.S. ENVT’L PROT. AGENCY REGION III, http://www.epa.gov/reg3wcmd/ca/pa/pdf/pad003043353.pdf (last visited Oct. 17, 2011).] Continued observation is essential to prevent further exposure of the community to contaminants including chloroform, benzene, and methylene chloride, which can cause cancer, neurological effects, and immunosuppression.
2. New Jersey
In New Jersey, two of the notifying faciliti es have been identified for RCRA Corrective Action. One of these sites, Veolia ES Technical Solutions in Middlesex, has been undergoing regular remediation and monitoring by the New Jersey Department of Environmental Protection (“NJDEP”) and the EPA since 1986, following releases into the soil of “organic constituents, such as benzene, toluene, methylene chloride, tetrachloroethene and chlorobenzene.” [NJ RCRA Cleanup Fact Sheets: Veolia ES Technical Solutions, U.S. ENVT’L PROT. AGENCY REGION II, http://www .epa.gov/region02/waste/fsmarisol.htm (last visited Oct. 17, 2011).] Even after years of soil cleanup, Veoli a is still under investigation.
Similarly, the Safety

- Kleen Systems, Inc. facility in Linden, New Jersey, an environmental justice community, has lo ng been engaged in a groundwater cleanup following a corrective action designation in 1986. According to EPA, “Past activities, spills, and the operation of unlined impoundments resulted in releases of contaminants to the soil and groundwater. The primary threat is groundwater contamination by volatile organics, including benzene, toluene, methylene chloride, tetrachloroethene, trichloroethene and chlorobenzene.” Residual- 74

-

contamination of soil and groundwater has necessitated continued monitoring of a groun dwater extraction system. The EPA, which has taken the lead on overseeing remediation of this site, has developed a long

- term plan to institute a site

- wide groundwater treatment and monitoring program. [NJ RCRA Cleanup Fact Sheets: Safety

- Kleen Corporation

- Linden, U.S. ENVT’L PROT. AGENCY REGION II, http://www.epa.gov/region02/waste/fssafeli.htm (last visited Oct. 17, 2011).]
The range of contaminants found at the two New Jersey Corrective Action sites have been known to cause cancer, central nervous syst em damage, headaches, nerve damage, liver damage, and more. A total of 184,670 people live within three miles of these two sites and are potentially at risk from exposure to contamination.
3. U.S. Virgin Islands
The Hovensa LLC petroleum refinery in Christ iansted, St. Croix was designated a corrective action site in 1982, when an underground oil plume was first discovered by EPA inspectors. To date, over 40 million gallons of oil have been recovered, and an estimated 2.94 million gallons of oil remain float ing on the groundwater underneath the site. [Hovensa, LLC, U.S. ENVT’L PROT. AGENCY REGION II, http://www.epa.gov/region02/waste/fshovens.htm (last visited Oct. 17, 2011).] This kind of contamination is particularly threatening to the fragile eco

- system of this tropical island and their limited supply of fresh drinking water.

4. Puerto Rico
The Pfizer Pharmaceuticals facility in Barceloneta, Puerto Rico, which was first constructed in 1973, has a long history of spills and leaks. Contamination is now under control, but as recently as 2006 the site’s groundwater was contaminated with chlorobenzene, chloroform and benzene, while subsurface soils were shown to have above

- baseline concentrations of volatile organic compounds. [Documentation of Environmental Indi cator Determination, U.S. ENVT’L PROT. AGENCY, http://www.epa.gov/region02/waste/pfizer725.pdf (last visited Oct. 17, 2011).]
The commenter notes that even under the stringent regulatory requirements of RCRA, the 55

now

- exempt facilities have often been responsible for contamination that required years of carefully managed cleanup. [One site in Iowa, John Deere Des Moines Works, has also been designated for Corrective Action, though details of the contamination at this site have not yet been ascertained. Based on a personal communication with Patricia Murrow at EPA Region 7, it appears that the site has been under various investigations for over ten years, and there have been releases at the site.] Of these sites, at least five have ongoing remediation pla n s for contaminated groundwater.
When these facilities were subject to full RCRA regulation, state and/or federal RCRA inspections identified numerous releases at the facilities, and the facilities were required to develop cleanup plans under the RCRA corr ective action program. The commenter states that as these facilities are now able to escape active oversight pursuant to the new recycling exemption, releases of the sort that historically have caused enduring contamination can be expected to become more f

requent and to go undetected for longer periods. The commenter notes that the- 75

-

great danger of failing to detect groundwater pollution in a timely manner is that plumes of contaminants, if undetected, are more likely to reach residential areas where they ca n poison drinking water or cause toxic gases to enter homes. [0244

- 7, 2 44

- 9]
Comments on Retaining the Transfer

- Based Exclusion with Additional Conditions
Several commenters suggested that EPA retain the transfer

- based exclusion, and address the regulator y gaps identified in the 2011 DSW proposal either through additional conditions or through guidance. For example, one commenter suggested that EPA consider developing guidance on containment, shipping records, and/or documenting reclamation plans. Another commenter stated that i

nstead of scrapping an exclusion that has not proven ineffective or resulted in damages/risks to human health or the environment, EPA should: 1) investigate the practices and performance of the existing users of the 2008 exclusions t o see if "gaps" truly exist; and 2) amend the existing transfer

- based exclusion to close these potential "gaps." This would ensure responsible and legitimate recycling of HSM through clear, yet flexible, standards for engineered and procedural environmenta l controls while still providing cost

- effective protection of human health and the environment. Any amendments to the transfer

- based exclusion should be scientifically sound and reasonable approaches to close the gaps. Other suggestions were to add a condi

tion that requires generators and recyclers to follow the hazardous waste tank and container storage requirements for large quantity generators, and add a condition limiting accumulation times. [133

- 10, 157

- 2, 175

- 12, 198

- 20, 225

- 13]

Several commenters foc used on the off

- site recyclers, suggesting that generators should be required to send their hazardous secondary material to recycling facilities that are operating under tighter restrictions. This would address potential threats to public health and the

en vironment, but still gives generators flexibility to engage in beneficial recycling and reclamation. Commenters argued that requiring generators to transfer hazardous secondary material to recycling facilities operating under more stringent standards will address the actual, documented problems associated with hazardous secondary material recycling, as opposed to theoretical threats. Further, this change will alleviate fears of harm to public health and the environment resulting from discard. As EPA noted, 94% of the damage cases associated with hazardous secondary materials occurred at off

- site, third

- party recyclers. Commenters suggested that the best way to encourage recycling would be to maximize the regulatory advantages of recycling, and to eliminate t he detailed and potentially duplicative due diligence requirements for recycling facilities by requiring that the recycling be conducted at a facility that is permitted under RCRA.

Retaining a broad transfer

- based exclusion, but requiring recycling to be co

- located at a permitted facility, would encourage recycling, while at the same time minimizing the risks posed. Commenters stated that RCRA permitted facilities are the acknowledged experts in the management of hazardous secondary materials, have detail ed management procedures to prevent hazards or releases, and are regularly inspected by state and federal authorities. Commenters stated that these credentials would do far more to ensure environmentally sound management of hazardous secondary materials th an a brief third party audit, as required under the 2008 rule. At the same time, the reduced regulatory burden associated with management of exempt material- 76

-

will result in cost savings that can be passed on to generators as a further incentive to recycling

. [185

- 9, 201

- 9, 203

- 5, 277

- 4]
Other commenters opposed EPA’s request for comment on retaining the transfer

- based exclusion with additional conditions. Commenters stated that additional conditions would not beadequately protective of human health or the en vironment and because they would require the expenditure of state resources at a time when those resources are scarce, adding more conditions to the existing exclusion would not accomplish the desired effect until those additional conditions were the same as those proposed under the alternative Subtitle C requirements for hazardous recyclable materials. [179

- 4, 233

- 1]
(a) RESPONSE : EPA agrees with those comments stating that the 2008 transfer

- based exclusion could result in adverse impacts to human health a nd the environment from discarded material, but disagrees that all off

- site transfers of hazardous secondary materials for reclamation requires Subtitle C hazardous waste regulation, because imposing Subtitle C hazardous waste regulation would result in re gulating hazardous secondary material that is currently being legitimately recycled and not discarded as hazardous waste. Instead, EPA agrees with those commenters that support retaining an exclusion from the definition of solid waste for off

- site recyclin g with additional conditions which will address the potential for discard happening in the future.
EPA has identified several regulatory gaps in the 2008 transfer

- based exclusion that could result in significant risk to human health and the environment fr om discarded material that merited revisiting it. Specifically, the conditions for the transfer

- based exclusion for recyclers lack oversight before management begins and do not allow public participation in the environmental decision

- making process, thereby decreasing the likelihood of compliance and increasing the potential for risk to human health and the environment from discarded hazardous secondary material. The evidence of past damage cases at third

- party recycling facilities leading to signific ant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse economic incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for rec ycling, resulting in discard of the material, demonstrates the need for such additional oversight and public participation. In other words, the transfer

- based exclusion can exacerbate financial incentives for small and/or inexperienced businesses to take i n more hazardous secondary materials than they actually can use, mishandle it, and even go out of business, as shown by the fact that bankruptcies or other types of business failures were associated with 66% of the recycling damage cases, resulting in mult i

- million dollar cleanups.
In response to commenters that state that the Agency’s conclusion in 2008 that “it often may be a sound business decision to ship the hazardous secondary material to a commercial facility or another manufacturer for reclamation in order to avoid the costs of disposing of the material.”(73 FR 64675) means that EPA cannot now claim that that transferring hazardous secondary materials “generally involve[s] discard” (76 FR. 44,108) misread both statements and are confusing the concep t of “disposal” and “discard.” First off, EPA’s position that generators often avoid disposal costs by sending materials to reclamation is unchanged since 2008 and was echoed in the 2011 DSW proposal, which noted that “generators of hazardous secondary mat erials who do not reclaim these materials themselves often ship these materials to a- 77

-

commercial facility or another manufacturer for reclamation in order to avoid the costs of disposing of the material.” (76 FR 44108) However, “disposal” is a much narrower term than discard. Disposal, as defined in 40 CFR 260.10, means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste into or on any land or water. Nor does “avoiding the costs of disposing the material” necessarily r esult in avoiding the actual disposal of material, as the recycling damage cases have shown. In other words, while disposal is always discard, attempting to avoid disposal costs does not mean that discard is not occurring. As the 2011 DSW proposal goes on to note, “Because of the low commercial value and the high potential liability associated with most types of hazardous secondary materials (i.e., spent materials and listed hazardous waste by

- products and sludges), generators will typically pay the reclama tion 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.” (Id)
In response to commenters that state that the market forces study supports maintaining the 2008 transfer

- based exclusion, these commenters are misreading the study. It is true that the study concludes that certain types of recycling, where the recycled product has high value, the prices are stable, and the recycling firm has a high net worth, are likely to see good outcomes. In fact, EPA has alre ady promulgated exclusions for such materials (e.g., scrap metal). However, in general, most hazardous secondary materials (i.e., spent materials and listed hazardous waste by

products and sludges), do not fit this model. Instead, as noted above, these mat erials have low commercial value and high potential liability, and the recycler is often paid to take them. The economic model in the market forces study predicts that facilities in these situations can be more susceptible to environmental problems from th e 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, and these predicted outcomes are supported by the results of the environmental prob lems study. (76 FR 44100).
At the same time, as EPA noted in the 2011 DSW proposal and as was echoed in the public comments, EPA has also carefully monitored the implementation of the 2008 DSW final rule since it came into effect in December 2008, and to date, no environmental problems related to DSW recycling have been reported at facilities claiming the DSW exclusions. As of April 2014, a total of 65 facilities are operating under the transfer

- based exclusion, 56 of which are generators transferring off

- site and 7 which are reclamation facilities. 4 All seven reclamation facilities are RCRA permitted. (There are no reclaimers without a Subtitle C permit currently operating under the transfer

- based exclusion). Of the 56 generators operating under the transf er

based exclusion, 32 generators appear to have either started or substantially increased their recycling as a result of the 2008 DSW exclusions. These include generators that had previously reported in their 2007, 2009, or 2011 biennial report that they sent their solvents offsite for fuel blending, and have since notified that they are sending their spent solvents for reclamation under the 2008 DSW transfer

- based exclusion In addition, in at least five cases, facilities have switched from sending spent p ickle liquor to landfilling or deep well injection to recycling under the 2008 DSW transfer

- based exclusion. In total, the 2008 DSW notifications document that over 57,000

4 Some of these facilities are also managing hazardous secondary materials under the generator

- controlled exclusion.- 78

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tons of hazardous secondary material were reclaimed under the 2008 DSW rule during 2 011. 5 In addition, the fact that the Pennsylvania Department of Environmental Protection (PA DEP), which oversees 27 of the 65 facilities operating under the transfer

- based exclusion, commented strongly in favor of keeping the transfer

- based exclusion, sup ports the idea that an exclusion for off

- site reclamation can be safely implemented. At the same time, given that the transfer

- based exclusion has been achieving its intended purpose of encourage safe, legitimate recycling, withdrawing the transfer

- based e xclusion and replacing it with RCRA Subtitle C hazardous waste requirements is unnecessary and would result in hazardous secondary material that is currently being legitimately recycled and not discarded being regulated as hazardous waste. Because Subtitle C regulation would be more stringent that the current exclusion, if EPA were to finalize the alternative Subtitle C standards, Pennsylvania (and other states that have adopted the 2008 DSW rule) would have to change their programs and regulate this materi al as hazardous waste, despite the fact that it is currently being legitimately recycled and not discarded.

However, the fact that the comments from PA DEP went on to recommend that the transfer

based exclusion be limited to RCRA

- permitted recycling facil ities also supports EPA’s determination that the self

- implementing measures of the transfer

- based exclusion have the potential to result in significant risk to human health and the environment. Because all recycling under the transfer

- based exclusion has b een (to date) performed at RCRA permitted facilities, EPA is unable to extrapolate what would happen at facilities without a RCRA Subtitle C permit if the transfer

- based exclusion were fully implemented. Given the evidence of past damage cases leading to s ignificant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for recyc ling, resulting in discard of the material, additional oversight of recycling beyond the self

implementing measures of the transfer

- based exclusion are needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.

In r esponse to comments citing the corrective action, Superfund, and enforcement histories of the 55 facilities operating under the DSW rule (at the time of the 2011 DSW proposal) as a reason to withdraw the rule, these comments have not demonstrated that the facility histories are linked to current waste management practices, much less to the DSW recycling practices or any other recycling practices

. As noted in the corrective action webpages that the comments reference,

“ RCRA Corrective Action facilities inc lude many current and former chemical manufacturing plants, oil refineries, lead smelters, wood preservers, steel mills, commercial landfills, and a variety of other types of entities. Due to poor practices prior to environmental regulations Corrective Act ion facilities have left large stretches of river sediments laden with PCBs; deposited lead in residential yards and parks beyond site boundaries; polluted drinking water wells in rural areas with chlorinated solvents; tainted municipal water supplies used by millions; and introduced mercury into waterways, necessitating fish advisories. At these sites, the Corrective Action Program ensures that cleanups occur.” (emphasis added)

5 U.S. EPA, EPA’s Evaluation of Data Collected from Notifications Submitted under the 2008 Definition of Solid Waste Exclusions , April 11, 2014.- 79

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http: //epa.gov/epawaste/hazard/correctiveaction/learn.htm , last visited November 16, 2014.

In other words, the RCRA corrective actions (and Superfund clean

- up actions) discussed in the comments appear linked to cleaning up historic contamination and there is n o link to recycling practices under the DSW rule (a point confirmed by the comments of the PA state regulatory agency stating they have seen no problems under the DSW rule)

. Moreover, claiming the DSW exclusion does not affect these facilities’ continued c leanup obligations.
More importantly
, the notification condition will allow EPA (and the public) to know exactly who is operating under the DSW exclusions, and that EPA has the authority to inspect these facilities and enforce Subtitle C regulations if the facilities are not meeting the conditions of the exclusions. Thus even if the contamination were associated with hazardous secondary material recycling, this issue is addressed by the conditions in the final rule. Moreover, under the new verified recycler exclusion (discussed below) any facility that wishes to obtain a verified recycler variance will be required to address any issues in its enforcement history and will continue to be subject to EPA and state RCRA enforcement authority. This enforcement authority, coupled with the new condition tha t EPA is imposing requiring third

- party recyclers be verified prior to operating under the exclusion, will ensure that recyclers operating under the new verified recycler exclusion will safely and legitimately recycling hazardous secondary materials prior to beginning operations, and that they continue to do so as long as they operate under the new exclusion.
EPA is therefore replacing the transfer

- based exclusion currently found in 40 CFR 261.4(a)(24) and (25) with the verified recycler exclusion in 40 C FR 261.4(a)(24). This replacement strikes an appropriate balance between encouraging the safe and legitimate recycling of hazardous secondary materials and allowing the appropriate oversight to ensure the exclusion works as intended. It also addresses the issue of allowing a generator flexibility to recycle on site or off site as circumstances require (as long as the generator notifies under both the generator

controlled exclusion and the verified recycler exclusion).

The verified recycler exclusion retai ns the conditions from the transfer

- based exclusion that were intended to help identify hazardous secondary material that is legitimate recycled and not discarded, and adds conditions that address the regulatory gaps identified in the 2011 DSW proposal. Sp ecifically, EPA is requiring as a condition of the new verified recycler exclusion that generators must send their hazardous secondary materials to a RCRA

- permitted recycler or intermediate facility or to a verified hazardous secondary materials recycler o r intermediate facility who has obtained a solid waste variance from EPA or the authorized state using the procedures found in 40 CFR 260.33. The verified recycler exclusion uses the solid waste variance procedure to determine if a facility will properly m anage the hazardous secondary materials as commodities and legitimately recycle, rather than discard, them. The variance addresses the same criteria currently required for the reasonable efforts environmental audit under the 2008 transfer

- based exclusion ( see discussion below). However, the variance process would allow EPA or the authorized state to evaluate the facility before it begins recycling- 80

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hazardous secondary materials and would also give the affected community the opportunity to provide input prior to a decision as to whether the variance should be granted, thus, addressing a major regulatory gap in the transfer

- based exclusion that could result in significant risk to human health and the environment from discarded hazardous secondary material.

In a ddition, as described below, the verified recycler exclusion retains those conditions from the 2008 transfer

- based exclusion that EPA determined are necessary to properly identify hazardous secondary material that is legitimately recycled and not discarded , and also includes the new conditions that apply to the generator

- controlled exclusion being finalized today.
EPA expects that all U.S. facilities that are currently recycling hazardous secondary materials under the 2008 transfer

- based exclusion will be able to continue to recycle these materials under the verified recycler exclusion, because all recycling under the transfer

- based exclusion is being done at RCRA

- permitted facilities, which qualify for the verified recycler exclusion. Moreover, the additio nal conditions of the verified recycler exclusion address the regulatory gaps EPA identified in the 2011 DSW proposal that could have resulted in significant risk to human health and the environment from discarded material, if the 2008 DSW had been fully i mplemented to include facilities without RCRA permits or other regulatory oversight prior to beginning recycling.
Finally, as stated above, EPA notes that facilities managing excluded hazardous secondary materials under the verified recycling exclusion are still potentially subject to RCRA enforcement actions if they fail to meet the conditions of the exclusion. Persons that handle these hazardous secondary materials are responsible for maintaining the exclusion by ensuring that the conditions are met. If t

he hazardous secondary materials are not managed pursuant to these restrictions, they are not excluded. They would then be considered solid and hazardous wastes if they were listed or they exhibited a hazardous waste characteristic for RCRA Subtitle C purp oses.

The conditions discussed below describe EPA’s evaluation of each of the conditions under the 2008 transfer

- based exclusion that EPA is retaining in the verified recycler exclusion, as well as the additional conditions EPA has determined are necessary to address the regulatory gaps identified in the transfer

- based exclusion in order to ensure that the verified recycler exclusion identifies hazardous secondary materials that are legitimately recycled and not discarded.

1. Prohibition on speculative acc umulation . As a condition of the verified recycler exclusion, hazardous secondary materials cannot be speculatively accumulated (40 CFR 261.1(c)(8)) at the hazardous secondary material generator, reclamation facility, or intermediate facility. Restrictions on speculative accumulation have been an important element of the RCRA hazardous waste recycling regulations since they were first promulgated on January 4, 1985. According to this regulatory provision, hazardous secondary materials are accumulated specul atively if the person accumulating them cannot show that the material is potentially recyclable. Further, the person accumulating the hazardous secondary material must show that during a calendar year (beginning January 1) the amount of such material that is recycled or transferred to a different site for recycling is at least 75% by weight or volume of the amount of- 81

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the hazardous secondary material present at the beginning of the period. It is also the same prohibition that is being promulgated today for t he generator

- controlled exclusions.
Furthermore, under today’s rule, all persons subject to the speculative accumulation requirements at 40 CFR 261.1(c)(8) (including, but not limited to, persons operating under the verified recycler exclusion at § 261.4( a)(24)) must place materials subject to those requirements in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be docume nted through an inventory log or other appropriate method.
This provision will allow inspectors and other regulatory authorities to quickly ascertain how long a facility has been storing an excluded hazardous secondary material, and, therefore, whether th

at facility is in compliance with the accumulation time limits of § 261.1(c)(8). This provision is being retained in the verified recycler exclusion to ensure that the hazardous secondary materials will be recycled rather than discarded through speculative accumulation and abandonment.
2. Notification. Under today’s verified recycler exclusion, as a condition of the exclusion, hazardous secondary material generators, reclaimers, and intermediate facilities must send a notification prior to operating under t his exclusion and by March 1 of each even

- numbered year thereafter using EPA form 8700

- 12. This notification condition is an indication that the facility is planning to legitimately recycle the hazardous secondary materials and not discard them. As with th e generator

- controlled exclusion, EPA is finalizing the notification provision as a condition of the transfer

- based exclusion because it is the only formal indication of a facility's intent to reclaim a hazardous secondary material under the conditional ex clusion rather than to discard it.
3. Hazardous secondary materials must be contained . Another condition of the verified recycler exclusion applicable to hazardous secondary material generators, reclamation facilities, and intermediate facilities is that the hazardous secondary materials must be contained in their management units. This provision is the same as the restriction that is being promulgated for the generator

- controlled exclusion and helps ensure that the hazardous secondary material remains in the management unit until it is ready to be recycled and is not discarded. Hazardous secondary materials released to the environment from any unit are discarded and would be subject to the hazardous waste regulations, unless they are immediately cleaned up . Hazardous secondary materials remaining in a unit that experiences a release may also be considered discarded in certain cases.

4. Emergency preparedness and response. O ne important cause of environmental and human health damages identified by the envir onmental problems study is fires, explosions, leaks, spills, and other accidents, with 19% of the environmental damage cases being associated with these types of incidents. The lack of conditions to address these problems is a significant regulatory gap in the 2008 DSW exclusions. In addition, the President recently released an Executive Order to address these types of concerns (EO 13650

— Improving Chemical Facility Safety and Security). EPA finds that planning and preparing for an emergency demonstrates a g enerator’s intent to not only protect human health and the environment, but also to reduce potential loss of- 82

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valuable hazardous secondary materials. In the absence of such requirements, hazardous secondary materials pose a greater risk of being released an d discarded to the environment.
Therefore, EPA is requiring that generators 6 must follow certain emergency preparedness and response regulations under the verified recycler exclusion. These regulations are found in 40 CFR part 261 subpart M and are depend ent on the amount of hazardous secondary material the generator accumulates on site at any time. Under the final rule, generators that accumulate less than or equal to 6,000 kg of hazardous secondary material on site must meet regulations similar to the em ergency preparedness and response regulations currently required for small quantity generators of hazardous waste. Generators that accumulate more than 6,000 kg of hazardous secondary material on site must meet regulations similar to the emergency prepared ness and response regulations currently required for large quantity generators of hazardous waste. EPA chose to set the threshold at 6,000 kg based on the current hazardous waste generator regulations, which require generators that accumulate greater than 6,000 kg of hazardous waste on site to comply with large quantity generator regulations, including emergency preparedness and response regulations. EPA finds that generators that accumulate greater amounts of hazardous secondary material on site inherently pose greater risk to human health and the environment from a potential release caused by a fire or explosion and thus, it is more appropriate for these generators to take additional steps to prepare for such events.
EPA has determined that adding these em ergency preparedness and response conditions meets the goals of the Chemical Safety EO and also will ensure that those facilities managing hazardous secondary material under the exclusion will be doing so in a manner that allows them to safely recycle the hazardous secondary material and prevent loss into the environment of materials that are supposed to be recycled. These provisions are the common

- sense steps that a facility that manages hazardous materials should take to reduce risk to their workers and t he public. Additionally, structuring the emergency preparedness and response conditions of the verified recycler exclusion after the existing hazardous waste requirements serves to reduce burden on generators, as generators are already familiar and complyi ng with this regulations.
5. Exclusion is limited to recycling performed within the United States. Because the verified recycler exclusion requires that hazardous secondary materials are sent to a verified reclamation facility (or facilities) that has been granted either a RCRA permit or interim status that addresses the hazardous secondary material or has received a variance from EPA or the authorized state, this exclusion is limited to recycling performed within the United States or its territories. Becau se hazardous secondary materials that are exported for recycling passes out of the regulatory control of the federal government, it is not possible to verify whether the foreign reclaimer will safely and legitimately recycle the hazardous secondary materia l and not discard it.
6. Transport to a Verified Recycler . The hazardous secondary material generator must transport hazardous secondary materials to a verified reclamation facility (or facilities) within the United States or its territories. A verified reclamation facility is a facility that has been granted a variance by EPA or an authorized state under § 260.31(d) or a reclamation facility where the

6 Reclamation facilities and intermediate facilities are also subject to emergency preparedness and response requirements, either through their RCRA permit or as a factor addressed under the verified recycler variance.- 83

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management of the hazardous secondary materials is addressed under a RCRA Part B permit or interim statu s standards. If the hazardous secondary material will be passing through an intermediate facility, the intermediate facility must have been granted a variance under § 260.31(d) or the management of the hazardous secondary materials at that facility must be addressed under a RCRA Part B permit or interim status standards. The hazardous secondary material generator must also make contractual arrangements with the intermediate facility to ensure that the intermediate facility sends the hazardous secondary mate rial to the verified reclamation facility identified by the hazardous secondary material generator

. This condition addresses the major regulatory gap in the transfer

- based exclusion of lack of oversight and public participation for hazardous secondary mat erial recycling facilities that do not have RCRA permits. Given the evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perver se incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, additional oversight of recycling beyond the self

- implementing measures of the original transfer

based exclusion are needed to ensure that the hazardous secondary material is legitimately recycled and not discarded.
This condition replaces the self

- implementing “reasonable efforts” environmental audits of the recycling facility required under the 2008 tra nsfer

- based exclusion. EPA has determined that it is more appropriate for the state or EPA to make the determination that a facility can safely and legitimately recycle hazardous secondary material. While EPA has found that many large companies do conduct environmental audits of recycling facilities, as commenters have noted, many smaller generators would not have the technical expertise or resources to conduct such an effort. 7 In addition, it is more efficient for the EPA or the authorized state to perform one evaluation of a recycler via the permit or variance process, rather than have multiple evaluations of a recycler conducted by each generator using that recycler.
6. Recordkeeping . EPA is requiring hazardous secondary material generators, reclaimers an d intermediate facilities to maintain at the generating facility certain records that document off

- site shipments of hazardous secondary materials and confirmation of receipt for a period of three years. The recordkeeping requirements are the same as those in the 2008 transfer

- based exclusion and Agency continues to maintain that the recordkeeping requirements in today’s rule comprise the minimum information needed to enable effective oversight to ensure the hazardous secondary materials are sent for reclam ation and not discarded.
7. Storage of Hazardous Secondary Materials at Reclamation Facilities . In addition to the condition that the hazardous secondary materials must be contained (40 CFR 261.4(a)(24)(v)(A)), reclamation facilities and intermediate facil ities must also manage the hazardous secondary materials in a manner that is at least as protective as that employed for the analogous raw material, where there is an analogous raw material. Where there is no analogous raw material, the hazardous secondary material must be contained. Storage conditions for reclamation facilities and intermediate facilities that operate under today's exclusion demonstrate

7 An Assessment of Good Current Practices for Recycling of Hazardous Secondary Materials (EPA

- HQ

- RCRA

- 2002

- 0031

- 0354 )

.- 84

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that the materials are not discarded, but instead are treated as valuable comm odities which will be recy cled and not lost to the environment. This condition is the same as the parallel condition in the 2008 transfer

- based exclusion and is based on the fact that the great majority of damage cases documented in the environmental problems study occurred at comm ercial reclamation and intermediate storage facilities, and mismanagement of hazardous secondary materials was found to be a cause of environmental problems in approximately 40% of the incidents. Accordingly, EPA has determined that this condition for stor age is necessary and appropriate for reclamation facilities and intermediate facilities that take advantage of this exclusion to show that storage of these materials is not just another way of disposing of them. In addition, it will establish an expectatio n for the owner/operators of such facilities that they must manage hazardous secondary materials in a manner at least as protective as they would an analogous raw material and in such a way that materials w ill not be released into the environment.

8. Mana gement of recycling residuals . Another condition of the verified recycler exclusion is that any residuals that are generated from the reclamation processes must be managed in a manner that is protective of human health and the environment. If any residuals exhibit a hazardous characteristic according to subpart C of 40 CFR part 261, or themselves are listed hazardous wastes, they are hazardous wastes (if discarded) and must be managed according to the applicable requirements of 40 CFR parts 260 through 273. This condition is the same as the parallel condition in the 2008 transfer

- based exclusion and the purpose of this condition is to clarify the regulatory status of these waste materials and to emphasize in explicit terms that residuals that are generated f rom the reclamation of hazardous secondary materials must be managed properly so that the reclamation operation does not become another way of avoiding waste management and simply become another way of discarding unwanted material. The study of recent (i.e ., post

- CERCLA and post

- RCRA) recycling

- related environmental problems revealed that mismanagement of residuals was the cause of such problems in one

- third of the incidents that were documented. Some common examples of these mismanaged residuals were acids and casings from the processing of lead

- acid batteries, solvents and other liquids generated from cleaning drums at drum reconditioning facilities, and PCBs and other oils generated from disassembled transformers. In many of these damage incidents, the re siduals were simply disposed of on

- site with little regard for the environmental consequences of such mismanagement or possible CERCLA liabilities associated with cleanup of these releases. By making proper management of the recycling residuals a condition of the exclusion, EPA ensures that the reclamation operation is not just another way of discarding hazardous constituents. This also helps ensure that the reclamation operation does not pose a significant risk to human health and the environment.

9. Financial Assurance . The financial assurance condition is another condition that is the same as the parallel condition in the transfer

- based exclusion. By obtaining financial assurance, the reclamation or intermediate facility is making a direct demonstrat ion that it will not abandon the hazardous secondary materials, it will properly decontaminate equipment, and it will clean up any unacceptable releases, even if events beyond its control make its operations uneconomical. Moreover, financial assurance also addresses the correlation of the financial health of a reclamation or intermediate facility with the absence of discard. In essence, financial assurance will help demonstrate that the reclamation facility or intermediate facility owner/operators who will operate under the terms of this exclusion are financially sound and will not discard the- 85

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hazardous secondary materials, or if the facility faces financial difficulties, that funds will have been set aside to address any issues and, therefore, these costs w ill not be imposed on the U.S. taxpayer.
The financial assurance requirement has been retained in 40 CFR part 261 subpart H because the substance of the requirement is unchanged from the financial assurance requirement for the 2008 DSW transfer

- based excl

usion. However, the financial assurance condition is now one of the criteria that is evaluated under the verified recycler solid waste variance, allowing the state or EPA to verify that the financial assurance obtained by the reclamation facility or interm ediate facility is sufficient and accessible (in contrast, the financial assurance condition in the 2008 DSW transfer

- based exclusion was self

- implementing and not subject to review by EPA or the authorized state prior to the facility beginning operation).
A detailed discussion of the 40 CFR part 261 subpart H financial assurance provisions can be found in the 2008 DSW final rule at 73 FR 64692

- 8, October 30, 2008.
10. Verification of the Recycler . As discussed earlier, the condition requiring verification of the recycler is the one of the major differences between the transfer

- based exclusion and the verified recycler exclusion and addresses the major regulatory gap in the transfer

- based exclusion of lack of oversight and public participation for hazardous secondary material recycling facilities that do not have RCRA permits. The reclaimer and intermediate facility must be granted a solid waste variance by EPA or an authorized state under § 260.31(d) or must have a RCRA Part B permit or interim status stand ards that address the management of the hazardous secondary materials. An intermediate or reclamation facility may apply for a solid waste variance to accept hazardous secondary materials by addressing the substantive criteria of the “reasonable efforts” c ondition that had previously applied to the hazardous secondary material generator under 40 CFR 261.4(a)(24)(B). In addition, the variance must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary mat erial to the environment.
Specifically, to qualify for the solid waste variance, the facility must address the following criteria:
(1) The intermediate or reclamation facility must demonstrate that the reclamation process for the hazardous secondary mater ials is legitimate pursuant to § 260.43;
(2) The intermediate or reclamation facility must satisfy the financial assurance condition in § 261.4(a)(24)(vi)(F);
(3) The intermediate or reclamation facility must not be subject to a formal enforcement action in the previous three years and must not be classified as a significant non

- complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonst ration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;- 86

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(4) The intermediate or reclamation facility m ust have the equipment and trained personnel to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements;
(5) If residuals are generated from the reclamation of the excluded hazardous secondary material s, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or present credible evidence that the residuals will be managed in a manner t hat is protective of human health and the environment; and
(6) The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (includi ng releases that are not covered by a permit, such as a permit to discharge to water or air, and may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind

- blown dust, f ugitive air emissions, and catastrophic unit failures), and must include consideration of potential cumulative risks from other nearby potential stressors.

The rationale for each of these criteria is discussed below.
Criterion (1) is based on the first rea sonable efforts question in the 2008 transfer

- based exclusion and focuses on whether the reclamation facility receiving hazardous secondary materials from a generator legitimately recycles such materials. Determining whether a recycling operation is legiti mate is a fundamental basis for establishing that a generator’s hazardous secondary materials will not be discarded.
Criterion (2) is based on the second reasonable efforts question in the 2008 transfer

- based exclusion and addresses whether the facility h as the necessary financial assurance to cover the costs of managing any hazardous secondary materials that remain if the facility closes. If a facility fails to meet the condition to have financial assurance, then it also would have failed to show a good f

aith effort towards demonstrating that it intends to recycle the hazardous secondary materials (or, in the case of the intermediate facility, properly store the hazardous secondary material) and not discard them. Note that the second reasonable efforts que stion also required the generator to verify that the regulatory authority had been notified by the recycler under the 2008 transfer

- based exclusion, but under the verified recycler exclusion, the state or EPA can verify that directly, thus, it is not inclu ded here.
Criterion (3) is based on the third reasonable efforts question in the transfer

- based exclusion and focuses on the compliance history of the recycler or the intermediate facility (to the extent that the hazardous secondary material generator uses an intermediate facility). The language of this requirement has been simplified from the corresponding reasonable efforts question because the information is submitted to the regulatory agency who already has access to the pertinent enforcement informatio n, rather than obtained by the generator who would need to rely on publically

- available data This criterion requires that the facility must either not be subject to a formal enforcement action in the previous three years and not be classified as a significant non

-- 87

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complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly

. While a facility being designated as a significant non

- complier and/or the subject of a formal enfo rcement action does not automatically mean that the facility would not reclaim the hazardous secondary materials properly, it does raise questions that we have determined the facility requesting the variance should address. That is, if any formal enforceme nt actions were taken against the facility in the previous three years for such non

- compliance and the facility was alleged to be a significant non

- complier, the facility must adequately explain how it has resolved any issues or how the reclamation facilit y will properly manage the hazardous secondary materials to avoid future violations and/or enforcement actions.
Criterion (4) is based on the fourth reasonable efforts question from the 2008 transfer

- based exclusion and addresses the technical capability of the recycler or intermediate facility, the most basic requirement for ensuring proper and legitimate recycling of hazardous secondary materials. If a reclamation or intermediate facility was found to have no equipment or inadequate equipment for storing the hazardous secondary material or was found to have personnel who have no t been trained in handling and reclaiming the hazardous secondary materials, it raises serious questions as to whether the facility would properly manage such materials and avoid d iscarding them to the environment. This criterion also includes the addition of verifying that the facility meets the new emergency preparedness and response condition discussed earlier.
Criterion (5) is based on the fifth reasonable efforts question in th e 2008 transfer

- based exclusion and addresses another major cause of environmental problems from recycling hazardous secondary materials: the management of residuals. This criterion relates to discard through the concept that a generator or reclaimer may a ctually be discarding hazardous secondary materials through the release of residuals from the recycling process. While the product made from recycling may be a legitimate product, the whole recycling process could be considered discard if hazardous constit

uents from the recycled hazardous secondary materials are released to the environment through the residuals. Roughly one

- third of the damage cases documented in EPA’s environmental problems study were caused by mismanagement of the residuals from recycling

. To address criterion (5), the petitioner would need to demonstrate that the reclamation facility has practices in place to ensure that residuals are managed in a manner that is protective of human health and the environment and according to applicable fe deral or state standards.
Criterion (6) is a new standard not included in the 2008 transfer

- based exclusion and is a case

specific performance

- based criterion that addresses the risk to proximate populations from unpermitted releases of the hazardous seco ndary material to the environment (including releases that are not covered by a permit, such as a permit to discharge to water or air, and may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases t o soil and groundwater, wind

- blown dust, fugitive air emissions, and catastrophic unit failures), and must include consideration of potential cumulative risks from other nearby potential stressors. The purpose of this criterion is to specifically address t he differences in the preventative measures between a RCRA

- permitted facility as compared to a facility managing excluded hazardous secondary material, including the lack of prescriptive standards for storage and containment (including air emissions standa rds ). In addition, this criterion addresses the- 88

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finding that many of the populations likely to be proximate to hazardous secondary materials recycling facilities are subject to multiple environmental stressors, including other industrial facilities, landfi lls, transportation

- related air emissions, poor housing conditions (e.g., lead

- based paint), leaking underground tanks, pesticides, and incompatible land uses.
The steps the petitioner would take to address this criterion would depend on case

- specific cir cumstances. For example, a facility that is recycling a hazardous secondary material that is not particularly mobile in the environment (e.g., a non

- liquid material that does not pose a risk of wind

- blown dust) and is not located near population centers wo uld simply need to document these facts in order to meet this criterion. On the other hand, a facility recycling a hazardous secondary material that is volatile, ignitable, or otherwise has a high potential to adversely impact nearby populations in case of a release would need to document the specific steps taken to prevent releases. EPA recommends that the petitioner engage the potentially affected community in developing this document to ensure that th ey have addressed the concerns

e xpressed by the commun ity.
(b) COMMENTS : Summary of Comments on Exports under 40 CFR 261.4(a)(25)
EPA received several sets of comments specific to the provision at 40 CFR 261.4(a)(25), which regulated exports under the transfer

- based exclusion. One commenter requested EPA eli minate 40 CFR 261.4(a)(25), noting that a significant quantity of lead

- bearing hazardous secondary materials and spent lead acid batteries are exported for recycling, and there is concern that the controls in place to protect the environment and the safety of the workers and neighboring communities in the locations in which these materials are processed for reclamation may not provide protection equivalent to that in the U.S. By allowing regulatory relief to the export of lead

- bearing hazardous secondary ma terials and spent lead acid batteries, the commenter stated that such export is encouraged, and by requiring lead

- bearing hazardous secondary materials and spent lead acid batteries destined for export to be fully regulated as solid waste and hazardous

was te, the likelihood that such materials will be properly managed will increase. In addition, the commenter requested that EPA amend Subpart G §266.80(a)(6) and (7), eliminating the exemptions afforded in Column 3, and adding same conditions so that such exp orts would be subject to as specified in Column 4, thereby eliminating the existing exemptions pertaining to the export of spent lead acid batteries. [324

- 2] Another commenter requested that EPA provide clarification to the regulated community as to why th is exclusion has been removed in the 2011 DSW proposal. [236

- 6]
Other commenters specifically opposed removing the export transfer

- based exclusion at 40 CFR 261.4(a)(25), stating that EPA proposed to remove this exclusion without mentioning that it is bein g removed and without explaining the agency's reasoning. Commenters noted that in the preamble to the 2008 DSW final rule, EPA stated that there is no need to classify hazardous secondary materials that are reclaimed outside the United States differently f rom those reclaimed within the United States. “We believe that hazardous secondary materials exported for legitimate reclamation in accordance with today's final rule are not discarded and, thus, not solid wastes and, therefore, we have no basis for prohib iting exports when a hazardous secondary material- 89

-

generator complies with the regulatory requirements.” 73 Fed. Reg. 64,668 at 64,737 (Oct. 30, 2008). Commenters also noted that the preamble to the 2008 DSW Rule addressed the few commenters' concerns that such exclusion should not be allowed. Such commenters argued that these exports would "run contrary to international agreements" (such as agreements established by the Organization for Economic Cooperation and Development (OECD) and the Basel Convention re garding transport of hazardous waste) and could also "increase the risk of environmental damage in other countries." Id. Commenters assert that in maintaining the exclusion with only minor modifications in the 2008 DSW Rule, EPA was not swayed by such argu ments. Further, as to the international agreement contention, commenters stated that the Agency was unconvinced that significant changes were warranted. Although recognizing the U.S. as an OECD Member and, as such, legally bound to comply with certain fina l OECD decisions concerning the control of the transboundary movements of recoverable waste in an environmentally sound manner, , commenters explain that EPA asserted that the Member countries were permitted to develop their own regulations in order to det ermine whether or not materials are controlled as hazardous wastes. The commenters said that Agency reasoned that under the 2008 DSW Rule, hazardous secondary materials meeting certain conditions and exported for reclamation are not solid wastes under U.S. regulation. Because such hazardous secondary materials that are not solid and hazardous wastes under the U.S. hazardous waste regulations could be deemed solid and hazardous wastes under the receiving country's regulations, commenters noted that EPA advis ed that facilities should "be aware of the requirements that competent authorities of receiving countries may impose." Id. On similar grounds, commenters said that EPA refused to agree with those commenters who argued that the exclusion was inconsistent wi th the Basel Convention, a separate multilateral international agreement governing the transboundary movements of hazardous wastes. "EPA, in any case, considers today's rule [2008 Final DSW Rule] to be consistent with Basel for the same reason that it is c onsistent with the OECD agreement ..." Id. Commenters claimed that EPA further pointed out that since the U.S. is not a party to the Basel Convention, it is not held to the Convention's agreements Thus, the commenter stated that EPA determined after carefu l analysis that the hazardous secondary materials exporter exclusion was not inconsistent with existing international arrangements which required environmentally sound practices, and that the exclusion did not increase the risk of environmental damage in o ther countries. The commenter said that the foreign countries' own laws and consent restraints, the facilities' ongoing obligation to be aware of foreign requirements, and the built in procedural measures (i.e., notification, reporting, and reasonable eff orts requirements) were deemed sufficient environmental protections to prevent any environmental risk to international reclamation facilities or their home countries.
Commenters noted that the U.S.'s position in connection with the international arrangeme nt addressed in the 2008 preamble remains the same; the U.S. still has not ratified the Basel Convention and the arguments in furtherance of the exclusion still apply. Accordingly, the commenter stated that the prior analysis should be reaffirmed so as to fully allow beneficial reuse and recycling that can result in meaningful waste minimization in connection with exports to foreign reclamation facilities. Commenters noted that m uch of the language in §261.4(a)(25) is similar to the provisions under Part 26 2 Subpart E and Subpart H in which the shipped material is hazardous waste. Commenters stated that these provisions are lengthy and complex and that the material being shipped would have to have large value or a generator would not attempt to- 90

-

use the provi

sion, and that the agency is very well aware of such activities and has ample opportunity to review them, so that fear over misuse should be minimized. Therefore commenters stated that changes to §261.4(a)(25) are not needed. [0196

- 7, 0199

- 29, 204

- 20, 350

- 17]
(b) RESPONSE : In response to comments requesting EPA more fully explain the removal of the exclusion at 40 CFR 261.4(a)(25), as EPA noted in the 2011 DSW propose rule, 40 CFR 261.4(a)(24) was the primary transfer

- based exclusion and 40 CFR 261.4(a)(25) contained the export requirements for the transfer

- based exclusion. (76 FR 44108, footnote 16). Thus, EPA’s rationale for replacing the transfer

- based exclusion as articulated in the proposal (76 FR 44108

- 10) applies to both 40 CFR 261.4(a)(24) and (25). In other words,
“The evidence of past damage cases leading to significant risk to human health and the environment from hazardous secondary materials originally intended for recycling and the underlying perverse incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material, indicate the need to regulate these hazardous secondary materials as hazardous waste, unless there is specific information about a hazardous seconda ry 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).” (76 FR 44109

- 10)
However, as discussed in Section VI.E of the preamble to the 2014 DSW final rule, while the new condition under the verified recycler exclusion at 40 CFR 261.4(a)(24) that the recycler either be a RCRA permitted facility or obtain a verified recycler variance will provide EPA and the state the specific inform ation about the reclamation practice that will show discard is not occurring for domestic recyclers, there is no equivalent condition that applies to exports, and therefore EPA has no basis for allowing such exports under the exclusion. In other words, bec ause hazardous secondary materials that are exported for recycling pass out of the regulatory control of the federal government, it is not possible to verify whether the foreign reclaimer will safely and legitimately recycle the hazardous secondary materia l and not discard it.
This determination is not based on any of the various international agreements cited in the comments, but is rather based on EPA’s analysis of the nature of these hazardous secondary materials and the underlying economic incentives for over

- accumulation and discard and the need to verify the third

- party recycler can safely and legitimately recycle the hazardous secondary material.
While EPA agrees with comments stating that much of the language in 40 CFR 261.4(a)(25) is similar to the language under the hazardous waste export provisions under Part 262 Subpart E and Subpart H, the crucial difference of naming these exports “hazardous waste” remains, and to do otherwise would risk misinforming the importing countries about the nature of these materials.
In regards to specific comments on lead acid battery exports under 40 CFR 266.80, those comments are outside the scope of the proposal.- 91

-



### 4.2 Specific wastestreams that should be excluded

COMMENTS : EPA received two suggestions in respons e to its request for comment asking if there are other specific hazardous waste streams or recycling practices, that, similar to those found in 40 CFR 261.4(a)(6)

- (21), would be most appropriately addressed through a conditional exclusion due to their phys ical or chemical properties and/or current management practices. (76 FR 44110)
The first suggestion was excluding ferrous chloride when used in the production of hydrochloric acid (HCL). The commenter explained that, starting in 1964, numerous steel finish ing facilities changed from the use of sulfuric acid to hydrochloric acid. The process of finishing steel is commonly referred to as the pickling process. Besides the advantage of lower costs, HCl pickling offers faster and cleaner pickling, lower acid con sumption and greater utilization of the acid, less steam consumption and reduced quantities of pickle liquor generated, and greater versatility and more uniform product quality than sulfuric acid pickling. HCl dissolves accumulated oxidized scale (rust) fr om the surface of a metal without any significant attack on the steel itself.
The commenter went on to explain that the byproduct of the HCL pickling process is ferrous chloride which is commonly referred to as spent pickle liquor and when disposed of is a listed hazardous waste, K062. Untreated f errous chloride also serves as a reducing flocculating agent in wastewater treatment plants throughout the United States. Chemical companies purchase ferrous chloride from steel finishing operations and sell the f errous chloride directly to municipalities and other wastewater treatment customers under 261.2(e). Alternatively, companies can “manufacture” ferrous chloride, which is chemically identical to the spent pickle liquor obtained from steel company suppliers, by simply dissolving scrap steel into a solution of HCl, which is not regulated under the Solid Waste Management Act. [121

- 12]
The second suggestion was excluding electroplating sludge. The commenter explained that copper sludge created through the treatm ent of wastewater from the electroplating of printed circuit boards and other items is one of the high

- value secondary materials that would more commonly be recycled under the provisions of the 2008 DSW rule. This sludge often contains metals at a concentr ation that is significantly higher than that occurring in nature. For example, copper ore normally contains less than 1 percent copper, whereas copper sludge from the printed circuit board industry averages 10 to 15 percent copper. According to EPA's 1998 Common Sense Initiative F006 Benchmarking Study, electroplating wastewater treatment sludge represents one of the largest sources of untapped metal

- bearing secondary materials in the United States. As a result of the cost of reclamation under RCRA hazardou s waste regulations, landfills have been the dominant choice for final disposal of electroplating sludge, wasting valuable resources. For over a decade, EPA has acknowledged the importance of changing the regulatory regime for electroplating sludge. In 200 7, EPA submitted to the Office of Management and Budget a draft rule that would have exempted the material from RCRA hazardous waste regulations if reclaimed. Later that same year, EPA withdrew the rule, the draft rule, in order to include electroplating s ludge reclamation in the pending DSW rule. However, the commenter explained that due to doubt surrounding the implementation of the DSW rule, little has changed regarding the reclamation of electroplating sludge. In early 2011 a recycling facility in Arizo na stopped reclaiming electroplating sludge due to burdensome and costly regulations associated- 92

-

with being a TSDF. This facility was the last U.S.

- based recycler that accepted electroplating sludge for reclamation. Currently there is one facility in Canada while the majority of facilities are located in China, Europe, and Mexico. Removing regulatory barriers to recycling will encourage facilities in the U.S. to recycle high

- value materials, leading to reduced recycling costs and an increase in materials rec ycled. [TRANS

- PA

- 0003

- 2]

RESPONSE : EPA appreciate comments in response to the Agency’s request for information on possible wastestreams for future material

- specific exclusions (which would require a separate rulemaking). However, EPA notes that both of these streams are currently reported as being recycled under the transfer

- based exclusion, and will be eligible to continue to be recycled under the verified recycler exclusion, and therefore, additional exclusions are likely not necessary.



## 5 .0 Alternative Subtitle C Regulation for Hazardous Recyclable Materials

COMMENTS :
Comments Opposing the Alternative Hazardous Recyclable Materials Standards
Many commenters opposed th e proposed alternative hazardous recyclable materials standards
, stating that they are not an adequate substitute for the third

- party transfer exclusion because they impose parallel and duplicative requirements that are a more onerous burden than Subtitle C regulation alone and would discourage rather than encourage additional recycling

.
C ommenters stated that, a s proposed, the alternative s tandards add burdens that are likely to be significant disincentives to legitimate recycling and which are not offset by the proposed extended accumulation period or alternative labeling option

. Commente rs note that the extended accumulation period allowed under the alternative standards offers no benefit to generators who may have no reason to stor e secondary materials on site, or generators who prefer to immediately ship their materials. For example, an y electric utilities may generate small and infrequent quantities of hazardous secondary materials. At present, members often have no reason to accumulate these materials, which are promptly shipped to third

- party recyclers in most circumstances. For these generators, the proposed rule will increase the burden of recycling secondary materials without providing any offsetting benefits. In exchange for this longer accumulation time period, additional regulatory burdens would be placed on generators
, including the notification, reclamation plan and storage quantity limit requirements

. Commenters also stated that the option of labeling the materials as “hazardous recyclable materials” instead of “hazardous waste” would have no material benefit. Commenters stated that simply labeling a material by a different name will not encourage recycling. While generators are encouraged to minimize the hazardous waste being generated and reclaim when possible, regardless of whether or not the material is hazardous waste, the decision to recycle is often controlled by economic consideration rather than “feeling good” about recycling.

[114

- 5, 125

- 11, 125

- 14, 125

- 3, 128

- 2, 129

- 2, 133

- 12, 145

- 5, 156

- 11, 175

- 4, 185

- 5, 186

- 11, 186

- 12, 186

- 14, 186

- 4, 199

- 31, 201

- 6, 201

- 8, 203

- 4, 204

- 21, 255

- 19, 297

- 4, 225

- 14, 255

- 18, 260

- 7, 264

- 3, 273

- 1, 283

- 4, 283

- 5, 337

- 5, 359

- 19, 359

- 9, 363

- 12, PA

- 0012

- 12, PA

- 00145]- 93

-

Commenters expressed concern over a number of provisions in the proposed alternative standards that they found confusing. Several comm enters found the distinction between “hazardous secondary material” (which is used in the solid waste exclusions) and “hazardous recyclable material” (which is used in the alternative standards) to be unclear

. [032

- 1, 038

- 1, 058

- 13, 225

- 15, 257

- 8]. Other commenters said that the standards are drafted in such a way that it appears that generators who transfer waste to third parties for recycling, but who do not intend to utilize the extended accumulation time pe riod, cannot opt out of alternative standards. Commenters also found it unclear whether the standards would apply to previously excluded material and suggested that EPA redraft the regulatory language to make it clear that these provisions apply only to sp ent materials, listed byproducts, and listed sludges being transferred to another person for reclamation

. [115

- 12, 125

- 15, 175

- 20, 186

- 15, 217

- 6, 363

- 10] Commenters also noted that the standards appear to allow facilities to store materials that are genera ted offsite without obtaining a hazardous waste permit. [157

- 5, 239

- 15, 299

- 5] One commenter was confused about how intermediate facilities would be affected. [299

- 4] One commenter found it unclear how the 1

- year storage provision for the rule interacted w ith speculative accumulation limits. [239

- 5] Other commenters suggested corrections or clarifications of references. [270

- 6, 271

- 8]

Comments Supporting the Alternative Hazardous Recyclable Materials Standards
EPA received many comments supporting the alternative standards, with commenters stating that the proposed ma nagement standards ensure all handlers of hazardous recyclable materials will meet current, well

- known hazardous waste management standards for hazardous waste generators, transporters, and TSD facilities so that owner/operators of such facilities should see little change

. Commenters stated that the standards are preferable to the transfer

- based exclusion and that proposed longer accumulation times and alternative designation of the material s as "hazardous recyclable materials" will help encourage legitimate reclamation.[0038

- 7, 0063

- 4, 161

- 3, 177

- 9, 179

- 6, 179

- 13, 209

- 3, 251

- 6, 257

- 5, 270

- 4, 272

- 6, 290

- 4, 321

- 3, 332

- 1, 333

- 4, 333

- 5, 351

- 21, 351

- 3, IL

- 0001

- 5, PA 0006

- 6, PA

- 0012

- 2]

Commenters on Specific Provisions of the Alternative Hazardous Secondary Materials Standards
In response to EPA’s request for comment, commenters provided detailed comments on the specific provisions of the alternative standards and on possible additional provisions, including the notification requirement and its interaction with the Biennial Report requirement, the labeling requirement, the 1 year accumulation timeframe, the reclamation plan, storage standards (including the alternative “contained” standard), potenti al quantity limits for accumulated materials, the use of shipping papers vs. hazardous manifest vs. alternative manifest, emergency planning and response requirements, and whether the hazardous recyclable material should count towards the generator status. [031

- 4, 032

- 3, 032

- 5, 032

- 6, 032

- 7, 032

- 8, 032

- 9, 032

- 10, 038

- 8, 038

- 9, 038

- 10, 038

- 11, 038

- 12, 038

- 13, 038

- 14, 058

- 1, 058

- 12, 058

- 14, 094

- 5, 094

- 6, 094

- 8, 114

- 3, 114

- 4, 115

- 13, 115

- 14, 125

- 13, 133

- 13, 133

- 14, 142

- 3, 143

- 4, 143

- 6, 143

- 7, 143

- 8, 155

- 5, 156

- 5, 156

- 6, 157

- 13, 157

- 14, 157

- 22, 165

- 11, 165

- 12, 165

- 13, 165

- 14, 165

- 15, 165

- 16, 167

- 2, 172

- 9, 175

- 17, 175

- 18, 175

- 19, 176

- 16, 177

- 11, 177

- 12, 177

- 13, 177

- 14, 178

- 4, 178

- 10, 178

- 11,178

- 12, 178

- 13, 178

- 14, 178

- 15, 178

- 16, 178

- 17, 179

- 7, 179

- 8, 179

- 10, 179

- 11, 177

- 15, 179

- 12, 179

- 14, 179

- 18, 179

- 17, 185

- 7, 186

- 13, 201

- 6, 202

- 11, 205

- 2, 205

- 13, 209

- 5, 209

- 7, 209

- 8,- 94

-

209

- 10, 214

- 14, 215

- 5, 225

- 16, 225

- 18, 225

- 19, 225

- 22, 225

- 23, 225

- 24, 227

- 6, 233

- 2, 233

- 3, 233

- 4, 233

- 5, 233

- 6, 233

- 7, 233

- 8, 233

- 9, 233

- 10, 239

- 3, 239

- 4, 239

- 8,239

- 7, 244

- 12, 244

- 13, 244

- 14, 244

- 15, 244

- 16, 244

- 17, 244

- 18, 244

- 19, 251

- 8, 251

- 9, 251

- 10, 251

- 11, 251

- 12, 251

- 13, 251

- 14, 251

- 15, 251

- 16, 251

- 17, 251

- 18, 257

- 7, 257

- 8, 257

- 9, 257

- 11, 257

- 12, 257

- 13, 257

- 14, 257

- 15, 263

- 12, 263

- 17, 268

- 3 , 268

- 4, 270

- 5, 270

- 7, 270

- 8, 270

- 9, 270

- 10, 270

- 11, 272

- 3, 272

- 7, 272

- 8, 272

- 11, 272

- 12, 272

- 13, 272

- 14, 272

- 15, 272

- 17, 272

- 18, 272

- 19, 274

- 2, 272

- 4, 274

- 11, 283

- 6, 283

- 7, 290

- 5, 290

- 7, 290

- 9, 290

- 10, 290

- 11, 290

- 13, 299

- 6, 299

- 12, 299

- 9, 299

- 11, 299

- 12, 304

- 10, 321

- 4, 333

- 6, 333

- 7, 333

- 8, 333

- 9, 333

- 10, 333

- 11, 333

- 12, 333

- 15, 337

- 6, 346

- 1, 351

- 4, 351

- 5, 351

- 19, 351

- 20, 351

- 23, 351

- 24, 363

- 14, 363

- 15, 363

- 16, IL

- 0004

- 4, PA

- 0004

- 5, PA

- 0005

- 5, PA 0006

- 7, PA 0006

- 9, PA 0010

- 6, PA 0012

- 4, PA 0012

- 5, PA 0012

- 8]

RESPONSE : As discussed in Section 4 of this response to comments document, EPA is replacing the transfer

- based exclusion currently found in 40 CFR 261.4(a)(24) and (25) with the verified recycler exclusion in 40 CFR 261.4(a)(24)

. This replacement strikes an appropriate balance between encouraging the safe and legitimate recycling of hazardous secondary materials while allowing the appropriate oversight to ensure the exclusion works as intended.
As a result of this decision, EPA is not finalizing th e alternative hazardous recyclable materials standards , which EPA had proposed to replace the transfer

- based exclusion. Given the comments on the confusing aspects of these alternative hazardous waste standards, comments on the complexity of the potential additional requirements and possibility of regulatory confusion, and the fact that the alternative standards would be unlikely to increase recycling as compared to the verified recycler exclusion, EPA has determined it is not necessary or appropriate to in clude the alternative standards in the final rule. 

## 6.0 Revisions to the Exclusion for Hazardous Secondary Materials that Are Legitimately Recycled Under the Control of the Generator

6.1 General c omment s
(a) COMMENTS : Some commenter s supported retaining the ge nera tor

- controlled exclusion. [0157, 0189] One commenter does not support the generator

- controlled exclusion. [0197] One commenter supported the generator

- controlled exclusion as originally promulgated in the 2008 DSW rule and other than the attempt to cla rify the definition of “contained” does not support changes in the 2011 DSW proposed rule. [0236]. Another commenter strongly supports retaining the 2008 DSW final rule generator

- controlled exclusion and argued that EPA has presented no evidence that these exclusions have been misused or created any environmental harm and therefore EPA has no basis to add new requirements that place burdens on legitimate recycling. [0238]
(a) RESPONSE : EPA agrees with those commenters who support retaining the generator

co ntrolled exclusion and with those commenters that support the Agency’s proposed changes to the exclusion. We agree that hazardous secondary materials, managed and recycled according to the conditions of the exclusion, are not discarded and are not solid wa stes. EPA has finalized changes to the generator

- controlled exclusion, largely as proposed. The Agency’s rationale for- 95

-

these changes is explained in the preamble to the final rule as well as in other sections of this response to comments document that are specific to each change.
(b) COMMENTS : Some commenters supported EPA’s proposal to reorganize the generator

controlled exclusion requirements, such as moving the requirements for non

- land based units to 40 CFR 261.4(a)(23). [0032, 0179, 0189, 0225, 0251, 0270 , 0272, 0333] One commenter also recommended that all definitions be additionally included in 40 CFR 260.10. [0270]
(b) RESPONSE : EPA agrees with commenters who supported EPA’s proposal to reorganize the generator

- controlled exclusion conditions, includin g consolidating the exclusion at 40 CFR 261.4(a)(23). EPA has determined that this reorganization will improve accessibility and understanding of the exclusion. EPA does not agree with also including the definition of “hazardous secondary material generate d and reclaimed under control of the generator” in 40 CFR 260.10. This is because this term includes all the conditions of the exclusion at 40 CFR 261.4(a)(23) and has no separate definition.
(c) COMMENTS : One commenter said that the text of 40 CFR 261.4(a)(23)(i)(B) could initially be read to suggest that hazardous secondary material may be transferred to a location outside the U.S. or its territories as long as the foreign receiving facility is under “control” of the generator. This commenter sugg est

ed revising the language. [0038]
(c) RESPONSE : EPA confirms that hazardous secondary material under control of the generator may only be transferred to a location within the U.S. or its territories. The Agency unintentionally omitted this language from the July 2011 DSW proposal and has corrected this error in the final rule.
(d) COMMENTS : One commenter said that it appears EPA inadvertently omitted the second of the two certification statements when moving the definition of “hazardous secondary materi al generated and reclaimed under the control of the generator” from 40 CFR 260.10 to 40 CFR 261.4(a)(23)(i). [0175]
(d) RESPONSE : EPA confirms that we inadvertently omitted the second of two certification statements for the generator

- controlled exclusion in the July 2011 DSW proposal and has corrected this error in the final rule.
(e) COMMENTS : Two commenters said that EPA should retain the carve out for lead

- acid batteries from the generator

- controlled exclusion arguing that 40 CFR 266.80 is critical to the battery industry’s well

- established reverse distribution recycling system. These commenters request that EPA revise the codified text of the final rule to make clear that the generator

controlled exclusion does not apply to lead

- acid batteries. [0212, 0350] One commenter said that EPA’s proposal would undermine the existing successful system under which lead

- acid batteries are regulated. [0350]
( e) RESPONSE : The Agency did not intend to include spent lead

- acid batteries under the generator

- controlled e xclusion. The 2008 DSW final rule contained a provision (40 CFR 261.2(c)(4)(iv)) stating that spent lead

- acid batteries were not eligible for the generator

-- 96

-

controlled exclusion. The omission of this provision from the July 20 11 DSW proposal as related to s pent lead

- acid batteries and material

- specific standards was in advertent. EPA has corrected the error and is therefore reinstating the provision that spent lead

- acid batteries are ineligible for the generator

- controlled exclusion in this final rule (see 40 CFR 261.4(a)(23)(i i)(E)).
(f) COMMENTS : One commenter said that, in the event EPA does not eliminate the “under the control of the generator exclusion,” the final rule should at the very least: (1) codify clear and enforceable containment standards adopt ing the requirements of 40 CFR parts 264 and 265; (2) eliminate hazardous secondary materials stored in land

- based units; (3) adopt EPA’s proposal to condition the exclusion on compliance with notification requirements; and (4) adopt the same transport and management requirements applicable to hazardous recyclable materials, as well as financial assurance requirements, for off

- site recycling. [0244]
(f) RESPONSE : EPA does not agree with this commenter on (1), (2), and (4) and refers to section 6.2 for resp onses on these specific issues. EPA does agree with this commenter on (3) and has finalized notification as a condition of the generator

- controlled exclusion in the final rule. See section 6.3 for a more detailed response on notification as a condition.
( g) COMMENTS : One commenter urged EPA to eliminate all off

- site reclamation under control of the generator because this generator argued that off

- site recycling is associated with heightened environmental risks, as the Agency’s study of damage cases make cl ear. This commenter further argues that there is nothing in the record to indicate that common ownership reduces the likelihood of releases at off

- site reclamation facilities. This commenter goes on to say that, if this exclusion is retained, EPA should im pose manifest requirements consistent with Subtitle C requirements in order to minimize the hazards associated with transport and to ensure that shipped hazardous secondary materials are fully accounted for. This commenter also said that EPA should conditi

on the exclusion on compliance with the financial assurance provisions in the 2008 DSW final rule. [0244] Other commenters supported requiring records at off

- site facilities under control by the same company. [0270, 0272] One commenter said that a recordke eping requirement would enable state inspectors to verify that hazardous secondary materials have indeed been shipped to a facility under the control of the generator and would provide assurance to the generator that the type and quantity of hazardous seco ndary materials shipped was well documented. [0272]
(g ) RESPONSE : In the 2008 DSW final rule, EPA determined that if the generator maintains control over the recycled hazardous secondary material, the material is legitimately recycled under the conditions of the exclusion, and the material is not speculatively accumulated within the meaning of EPA’s regulations, then the hazardous secondary material is not discarded. Under these circumstances, the hazardous secondary material is being treated as a valuable commodity rather than as a waste. By maintaining control over, and potential liability for, the recycling process, the generator ensures that the hazardous secondary materials are not discarded ( see ABR 208 F.3d 1051; “Rather than throwing these materials [destined for recycling] away, the producers saves them; rather than abandoning them, the producer reuses them.”) (73 FR 64676

- 7).- 97

-

In the final rule, EPA reaffirms its determination that when a generator legitimately recycles hazardous secondary materials under its control under the conditions of the exclusion, the generator has not abandoned the material and has every opportunity and incentive to maintain oversight of, and responsibility for, the hazardous secondary material that is reclaimed.
Although EP A does not agree with requiring full manifest requirements on hazardous secondary materials that are not solid and hazardous wastes, EPA does agree with commenters who supported recordkeeping for offsite shipments under tolling arrangements and “same

- company” recycling in order to facilitate enforcement of the exclusion and to allow tracking of hazardous secondary materials to ensure that these materials remain within the control of the generator and are not discarded. Therefore, the Agency is re quiring recordkeeping for shipments sent and received under the exclusion. R ecords must contain the name of the transporter, the date of the shipment, and the type and quantity of hazardous secondary material shipped or received.
(h) COMMENTS : One comment er argued that because there is no provision in the proposed regulatory language or in the preamble discussion to limit the generator

- based exclusion and its conditions to only listed by

- products, listed sludges, and spent materials that are reclaimed, the proposed rule appears to expand the generator

- based exclusion conditions to the reclamation of all hazardous secondary materials. [0363]
(h ) RESPONSE : The 2008 DSW final rule contained a provision (40 CFR 261.2(c)(4)(iv)) stating that materials subject t o material

- specific standards under 40 CFR 261.4(a) were not eligible for the generator

- controlled exclusion. The omission of this provision from the July 2011 DSW proposal was inadvertent, and EPA is therefore retaining it in this final rule (see 40 CFR 2 61.4(a)(23)(ii)(E)). Additionally, EPA clarifies in the preamble to the final rule that the generator

- controlled exclusion (40 CFR 261.4(a)(23)) excludes certain hazardous secondary materials ( i.e., listed sludges, listed by

- products, and spent materials ) from the definition of solid waste (emphasis added).

6.1.1 Support
(a) COMMENTS : Some commenters supported the generator

- controlled exclusion including general support for the proposed revisions. [0038, 0146, 0167, 0178, 0179, 0233, 0266, 0272, 0332, PA

- 00 02, PA

- 0004] One commenter supports any changes that make the regulations simpler and easier to understand. [0032] Another commenter agreed with EPA’s belief that hazardous secondary materials that remain under the control of the generator are not discarde d. This commenter also particularly emphasized the importance of retaining the tolling exclusion. [0266]
(a) RESPONSE : EPA agrees with commenters who support retaining the generator

- controlled exclusion as well as EPA’s proposed revisions to the exclusion . In the final rule, EPA has finalized this exclusion generally as proposed.
(b) COMMENTS : Some commenters said that the proposed changes to the generator

- controlled exclusion are positive. These commenters said that the addition of a definition of “cont ained” is crucial to make sure the regulations prevent releases from storage in containers that are- 98

-

incompatible or in poor condition. Additionally, these commenters said making notification a condition of the exclusion is important because if the advantag es of the exclusion are afforded to

non

- notifiers, there is little incentive to notify. These commenters also said that the additional recordkeeping requirements for speculative accumulation are important in order to reduce the burdens on already strained state inspection resources and to help ensure that the generators maintain compliance and do not excessively accumulate materials. [0179, 0272]
(b) RESPONSE : EPA agrees with commenters that support these proposed revisions to the generator

- controlled excl

usion because they will ensure that hazardous secondary materials managed under the exclusion will remain protective of human health and the environment. Therefore, EPA has finalized t hese changes in the final rule.

6.1.2 Do not s upport
(a) COMMENTS : Some commenters opposed EPA’s proposed revisions to the generator

controlled exclusion. [0111, 0133, 0168, 0175, 0182, 0199, 0201, 0252, 0255, 0260, 0283, 0363]
(a) RESPONSE : EPA disagrees with commenters who opposed EPA’s revisions to the generator

- controlled exclusion. EPA’s rationale for each change is included in the preamble to the final rule as well as in other sections of this response to comments document.
(b) COMMENTS : One commenter argued that EPA should replace the generator

- controlled exclusion wit

h a more narrow exclusion for recycling that is undertaken as part of a “continuous industrial process” which should apply exclusively to hazardous secondary materials that are reused (1) in the same process of which they are a byproduct; (2) by the same g enerator; and (3) at the same generating facilities. This commenter said this “continuous process” exclusion should include speculative accumulation. [0244] Another commenter said that EPA should tighten the rules on these activities and should withdraw th e exclusion. [0321] A third commenter said that on

- site hazardous waste recycling by generators poses substantial risks and should be subject to the same specific standards and permitting requirements as applied before promulgation of the new rule. [PA

- 000 4]
(b) RESPONSE : EPA does not agree with narrowing the generator

- controlled exclusion or with adding requirements beyond what EPA proposed in its 2011 DSW proposed rule. EPA has determined that the conditions of the final rule appropriately define when ha zardous secondary material under the control of the generator is not being discarded. In the 2008 DSW final rule, EPA determined that if the generator maintains control over the recycled hazardous secondary material, the material is legitimately recycled u nder the conditions of the exclusion, and the material is not speculatively accumulated within the meaning of EPA’s regulations, then the hazardous secondary material is not discarded. Under these circumstances, the hazardous secondary material is being tr eated as a valuable commodity rather than as a waste. By maintaining control over, and potential liability for, the recycling process, the generator ensures that the hazardous secondary materials are not discarded ( see ABR 208 F.3d 105 “Rather than throwing these materials [destined for recycling] away, the producers saves them; rather than abandoning them, the producer reuses them.”) (73 FR 64676

- 7). In the final rule, EPA reaffirms its determination that when a generator legitimately recycles hazar dous secondary materials- 99

-

under its control under the conditions of the exclusion, the generator has not discarded the material and has every opportunity and incentive to maintain oversight of, and responsibility for, the hazardous seconda ry material that i s reclaimed.
(c) COMMENTS : Some commenters argued that EPA provides no new evidence in the record that materials recycled under this exclusion are in fact being discarded and that demonstrate implementation over the last three years has been problematic [ 0111, 0133, 0168, 0199, 0201, 0255] One commenter said that of the 208 damage cases documented by EPA, only 13 (6%) involved on

- site recycling by the generator and thus the record fails to demonstrate an overwhelming threat to public health and the environ ment due to hazardous secondary materials that are reclaimed under the control of the generator. [0201] One commenter found that EPA’s argument for its proposed revisions being justified on the basis of “ease of enforcement” or “enforceability” is not pers uasive. Additionally, this commenter notes that EPA admits in the RIA that “no studies were found indicating that recordkeeping improves environmental compliance.” [0255]
(c) RESPONSE : EPA has determined that waiting until damage occurs before resolving i dentified gaps in the regulations would severely contradict the preventative nature of the RCRA statute. In addition to EPA’s analysis of the 2008 DSW exclusions, EPA is relying on comment support both from the 2009 DSW public meeting and from the 2011 DSW proposed rule in which commenters agree that the changes in the final rule serve to strengthen the exclusion and improve compliance monitoring, both of which will reduce the potential for damage from hazardous secondary material recycling. For EPA’s ratio nale for each specific change, see the preamble to the final rule and other sections in this response to comments document.
(d) COMMENTS : Some commenters argued that EPA has no authority to place conditions on the management of material that has not been d iscarded and over which it has no jurisdiction. These commenters argue that the proposed changes exceed EPA’s authority under RCRA. [0168, 0175, 0252, 0255, 0363]
(d) RESPONSE : EPA disagrees with commenters that argue that EPA has no authority to place

co nditions on recycling of hazardous secondary material. In its most recent opinion dealing with the definition of solid waste, Safe Food and Fertilizer v . EPA (“ Safe Food ”), 350 F.3d 1263 (D.C. Cir. 2003), the D.C. Circuit upheld an EPA rule that excludes f rom the definition of solid waste hazardous secondary materials used to make zinc fertilizers, and the fertilizers themselves, as long as the hazardous secondary materials meet certain handling, storage, and reporting conditions and the resulting fertilize rs have concentration levels for lead, arsenic, mercury, cadmium, chromium, and dioxins that fall below specified thresholds (Final Rule, “Zinc Fertilizers Made From Recycled Hazardous Secondary Materials” (“Fertilizer Rule”), 67 FR 48393, July 24, 2002). EPA determined that if these conditions are met, the hazardous secondary materials used to make such fertilizer have not been discarded. The conditions also apply to a number of recycled materials not produced in the fertilizer production industry, includi ng certain zinc

- bearing hazardous secondary materials, such as brass foundry dusts.
EPA’s reasoning was that market participants, consistent with the EPA

- required conditions in the rule, would treat the excluded materials more like valuable products than like negatively

- valued- 100

-

wastes and, thus, would manage them in ways inconsistent with discard. In addition, the fertilizers derived from these recycled feedstocks are chemically indistinguishable from analogous commercial products made from raw materials ( 350 F.3d at 1269). The Court held that EPA’s explanation that market participants manage materials in ways inconsistent with discard, and the fact that the levels of contaminants in the recycled fertilizers were “identical” to the fertilizers made with vir gin raw materials (also called “the identity principle”) w as reasonable. The Court also held that this interpretation of “discard” was reasonable and consistent with the statutory purpose. The Court noted that the identity principle was defensible because the differences in health and environmental risks between the two types of fertilizers are so slight as to be substantively meaningless. The Court determined that the combination of market participants’ treatment of the materials, EPA

- required management s tandards, and the “identity principle” constitutes a reasonable set of tools to establish that the recycled hazardous secondary materials and fertilizers are not discarded.
(e) COMMENTS : One commenter said that generators already have incentives to manag e hazardous secondary materials in order to prevent environmental releases and that there are other legal and regulatory regimes in place to prevent environmental harm, including the Emergency Response Community Right

- to

- Know Act, the Comprehensive Environ mental Response, Compensation, and Liability Act, and tort liability. [0201]
(e) RESPONSE : EPA disagrees with the commenter’s claims that generators already have enough incentives to manage hazardous secondary materials to prevent environmental release

an d thus EPA need not require conditions for the generator

- controlled exclusion. EPA notes that by excluding these materials from RCRA hazardous waste, there exists an incentive to claim that these materials will be recycled, even if there is no market or us e for the materials, in order to avoid costs of managing hazardous waste. For this reason, EPA finds that conditions, such as legitimate recycling and speculative accumulation, ensure that the hazardous secondary materials are properly managed and recycled according to the intent of the exclusion and not discarded.
(f) COMMENTS : One commenter argued that EPA’s proposed changes to the generator

controlled exclusion will add a layer of regulation that generators will find too restrictive, and will thus disc ontinue recycling or reuse practices. In particular, this commenter said that the new contained definition does not provide enough flexibility, the notification standards create an excessive level of liability, and the recordkeeping requirements are not al ways practical. This commenter also said that changes to the exclusion will force generators to reconsider investments in technologies dedicated to recycling or reclaiming hazardous secondary materials and will, instead, increase disposal of these material s. [0260]
(f) RESPONSE : EPA disagrees with this commenter’s belief that the changes to the generator

controlled exclusion are too restrictive and will discourage recycling. On the contrary, EPA has determined that the codified definition of “contained” pr ovides improved regulatory certainty for generators operating under the exclusion, as compared to the contained standard in the 2008 DSW final rule. Additionally, EPA finds that the notification condition to be of minimal burden and, in fact, helps ensure a level playing field by discouraging those that wish to evade enforcement from doing so. Finally, EPA finds that the recordkeeping conditions to be easily met through routine business records and thus does not find that th ese will be unduly burdensome.- 101

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### 6 .2 Contained Standard

(a) COMMENTS : Some commenters supported a codified definition of contained. [0063, 0155, 0157, 0177, 0179, 0201, 0209, 0233, 0245, 0251, 0266, 0271, 0272, IL

- 0011]

One commenter stated that the addition of a regulatory definition of “contained” is crucial to making sure the regulations prevent release from storage in containers that are incompatible or in poor condition. [0063] Another commenter said that the proposed definition is an ef ficient way to prevent potential misuse of hazardous wastes and that, by imposing three clearly stated rules for containment, it will be virtually impossible for misunderstandings regarding the legality of the unit to occur, thus increasing compliance by r emoving the formerly misleading and unclear guidelines for containment unit standards. [0155] One commenter said EPA’s definition is reasonable and puts forth more of a performance

- based standard than a prescriptive standard which they argued is a good app roach. [0157]
One commenter agreed with EPA that a standard of contained where “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” is inadequate and actually inc reases the likelihood of discard for these materials. [0165] Another commenter stated that the proposed “contained” definition should be applicable to all reclamation/recycling scenarios and is a logical approach to reducing significant risk to human healt

h and the environment. [0177]
Some commenters said that, although they prefer that hazardous secondary materials be managed under the traditional Subtitle C requirements, they are satisfied that the proposed contained standard is protective of human heal th and the environment and may ease the regulatory burden for generators that recycle hazardous secondary materials. These commenters are also pleased that EPA is proposing to replace the 2008 language on “significant” releases with language that will clar ify the regulatory status of units from which releases have occurred. [0179, 0251, 0272]
One commenter said that regulated entities now have a benchmark to determine whether their facilities are in compliance and will ensure that recycling operations und er the exclusion do not lead to discard. [0201] Another commenter supports the proposed clarification of the regulatory status of units from which releases have occurred to include language surrounding when releases of hazardous secondary material into the environment are considered discard. This commenter also supports the clarifications that provide the necessary structure to the regulatory requirements to protect against discard while still providing for the level of regulatory flexibility needed to

acco unt for site

- specific circumstances. [0233]
Another commenter said that the amendment suggested thoroughly defines “contained” and will be successful at achieving storage conditions that do not pose a threat to human health or the environment. [0245] One commenter particularly supported and appreciated EPA’s reasonable and realistic discussions of when failures of containment would constitute discard and when they would not. [0266] Another commenter said that the contained standard is clear and enforceabl e and that the criteria indicate whether the material in the unit is being managed as a valuable commodity. [IL

- 0011]- 102

-

(a) RESPONSE : EPA agrees with commenters who support codifying the proposed definition of contained in the regulations. In today’s final 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 ma terial is contained. In the preamble to the 2008 DSW final rule (73 FR 64681), the Agency stated that a hazardous secondary material is “contained” if it is placed in a unit that controls the movement of the hazardous secondary materials out of the unit

an d into the environment. However, in the 2008 rule, EPA did not provide more specific guidance on how an implementing agency or the regulated community would determine if a unit did adequately control the movement of hazardous secondary materials and meet t he contained standard.
As EPA noted in the 2011 DSW proposal and as reflected in many of the public comments, of particular concern is the lack of preventative measures in the contained standard in the 2008 DSW final rule. This lack of preventative measu res is noted as a major regulatory gap in EPA’s assessment of the potential for adverse impacts from the 2008 DSW final rule, including adverse impacts to minority and low income communities. Given that the contained standard is one of the major requiremen ts for determining that hazardous secondary materials reclaimed under the generator

- controlled exclusion are not discarded, this lack of specificity could undermine the exclusion. That is, if the primary or only way to determine that the hazardous secondar y material is not contained is to wait until it is released to the environment, then the 2008 DSW final rule increases the likelihood of discard for these materials.
The Agency therefore is adding a regulatory definition of “contained” that resolves this uncertainty without sacrificing the flexibility that would allow the implementing authority to take into account a wide variety of case

- specific circumstances when necessary. This definition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus
, are not being discarded. We note that the elements of the contained definition are all measures that are used to prevent releases and ensure proper op eration and maintenance of the storage unit in the same manner as would be expected of a production unit.
(b) COMMENTS : Some commenters opposed the definition of contained and stated that the proposed definition was too restrictive, left too much open to subjective interpretation, or was unworkable. [0038, 0076, 0133, 0168, 0175, 0182, 0199, 0201, 0204, 0205, 0210, 0214, 0255, 0260, 0264, 0269, 0317]
(b) RESPONSE : EPA disagrees with commenters that oppose the definition of contained as too restrictive o r open to subjective interpretation. In fact, EPA has finalized the definition of contained in today’s rule to provide more specific guidance on how an implementing agency or the regulated community would determine if a unit did adequately control the move ment of hazardous secondary materials and meet the contained standard.
(c) COMMENTS : One commenter said it is inappropriate for EPA to apply these new “containment” requirements retroactively to the pre

- 2008 exclusions. [0210] Some commenters said that EP A has not shown any need for additional or more specific conditions and that EPA’s- 103

-

supporting analyses do not establish a need for change at this point. [0175, 0205] Some commenters said that EPA’s proposed definition of “contained” will be too broadly app lied, particularly with respect to the pre

- 2008 exclusions and the relationship to legitimacy factor 3. These commenters also said that it is not certain that a unit that meets this definition exists or is even able to exist. [0133, 0204, 0214]
(c) RESPONSE : EPA notes that today’s contained standard applies to the generator

- controlled exclusion and the verified recycler exclusion and is not being explicitly applied to the pre

- 2008 DSW exclusions. However, EPA finds that the contained standard is appr opriately used in legitimacy factor 3 , which is that “t he 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 mini mum, 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 env ironment and are not recovered immediately are discarded. ” The Agency has determined that the regulatory definition of “contained” resolves uncertainty without sacrificing the flexibility that would allow the implementing authority to take into account a w ide variety of case

- specific circumstances when necessary.
(d) COMMENTS : Some commenters said that EPA has failed to recognize the limits of its authority under RCRA, which extends only to materials that are already discarded. [0168, 0210, 0238, 0246, 02 55, 0257] These commenters said that if EPA had the authority under RCRA to require the prevention of fugitive air emissions, wind

- blown dust, and precipitation runoff and if the existence of such releases meant that all material in a storage unit was disc arded, then EPA would have the authority under RCRA to regulate all primary, as well as secondary materials, and which authority the Agency does not have. [0168, 0255]
(d) RESPONSE : EPA disagrees with commenters who argue that EPA does not have RCRA authority to require hazardous secondary materials to be contained. H azardous secondary materials released to the environment are not destined for recycling and are clearly discarded

. Therefore, EPA finds that applying a condition that hazardous secondary materials be contained is a key indicator that the materials are being managed as valuable commodities and thus, are not hazardous wastes. On the other hand, if hazardous secondary materials are being managed in units that are not containing the materials

– that is
, the units are not in good condition, are leaking or have other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and are not designed, as appropriate
, for the hazardous secondary materials t o prevent releases of hazardous secondary materials to the environment

– this would be an indication that the hazardous secondary materials are being discarded.
(e) COMMENTS : Some commenters said EPA failed to explain why containment is a necessary criter ion of discard for an otherwise valuable material. [0168, 0269]
(e) RESPONSE : EPA disagrees with commenters that argue a specific contained definition is not necessary. Based on comments and inquiries received from regulatory authorities and the regulate d community after promulgation of the 2008 DSW final rule, we have determined that merely requiring that a unit be “contained” (without providing a regulatory definition) does not- 104

-

give regulatory certainty about how to comply with the standard. The number of comments and inquiries to this effect would seem to refute the idea that the concept of contained is self

- evident. It was never the Agency’s intent that violation of the standard could be addressed only after a significant release and subsequent environ mental damage had occurred. More detailed regulatory criteria, such as those proposed in our July 2011 DSW proposal, will help all affected parties determine whether a unit adequately controls the movement of hazardous secondary materials. Such determinati ons will be of great benefit to regulatory authorities and to facilities operating under the generator

- controlled exclusion. We are therefore retaining the codification of the contained definition in this final rule.
(f) COMMENT S : One commenter said that EPA’s “contained” standard discourages beneficial reuse and recycling and will promote disposal. [0210]
(f) RESPONSE : EPA disagrees that the contained standard discourages recycling and reuse. Managing hazardous secondary materials according to the conta ined definition, and thus not allowing releases to the environment, demonstrates that these materials are being managed more like valuable commodities, rather than negatively

- valued wastes.
(g) COMMENTS : Some commenters stated that the language in the co ntained standard is not sufficient to ensure “containment” and that hazardous secondary materials should be stored in units that meet the same design, operating, inspection, and closure standards for containers, tanks, containment buildings, and drip pads of hazardous waste. [0032, 0038, 0165, 0167, 0178, 0197, 0200, 0215, 0244, 0257, 0268, 0290, 0304, 0321, 0333, 0351, IL

- 0001, IL

- 0002, IL

- 0006, IL

- 0010, PA

- 0005, PA

- 0006, PA

- 0010, PA

- 0013, PA

- 0015] Some commenters argued that merely excluding a material fr om the definition of solid waste does not reduce risk to the environment when it is released from a storage unit. [0032, 0197] Some commenters said that EPA’s proposal for hazardous secondary materials under the control of the generator would be confusing, difficult to enforce, and ultimately lead to environmental releases. [0178, 0257, 0351, IL

- 0002, PA

- 0012, PA

- 0013] Some commenters said that EPA’s proposal is a marked improvement over the existing rule, but the proposed standard is still too vague to eli cit reliable compliance or enable timely enforcement. [0244, 0333] One commenter said that EPA should ensure that the escape of hazardous chemicals during recycling are reduced to the lowest levels that are technologically feasible and are de minimis with respect to human health. [IL

- 0001]
(g) RESPONSE : EPA does not agree with commenters who argued that EPA should require hazardous secondary materials to be subject to the same design, operating, inspection, and closure standards as required for hazardous w astes. This is because EPA finds that hazardous secondary materials being managed under the conditions of the exclusion are not being discarded and thus are not subject to solid and hazardous waste regulations. Hazardous secondary materials that are legiti mately reclaimed under the control of the generator have not been discarded, and such materials have value that provides generators with strong incentives to maintain safe management and handling. Imposing the Subtitle C requirements on these hazardous sec ondary materials could discourage legitimate reclamation, encourage disposal, and would be inconsistent with EPA’s goal of fostering sustainable materials management. EPA also finds that today’s contained standard is protective of human health and the envi ronment while also flexible enough to allow the implementing authority to take into account a wide variety of case

- specific- 105

-

circumstances when necessary. This definition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus
, are not being discarded. We note that the elements of the contained definition are all measures that are used to prevent releases and ensure proper operation and maintenanc e of the storage unit in the same manner as would be expected of a production unit.
(h) COMMENTS : One commenter also said that EPA is expressly contemplating establishing explicit tank and container standards which meet the technical standards of part 264 subparts I and J for the remanufacturing exclusion and thus, makes a compelling case for adoptin g part 264 standards for excluded solvents. [0244]
(h) RESPONSE : While the definition of contained for the generator

- controlled exclusion needs to be flexible to accommodate a wide variety of case

- specific circumstances, the remanufacturing exclusion is specifically limited to only solvents. Basic good management practices dictate that solvents, whether virgin or spent, are best stored in tanks or containers that possess inherent controls specific to liquid solvents
, including controls on volatile air emi ssions, leaks, and fires or explosions. Therefore, f or ease of implementation, EPA is establishing explicit tank and container standards in 40 CFR part 26 1 subparts I and J, which are comparable to product storage standards for solvents , including regulati ons promulgated under OSHA, DOT, and industry standards. 8 In addition to being comparable to product storage standards, technical standards that mirror subparts I and J of 40 CFR part 264 have the benefit of being technical standards that the regulated com munity are familiar with, and are designed to prevent the spent solvents from being released and possibly discarded through leaks or explosions.
(i) COMMENTS : A few commenters said that the contained standard fails to address the disproportionate risk of toxic releases in low

- income and minority communities. [PA

- 0010, PA

0012] Another commenter said that, as the EPA’s EJ analysis illustrates, EJ communities wi ll be impacted disproportionately by the risks of contamination in land

- based storage and thus this practice must be eliminated. [PA

- 0006]

(i) RESPONSE : EPA finds that the contained standard in the final rule reduces the overall risk of toxic releases, an

d therefore low

- income and minority communities would not be disproportionally adversely impacted. For example, in the 2008 DSW final rule, only the absence of containment, i.e., a significant release to the environment would definitely prove a unit was

no t containing the hazardous secondary material. Conversely, today’s final rule definition of contained provides specific guidance on how an implementing agency or the regulated community can determine whether a unit is contained, before significant releases occur. This will help ensure better protection of all communities, including minority and low

- income populations.

8 U.S EPA Equivalent Containment Standards for the Remanufacturing Exclusion, June 2011- 106

-

(j) COMMENTS : Some commenters stated that storage of hazardous secondary materials in land

- based units should be prohibited. [0032, 0038, 0215, 0244, 0257, 0268, 0270, 0290, 0321, 0333, PA

- 0006, PA

- 0012 ] Some commenters also said that if land disposal units are used, then additional requirements to ensure the unit is designed and operated in a manner that prevents environmental contamination should be added, such as groundwater monitoring, inspections, leak detection, covers, run

- on/run

- off controls and financial assurance. [0239, 0244, 0257, 0270, 0290, 0321, 0351] One commenter suggested codifying a site

- specific variance, which would shift the burden from the regulatory agency to “prove” that there has been a release to the facility to document t

hat there is no release. [0270]
(j) RESPONSE : EPA does not agree that land

- based units should be categorically prohibited under the generator

- contr olled exclusion. We have determined that hazardous secondary materials, if they are stored in land

- based units that meet the conditions specified in today’s rule, have not been discarded. That is, if they are legitimately reclaimed as specified in today’s rule, if they are contained and not speculatively accumulated, and if they have submitted the required notification, they are being managed as valuable commodities, rather than wastes. Indeed, the ABR decision expressed criticism of EPA for prohibiting any land place ment, even “for a few minutes” 208 F.3 rd at 1051. EPA interprets the court’s discussion as a warning to the Agency to examine all factors, not just one (e.g., land placement), when deciding whether a material is a waste

. In addition, given the wide array of hazardous secondary materials and industrial processes, EPA is finalizing a contained standard designed to be flexible to fit a wide array of hazardous secondary materials and industrial processes and is not prescribing mandatory technical

s tandards as a part of a general contained standard , like groundwater monitoring, inspections, leak detection, covers, run

- on/run

- off controls and financial assurance, or “shifting the burden” to facilities to document there is no release

. T here has been no evidence presented that these requirements would be needed in every case to ens ure material is not discarded , although the contained standard is flexible enough to indicate that in particular circumstances these activities would be appropriate. This defin ition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus, are not being discarded. We note that the elements of the contained definition

a re all measures that are used to prevent releases and ensure proper operation and maintenance of the storage unit in the same manner as would be expected of a production unit.
(k) COMMENTS : One commenter said that closure of such a land

- based unit is of great concern to them and that a land

- based unit used for the storage of hazardous secondary materials destined for recycling could potentially have profound impacts to human health and the environment. [0268] Other commenters said that is difficult to env ision circumstances where the management of a hazardous secondary material in a land

- based unit would not lead to contamination of the underlying and adjacent soils (0257, 0290]
(k) RESPONSE : Units managing hazardous secondary materials excluded under the definition of solid waste are not subject to the closure regulations in 40 CFR parts 264 and 265 subpart G. However, potential impacts from closure and residual soil contamination are addressed by the fact that when the use of these units is ultimately di scontinued, owners and operators of- 107

-

reclamation facilities and intermediate facilities must manage any remaining hazardous secondary materials, including any residues that are not reclaimed, as hazardous waste and remove or decontaminate contaminated conta inment system components, equipment structures, and soils. These hazardous secondary materials and residues, if no longer intended for reclamation, would also no longer be eligible for the exclusion (which only applies to hazardous secondary materials that are reclaimed). Failure to remove these materials within a reasonable time frame after operations cease could cause the facility to become subject to the full Subtitle C requirements if the Agency determines that reclamation is no longer feasible

. (l) C OMMENTS : One commenter used language from EPA’s definition of legitimate recycling in discussing land

- based storage, saying that EPA should minimize risk to human health and the environment by requiring that land

- based units only be allowed if it is the acceptable method of storage for the analogous raw material, there are no free liquids in the recyclable material , and noting that they could not think of a plausible scenario in which a generator would store a spent material, by

- product, or sludge on the ground if it wer e considered a valuable material (i.e., managed consistent with the management of the analogous to a raw material). [0239]
(l) RESPONSE : These comment s are addressed by the fact that, under the 2014 DSW final rule, all hazardous secondary materials must be legitimately recycled as defined in 40 CFR 260.43. In particular, hazardous secondary materials must meet legitimacy factor (3), which means that the generator and recycler must manage the hazardous secondary materials as a valuable commo dity. Where there is an analogous raw material, the hazardous secondary materials must be managed, at a minimum, consistent with the management of the analogous raw material or in an equally protective manner. This also addresses the concern regarding liqu id hazardous secondary materials placed on the ground as this would clearly not be consistent with the management of an analogous raw liquid material

. However, EPA disagrees that there is no plausible scenario in which a generator would store a hazardous s econdary material on the ground

. As noted in Section VIII of the preamble to the final rule, managing scrap metal as a valuable commodity can include situations where it is stored on the ground.
(m) COMMENTS : One commenter said that the D.C. Circuit has a ffirmed EPA’s RCRA authority to regulate land

- based storage of hazardous wastes, regardless of whether they are destined for recycling [Footnote 73 See American Mining Congress v. EPA, 907 F.2d 1179, 1186

- 87 (D.C. Cir. 1990)]. [0244]
(m ) RESPONSE : We agr ee that, consistent with the case citation, EPA’s RCRA authority extends to land

- based storage of hazardous secondary materials, whether or not they are destined for recycling.
(n) COMMENTS : One commenter supported EPA’s decision not to modify the definit ion of “land

- based unit” and preserve the regulatory status that the mining and mineral processing industry’s land

- based production units are not subject to RCRA Subtitle C jurisdiction. [0111] Another commenter said that EPA should specifically recognize state

- based programs that address land

- based units and prior state determinations relating to containment in said units. For example, this commenter says that Arizona has adopted a comprehensive aquifer protection- 108

-

permit (APP) program that specifically app lies to industrial production land

- based units, such as surface impoundments, waste management facilities, and land treatment facilities. [0363]
(n) RESPONSE : EPA note s that the definition of “land

- based unit” in 40 CFR 260.10 means an area where hazardo us secondary materials are placed in or on the land before recycling, but the definition explicitly excludes land

- based production units.
(o ) COMMENTS : Some commenters said that the terms “good condition,” “continuing or intermittent unpermitted releases ,” “designed...to prevent...releases...catastrophic unit failures,” “appropriate” “recovered immediately” and/or “incompatible” were too open to subjective interpretation. [0038, 0165, 0182, 0200, 0201, 0205, 0244, 0264, 0268, 0270, 0283, 0299, 0363, IL

- 0002, IL

- 0006, PA

- 0006, PA

- 0012].
One commenter recommended that “significant” as it applies to releases is too vague and should be replaced with “any.” [0299] One commenter said that all releases are of concern, not just the “significant” releases. [0333] One commenter argued that EPA sho uld amend the definition of “release” to ensure that those handling hazardous materials cannot take advantage of the RCRA exemption after hazardous secondary materials have been allowed to escape into the environment. This commenter said that EPA’s regulat ory changes will not serve their intended purpose because it is unclear at what point a facility that releases hazardous materials into the environment loses its entitlement to the exclusion. This commenter goes on to say that, as written, the proposed reg

ulations would allow a facility to have several releases and still qualify for the exclusion so long as the releases were not determined to be “continuous or intermittent” under the definition of containment. [0215] One commenter also says that the regulat ion of containment cannot be effective without fully defining “release “and suggests using the definition found under CERCLA 101(22) as a model. [0200] Another commenter generally supported adding language to clarify that any hazardous secondary material released to the environment is “discarded,” but does not agree with the provision that would allow released hazardous secondary material that “is immediately recovered for the purpose of reclamation” to be considered hazardous secondary material because th is is too vague. [0333] Another commenter was concerned with “immediate” recovery of all releases of hazardous secondary materials even when such releases are insignificant or where some time may lapse before eventual recovery. [0363]
(o) RESPONSE : EPA do es not agree that the terms in the definition of contained are too subjective; in fact, EPA has determined that the final rule definition provides more guidance to regulators and the regulated community as compared to the 2008 DSW rule definition of contai ned. EPA notes that the regulations do not refer to “significant release” and instead refers to “leaks or other continuing or intermittent unpermitted releases” of the hazardous secondary materials to the environment. EPA does not agree with commenters who object to allowing hazardous secondary material that is immediately recovered for the purpose of recycling to retain its status as hazardous secondary material. If a generator immediately recovers a hazardous secondary material that has been released for the purpose of recycling, EPA finds that the generator has not discarded the material.- 109

-

EPA does not agree with those commenters who argued that the proposed definition of “contained” imposed a strict, categorical, and impracticable “no leaks” standard, e ither for land

based units or non

- land

- based units. We note that the language of the proposed definition reads that the unit must be in good condition, “with no leaks or other continuing or intermittent unpermitted releases of hazardous secondary materials to the environment...” (emphasis added). This language clearly does not mean that any single release of whatever nature would automatically place the hazardous secondary materials remaining in the unit under Subtitle C regulation. In fact, we agree with tho se commenters who argue that many units will suffer a release at some point and that it would be unreasonable to categorically classify any release of whatever nature as discard.

If these criteria of the “contained” definition are not met, the materials r emaining in the unit would be considered solid and hazardous wastes and the unit would be subject to the appropriate hazardous waste regulations. To clarify the regulatory status of units from which releases have occurred, the Agency is also adding to 40 C FR 261.4(a)(23) the following language: (1) a hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation; and (2) hazardous secondary material managed in a unit with leaks or other continuing or intermittent unpermitted releases of the hazardous secondary material to the environment is discarded and a solid waste.
(p) COMMENTS : Some commenters are concerned that units that do not meet the RCRA hazardous waste sta ndards but have a release at some point would not meet the definition of “contained” and thus, would transform a storage unit for recyclable materials into a subtitle C hazardous waste unit. [0157, 0159, 0168, 0201, 0214, 0238, 0242, 0255, 0264, 0270] Anot her commenter is concerned that the proposed change to the contained standard will result in the loss of the exclusion where certain releases, no matter how insignificant, are not immediately recovered. This commenter stated such a result would be unreason able and unjustified. [0363] One commenter said that a single or intermittent leak of leaks is not evidence that all the material in a container is not being managed as a valuable commodity, if the leak is immediately addressed. [0168] Another commenter do es not agree with EPA that hazardous secondary materials remaining in a unit that has had non

- routine leaks at a facility with procedures for detection and response to such leaks or continuing releases is discarded and a solid and hazardous waste. This com menter says that the hazardous secondary material remaining in the unit is not released to the environment and therefore is not disposed or discarded if destined for legitimate reclamation. [0157] One commenter urged EPA to revise its regulatory definition of contained to replace the “no leaks’ requirement with language that reflects the reality that the occurrence of a leak that is quickly addressed is not evidence that the material remaining in the unit is discarded. This commenter also said the revised d efinition should recognize that the Clean Water Act and the Clean Air Act appropriately address runoff and air emissions. This commenter goes on to ask whether scrap metals would need to be managed in a leak

- proof container under EPA’s new definition of co ntained. [0255] One commenter said that the proposed regulations do not make it clear that the remaining contents in the unit would be hazardous waste. [0299]
One commenter said that EPA’s proposed definition was difficult as it calls into question the

a dequacy of containment units traditionally understood to provide containment, such as tanks and hard piping. This commenter stated that the Agency’s definition is so broadly construed to- 110

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address land

- based situations that methods of management, including t ank and containers, are now subject to review. This commenter goes on to say that language concerning releases could cause some inspector to deem the recycling process is illegitimate, for example, because product tank systems are sometimes subject to rele ases due to human error or equipment malfunction. As such, this commenter does not support language addressing leaks or releases as a condition of the definition of “contained” as it applies to tank systems. [0159]
One commenter said that the proposed co ntained definition is so broad in its attempt to address land

- based situations that tanks with associated hard piping may no longer meet the “contained” definition. This commenter says that clearly tanks and containers are not subject to routine releases “ through surface transport by precipitation runoff” and that EPA’s concern for “fugitive air emissions” from tanks is clearly inappropriate as tanks represent the standard for management of liquids and are more closely related to manufacturing process units . [0317] One commenter is concerned that tank systems that do not meet the RCRA hazardous waste tank standard but have a release at some point would not meet the definition of “contained” and thus would cause a storage unit for recyclable materials to be c onsidered a subtitle C hazardous waste unit. This commenter also argued that EPA must eliminate its “no leaks” standard to avoid regulating material such as furnace bricks that are stored outside. [0168]
(p) RESPONSE : EPA does not agree with those comment ers who argued that the proposed definition of “contained” imposed a strict, categorical, and impracticable “no leaks” standard, either for land

- based units or non

- land

- based units. We note that the language of the proposed definition reads that the unit m ust be in good condition, “with no leaks or other continuing or intermittent unpermitted releases of hazardous secondary materials to the environment...” (emphasis added). This language clearly does not mean that any single release of whatever nature would a utomatically place the hazardous secondary materials remaining in the unit under Subtitle C regulation. In fact, we agree with those commenters who argue that most units will suffer a release at some point and that it would be unreasonable to categorically classify any release of any nature as discard.
For example, sometimes a hazardous secondary material may escape from primary containment and may be captured by secondary containment or some other mechanism that would prevent the hazardous secondary mate rials 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 f

rom the definition of solid waste, even though any such materials that had been released and not immediately recovered would be considered discarded.

If these criteria of the “contained” definition are not met, the materials remaining in the unit would be considered solid and hazardous wastes and the unit would be subject to the appropriate hazardous waste regulations. To clarify the regulatory status of units from which releases have occurred, the Agency is also adding to 40 CFR 261.4(a)(23) the following language: (1) a hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation; and (2) hazardous secondary material managed in a unit with leaks or other continuin g or intermittent unpermitted releases of the hazardous secondary material to the environment is discarded and a solid waste.- 111

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(q) COMMENTS : Two commenters said that EPA fails to specify what concentration of hazardous secondary material constituents would need to be detected to constitute a release and that this failure will cause the regulated facility uncertainty about the level of controls necessary to avoid a situation that would be considered a violation by regulators. [0257, 0290] One commenter said that EPA’s distinction between the runoff containing hazardous constituents from bricks or runoff containing the hazardous waste itself is irrelevant because in either scenario, hazardous constituents are being swept away. This commenter said the important consideration should be whether the release is “significant,’ such that it poses a threat to human health and the environment. [0363] Two commenters fail to see the difference between “trace amount of metals” found in rainwater and other unaddressed small releases. [0165, 0268] One commenter urged EPA to revise its regulatory definition of contained to replace the “no leaks’ requirement with language that reflects the reality that the occurrence of a leak that is quickly addressed is not evidence that the material remaining in the unit is discarded. This commenter also said the revised definition should recognize that the Clean Water Act and the Clean Air Act appropriately address runoff and air emissions. This commenter goes on to ask whether scrap metals would need to be managed in a leak

- proof container under EPA’s new definition of contained. [0255]
(q) RESPONSE : T

he Agency does not agree with those commenters who said that even trace amounts of hazardous substances (such as through stormwater runoff) s hould be considered illegal releases from storage units. Some units are inevitably subject to occasional precipitation runoff that consists essentially of water, with trace amounts of hazardous constituents. As long as the hazardous secondary material itse lf is not swept away by the runoff, this transport via precipitation runoff would not be a release of such a material and the unit could be considered contained. A contrary interpretation could place all such units under Subtitle C regulation and eliminate their eligibility for the generator

- controlled exclusion, which is not the Agency’s intent. EPA has determined that hazardous secondary materials placed in such units that are destined for legitimate recycling have not been discarded if they meet the cond itions of these exclusions. EPA also agrees with the commenter who said that the existence of stormwater runoff (regulated under the Clean Water Act) and fugitive air emissions and dust (regulated under the Clean Air Act) does not automatically mean that m aterials are not being managed as a valuable commodity.
EPA also does not agree with the commenter who suggested that the Agency should return to the “significance” criterion for determining whether a release has occurred (in part to distinguish between runoff containing hazardous constituents and runoff containing the hazardous secondary material itself). The Agency does not agree that using this criterion, without further definition, would clarify this distinction. We also do not find that it is practicable to establish a concentration of hazardous secondary materials that could be used to determine whether a release has occurred, since such appropriate concentrations would vary for different materials and a single c oncentration limit would not be flexible enough to allow an accurate determination of “contained” for the wide variety of hazardous secondary materials.
(r ) COMMENTS : One commenter supported the adoption of a reasonable, flexible definition of contained to provide assurance that the environment will be protected during storage activities- 112

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associated with the reclamation of these excluded materials. However, this commenter was concerned that the proposed definition may not cover all of the potential contain ment approaches that could be used and that EPA should allow for a facility to petition the implementation agency to allow an alternative method to meet the definition of contained. [0189] Some commenters said that the Agency provides an option to petition to demonstrate alternatives to the contained standard but that this would be completely unrealistic for the many thousands of generating sites, each of which generates only very small quantities of material for recycling. [0172, 0207]
(r) RESPONSE : In re sponse to those commenters who suggested a mechanism (such as a petition process or variance) to provide alternative or site

- specific containment requirements for certain facilities, such a mechanism is unnecessary because the definition of “contained’ in today’s rule establishes minimum requirements that all units storing hazardous secondary materials should be able to meet. We have designed the “contained” criteria to be flexible enough to cover a wide range of units and therefore, are not including a pet ition or variance from meeting the definition of “contained.” However, persons have the ability to petition EPA for a rulemaking on the issue that may involve their facility.
(s) COMMENTS : Two commenters said that tanks are not always labeled with the co ntents and that, although there may be safety designations on the tanks concerning fire, skin, respiratory, or reactivity hazards, the tanks are not necessarily labeled with contents such as acetic acid, methanol, isopropanol, etc. These commenters say tha t labeling and maintenance logs are not necessary as process tanks always hold the same material unless they are repurposed. [0159, 0317] Another commenter said that the labeling requirement is ambiguous in whether it applies to primary containment (e.g., storage containers) or to secondary containment or to both. Moreover, two commenters said that there is no basis in the record to demonstrate how labeling the contents of a unit would provide additional protection from a release of material from that unit. [0205, 0317] One commenter wondered how a log provides “immediate notification” of a tank’s content and argued that an operator working the process knows what is going into the processing unit and that the processing unit is appropriately labeled for the operator. This commenter says that the operator does not need to have an “immediate” log to know what is in the unit. [0317]
(s) RESPONSE : EPA’s definition of contained requires that the unit be “properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit” (emphasis added). Where it is not practical to label tanks, tanks can be identify with another system, such as a log, which can be kept nearby and thus allows for immediate identificati

on of the tanks’ contents. EPA does not agree with commenters who argue that labeling or logs are not necessary because the process tanks always hold the same material or because the operator knows the process. Although a tank’s contents may be well known to facility employees, the contents are not well known to others, such as emergency personnel, regulators, and members of the public. Therefore, EPA finds that the labeling requirement (or other system for identifying the tanks’ contents, like a log), is a ppropriate for tanks in order to maintain protection of human health and the environment. EPA confirms that the labeling requirement applies to any unit that is accumulating hazardous secondary materials under the generator

- controlled exclusion.- 113

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(t) COMME

NTS : Some commenters said that that proposed definition of “contained” seems to assume hazardous recyclable materials are in flowable form, such as liquids or dusts, but that some hazardous recyclable materials are solid objects, such as spent lead acid ba tteries, scrap metal, and circuit boards. These commenters say that proper storage may be nothing more than securing spent batteries on a pallet and that a container is not necessary to prevent environmental impacts during storage of such materials. [0172, 0207] Another commenter said that the proposed language should not be interpreted or applied so as to require solid materials to be stored under more stringent conditions than such materials before they are used or where the materials are not prone to “re lease.” [0172] Another commenter said that, with respect to batteries, EPA should clarify that batteries are contained as long as they are intact. This commenter agrees that damaged batteries that are visibly leaking are not “intact” and require special ha ndling procedures. [0196]
(t ) RESPONSE : We agree that proper storage for solid materials would likely require fewer controls than proper storage of liquid hazardous secondary materials. EPA has determined that our definition of “contained” (which includes land

- based units) is sufficiently flexible to cover solid material, such as scrap metal or furnace bricks
, which are not stored in tanks, containers, or containment buildings. EPA also agrees that damaged batteries that are visibly leaking are not “intact ” and thus would not be contained if the batteries were releasing hazardous secondary materials into the environment.
(u) COMMENTS : Two commenters said the Agency should also clarify that a “unit” may include a designated location, because in the case of solid materials, a container may not be necessary or appropriate. These commenters also suggested revising the definition to begin “contained means held in a unit...” because “held in” will make the sentence more grammatically correct. [0172, 0214]
(u ) RESP ONSE : We agree that “unit” could be a designated location, such as a land

- based unit. We have determined that our definition of “contained” (which includes land

- based units) is sufficiently flexible to cover solid material, such as scrap metal or furnace b ricks which are not stored in tanks, containers, or containment buildings. We have also made clear in the preamble the circumstances under which such materials could be considered “contained.” EPA agrees with the commenter who suggested adding “held in” to the definition of contained in order to make the sentence more grammatically correct and has incorporated this change into the final rule.
(v) COMMENTS : Some commenters said that the definition is unclear and appears to suggest that hazardous secondary m aterials must be managed in units complying with part 264 or 265 standards. [0076, 0177, 0189, 0199, 0225, 0238, 0317] One commenter supports inclu ding that any unit that meets part 264 or 265 standards meets the definition of contained as long as it is EP A’s intent that meeting part 264/265 standards is considered one possible compliance method and not the only one. This commenter said that, as currently written, the proposed regulatory language for contained under 260.10 can be read such that part 264/265 standards must be met in order to meet the definition of contained. This commenter suggest that EPA clarify that meeting the part 264/265 standards is only one method to meet this definition. [0189] One commenter said that EPA’s inclusion of the statement that tanks meeting the requirements of RCRA found in 40 CFR parts 264 and 265 readily leads inspectors to inappropriately conclude that secondary- 114

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containment is a requirement for containment in tanks. [0317] One commenter said that the reference to part 2 64/265 should be removed. [0076] Another commenter said that the provision regarding the applicable standards of part 264/265 is confusing. [0177] One commenter said that it appears that EPA’s expectation is that nothing other than the applicable managemen t requirements of part 264 or part 265 can ever be used. [0199] Some commenters said that they strongly supported appropriate management of secondary hazardous material to prevent releases but that they do not support a definition of contained that equates full compliance with 40 CFR parts 264 and 265. [0133, 0204, 0214]
(v ) RESPONSE : EPA agrees that one method of complying with the contained standard would be to use the management standards in 40 CFR parts 264 and 265, however, EPA did not intend to imply that meeting 40 CFR parts 264 and 265 was required. EPA agrees with modifying the language in the contained definition to add the term “presumptively” to better reflect EPA’s intent. The revised language in the final rule is as follows: “Hazardous seconda ry materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained.”
(w) COMMENTS : One commenter said that EPA should make it clear that that all collectors and generators that are currently exempt from RCRA requirements under 40 CFR 266.80 subpart G remain exempt from all additional requirements in the proposed DSW rule, including containment and labeling. [0196]
(w) RESPONSE : It was not the Agency’s intent that spent lead

- acid batteries be managed under th e generator

- controlled exclusion and thus batteries are not subject to the specific conditions of the generator

- controlled exclusion. The 2008 DSW final rule contained a provision (40 CFR 261.2(c)(4)(iv)) stating that spent lead

- acid batteries were not eli gible for the generator

controlled exclusion

. The omission of this provision from the July 11 DSW proposal as related to spent lead

- acid batteries and material

- specific standards was inadvertent, and EPA is therefore retaining it in this final rule (see 40 CFR 261.4(a)(23)(ii)(E)).

However, under the 2014 DSW final rule, all hazardous secondary materials , including batteries, must be legitimately recycled as defined in 40 CFR 260.43. In particular, hazardous secondary materials must meet legitimacy factor (3), which means that the generator and recycler must manage the hazardous secondary materials as a valuable commodity. Where there is an analogous raw material, the hazardous secondary materials must be managed, at a minimum, consistent with the managemen t of the raw material or in an equally protective manner. Damaged batteries that are visibly leaking are not “intact” and thus would not be contained if the batteries were releasing hazardous secondary materials into the environment
(x ) COMMENTS : Two commenters said the proposed text at 40 CFR 261.4(a)(23)(ii)(B) uses the word “recycling” in place of “reclamation” and omits the phrase “or intermittent unpermitted” which does not comport with the preamble language. [0038, 0257] One commenter said that t he third sentence under EPA’s proposed 40 CFR 261.4(a)(23)(ii)(B), which read “Hazardous secondary material managed in a unit with leaks or other continuing releases of the hazardous secondary material is discarded and a solid waste,” says opposite of what EPA intended and should be revised. [0257]- 115

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(x ) RESPONSE : EPA agrees with revising the language to improve readability and maintain consistency within the regulations. The final language reads: “The hazardous secondary material is contained as defined in § 260.10 of this chapter. A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation. Hazardous secondary material managed in a unit with leaks or other contin uing or intermittent unpermitted releases is discarded and a solid waste.”
(y) COMMENTS : One commenter said that in the definition of contained, the third provision requires that the unit not hold incompatible materials. This commenter said that EPA shoul d clarify this provision to better indicate that the unit must not contain materials that are incompatible with the other wastes or materials placed in the unit or the materials of construction that comprise the unit. [0058]
(y ) RESPONSE : EPA agrees with this commenter and has modified the definition of contained as follows: “

The unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions. ”
(z) COMMENTS : One commenter suggested that the definition of contained be revised to only apply the provision regarding leaks to land

- based units. [0159]
(z) RESPONSE : EPA does not agree wi th applying the provision regarding leaks to only land

based units. Leaks from non

- land

- based units, like tanks and containers, can pose a risk to human health and the environment as well and thus, EPA is maintaining the “no leaks or other continuing unper

mitted releases” provision to be applicable to all units holding hazardous secondary materials.
(aa) COMMENTS : One commenter suggested modifying the first criterion under the definition of contained to read “(1) The unit is in good condition, with no leak s 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 recycling process, to prevent releases of the hazardous secondary mater ials to the environment. Such releases may include, but are not limited to , unpermitted releases through surface transport by precipitation runoff, releases to groundwater, wind

- blown dust, fugitive air emission, and catastrophic unit failures.” [0201]
(a a) RESPONSE : EPA does not agree with adding the term “recycling process” to the definition because this would appear that containment of the hazardous secondary materials is only needed during the recycling process and not prior to the recycling process.
(bb) COMMENT S: Some commenters suggested modifying the definition of contained to read: “Contained means a unit that meets the following criteria: (1) the unit is in good condition and is designed and operated to prevent releases of the hazardous secondar y materials to the environment; and (2) the unit does not hold incompatible materials and addresses potential risk of fire or explosions.” [0204, 0214, 0225]- 116

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(bb) RESPONSE : EPA agrees with the criteria the commenter suggested; however, EPA finds that addi tional criteria is necessary in the definition of contained to ensure that hazardous secondary materials can be immediately identified and to provide examples of releases determining when hazardous secondary materials are contained.
(cc) COMMENTS : One commenter said the examples of release should include soil contamination because contamination should not be allowed to pass through the soil to the groundwater before it is considered a release. [0290]
(cc ) RESPONSE : EPA agrees with adding soil contamina tion as an example of a release of hazardous secondary materials and has incorporated this change into the definition of contained.



### 6.3 Notification

(a) COMMENTS : Several commenters supported making notification a condition of the generator

- controlled exclusion. [0032, 0058, 0063, 0165, 0178, 0179, 0185, 0189, 0203, 0209, 0244, 0251, 0257, 0270, 0272, 0290, 0333, 0351, PA

- 0015] A few commenters argued that notification as a condition is important to create a greater incentive to notify. These commenters stated that the 2008 DSW final rule created an unintended incentive for facilities to evade oversight by not notifying and then face only a paperwork violation. [0063, 0179, 0244, 0251, 0257, 0272, 0290, 0333] Some commenters said that notification would make state programs aware of a generator’s intent to recycle and provide evidence that the generator is aware of the exclusion’s conditions. [0179, 0185, 0251, 0272] Commenters also argued that if a generator fails to notify, states could always use enforc ement discretion to distinguish between an unintentional administrative oversight and a blatant attempt at evading enforcement. [0179, 0251, 0257, 0272, 0351] One commenter said that making notification a condition of the exclusion provides states the abil ity to properly enforce against this latter group, while leaving the flexibility to tailor enforcement in appropriate cases. [0351] One commenter argued that notification is important for informing regulators and the public about hazardous secondary materi als activity and is essential to help minimize the environmental justice concerns raised by lack of public participation. [0244]

Several commenters opposed making notification a condition of the exclusion. [0115, 0125, 0146, 0157, 0159, 0162, 0168, 0177, 0186, 0201, 0202, 0205, 0210, 0214, 0233, 0236, 0246, 0255, 0260, 0266, 0283, 0363, IL

- 0011, PA

- 0002] Some commenters argued that EPA has no statutory authority to impose notification as a condition on hazardous secondary materials that are not discarded. These commenters said that failure to notify is not an indication of discard. [0115, 0125, 0162, 0168, 0186, 0201, 0202, 0210, 0233, 0246, 0255, 0260, 0266, 0363, IL

- 0011] Similarly, some commenters stated that the exclusion should be based on substantive issues such as “legitimacy” and not on administrative issues and argued that notification is not necessary for recycling to be legitimate. [0146, 0157, 0162, 0168, 0186, 0201] One commenter argued that evasion of notification should be punished by penaltie s, not by imposing RCRA jurisdiction where it does not exist. [0266] Additionally, some commenters stated that enforcement discretion may not be exercised in a consistent, predictable, and reasonable matter and thus
, this uncertainty- 117

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would chill potential recycling. [0125, 0186, 0201, 0233] Some commenters said that lack of notification can subject generators who are legitimately recycling to undue severe enforcement consequences and penalties. [0157, 0159, 0201, 0205, 0210, 0236, 0266, 0283, IL

- 0011] A few commenters said that there are innocent reasons why a facility would fail to notify, for example, because the point at which a virgin material becomes a secondary material is not always clear. [0125, 0162, 0186] Other commenters said that it is highly unr ealistic to believe that any facility operating under the provisions would intentionally fail to notify EPA in an attempt to evade enforcement. [0146, 0159, 0283, 0363] Others noted that there are sufficient penalties in place for not notifying. [0201, 021 0, 0363] One commenter said that those facilities that would deliberately violate a notification requirement will continue to do so, whether it is a requirement or a condition. [0283] A few commenters said that EPA has provided no reasoned analysis as to

w hy the Agency has switched their position from the 2008 DSW final rule. [0168, 0255] O ther commenter s said that EPA has provided no evidence of past abuses or situations where generators have skirted the regulatory requirements by failin g to notify. [0201, 0205, 0236]
(a) RESPONSE : EPA agrees with commenters who supported making notification a condition of the exclusion. The notification provision is the only formal indication of a facility’s intent to reclaim a hazardous secondary material under the condit ional exclusion. For example, if during an inspection of a large quantity generator of hazardous waste, EPA were to discover a hazardous secondary material that had been stored on

- site for more than 90 days without a RCRA permit (an act that would typicall y be a violation of the hazardous waste regulations), a previously filed notification would be an indication that the facility was planning to reclaim the hazardous secondary material under the conditions of the exclusion. Absent such notification, it woul d be difficult for the facility to justify its true intentions for the hazardous secondary material. Failure to meet the notification provision is a strong indication that the facility either did not intend to comply with or was unaware of the provisions o f the exclusion. In both cases, the lack of notification could indicate that the hazardous secondary material was being mismanaged.
EPA agrees with commenters that making notification a condition of the rule would further discourage facilities from tryin g to evade enforcement by not notifying because, under the final rule, the costs of not notifying are significantly higher than if notification remains a requirement. Notification is essential to keep regulators and the public informed about hazardous seco ndary materials activity and to enable effective compliance monitoring. Making notification a condition provides states and EPA the ability to properly enforce against facilities that blatantly fail to notify in order to evade enforcement, while leaving th e flexibility to tailor enforcement appropriately for those cases where failure to notify was due to an unintentional oversight. EPA also agrees with those commenters that argued that notification is important for informing regulators and the public about hazardous secondary materials activity. Therefore, EPA is making the notification provision in 40 CFR 260.42 a condition of the generator

- controlled exclusion in 40 CFR 261.4(a)(23)
, as well as a condition of the remanufacturing exclusion in 40 CFR 261.4(a )(27).
In response to opposing comments, EPA does not agree that failing to notify is not indicative of discard. As noted, notification serves as a formal declaration that a facility is not managing a hazardous waste but, rather, an excluded hazardous sec ondary material under the conditions of- 118

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the exclusion. Notification, thus, documents the generator’s decision to not discard its materials, which is the inherent first step in any exclusion from the definition of solid waste.
EPA also does not agree that the notification condition would be inappropriately enforced. EPA notes that notification as a condition subjects only those generators who failed to notify to enforcement consequences; generators who submit notifications as required, and meet the conditi ons of the final rule exclusions, would not face enforcement consequences. EPA does not find this to be unduly burdensome to the regulated community.
EPA also finds that the commenter’s example of an innocent reason for failing to notify (because of conf usion surrounding the point when a virgin material becomes a secondary material) as further reason to strengthen the notification provision. In order to comply with the final rule, a generator must know which hazardous secondary materials are being managed according to the specific conditions of the exclusion. In other words, a generator has to make a choice to manage hazardous secondary materials under the conditions of the rule before t hey are considered “excluded.” Notification, in fact, clearly document s this choice. Therefore, it is impossible for a generator to innocently fail to notify under the final rule based on it not being clear when a virgin material becomes a secondary material that it must manage under the exclusion. These ambiguities must be resolved prior to the facility availing itself of the exclusion.
EPA also disagrees with commenters that argued it is highly unrealistic to believe that any facility operating under the provisions would intentionally fail to notify EPA as well as commente rs that argued that sufficient incentives to notify already exist. We note that there is likely an economic incentive for some facilities to fail to notify and simply consider the paperwork violation as a cost of doing business. Where an economic incentive exists, EPA maintains that regulation is necessary in order to adequately discourage undesirable behavior.
EPA disagrees with commenters who argued that EPA has not provided a reasoned analysis as to why the Agency is making notification a condition of the exclusion. In response to Sierra Club’s 2009 administrative petition, which argued that the 2008 DSW final rule increased threats to public health and the environment, EPA provided the public and interested stakeholders an opportunity to provide input to the decision

- making process by requesting public comment in a May 2009 Federal Register notice and in a June 2009 public meeting (74 FR 25200, May 27, 2009). The 2009 notice specifically requested comment on whether notification should be made a conditi on, rather than a requirement of the exclusions. In the notice, EPA explained that, if EPA were to restructure the DSW final rule exclusions so that the notification was a condition of the exclusions rather than a requirement, the notification would serve as the first step in the facility's demonstrating that the hazardous secondary material is not being discarded. Such a system might provide a stronger incentive for facilities to notify and make it difficult for a facility to claim, after the fact, that it intended to reclaim a material, when it had no real intention of doing so. Furthermore, EPA’s July 2011 proposal requested comment on whether notification should be made a condition, rather than a requirement, of the exclusion and reiterated EPA’s rationa le for why it was considering such a change. Thus, EPA finds it has provided sufficient explanation of its rationale regarding this change and has provided adequate opportunity for stakeholders to comment. Furthermore, EPA finds that “evidence of past abus es” (i.e., records of- 119

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facilities that fail to notify) would be inherently challenging to assemble, given that these facilities would not notify and thus , be difficult to identify.
(b) COMMENTS : One commenter asked for clarification on how the notification requirement applies to existing facilities already operating under an exclusion and whether notification is required for each individual exclusion identi fied in the regulations. [0058]
(b) RESPONSE : Notification under 40 CFR 260.42 is only required for fa cilities operating under (1) the generator

- controlled exclusion at 40 CFR 261.4(a)(23); (2) the verified recycler exclusion at 40 CFR 261.4(a)(24); (3) the remanufacturing exclusion at 40 CFR 261.4(a)(27); and (4) a solid waste variance or non

- waste determ ination at 40 CFR 260.30

- 34.
Other exclusions, such as the zinc fertilizer exclusion at 40 CFR 261.4(a)(20), may have generic notification requirements, but these are separate from the specific notification require ment codified at 40 CFR 260.42.
Additionally, EPA is not requiring any new notification requirements for other existing (pre

2008) exclusions or exemptions under the final rule, as was consid ered in the July 2011 proposal.
(c) COMMENTS : One commenter urged EPA to add discussion in both t he preamble and regulatory language to the final rule indicating that failure to notify does not automatically mean that the materials recycled under the exclusion in the absence of a notificati on are hazardous wastes. [0189]
(c) RESPONSE : EPA has included language in the preamble to the final rule that reads: “EPA agrees with commenters that making notification a condition of the rule would further discourage facilities from trying to evade enforcement by not notifying because, under the final rule, the

co sts of not notifying are significantly higher than if notification remains a requirement. Notification is essential to keep regulators and the public informed about hazardous secondary materials activity and to enable effective compliance monitoring. Makin g notification a condition provides states and EPA the ability to properly enforce against those that blatantly fail to notify in order to evade enforcement, while leaving the flexibility to tailor enforcement appropriately in those cases where failure to notify was due to an unintentional oversight appropriately.”
(d) COMMENTS : One commenter requested that EPA add language to the final rule confirming that the facilities filing notifications do not need to wait for any response from the implementing agenc y prio r to using an exclusion. [0189]
(d) RESPONSE : EPA has included language in the preamble to the final rule that reads: “Additionally, EPA confirms that the conditional exclusions at 40 CFR 261.4(a)(23) and 40 CFR 261.4(a)(27) are self

- implementing and thus
, facilities do not need to wait for any response from the implementing agency prior to using an exc lusion.”
(e) COMMENTS : Two commenters urged EPA to reduce the regulatory burden of requiring biennial notification and to simply require facilities to notify initially and subsequently only when a change occurs. These commenters argued that biennial notification will add an- 120

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unnecessary burden to these facilities, many of which are small businesses. [0189, 0299] Another commenter stated that a one

- time no tification is sufficient and argued that EPA does not require regular updates from hazardous waste generators. [0210] Additionally, two commenters stated that EPA’s requirement for those ceasing use of the exclusion to file notification within 30 days is o verly stringent and unnecessary. [0189, 0363] One of these commenters said that, in some instances, a facility may recycle a secondary material infrequently and may hav e periods over 30 days where no management of the material occurs, but the facility inte nds in the future to continue such recycling. [0363]
(e) RESPONSE : EPA’s July 2011 proposal did not specifically request comment on changes to biennial notification and notification in the event a facility stops managing hazardous secondary material under the exclusions. However, EPA disagrees with those commenters that argued that EPA should require facilities to notify initially and subsequently only when a change occurs or that EPA should only require a one

- time notification. EPA’s position regarding biennial notification remains unchanged from that explained in its p reamble to the 2008 DSW final rule (73 FR 64740

- 1, October 30, 2008).

In the 2008 preamble, EPA reflected on the intent of the notification requirement, which is to provide basic information to regulatory agencies about who is managing hazardous secondary materials under the exclusions in order to monitor compliance with the exclusions. As commenters noted, with a one

- time notification approach, there is no assurance that the information collected in EPA’s databases over time will accurately reflect facili ties that are managing hazardous secondary materials according to the exclusion. Therefore, the Agency can imagine instances where precious resources are required to be spent on ‘cleaning up’ the data before regulatory authorities can use it to identify fa cilities 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 stoppe d managing hazardous secondary materials at some point in the past. This inefficient use of resources would serve to lower the effectiveness of regulators to monitor compliance overall and could potentially increase the risk of environmental damage from ab use of the exclusions.

EPA further finds that responsibility for submitting and maintaining updated information lies with the facilities that use the exclusions. We understand arguments made by commenters that, as originally proposed, the one

- time notific ation would in effect reverse this responsibility, placing an unreasonable burden on the states and EPA to ‘clean up’ the data every time a regulating agency sought to use the information. Instead, the incremental burden to facilities who must submit perio dic notifications is minimal compared to the considerable public expense that states and EPA would likely incur over time in order to use the information submitted in a one

time notification. Once an initial notification is submitted, to re

- notify, a facil ity need only review the previous notification and either make changes if necessary or confirm that the information remains accurate. We are convinced of the validity of the above arguments raised by commenters in support of periodic reporting and agree th at the limitations of a one

- time notification approach would undermine th e purpose of the notification.- 121

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Additionally, EPA disagrees with commenters that EPA’s notification requirement for those ceasing use of the exclusion is overly stringent and unnecess ary. EPA only requires facilities to file “stop” notifications if they have stopped managing hazardous secondary material under the exclusions and do not expect to manage any amount of hazardous secondary material for at least one year. Therefore, if a fac ility only stopped managing materials for a 30

- day period, as in the commenter’s example, this facility would not ne ed to file a stop notification.
Once a facility has stopped managing hazardous secondary materials and does not expect to manage any amount of hazardous secondary material for at least one year, the facility must file a stop notification within 30 days of stopping management.
(f) COMMENTS : One commenter stated that notifications should not be required to contain information on the estimated an nual volume of the material that is expected to be excluded or the types of materials expected to be excluded. [0210]
(f) RESPONSE : EPA finds that information on types and quantities of hazardous secondary materials managed under the exclusions are critica l to enable adequate compliance monitoring. Because a generator likely manages multiple hazardous wastes, it is important the generator notify which hazardous secondary materials are being managed under the exclusion so that states and EPA know which mater ials are subject to the exclusion’s conditions. Additionally, information on quantities enables states and EPA to prioritize inspections and to m easure performance of the rule.
(g) COMMENTS : One commenter is concerned that notification as a condition is po tentially different than how paperwork violations have historically been handled and recommended that EPA clarify this issue. [0299]
(g) RESPONSE : Although notification as a condition may differ from how other paperwork requirements are handled in the haza rdous waste regulations, it does not differ from how other paperwork requirements are applied in conditional exclusions from the definition of solid waste. For example, notification is a condition of the zinc fertilizer exclusion in 40 CFR 261.4(a)(20 ). Ad ditionally, EPA confirms that the conditional exclusions at 40 CFR 261.4(a)(23) and 40 CFR 261.4(a)(27) are self

- implementing and thus
, facilities do not need to wait for any response from the implementing agency prior to using an exclusion.
6.4 Recordkeep ing for speculative a ccumulation
(a) COMMENTS : Some commenters agreed and supported the proposal 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 HSM began to be

acc umulated. [0032, 0038, 0058, 0063, 0156, 0165, 0177, 0178, 0179, 0225, 0223, 0244, 0251, 0266, 0268, 0270, 0271, 0272, 0290, 0312, 0321, 0333, 0351, IL

- 0002] One commenter stated the decision to speculatively accumulate any material requires some degree of forethought and planning and this provision is a good way to document that decision process. [0063] A few commenters said the additional recordkeeping requirements for speculative accumulation are important in order not to excessively tax the already stra ined resources of states that do- 122

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inspections and to make the enforcement process more efficient. [0063, 0165] Some commenters agreed that this is not unduly burdensome and will provide a degree of clarity and consistency to the regulated community and regu latory authorities. [0177, 0178, 0272] Another commenter stated these records are necessary to evaluate whether hazardous secondary material are being speculatively accumulated. One commenter agreed with EPA that this is already a part of normal business o perations for many facilities. [0233] One commenter said that without such provisions, state and local governments are more likely to be left with abandoned wastes. Furthermore, this commenter agreed with EPA that such recordkeeping and labeling is a norma l business practice and is necessary for inventory co ntrol and tax records. [0312]
(a) RESPONSE : For the reasons stated in these comments EPA agrees with those commenters who supported requiring persons operating under the generator

- controlled exclusion to document compliance with the speculative accumulation provision. Thus, EPA is requiring in the final rule that persons operating under 40 CFR 261.4(a)(23) must place materials in a storage unit with a label indicating the first date that the material bega n to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. This provision will allow inspectors and other regulatory authorities to quickl y ascertain how long a facility has been storing an excluded hazardous secondary material, and, therefore, whether that facility is in compliance with the accumulation time limits of § 261.1(c)(8 ).
(b) COMMENTS : Some commenters opposed the proposal to requ ire persons operating under the generator

- controlled exclusion to comply with recordkeeping for speculative accumulation. [0115, 0157, 0172, 0189, 0193, 0201, 0202, 0210, 0214, 0246, 0340, 0363] One commenter said documenting compliance with the speculativ e accumulation prohibition is unnecessary and that the increased burdens associated with the requirement are not justified by any perceived administrative benefit. [0115] Additionally, some commenters said that because most facilities already maintain thes e types of records, there is no need to make this a regula tory requirement. [0115, 0201]
(b) RESPONSE : EPA does not agree with commenters who opposed requiring recordkeeping to document compliance with speculative accumulation. This is because EPA has con cluded that the recordkeeping requirements for speculative accumulation provide considerable benefits in terms of enabling more effective compliance monitoring by regulatory authorities , which will reduce the risk from over accumulation of hazardous second ary materials. EPA also concludes that the burden on the regulated community will be minimal. Posting accumulation start dates (or using another mechanism, such as an inventory log) is a simple and effective way to provide useful information about complian ce with the speculative accumulation provision, and that the cost to facilities does not outweigh this benefit.
(c) COMMENT S : A few commenters said that 40 CFR 261.2(f) already provides that persons claiming an exemption from the definition of solid waste must be prepared to provide enforcement personnel with appropriate documentation demonstrating they meet the terms of the exclusion. [0115, 0193, 0202, 0210] One state commenter said that if a facility was storing a certain quantity of hazardous secondary material for too long, they would request the facility- 123

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operator to demonstrate that the hazardous secondary material was indeed recyclable according to the legitimacy criter ia and 40 CFR 261.2(f). [0157]
(c) RESPONSE : In response to those commenters who a rgued that the proposed recordkeeping requirement is redundant with § 261.2(f), we note that that provision applies to respondents in enforcement actions and does not provide specific guidance on how to determine compliance with the speculative accumulatio n provisions in the case of routine inspections. We therefore do not agree that the proposed recordkeeping requirement is redundant with 40 CFR 261.2(f).
(d) COMMENTS : Two commenters stated that this would not be a useful requirement because documenting wh

en hazardous secondary material is first received for recycling will do nothing to prove that speculative accumulation is or is not occurring after two years. These commenters said that speculative accumulation is based on recycling a certain percentage of the total amount of hazardous secondary material at the facility on January 1 and thus does not contain a first

- in, first

- out requirement. These commenters stated that requiring inventory records documenting the receipt of incoming hazardous secondary mat erials, their introduction into the reclamation process, and outgoing materials would be much more useful than an a ccumulation date. [0157, 0239]
(d) RESPONSE : Under the final rule, a material is not accumulated speculatively if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that

– during the calendar year (commencing on January 1)

– the amount of material that is recycled, or transferred to a different site for recycling, equ als at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. Materials must be placed in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. EPA finds that all parts of this provision

– including demonstration the material is recyclable, there is a feas ible means of recycling, and that 75% of the material is being recycled in a calendar year, documented through a label, inventory log or other appropriate method

- when evaluated together, will allow inspectors and other regulatory authorities to quickly a scertain whether that facility is in compliance with the accumulatio n time limits of § 261.1(c)(8).
(e) COMMENTS : A few commenters said that EPA has no evidence that “generator

- only” sites have been or will be the source of environmental damage associated with speculative accumulation. [0172, 0207] Still another commenter said that generators subject to the speculat ive accumulation requirements have had to comply with them for many years and they encouraged EPA not to add an unnecessary additional burden to industry.[0189] Some commenters said that labeling equipment with start and finish dates for speculative accumu lation purposes will impose burdens on industry. [0193, 0202] One commenter said that 40 CFR 261.1(c)(8) already provides that “a material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially re cyclable and has a feasible means of being recycled....” Combined with 40 CFR 261.2(f), this commenter says there is more than enough power by EPA to compel production of records providing no speculative accumulation and proposed new paperwork burdens are no t necessary. [0210] One commenter said EPA’s requirement to label storage units and keep records to demonstrate that the secondary- 124

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material is not being accumulated speculatively exceeds EPA’s statutory authority because the secondary materials have not be en discarded. [0246]
(e) RESPONSE : EPA notes that the speculative accumulation provision generally applies to all entities generating and accumulating hazardous secondary materials and thus is not specific to generators. Although the speculative accumulati on provision has been in place for many years, EPA finds it appropriate to modify the provision in order to make it more enforceable, thereby minimizing mismanagement of hazardous secondary materials, such as the mismanagement from over accumulation eviden ced in EPA’s damage case study. Posting accumulation start dates (or using another mechanism, such as an inventory log) is a simple and effective way to provide useful information about compliance with the speculative accumulation provision . Additionally, EPA finds that the cost to facilities is not unduly burdensome because many companies already keep records as part of their routine business practices. EPA does not agree with the commenter that states this requirement exceeds EPA’s statutory authority bec ause recordkeeping is critical to determining that speculative accumulation is not occurring and thus ensures the hazardous secondary mate rials are not being discarded.
(f) COMMENTS : Some commenters said that, in promulgating each exclusion, EPA had the

o pportunity to consider whether speculative accumulation should be explicitly prohibited as part of the exclusion, as evidenced in its inclusion in the following exclusions, 40 CFR 261.4(a)(6), (7), (12), (17), (18), (19), (20), (22), (23) and (24). These c ommenters said that revisiting previous determinations would substantively change the exclusions and this should only be done as part of a comprehensive substantive review of each existing exclusion, which EPA has not undertaken i

n this rulemaking. [0172, 0207]
(f) RESPONSE : EPA did not intend in the final rule to revisit previous determinations made when promulgating the pre

- 2008 exclusions. EPA confirms that the final rule simply adds recordkeeping to the speculative accumulation in 40 CFR 261.1(c)(8).
(g) COMMENTS : In response to EPA’s request for comment on other methods of measuring storage durations or identifying start dates, such as a requirement to post accumulation start dates in storage areas within a specified number of feet of the storage unit , some commenters noted that the two recordkeeping options presented by EPA in the draft rule provide sufficient flexibility to generators while at the same time providing clear information for compliance assessment purposes. [0179, 0251, 0272] Another com menter agreed with this method as it would allow regulatory inspectors to quickly ascertain the movement of materials in and out of each storage area and to determine compliance with speculative accumulation limits. This commenter said reference to logs di stant from storage units will make enforcement difficult, if not impossible, and compliance with the requirement to record dates in a log proximate to the unit where the waste is stored should increase the accuracy of the recordkeeping. [0244] One commente r agreed with the tag near the accumulation unit but also desired keeping the inventory log for start and stop dates and said that the log should be kept with the shipping papers, such as the manifest system. This commenter also suggested some sort of sign , such as “Hazardous Waste Recycling Accumulation Area ” be posted by the area. [0351]- 125

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(g) RESPONSE : EPA finds that the final rule provides sufficient flexibility for documenting compliance with speculative accumulation. EPA chose not to finalize specific r equirements, such as to post accumulation start dates in storage areas within a specified number of feet of the storage unit, or to label areas, because such requirements may not be necessary for all facilities and the appropriate distance from the storage unit likely va ries for different facilities.
(h) COMMENTS : Some commenters agreed that this requirement should be added directly to the speculative accumulation provision in 40 CFR 261.1(c)(8) and thus extend to all exclusions that require compliance wit h speculative accumulation. [0038, 0165, 0179, 0197, 0244, 0251, 0257, 0268, 0270, 0272, 0290, 0312, 0351] Some commenters strongly supported this idea as having the accumulation start date readily available provides assurance to generators and to inspecto rs that the generator is in compliance with the provision. These commenters also suggested that EPA consider amending the language of that provision to address the long

existing loophole that its rules allow up to two years of storage for the materials hav ing a start accumulation date of January 2 or later. [0179, 0272, 0312] One commenter said that EPA should apply this to all aspects of the conditional DSW exclusions including the tra nsfer

- based option. [0271]
(h) RESPONSE : EPA agrees with the commenters who supported adding the recordkeeping requirement directly to the speculative accumulation provision in 40 CFR 261.1(c)(8). Thus, EPA is applying recordkeeping for speculative accumulation to all exclusions that already require compliance with the specula tive accumulation provision. However, amending the language of speculative accumulation in terms of the January 1 start date is outside the scope of this proposal, since EPA did not reopen that part of the spec ulative accumulation provision.
(i) COMMENTS : One commenter said EPA did not discuss flow

- through systems such as surface impoundments or tank systems in which the excluded materials may be constantly added and removed. This commenter said that they have many systems such as closed

- loop reclamation sy stems that are very integrated into the production process and included multiple streams entering and leaving various pieces of equipment in the system. This commenter said EPA should explicitly discuss allowing flow

- through calculations (i.e., turnover) a s one method to demonstrate compliance with speculative acc umulation requirements. [0189]

Another commenter said that the metals

- rich secondary materials generated by mining facilities are generated continuously and are virtually immediately recycled as a normal part of production operations. As such, this commenter said that keeping track of the exact moment (for speculative accumulation purposes) when each pound of secondary material is generated and then labeling equipment through which these materials continuously pass with the generation date and quantity generated each day would be a s ignificant undertaking. [0193]
One commenter said that posting a start date for accumulation is also impractical for certain types of legitimate recycling activities. F or example, this commenter said placing a start date on storage tanks is not always possible and entering a start date would not be feasible where spent solvents are sent to a storage tank prior to reclamation in a solvent still. This commenter said spent solvent is pumped into the tank intermittently during the course of the day and a facility would not be able to track when a certain amount of solvent entered and left the tank. [0201] One- 126

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commenter said that EPA should provide guidance on how a facility s hould “date” the unit, given the 75% requirement and the fact that material is constantly being added and removed, without the unit ever being entirely emptied. [0239]
One commenter said that recordkeeping for speculative accumulation is not always practi cal, for example, at generator’s facilities with piles that are consistently turning over, the start date might change every day. [0260] One commenter said that materials are continuously generated and continuously reused in its process and the facility do es not track when a particular revert is generated or when it will be reintroduced into the process. Rather, this commenter typically conducts a monthly metals accounting for inventory purposes. This commenter said that requiring such detailed recordkeepin g of accumulation start dates would place a significant burden on facilities where their operations are not conducive to such a tracking system. This commenter stated that EPA should allow alternate methods to demonstrate compliance with

s peculative accumu

lation. [0363]
(i) RESPONSE : EPA notes that the speculative accumulation provision only applies to persons who are accumulating hazardous secondary materials. Processes involving hazardous secondary materials being returned to the original process via pipe s are not considered to be accumulat ing hazardous secondary materials and thus
, the speculative accumulation provision (and recordkeeping therein) would not apply to these scenarios. Additionally, EPA notes that the final rule states that “If placing a lab el on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method.” EPA therefore finds that the final rule provides sufficient flexibility for meeting this requirement in a v ariety o f industrial processes.
(j) COMMENTS : One commenter said that although labeling is not necessary in many cases, if implemented, a flexible format for labeling and recordkeeping similar to that specified in the regulations for Universal Waste should be allo wed. [0238] Another commenter said that from outreach and meetings they conducted they found the most favored approach was the flexible provisions of the universal waste rule in 40 CFR 273.15(c) and 273.35(c). This commenter said these options allow handle rs to choose an option suitable for th e specific storage area. [0312]
(j) RESPONSE : Under the final rule, all persons subject to the speculative accumulation requirements must place materials subject to those requirements in a storage unit with a label indicating the first date that the material began to be accumulated. If placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. EPA has determined that the use of an “inventory log” or “other appropriate method” provides flexibilities similar to those in the Universal Waste regulations.
(k) COMMENTS : One commenter recommended changing the yearly time frame to 180 days. This commenter said reducing the time frame for speculative accumulation would enable the regulator to more quickly assess a handler’s recycling intentions and provide a more preventative measure against accumulation of a large stockpile. This commenter also said a shorter time frame could be a bet

ter fit for situations where recycling is a seasonal activity. [0299]- 127

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(k) RESPONSE : Modifying the accumulation time in the speculative accumulation provision was outside the scope of this rulemaking, since EPA did no t reopen this part of the rule.
(l) COMM ENTS : One commenter questioned how additional recordkeeping empowers environmental justice communities. [PA

- 0002] Another commenter said that documentation of compliance with speculative accumulation is critical in creating transparency which would benefit communities. [PA

- 0006]
(l) RESPONSE : EPA finds that recordkeeping for speculative accumulation will enable more effective compliance of the provision and thus, serve to minimize mismanagement of hazardous secondary materials and reduce potential harm to c ommunities, including env ironmental justice communities.

6.5 Revisions to t olling and same

- c ompany
(a) COMMENTS : Some commenters supported eliminating the tolling exclusion. [0032, 0038, 0058, 0165, 0167, 0173, 0177, 0178, 0179, 0197, 0215, 0244, 0251, 026 8, 0270, 0272, 0290, 0321, 0333, 0351, 0367, IL

- 0001, IL

- 0002, IL

- 0006, PA

- 00 05, PA

- 0012, PA

- 0013, PA

- 0014]

Some commenters stated the tolling exclusion should be eliminated because no facilities have notified they are operating under the provision since the 2008 DSW rule was finalized. [0032, 0038] One commenter was concerned that the generator does not have enough control over the tolling operation to insure the activities will be protective of human health and the environment. [0058] Another commenter s tated that the tolling exclusion is contradictory to the stated goals of this rulemaking and is based on a level of “generator control” which plainly does not exist and stated that the tolling provision is ripe for abuse. [0165]

A few commenters did not s ee how the hazardous secondary material in this situation is “under the control” of the tolling contractor when a separate corporate entity at a different physical location operates the production process that generated the material. These commenter said t hat under all relevant statutes and law, the batch manufacturer is the legal generator regardless of the contract agreement between the two parties and noted that contracts can vary greatly in their term s and conditions. [0167, 0367]

One commenter was con

cerned that eliminating the transfer

- based exclusion while maintaining the toll manufacturing exclusion will encourage recyclers without RCRA permits to unscrupulously attempt to fit their activities under the remaining toll manufacturing exclusion. This c ommenter also said EPA regional offices and state hazardous waste regulators do not have experience evaluating specific generator

- controlled toll manufacturing agreements and that this results in a sharp learnin g curve for regulators. [0173]

A few comment ers would prefer to see the tolling provision eliminated because they thought it would not be frequently utilized and it is not sufficiently protective of human health and the environment. [0179, 0251, 0272] Another commenter said the provision is extremel y confusing and is unlikely to encourage responsible recycling. [0179] One commenter said the exemption for “tolling contractors” allows unlimited amounts of hazardous waste to be transferred for- 12 8

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recycling to third parties without essential protections app licable to transport, storage, handling, and financial assurance. [0215] Some commenters said that if EPA elects to retain the provision, it should be conditioned on compliance with the financial assurance provisions in the 2008 DSW rule and the other same standards that would apply to hazardous recyclable materials. [0244, 0270, 0321] Some commenters stated that tolling arrangements should be eligible for the alternative hazardous waste regulation. [0272, 0333, 0367] One commenter said that recent experien ces in West Virginia with tolling agreements that aimed to reclaim hazardous secondary materials have been negative and led to discard. [0268] Another commenter had severe concerns about the tolling agreements and thought it placed too much responsibility with the reclaimer and not en ough with the generator. [0351]
Some commenters argued the tolling exclusion should be retained. [0157, 0175, 0189, 0201, 0202, 0205, 0214, 0225, 0233, 0266, 0283, PA

- 0002]
A few commenters stated that companies did not use th e toll manufacturing exclusion because of the uncertainty of the future of the DSW rule. [0157, 0202, 0205, 0266] Other commenters said since the 2008 DSW rule is only effective in a few states, EPA should wait until this proposal is made final and adopted by a majority of states before considering whether to withdraw this part of the exclusion. [0189, 0225]
One commenter argued the toll manufacturing exclusion should be expanded to cover other types of contractual arrangements under which discard is unlik ely to happen, for example, allowing for a contractual arrangement between a generator of materials and a reclaimer where the generator buys back the reclaimed materials to be included under the control of the generator. [0283] A few commenters stated that the elimination of the tolling provision would result in the regulation of hazardous secondary materials that are not discarded and thus, are not subject to EPA’s RCRA authority. [0202, 0225]

One commenter said that EPA should not withdraw the exclusion because it has not provided in the record any factual basis for its conclusion that the existing provision has caused an increased risk of discard. [0205] Another commenter said that although this provision is expected only to apply to a relatively small n umber of generators and reclaimers, it does provide for another alternative under which those generators can reclaim valuable hazardous secondary materials and thus, should not be discouraged. Additionally, this commenter said that the associated risks for allowing that small number of entities to legitimately recycle their material would be small as well. [0233] One association commented that the tolling provision is particularly important to them, given the unique composition of their membership which eng ages in toll manufacturing. This commenter said that concept of ownership and responsibility for the recyclable material has not changed since the rule was finalized in October 2008 and thus is puzzled why EPA would even raise this issue for possible discu ssion and present no evidence to support this speculation. This commenter goes on to say that their members make beneficial use of valuable materials under tolling ar

rangements. [0266]
(a) RESPONSE : EPA generally agrees with the commenters who supported ret ention of the tolling exclusion (and therefore disagrees with commenters who opposed retaining the tolling exclusion). We find that hazardous secondary materials will not be discarded if they are- 129

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legitimately reclaimed under the conditions specified in our tolling exclusion, particularly since participants in tolling contracts have strong incentives to handle such materials as valuable commodities rather than mismanage them. We also have determined that the conditions of the generator

- controlled tolling exclusion, including the recordkeeping requirement for hazardous secondary materials sent and received under tolling contracts, are sufficient to prevent discard, thus
, rendering unnecessary the use of the hazardous waste manifest or other RCRA permit requ irements for reclaimers. We have also concluded that retention or elimination of this exclusion should not depend on how frequently the exclusion is currently utilized, because determining frequency of utilization in the future is necessarily speculative. Additional states are likely to pick up EPA’s revisions to the definition of solid waste, and tolling arrangements could become more common due to increases in certain kinds of manufacturing or other technological developments. Regulatory authorities would then become more familiar with implementation of the provision. We are also concerned that eliminating the tolling exclusion could discourage the reclamation of valuable hazardous secondary materials. This result would be inconsistent with our goal of enc ouraging the sustainable management of hazardous secondary materials. For these reasons, we are retaining the tolling exclusion in this final rule and finalizing the proposed recordkeeping requirement for this exclusion.
(b) COMMENTS : One commenter recomme nded a definition for “tolling agreement” which contains the specif

ic requirements therein. [0351]
(b) RESPONSE : EPA finds that the definition of a “tolling agreement” is sufficiently contained in the certification language within 40 CFR 261.4(a)(23) and thus a specific definition is not necessary. Specifically, “The hazardous secondary material is generated pursua nt 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 cont ractor 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 m

aterials 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 co urse of the manufacture, including any releases of hazardous secondary materials that occur during the manufacturing process .’” Thus a tolling contractor that is managing hazardous secondary materials as specified by above certified statement is managing u nder a tolling agreement eligible for the generator

controlled exclusion, provided the condi tions of the exclusion are met.
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 contr actor. 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- 130

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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 cont ract with a tolling contractor

. (c) COMMENTS : Some commenters supported recordkeeping for tolling. [0038, 0058, 0157, 0159, 0165, 0179, 0185, 0189, 0233, 0251, 0257, 0266, 0270, 0272, 0290, 0299, PA

- 0002] Some commenters supported applying recordkeeping requirements to hazardous second ary materials reclaimed off

- site at the same company under 40 CFR 261.4(a)(23). [0156, 0159, 0179, 0185, 0189, 0233, 0251, 0299, 0351] One commenter said that to ensure hazardous secondary material is being handled as a valuable commodity and “discard” has not occurred while in transit, a bill of lading or other shipping document must be required whereby the receiving site certifies it has received the full quantity identified on the shipping paper. [0038] Another commenter said that recordkeeping is a reas onable requirement and that having documentation would be helpful to the recycler in demonstrating that hazardous secondary material is not being speculatively accumulated. [0157] A few commenters said that a recordkeeping requirement would enable state in spectors to verify that hazardous secondary materials have indeed been shipped to a facility under the control of the generator. [0179, 0251] Another commenter said that the existing rules don’t ensure that all hazardous secondary materials being sent to a third party can be tracked from control of the generator to the receiving facility and ensure that the hazardous secondary materials all arrived, were recycled, returned to commerce as products, and residuals were properly managed. [0185] Some commenters said they supported recordkeeping, provided normal business records can be used to demonstrate compliance. [0189, 0251] Another commenter said that these records are generally kept as part of conducting business and would not place an undue burden on recyc lers. This commenter also said that a requirement to keep these records would improve transparency of the process, thus, allowing the regulatory authorities and members of the regulated community to more easily ascertain compliance with the requirements. [ 0233] One commenter said that there must be a rule requiring the generator to present these routine business records to the inspector, when requested. [0351] Some commenters opposed requiring recordkeeping for under the control of the generator. [0175, 020 1]
(c) RESPONSE : EPA agrees with those commenters that supported recordkeeping requirements for both the tolling provision and the same

- company provision under the generator

- controlled exclusion and has finalized these requirements in the final rule. EPA agrees with commenters that recordkeeping requirements ensure that the hazardous secondary materials are being managed as a valuable commodity and are not being discarded. EPA notes that the recordkeeping requirements may be satisfied by routine business r ecords (e.g., financial records, bills of lading, copies of DOT shipping papers, or electronic confirm ations) and thus, EPA has determined this requirement will not present an undue bur den to the regulated community.
(d) COMMENTS : A few commenters said tha t a fundamental flaw lies in the requirement that the tolling contractor must certify that it retains ownership of, and liability for, the hazardous secondary materials generated during manufacturing, including any release of hazardous secondary materials during the manufacturing process at the toll manufacturer’s facility. This commenter stated that a person acting as a tolling contractor would put themselves at great- 131

-

financial risk by signing such a certification, since there is less incentive for the tol l manufacturer to manage the hazardous secondary materials appropriately when the liability for mismanagement falls to an other party. [0179, 0251, 0272]
(d) RESPONSE : EPA disagrees with these commenters that argue that liability would only befall to the to lling contractor. Under the final rule, both the tolling contractor and tolling manufacturer are liable for proper management of the hazardous secondary materials. Therefore, both parties have incentive to ensure hazardous secondar y materials are safely ma naged.
(e) COMMENTS : One commenter recommended adding a check box to the national uniform hazardous waste manifest or indicating a tolling agreement exists in the “special handling instructions and additional information” space already available on the man ifest. This commenter also stated that EPA should require a copy of the tolling agreement be kept on

- site fo r review and inspection. [0299]
(e) RESPONSE : Hazardous secondary materials managed under the control of the generator, including under the toll man ufacturing provision, are not subject to RCRA hazardous waste regulations and thus, are not subject to manifesting requirements. EPA notes that the tolling agreement must be presented when requested pursuant to 40 CFR 261.2(f). Additionally, t he tolling co ntractor 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 tha n three years records of hazardous secondary materials shipped pursuant to its written contract with the tolling contractor. 

## 7.0 Comment on Revisions to the Definition of Legitimacy 7.1 General comments on l egitimacy

(a) COMMENTS : One state agency recommended a fifth criterion be added to the legitimacy criteria, which would require that recyclers demonstrate that they have appropriate sized equipment and throughput capacity for the amount of HSM destined for recycling. This agency stated that such a requi

rement would help guard against speculative accumulation. [0157]
(a) RESPONSE : EPA agrees that hazardous secondary materials should be recycled in a timely manner but does not agree that a fifth legitimacy factor is necessary to ensure this. Inste ad, as described in Section 6.4 above, the Agency has revised the speculative accumulation standard to include recordkeeping with the intention of making compliance with the existing speculative accumulation time limit of § 261.1(c)(8) more transparent and more readily enforceable

. Under speculative accumulation, 75% of the hazardous secondary material must be recycled in a calendar year, which responds to the issue about throughput capacity mentioned by the commenter. In addition, the hazardous secondary m aterials destined for recycling are required to go to either a RCRA

- permitted facility or a reclaimer that has obtained a solid waste variance from EPA or the authorized state. As part of the variance process, the reclaimer must address a number of criteri

a, including having the proper equipment and trained personnel to safely reclaim t he hazardous secondary material, and must meet the speculative accumulation standard.- 132

-

(b) COMMENTS : Several commenters expressed their general support for the revisions to th e definition of legitimate recycling

. [0178, 0179, 0272, 0321] One commenter specifically called for the establishment of enforceable criteria for legitimate recycling [PA 0012] and another commenter supported a stringent legitimate recycling definition th at makes environmental and public health protection mandatory

. [PA 0015]
(b) RESPONSE : EPA agrees that a codified, clear, enforceable definition of legitimate recycling will help ensure that the environment and public health are protected where hazardous secondary materials are recycled and has strengthened the legitimate recycling standard in this final rule.
(c) COMMENTS : One commenter agreed with the importance of the concept of legitimate recycling but felt the 2011 proposal lacked the flexibility of EPA’s existing legitimacy provision

. [0115]
(c) RESPONSE : As explained in greater detail in Section 7.3 below, EPA has revised the structure of the legitimate recycling standard from two factors that must be met and two factors that must be considered to four factors that must be met. However, in revising the two factors that previously had to be considered, the Agency has added flexibility to how those factors can be met. It is the Agency’s position that this structure is clearer and simpler yet still ma intains the necessary flexibility to address those recycling situations that are more challenging to evaluate.
(d) COMMENTS : One commenter expressed support for the Agency’s efforts to help generators assess whether recycling is legitimate and stated the national standard should be achievable by legitimate recyclers

. [0207]
(d) RESPONSE : EPA agrees that having one legitimate recycling standard codified in the hazardous waste regulations will greatly assist generators and recyclers in assessing the legitimacy of a recycling practice and agrees that legitimate recyclers will be able to achieve this standard , which is applied on a case

- by

- case basis taking the case

- specific circumstances of the situation into account.
(e) COMMENTS : Two commenters iden tified inconsistencies or apparent conflicts between the legitimate recycling regulatory text in § 260.43 and the variance procedures in § 260.31, particularly with regard to the term “valuable,” and also suggested regulatory changes that would link the te rm “useful contribution” and “valuable” in the legitimate recycling regulatory text

. Specifically, the commenter suggested the following regulatory language for factor 2: The recycling process must produce a valuable product or intermediate: The product or intermediate is valuable if it is (1) sold to a third party; or (2) contribute a valuable ingredient to a product or intermediate (emphasis added) ; or (3) used by a recycler or the generator as an effective substitute for a commercial product or as an ing redient or intermediate in an industrial process. [0097, 0107]
(e) RESPONSE : EPA does not agree that there is a conflict between the terms “value” in criterion 2 of 40 CFR 260.31(c) and the term “valuable” in factor 2 of the legitimacy factors. The legiti macy factor 2 defines a valuable product or intermediate as either one that is sold to a third party or one that used by the recycler or generator as an effective substitute or ingredient in an- 133

-

industrial process. Criterion 2 of the partial reclamation var iance states the partially

- reclaimed material should have sufficient economic value that it will be purchased for further reclamation

. EPA contends that those concepts are consistent, in that “sold to a third party” indicates that the material has sufficie nt economic value for further reclamation. The second part of legitimacy factor 2 where a product or intermediate is deemed valuable for its “intrinsic value” would not be applicable to the partial reclamation variance because the hazardous secondary mater ial would be used by the recycler or generator as an effective substitute or ingredient in an industrial process. In addition, EPA disagrees with the commenters’ suggested revision (in italics above) to the regulatory language for factor 2 and is not going to revise factor 2 to link the two legitimacy factors (factor 1 and 2) in the way the commenters suggested. The Agency sees the two le gitimacy factors as two discre t e concepts: factor 1 states that the hazardous secondary material must provide a useful contribution to the recycling process or product and factor 2 states that the recycling process must produce a valuable product or intermediate. Adding the idea of “cont ribution” to factor 2 only confuse s the concepts.
(f) COMMENTS : One commenter noted that the changes to legitimate recycling in § 260.43 offer important reasoning and structure to changes throughout the RCRA regulations regarding solid waste regulation bu

t doesn’t think the proposed language in other sections of the rule ( §§ 260.42 (notification), 261.6 (requirements for recyclable materials), and 266.30 (hazardous recyclable materials) ) corresponds to EPA’s proposed legitimacy language. The commenter’s

ma in concern is that notification of legitimate recycling only applies adjacently to third

- party recyclers and appears to be primarily a burden on generators . [0160]
(f) RESPONSE : EPA does not agree with the commenter’s contention that third

- party recyclers aren’t held to the same level of accountability on the legitimacy of recycling as generators. Generators and reclaimers both have responsibility to ensure that the recycling of their hazardous secondary materials is legitimate but EPA notes that it is gen erally a self

- implementing requirement. Notification under the legitimate recycling standard is only required if the generator or recycler cannot meet the technical requirements of Factor 4 but still believes he is legitimately recycling. EPA finds that th ese instances are rare and thus does not expect notification in this instance to be unduly burdensome.
(g) COMMENTS : Two commenters argued that EPA does not have the authority to regulate hazardous secondary materials being legitimately recycled and that codification and application of the legitimacy criteria is therefore unlawful. [0252, 0363]
(g) RESPONSE : This comment misconstrues the reason for the legitimacy factors. They are not stand alone “regulations” under which EPA is covering materials under i ts jurisdiction. Instead, they are conditions which the Agency has decided are necessary to determine whether materials are in fact being treated as valuable commodities rather than as solid wastes. EPA has consistently asserted that hazardous secondary ma terials are not excluded from regulation as solid wastes merely because of a claim that they will be recycled. EPA has consistently considered hazardous secondary materials intended for “sham recycling” (i.e., disposal performed in the guise of recycling) to be discarded and, hence, to be solid wastes for Subtitle C purposes (see 45 FR 33093, May 19, 1980; 50 FR 638

– 639, January 4, 1985). The U.S. Court of Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded- 134

-

and, co nsequently, are solid wastes under RCRA (see American Petroleum Institute v. EPA , 216 F.3d 50, 58

– 59 (D.C.Cir. 2000)).

7.2 Comments on c odifying legitimacy for all r ecycling
7.2.1 Support
(a) COMMENTS : A number of states and state official associations were supportive of codifying one legitimacy standard for all hazardous secondary material recycling activities

. [0038, 0058, 0157, 0178, 0179, 0209, 0251, 0257, 0270, 0271, 0290, 0312, 0333, 0351] In addition, several industry groups, associations, communi ty organizations, and individual citizens also supported codifying a legitimate recycling standard for all hazardous secondary materials recycling

. [0107, 0114, 0172, 0207, 0321, PA 0006, PA 0012] They argued that codifying the legitimacy provision would g ive generators, recyclers and states a definitive standard to evaluate recycling and that industries operating under the pre

- 2008 recycling exclusions and exemptions should not have any problems documenting compliance with the legitimate recycling provisio n of § 260.43, if their recycling is truly legitimate. On the other hand, several states, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), and the Northeast Waste Management Officials’ Association (NEWMOA) all expressed concerns over applying the codified legitimacy standard to certain long

- standing recycling exclusions, including lead

- acid batteries, circuit boards, scrap metal, and closed loop recycling, with one state arguing that this additional regulatory burden was not necessary for the 2008 pre

- existing exclusions and exemptions

. [0179, 0257, 0290]
(a) RESPONSE : EPA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. However, we are not codifying a reference to the legitimacy provisions at 40 CFR 260.43 in each of the recycling exclusions/exemptions, as we proposed to do in the 2011 DSW proposal. On further reflection, we have determined that the sha m recycling prohibition in § 261.2(g) more clearly defines the Agency's view on legitimate recycling and the pre

- 2008 recycling exclusions and exemptions. We also agree with those commenters who pointed out that we looked at the legitimacy of the recycling activity when we promulgated the material

- specific or industry

specific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy determinations. However, by codifying a prohibition on sham recycling that applies to all hazardo us secondary materials being recycled, we are confirming that we expect anyone operating under a recycling exclusion or exemption to do so legitimately.
(b) COMMENTS : Several environmental and community organizations supported codification of the legitim

ate recycling provision for all hazardous secondary materials recycling, but did not provide a detailed explanation of their position. In addition, while one environmental organization acknowledged that EPA did not solicit comment on the elimination of the se exclusions, this organization stated that they suggest a re

- examination of all of the exclusions by the Agency, including the pre

- 2008 exclusions and exemptions should be conducted as soon as possible. [PA 0006, PA 0012, PA 0015, 0321]- 135

-

(b) RESPONSE : E

PA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. However, we are not codifying a reference to the legitimacy provisions at 40 CFR 26 0.43 in each of the recycling exclusions/exemptions, as we proposed to do in the 2011 DSW proposal. On further reflection, we have determined that the sham recycling prohibition in § 261.2(g) more clearly defines the Agency's view on legitimate recycling a nd the pre

- 2008 recycling exclusions and exemptions. We also agree with those commenters who pointed out that we looked at the legitimacy of the recycling activity when we promulgated the material

- specific or industry

specific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy determinations. However, by codifying a prohibition on sham recycling that applies to all hazardous secondary materials being recycled, we are confirming that we expect anyone operating under a recyc ling exclusion or exemption to do so legitimately

. Furthermore, the Agency is not re

- examining all the exclusions and exemptions at this time but will consider whether more work is needed in this area upon completion of this final rule.

7.2.2 Do not s uppo rt
(a) COMMENTS : Comments from industry across the board (including waste management companies) opposed codifying the legitimacy provision at § 260.43 for the pre

- 2008 recycling exclusions and exemptions, arguing that this action, combined with making fact or 3 and factor 4 mandatory, is a drastic change in policy and likely will end much of the current recycling that is occurring under RCRA. Industry commenters and two state agencies argued that this would be a huge administrative burden with little environ mental benefit and that recycling has been taking place under these exclusions largely without problems for many years. Some industry commenters expressed their opinion that the codified legitimacy factors are significantly different than EPA's existing le gitimacy policy and therefore, the legitimacy analysis that would have to be undertaken is not substantively the same. Other commenters opined that applying the codified legitimacy standard to the pre

- 2008 exclusions and exemptions would function as a disi ncentive to recycling by adding paperwork burden and increasing compliance difficulties, especially for generators who would be exposed to potential RCRA enforcement due to subsequent noncompliance by the recycler. [0125, 0156, 0177, 0186, 0202, 0214, 0225 , 0233, 0242, 0243, 0250, 0255, 0283, 0287, 0337, 0360, 0364, 0367] One commenter stated that inspectors could miss the more obvious cases of sham recycling due to the Agency resources that would be expended in reviewing the large amount of required docume ntation and inspecting the more frequently used pre

- existing exclusions, such as the use/reuse exclusion in § 261.2(e) and the closed loop recycling exclusion in § 261.4(a)(8), to the detriment of investigating other potentially more problematic recycling

. [0133] Many of the specific industry commenters on this issue were scrap metal recyclers who argued that although they have been legitimately recycling for decades, expecting them to prove that their recycling operations were legitimate for the first time w ould be prohibitively expensive, time

- consuming and unworkable. The scrap metal recycling industry had particular issues with factor 4 as drafted in the 2011 DSW proposal and had many questions on how to do the comparable demonstration. [0048, 0050, 0055, 0056, 0060, 0070, 0076, 0089, 0095, 0116, 0117, 0137, 0150, 0151, 0153, 0199, 0208, 0217, 0226, 0275, 0288, 0292, 0343]- 136

-

(a) RESPONSE : In response to the many comments that were submitted, the Agency is making a number of changes to the 2011 DSW proposal. Specifically, EPA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. However, we are not codifying a reference to the legitimacy provisions at 40 CFR 260.43 in each of the recycling exclusions/exemptions, as we proposed to do in the 2011 DSW proposal. On further reflect ion, we have determined that the sham recycling prohibition in § 261.2(g) more clearly spells out the Agency’s expectations that recycling under RCRA must be real recycling. We also agree with those commenters who pointed out that we looked at the legitima cy of the recycling activity when we promulgated the material

- specific or industry

- specific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy determinations. However, by codifying a prohibition on sham recycling that app lies to all hazardous secondary materials being recycled, we are confirming that we expect anyone operating under a recycling exclusion or exemption to do so legitimately.
In addition, as discussed in more detail under Section 7.6 below, we are not requi ring legitimacy documentation, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, unless the facility does not meet the technical provisions of factor 4 and yet is still legitimately recycling

. In the vast majority of cases, recycli ng under the existing exclusions is legitimate and documentation is not necessary . Thus, we do not anticipate any additional burden for the vast majority of recyclers operating under the existing exclusions and we expect Agency resources will be directed t o sham recycling cases

. (b) COMMENTS : Many industry commenters argued that EPA or the states have already made legitimate recycling determinations for their specific recyclable materials. Some commenters also noted that EPA considered legitimacy at the time their material

- specific exclusion was promulgated and had already made legitimacy determinations for those recyclable materials (e.g., the zinc fertilizer exclusion, precious metal exclusion, etc.). These commenters also argued that as part of rulemaking for the material

- specific exclusion s, the Agency had determined what conditions were necessary to ensure legitimacy. Some argued that overlaying the general legitimacy factors on the 2008 pre

- existing conditional exclusions and exemptions is unnecessary and duplicative and would create sign ificant disincentives to recycling. [0125, 0168, 0175]
Specifically, the oil and gas industry argued that applying legitimacy to longstanding exclusions used by the petroleum industry would require that decisions to use these exclusions be reviewed and ju stified. [0076, 0175] The Treated Wood Council argued the codified legitimacy factors should not apply to the wood preserving exclusion in §261.4(a)(9) because the Agency has already made a determination in a material

- specific rulemaking that these materia ls are not solid waste. [0100] The Fertilizer Institute and others urged the Agency not to require new legitimacy evaluations for those materials being recycled under the zinc fertilizer exclusion, the generic fertilizer exclusion, and the precious metals recovery exclusion. [0115, 0340, 0363] The mining and mineral process industry argued that longstanding legitimacy determinations did not need to be subject to new critique that did not take into account each situation on a case

- by

- case basis. [0193, 0210, 0211, 0252] Many industry commenters argued that the codified legitimacy standard should not apply to the generic recycling exclusions, such as the use/reuse exclusion in §261.2(e) and the closed

- loop recycling exclusion in §261.4(a)(8). [0133, 0199, 0204 , 0225,- 137

-

0255, 0256, 0257, 0317] Many other industry commenters argued that it is not necessary to require a legitimacy demonstration or documentation for their specific exclusions, including the recycling exclusions in §§261.2, 261.4, 261.6, and 266. [0111 , 0133, 0142, 0168, 0169, 0189, 0196, 0198, 0199, 0202, 0204, 0212, 0214, 0221, 0250, 0252, 0255, 0256, 0257, 0264, 0274, 0287, 0317, 0345, 0350, 0356, 0362, 0367]
Several commenters argued that the codified legitimacy standard should not specifically app ly to the variances in §§260.31 and 260.33 because the variances are already subject to a case

- by

- case review by the implementing agency. [0076, 0133, 0199, 0204]
(b) RESPONSE : In response to the concerns expressed that the codified legitimacy factors wou ld lead to practices previously considered legitimate now being considered sham recycling operations, in general, the Agency is clarifying that it does not intend for the current recycling legitimacy determinations to change due to the codification of the legitimacy factors. We consider the factors we are finalizing today to be consistent with the criteria in the Lowrance Memo and previous preamble statements on legitimate recycling. Therefore, we do not anticipate that implementing agencies will revisit pa st legitimacy determinations. If recycling was considered legitimate under the Lowrance Memo, its status should not change as a result of today’s rule. To make its intent more clear, the Agency is codifying a prohibition against sham recycling in § 261.2(g ) instead of adding a provision in each of the pre

- 2008 exclusions and exemptions referring to the legitimacy provision in § 260.43. This codification will give implementing agencies a clear regulatory statement that can be used to enforce against sham

rec yclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions and exemptions to revisit previously

- made legitimacy determinations.
Any existing legitimate recycling determination should not change due to the codification of the legitimacy factors. In addition, examples that were provided in the public comments helped inform our decision

- making and led us to revise factor 4 significantly to address this issue. The final regulatory text is cons istent with the pre

- existing legitimacy language and the manner in which legitimacy determinations have been made by the EPA Regions and authorized states. EPA provided this analysis in the 2008 DSW final rule that described how the promulgated legitimacy factors compare to the previous primary guidance on legitimacy and the Lowrance Memo. EPA continues to maintain that the legitimate recycling provision is substantively the same as existing policy because we developed the legitimacy factors in 40 CFR 260.4 3 by closely examining the questions and sub

- questions in the Lowrance Memo and in the Federal Register preambles and converting them into four more direct factors. For a detailed explanation of how each of the four factors is derived from the Lowrance Mem o and other existing policy statements, see 73 FR 64708

– 64710, October 30, 2008. Thus, we do not expect implementing agencies to revisit past legitimacy determinations.
Regarding the existing exclusions in the regulations, EPA acknowledges that, in esta blishing a specific exclusion, we have already determined in the rulemaking record for those exclusions that the specific recycling practice is excluded from the definition of solid waste provided all the conditions of the rule are met. However, the Agency has always enforced its rules on the basis that any recycling must be legitimate (See U.S. v. Self, 2 F. 3d 1071, 1079 (10 th Cir. 1993); U.S. v- 138

-

Marine Shale Processors , 81 F. 3d 1361, 1366 (5 th Cir. 1996); Marine Shale Processors v. EPA
, 81 F. 3d 1371, 13 81

- 83 (5 th Cir. 1996)) . This is meant to prevent a company from claiming to be operating under an existing exclusion and simply using that as a way to avoid full RCRA Subtitle C regulation. Thus, since EPA is not modifying the existing exclusions, there is no change regarding legitimacy determinations, except that the factors are now codified. A company’s ability to claim a recycling exclusion has always depended on the recycling being legitimate.
(c) COMMENTS : Scrap metal recyclers in particular were opp osed to applying the legitimate recycling requirements to their exclusion, referring to the legitimacy demonstration as a “new” requirement and arguing that the legitimacy standard was unclear, confusing, unworkable, and prohibitively expensive. This indus try had a number of questions on how to make legitimacy determinations on their hazardous secondary materials. In particular, they argued that there is no analogous product to compare products made with recycled hazardous secondary materials. Because of th

e nature of the scrap metal recycling exclusion, they don’t have to characterize their secondary materials as long as they are recycled so they questioned whether they would have to test their materials to comply with the legitimacy requirements

. [0028, 00 48, 0050, 0055, 0056, 0060, 0070, 0089, 0095, 0116, 0117, 0137, 0139, 0144, 0150, 0151, 0153, 0208, 0217, 0226, 0255, 0274, 0275 , 0288, 0292, 0343, 0356, 0366]
(c) RESPONSE : The Agency acknowledges the unique issues associated with scrap metal recycling and legitimacy determinations. In response to the industry’s concerns, instead of adding an explicit requirement to each recycling exclusion including the scrap metal recycling exclusions, the Agency has instead promulgated a prohibition on sham recycling in § 261.2. This alleviates the scrap metal recycling industry concern about this being a new requirement. In addition, as described below in Section 7.5 of this document, EPA has added more explanation and flexibility for situations where there is no anal ogous product to compare the product made from hazardous secondary materials to. In particular, the Agency will consider a product of a recycling process that meets widely

- recognized commodity standards/specifications, such as scrap metal, to meet Factor 4

. EPA notes that mere recycling of a secondary material, even for a useful purpose, does not mean that the material loses its waste designation.
(d) COMMENTS : Mining and mineral processing companies and their trade associations commented that their proce sses are legitimate recycling and should not be required to go through legitimacy determinations again. They also argued that Factor 4 specifically did not work for their industry. [ 0111, 0193, 0210, 0211, 0252, 0340, 0363]
(d) RESPONSE : EPA agrees that, in general, previous legitimacy determinations should not change due to codification of the legitimacy factors. We consider the factors finalized today to be consistent with the criteria in the Lowrance Memo and previous preamble statements on legitimate r ecycling. In addition, as described below in Section 7.5 of this document, EPA has revised Factor 4 to allow for a comparison with well

- recognized commodity standards and specifications and for materials that are recycled back to the original process to me et Factor 4, both of which commonly occur in the mining and mineral processing industry when recycling hazardous secondary materials.- 139

-

(e) COMMENT S : Several commenters argued in their statements that the codified legitimacy standard should not apply to spe nt lead

- acid batteries

. [ 0196, 0212 , 0221, 0274, 0345, 0350, 0356]
(e) RESPONSE : The Agency acknowledges that spent lead acid batteries are one of the most highly recycled hazardous secondary materials and if managed properly are legitimately recycled. However, there have been damage cases associated with spent lead acid batteries that were not legitimately recycled and thus, instead of adding an explicit requirement to each recycling exclusion including the spent lead acid battery exclusion, the Agency has instead promulgated a prohibition on sham recycling in § 261.2. This alleviate s the industry concern about this being a new requirement. In addition, as described below in Section 7.5 of this document, EPA has added more explanation and flexibility for situations where there is no analogous product to compare the product made from hazardous secondary materials to. In particular, the Agency will consider a product of a recycling process that meets widely

recognized commodity standards/specifications, suc h as lead, to meet Factor 4.
(f) COMMENTS : Even though EPA argues that the new legitimacy standard is substantively the same as the existing legitimacy policy, several c ommenters did not agree and argued the codified legitimacy factors are significantly d ifferent from EPA’s longstanding legitimate recycling policy. [ 0115, 0125, 0175, 0255]
(f) RESPONSE : EPA continues to find that the legitimacy standard codified today, with revisions, is substantively the same as existing legitimate recycling policy. Thes e factors are a simplification and clarification of the policy statements in the 1989 Lowrance Memo and in various Definition of Solid Waste Federal Register notices that date back to 1985. For a detailed comparison and explanation of how the four legitima cy factors were derived from the questions and sub

- questions in the 1989 Lowrance memo and Federal Register preambles, see the October 20, 2008 preamble (73 FR 64708

- 64710).
(g) COMMENT S : Some commenters argued that applying the codified legitimacy standa rd to existing recycling exclusions is arbitrary and capricious . [ 0125, 0186, 0199, 0210, 0340, 0366]
(g) RESPONSE : EPA disagrees that applying the codified legitimacy standard to existing recycling exclusions is arbitrary and capricious. E PA has long art iculated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” (i.e., fake) recycling, beginning with the preamble to the 1985 regulations that established the definition of solid waste (50 FR 638, January 4, 1985). The prohibition on sham recycling being finalized in this rulemaking is consistent with the Agency's longstanding policy and interpretation of legitimate recycling that has been expressed in those earlier preamble discussions and policy statements.
(h) COMMENT S : Some industry commenters argued that EPA’s own data does not show problems with the existing recycling exclusions to justify applying the legitimate recycling requirements to them

. [ 0133 , 0204, 0242]
(h) RESPONSE : EPA disagrees and finds that the damage case s tudy alone shows that sham recycling is a problem, including among the existing recycling exclusions. We are putting the- 140

-

provision in the regulations so that it will be used and implemented more easily. Several examples are mentioned in the preamble that, if the prohibition on sham recycling was in the regulations, would be covered by regulation and not guidance. One example is the case of hazardous constituents added into fertilizer made from hazardous secondary materials when those constituents aren't cov ered by the limits provided in the specific fertilizer exclusion. Another example is the case of foundry sands being incorporated into playground sands. If the legitimate recycling definition was in the regulations, the facility would have been more likely to have been aware of and properly considered the legitimacy concerns associated with elevated levels of hazardous constituents.
Unlike the 2011 proposal, we are not requiring any affirmative action on the part of facilities currently using the existing exclusions and exemptions. The fact that the recycling under existing exclusions must be legitimate is not new; this has always been the case since the regulations were first promulgated. We have always enforced the RCRA rules on the basis that any recycli ng must be legitimate. There is no additional burden for generators or recyclers operating legitimately under the existing exclusions, except for the rare cases of legitimate recycling that have significantly higher levels of hazardous constituents in the recycled product than in an analogous product; or have no analogous product, have no widely

- recognized commodity specifications for the recycled product, and are not returned to the production process. In those cases, due to the self

- implementing nature of the legitimacy determinations, it is important that the recycler perform the proper analysis and document how the recycling is still legitimate.
(i) COMMENT S : Although t he y were general ly opposed to appl ying legitimacy to all recycling, some commenters s pecifically argued it was impossible for gener ators to comply with Factor 4. [0125, 0186, 0250, 0283, 0340]
(i) RESPONSE : In response to comments, instead of adding a provision in each of the pre

- 2008 exclusions and exemptions referring to the legitimacy provision in § 260.43, the Agency is codifying a prohibition against sham recycling in § 261.2(g). This codification will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast m ajority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions and exemptions to revisit previously

- made legitimacy determinations. In addition, the Agency has modified Factor 4 to include common situations where there is no an alogous product to compare the product made from hazardous secondary materials to, such as in the case of scrap metal recycling and where the hazardous secondary material is recycled back into the process from which they were generated, such as recycling t hat takes place under the closed loop recycling provision in § 261.4(a)(8) and some mining and mineral processing feedback loops where hazardous secondary materials are returned to the original process. This should make it easier for recyclers, including g enerators who perform recycling, to meet Factor 4.
( j) COMMENTS : One commenter did not see the need to apply the legitimacy factors to all recycling. This commenter stated that if the material has already been excluded, those facilities should not have to prove the legitimacy factors are being met

. [0032]- 141

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(j) RESPONSE : EPA interprets this comment to refer to the fact that current DSW exclusions are already based on the fact that recycling in compliance with these exclusions is legitimate. However, the concept EPA was explaining in the proposal is that the Agency has always required that such recycling be legitimate. Because of the history involved in the previous rulemakings, the Agency decided not to confuse the issue by revising the past exclusions an d has changed its codification of the legitimacy standard for the previous exclusions in this final rule. Instead of adding a provision in each of the pre

- 2008 exclusions and exemptions referring to the legitimacy provision in § 260.43, the Agency is codif ying a prohibition against sham recycling in § 261.2(g). We have also added language to the preamble explaining that i n the 2011 DSW proposal, EPA explicitly did not reopen comment on any substantive provisions of the previous recycling exclusions or exemp tions . F acilities with pre

- 2008 exclusions can generally follow the normal good business practices that were considered when the exclusions were granted and still be considered to be legitimate recycling. If the facility is complying with the terms of the exclusion and following industry best practices to engage in legitimate recycling activity, this would generally not raise questions as to its legitimacy. All these examples provided support EPA’s determination that most current recycling under existing ex clusions is legitimate, and that companies complying with the conditions of exclusions would generally not need to take action to show that their recycling meets the legitimacy factors.
(k) COMMENTS : One company stated that it is not necessary for this ru lemaking to be consistent with the legitimacy provisions in the NHSM rulemaking referenced in the preamble to the DSW proposed rule . [0320]
(k) RESPONSE : EPA agrees that the two rulemakings do not have to be exactly consistent in terms of the legitimate recycling definition and EPA notes that consistency with the NHSM rule in terms of the l

egitimacy contaminant comparison f actor is not the main reason for c hanging the wording of f

actor 4 in today’s rule

. However, the general principles are consistent and are applied on a case

- by

- case basis. 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 in the preamble to today’s final rule.

7.3 Comments on all legitimacy factors being m andatory

7.3.1 General comments on a ll legitimacy factors being m andatory
(a) COMMENTS : One commenter agreed that the requirements for demonstrating the legitimacy of recycling need to be strengthened but they are concerned that the revisions do not adequately protect human health and the environment from toxic emissions from the recycling of coke byproduct wastes under 40 CFR 261.4(a)(10). In particular, they propose a fifth legitimacy factor: “The process must no t release more toxic, hazardous, or noxious emissions when conducted with recycled material rather than analogous raw material.” The commenter goes on to note that if EPA cannot make the comparability of emissions an explicit legitimacy factor, they ask if the coke oven emissions can be addressed in the DSW rules by other means (0061).- 142

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(a) RESPONSE : Under RCRA, the recycling process itself is generally not regulated per 40 CFR 261.6(c). In the 2011 DSW proposal, EPA made it clear that we weren’t affecting t he substance of this provision or the existing recycling exclusions. While EPA understands the concerns about air emissions from the recycling of coke byproduct wastes, the Agency does not agree that the way to address them is to add a fifth legitimacy fac tor that would apply to all hazardous secondary material recycling because the air emissions should be addressed by the Clean Air Act requirements and enforced through the facility’s Clean Air Act permit. The Clean Air Act requirements would be the more ap propriate vehicle for addressing toxic air emissions from this industry.
(b) COMMENTS : Another commenter noted EPA’s expectation that most recycling would meet all four factors and that use of the petition process was expected to be rare. The commenter we nt on to say that if this position meant that formal determinations of legitimacy should rarely be granted, EPA would be imposing additional barriers to legitimate recycling by codifying such a position (0320).
(b) RESPONSE : In today’s final rule, EPA is n ot finalizing a petition process for legitimate recycling that does not meet all four legitimacy factors. In finalizing the four factors as mandatory, we have changed our proposed approach of requiring a petition for a determination that a specific recycli

ng scenario is legitimate despite not meeting one or more factors. Instead, when a recycler believes that its recycling is legitimate despite not meeting the technical requirements of factor 4 (the consideration of toxics), we are requiring those companies to document their situation and explain why it is still legitimate recycling. The recycling can be shown to be legitimate based on lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant con siderations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The recycler also must certify that the recycling is legitimate and notify the implementing agenc y. We also expect there to be less of a need for this process with the changes we have made to legitimacy factor 4. Therefore, we do not think we are imposing additional barriers on legitimate recycling because we have set up a clear path for those rare

ca ses where the recycling is legitimate yet does not meet the technical requirements of factor 4.
(c) COMMENTS : One state agency noted its general agreement with codifying the legitimacy factors as mandatory instead of being a factor to consider but offered some clarifying language changes. The commenter recommends replacing the word “comparable” with a 25% hazardous constituent concentration increase and suggest changing the “or” to an “and” between the factors in 40 CFR 260.43(a)(4)(i) and (ii), making both parts mandatory (0351).
(c) RESPONSE : EPA appreciates the support for the codification of the legitimacy factors as mandatory. In addition, the Agency agrees that the product of the recycling process must be comparable by meeting both parts of factor 4: 1 ) by not exhibiting a hazardous characteristic that an analogous product does not exhibit and 2) by having comparable concentrations of any hazardous constituents in the product with those in analogous products and thus, we have changed the “or” to an “and ” in factor 4. The Agency does not agree that up to a 25% concentration increase in hazardous constituents would always be comparable because that- 143

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amount could result in too high levels of hazardous constituents in the product made from hazardous secondary materials. Thus, we are not including a bright line cut

- off in factor 4.
7.3.1.1 Support

(a) COMMENTS : For the most part, states commenting on this part of the proposal supported all the legitimacy factors being mandatory (the exceptions being Tennessee a nd Louisiana), although several states went on to say that they either opposed the petition process or are concerned about it for the following reasons: (1) the resources necessary for addressing incoming petitions, (2) the possibility of using the petitio n process as a potential backdoor out of legitimacy, and/or (3) the potential for the petition process to lead to inconsistencies among states on legitimacy determinations. Most states have supported making all four factors mandatory in past proposals and continued to do so here, arguing that codifying the legitimacy factors in the rule (instead of only in rule preamble and in policy documents) will provide clearer instruction to the regulated community and will strengthen the ability of state programs to

e nforce the factors in situations where recycling is not legitimate (0032, 0038, 0058, 0063, 0178, 0179, 0251, 0268, 0270, 0271, 0272, 0290, 0299, 0312, 0332, 0333, 0351). This, the states claimed, will reduce the potential risk to human health and the envi ronment from mismanagement of hazardous secondary materials and from elevated concentrations of contaminants in recycled products. They also argued that making all four factors mandatory will remove a serious flaw in the enforceability of legitimacy. Other commenters noted that requiring all four legitimacy factors to be met is critical to ensure reclamation is being conducted at a qualified facility and to minimize the potential for creation of future damage cases (0069, 0155, 0167, 0173, 0185, 0197, 0244, 0304, 0321, TRANS PA 0006, TRANS PA 0012, TRANS PA 0013). Most commenters who supported making all four factors mandatory stated that they found it hard to conceive of a legitimate recycler that would not be able to satisfy all four factors.

(a) RESPONSE : After much consideration and review of the public comments, the Agency has decided to make all four legitimacy factors mandatory with adjustments to the factors themselves to account for the variability and diversity of legitimate hazardous secondary mate rial recycling provided in the comments. As explained in the preamble, we have adjusted the regulatory language of factor 3 and factor 4 to account for the legitimate recycling examples that were provided in the comments, but are also making it clear in th e regulatory language that it is important that each factor be met. Since finalizing the legitimacy factors in the 2008 DSW final rule, the Agency’s experience with implementation has made us realize the importance of requiring all factors be met. Even tho ugh we stressed the importance of considering each factor in the 2008 DSW final rule, many of the stakeholders were under the misimpression that the factors that were to be considered were optional and could actually be ignored. The Agency did not intend t o give the impression that factor 3 and factor 4 were optional and thus, has decided that the best way to give the proper weight to these factors is to make them mandatory with additional ways to meet the factor to address the various legitimate recycling scenarios provided to us in the comments. As far as the petition process itself, EPA did not finalize a petition process in the final rule. Instead, the Agency codified a notification, certification and documentation process. This provision is a less burde nsome process for both recyclers and the states implementing the RCRA program because it maintains the self

- implementing nature of the legitimacy requirement. However, because facilities will still have to provide notice to the- 144

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regulatory agency, it also a llows implementing agencies to perform oversight and inspections of recycling facilities if they are concerned about the legitimacy of a specific recycling process. Regarding inconsistencies between the states on legitimacy determinations, EPA provides gui dance to the states on matters regarding their RCRA programs, but as a state

- implemented program, some inconsistencies between states are likely to result in this area of implementation. In addition, state programs are allowed to be more stringent than the federal program.
(b) COMMENTS : Some commenters representing the hazardous waste recycling industry supported making all the factors mandatory (0069, 0167, 0185, 0304). Those commenters, who did support a requirement that all four factors be met, argued th at this structure would be fairer and more enforceable.
(b) RESPONSE : EPA agrees with these comments and is finalizing all four factors as mandatory in today’s final rule, with some additional ways that factors 3 and 4 can be met to account for the variety and complexity of recycling of hazardous secondary materials.

7.3.1.2 Do not s upport
(a) COMMENTS : The majority of industry commenters did not support this provision to make all four factors mandatory. Many of the commenters that argued against making all factors mandatory stated that this would discourage much of the current hazardous secondary material recycling and would be too hard to meet (0104, 0125, 0175, 0177, 0186, 0201, 0214, 0236, 0255, 0260, 0320, 0337, TRANS PA 0002). Commenters particularly s ingled out factor 4 (toxics along for the ride) as problematic for implementation (0287, 0317). Specifically, we received comments from multiple members of the mining and mineral processing industry (0031, 0111, 0162, 0193, 0210, 0340, 0363) arguing that f actor 4 is not applicable to their industry, from scrap metal recyclers asking how factor 4 would apply at their facilities (0037, 0198, 0217), from battery and secondary lead recyclers stating they did not see the need to apply factor 4 to their industry (0196, 0356), and from chemical manufacturers and trade associations arguing that these factors are not well

- defined and are inappropriate to codify as hard and fast rules (0115, 0133, 0168, 0189, 0199, 0266, 0317).
(a) RESPONSE : As explained in the preamb le, we have adjusted the regulatory language of factor 3 and factor 4 to build in more flexibility for meeting these factors, but are also making it clear in the regulatory language that it is important that each factor be met, with limited exceptions. Sin

ce finalizing the legitimacy factors in the 2008 DSW final rule, the Agency’s experience with implementation has caused us to realize the importance of requiring all factors be met. Even though EPA emphasized the importance of considering each factor in th e 2008 DSW final rule, many of the stakeholders are under the misimpression that the factors that were to be considered could actually be considered optional and ignored. The Agency did not intend to give the impression that factor 3 and factor 4 were opti onal and thus, has decided that the best way to give the proper weight to these factors is to make them mandatory with additional flexibility to address the various recycling scenarios. In particular, we have added more ways for meeting factor 4, including both demonstrating a product is comparable because it meets commodity specifications and standards, which should assist the various metal recyclers and others in meeting this factor, and also demonstrating that hazardous secondary material returned- 145

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to the original process from which it came is comparable, which will be useful for the mining and mineral processing facilities and chemical facilities using the closed loop recycling exclusion, among others. In addition, we added ways to meet the “comparable” s tandard even if there is no analogous product to compare to. Finally, we have restated our position that the revisions to the legitimate recycling standard are refinements and we are not expecting regulatory agencies to revisit past legitimacy determinatio ns.
(b) COMMENTS : Another argument against making all the factors mandatory was that the overall determination is made on a case

- by

- case basis, which is often facility

- specific, and not all legitimate recycling can fit into such a rigid system. Commenters argued that making all four factors mandatory removes the flexibility necessary for the broad universe of hazardous secondary materials being recycled and factors 3 and 4 in particular are inappropriate for codification as hard and fast rules. Some also s tated that EPA was seriously underestimating the difficulty and burden of complying with factor 4 in particular (0031, 0111, 0125, 0133, 0175, 0186, 0189, 0198, 0199, 0205, 0219, 0283, 0337).
(b) RESPONSE : EPA disagrees with the commenters that suggest the legitimate recycling standard is too rigid for all legitimate recycling to fit into such a system. EPA agrees that legitimacy determinations need to be made on a case

- specific basis, taking the factors into account as general principles that must be met f or any hazardous secondary material recycling to be real recycling. EPA has modified factor 3 and 4 to include the flexibility that is necessary to account for the variability in hazardous secondary material recycling, while adding a notification, certific ation and documentation process for those rare exceptions where the recycling is legitimate despite not meeting the technical requirements of factor 4. As explained below in more detail, the Agency has made significant revisions to factor 4 that address si tuations where the hazardous secondary materials are returned to the production process and where widely recognized commodity specifications exist for products, such as common metals. This will make it easier for many common recycling situations to meet fa ctor 4. As noted above, many

c ommenters who supported making all four factors mandatory stated that they found it hard to conceive of a legitimate recycler that would not be able to satisfy all four factors. EPA agrees with this viewpoint.
(c) COMMENTS : Se veral commenters argued that making all four factors mandatory would have the unintended consequences of decreasing the amount of hazardous secondary materials being recycled by creating an incentive to discard the hazardous secondary materials improperly instead of legitimately recycling them and/or further shifting the balance of costs and benefits towards costs. Some commenters argued that the decrease in recycling would cause more production of virgin hazardous materials (0104, 0125, 0186, 0201, 0214, 0 260, 0266, 0337, TRANS PA 0002).
(c) RESPONSE : We disagree that making the legitimacy factors mandatory will result in less recycling of hazardous secondary materials. As part of the rulemaking process, the Agency asked for examples of legitimate recycling that do not meet all four factors. The examples that we were provided through public comment have been closely analyzed and we have adjusted factor 4 in particular to account for those legitimate recycling situations. Specifically, we have determined that where there is no analogous product, the product of the recycling process is comparable to a- 146

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legitimate product or intermediate if: (A) The product of the recycling process is a commodity that meets widely recognized commodity standards and specifications (e.g., commodity specification grades for common metals), or (B) The hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused (e.g., closed loop recycling). We have also emp hasized that this is a codification and clarification of our existing legitimate recycling policy and as such, previous legitimate recycling determinations would still stand.
(d) COMMENTS : Some industry commenters argued that making all four legitimacy fa ctors mandatory was inconsistent with case law, particularly AMC I and ABR, because they argued that EPA could not assert jurisdiction over legitimately recycled materials that have not been discarded (0111, 0115, 0193, 0198, 0201, 0246, 0255, 0340, 0363).
(d) RESPONSE : The Agency disagrees with claims that codification of the legitimacy factors as requirements that must be met contradicts existing case law. EPA has always asserted that hazardous secondary materials are not excluded from its jurisdiction si mply because someone claims that they will be recycled. EPA has consistently considered hazardous secondary materials destined for "sham recycling" to be discarded and, hence, to be solid wastes for Subtitle C purposes (see 45 FR 33093, May 19, 1980; 50 FR 638

- 39, Jan. 4, 1985). The U.S. Court of Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded and, consequently, are solid wastes under RCRA (see American Petroleum Institute v. EPA, 216 F.3d 50, 58

- 59 (D.C.Cir. 2 000)).
Specifically, in the case of making factor 3 mandatory, t his 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 legit imacy determination to look at how the hazardous secondary material is managed before it enters the recycling process. In EPA's view, a recycler will value hazardous secondary materials that provide an important contribution to its process or product and, therefore, will manage those hazardous secondary materials in a manner consistent with how it manages a valuable feedstock.
If, on the other hand, the recycler does not manage the hazardous secondary materials as it would a valuable feedstock, the hazardo us secondary materials might not be recycled, but rather released into the environment and discarded, thereby indicating sham recycling.
This factor may be particularly important in the case where a recycler has been paid by a generator to take its materia ls as a result of the economic incentives in the hazardous secondary materials market. By looking at the management of the hazardous secondary material before it enters the recycler's process, the entity making the legitimacy determination can tell that a material being managed like an analogous raw material is, in fact, valued by the recycler. If the hazardous secondary material is not being managed like a valuable raw material because it is uncontrolled or is being released, that indicates that the fee th e recycler obtains for taking the hazardous secondary material may be its only value to that recycler. If the fee received were the only value to the recycler, it could mean that discard was taking place.- 147

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In the case of making factor 4 mandatory, t his factor requires that those making a legitimacy determination look at the concentrations of the hazardous constituents found in the product made from hazardous secondary materials and, except where otherwise specified, compare them to the concentrations of hazardous constituents in analogous products. A product that contains high levels of hazardous constituents that originate in a hazardous secondary material feedstock could indicate that the recycler incorporated hazardous constituents into the final produ ct when they were not needed to make that product effective as a way to avoid proper disposal of that material, which would be sham recycling. This factor, therefore, is designed to determine when toxics that are “along for the ride” are discarded in a fin al product and the hazardous secondary material is not being legitimately recycled.
(e) COMMENTS : Several commenters expressed their belief that EPA’s record does not show the need to make all four factors mandatory. They claimed that EPA has not shown wid espread environmental problems with the existing legitimacy policy. Some commenters simply expressed their preference for the 2008 legitimacy structure (0196, 0205, 0219, 0225, 0229, 0236, 0255, 0340, 0364).
(e) RESPONSE : EPA disagrees that the record does not show the need for making all four factors mandatory. State implementing agencies overwhelmingly support codifying and making all the legitimacy factors mandatory to make the legitimate recycling program more consistent, clearer, and more enforceable. EPA tried an approach towards legitimacy where two factors must be met (i.e., were mandatory) and two factors must be considered in the 2008 DSW final rule. Even though we stressed the importance of considering each factor in the 2008 DSW final rule,

some stakeholders continued to be under the mistaken impression that the factors defined as “to be considered” were actually optional and could be ignored. We made it clear in the 2008 DSW final rule that failing to meet a “non

- mandatory” factor could, in some cases, be enough to determine that a recycling process is not legitimate. We did not intend for the “to

- be

- considered” factors to be less important and thus, have determined that the only way to correct this perception and give these factors the proper wei ght is to make them requirements that must be met, with very limited exceptions, on equal footing with the other legitimacy factors. For further explanation of the importance of factor 3 and 4 being mandatory, including examples from the record that demons trate why they are necessary to protect human health and the environment, see Section VIII of the preamble to the 2014 DSW final rule.
(f) COMMENTS : Some commenters argued that the Agency underestimated the costs of compliance with the four mandatory fact ors, especially for those recycling under existing exclusions, and vastly underestimated the number of petitions that would be submitted. In particular, the commenters mentioned the cost of testing their products for hundreds of hazardous constituents as n

ot being included in the estimated costs of compliance (0255, 0260, 0320, TRANS IL 0011).
(f) RESPONSE : EPA has decided against finalizing the petition process for legitimate recycling that does not meet the technical requirements of factor 4, in part due to the commenters expressing concern over the resources needed to prepare and review the petitions.- 148

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The Agency has reiterated that the cost of compliance for those operating legitimately under the existing exclusions should not increase because we do not expect there to be any change regarding existing legitimacy determinations and existing recycling under pre

- 2008 exemptions and exclusions. We have also added additional ways in which a generator or recycler can meet factor 4, specifically including those legitimate recycling examples where the hazardous secondary material is returned to the original production process and where the product meets widely

- recognized commodity standards. Finally, EPA has noted that we are not requiring testing to meet factor 4. A generator can use its knowledge of the materials it uses and of the recycling process to make legitimacy determinations, although they may choose to test if they are uncertain if the product from their hazardous secondary materials contains elevated l evels of hazardous constituents when compared to non

- recycled products.
(g ) COMMENTS : One industry commenter expressed their opinion that because factors 3 and 4

use terms (“equally protective” and “comparable to”) that are nebulous, open to a high degree of interpretation, and very subjective, the factors should remain “to be considered” (0287).
(g ) RESPONSE : The Agency has given a number of examples in the preamble to explain how factors 3 and 4 work, including how “equally protective” and “comparable to” can be determined. In addition, in the case of factor 4, we have added regulatory language giving additional options of ways to demonstrate meeting the factor. In addition, the Agency notes that these terms and concepts have been used to explain what is l egitimate (i.e., real) recycling since at least 1985 when the original Definition of Solid Waste regulations were promulgated. Furthermore, we did not intend for the “to

- be

- considered” factors to be considered less important and thus, have determined that the only way to correct this perception and give these factors the proper weight is to make them requirements that must be met, with very limited exceptions, on equal footing with the other legitimacy factors. The Agency has determined that this action wil l improve the effectiveness and protectiveness of the legitimacy provision. It is the experience with implementing the legitimate recycling structure finalized in the 2008 DSW final rule, along with the comments from the implementing agencies, which led us to this realization.
7.3.2 Specific comments on making legitimacy factor 3 mandatory
(a) COMMENTS : Several commenters supported making factor 3 mandatory. One commenter stated that a recycler that values the contribution a hazardous secondary material mak es to its process will manage it as it manages a valuable feedstock. (0225, 0239, 0272)
(a) RESPONSE: EPA agrees with the commenters and is finalizing factor 3 as a mandatory part of the legitimacy provision.
(b) COMMENTS : One commenter stated that manage ment of hazardous secondary material “in an equally protective manner” is not definitive enough: part 265 standards should be required. (0032) Another commenter argued that factor 3 should not include provisions for managing the hazardous secondary materia l “in an equally protective manner” or on the land. (0239)
(b) RESPONSE : EPA disagrees with the commenters and notes that the flexibilities included in the language of factor 3 to allow a material to be managed in an equally protective manner and to- 149

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be man aged on the ground where appropriate are necessary as part of the changes that include mandating factor 3 for all recycling of hazardous secondary materials. Sometimes a hazardous secondary material is not being managed identically to the analogous raw mat erial because that is not how it is regularly packaged, but if the management is equally protective and therefore, equally likely to be how one would manage a valuable feedstock, EPA has determined this to be a sufficient standard because that management i ndicates legitimate recycling rather than disposal of a material that is not valuable. Regarding land management, in regular manufacturing there are some feedstocks that can be managed appropriately on the land without escaping into the environment and, th

erefore, factor 3 allows analogous secondary materials to be managed in the same way.
(c) COMMENTS : One commenter argued that the method of storage for the HSW is irrelevant to whether they are being legitimately recycled. The commenter stated that the re quirement is inconsistent with RCRA and with the decision in ABR, which referenced AMC I and stated that “material stored for recycling is plainly not” a waste, and argued that how a material is stored is irrelevant to determining whether the material is b eing legitimately recycled or in some way is being discarded or disposed. (0111)
One commenter suggested that factors 3 and 4 not be made mandatory as they need to be considered using a flexible fact

- based approach and argued that these factors are not as universally determinative of the legitimacy of recycling as the other two factors. The commenter stated that EPA does not have the jurisdiction to mandate tests for non

- wastes and that it is arbitrary and capricious to find that a valuable feedstock become s a waste under RCRA because of how it is managed when there is no intent to discard. Releases are not proof of intent to discard. EPA’s concerns over mismanagement of these materials can be addressed under the Clean Air Act and the Clean Water Act regulat ions and state regulatory programs. The commenter also stated that factor 3 being mandatory ignores the AMC I court’s holding that, under RCRA, material must be thrown away or abandoned before EPA can consider them a waste and the 2000 ABR decision. (0210)
One commenter stated that making factor 3 mandatory would not be consistent with EPA’s long

standing legitimacy policy because it would create a regulatory basis for scrutiny of management of materials being recycled, which EPA does not have jurisdiction over. (0252)
(c) RESPONSE : EPA does not agree with the commenters that the management of the hazardous secondary material is irrelevant to legitimacy or out of EPA’s jurisdiction. Management of the secondary material was one of the criteria in the original Lowrance memo laying out EPA’s views on legitimate recycling, specifically whether the material was being stored in a similar manner to the analogous raw material, and EPA has always held that management practices show whether the material is really being valued as a feedstock , which would indicate that the process is being considered more like manufacturing than recycling . EPA expects that neither a manufacturer nor a recycler would let a valuable material important for its process to escape into the envi ronment where it cannot be used for production.
The Agency also disagrees with claims that codification of the legitimacy factors as requirements that must be met contradicts existing case law, including AMC I and ABR. EPA has always- 150

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asserted that hazardo us secondary materials are not excluded from its jurisdiction simply because someone claims that they will be recycled. EPA has consistently considered hazardous secondary materials destined for "sham recycling" to be discarded and, hence, to be solid wast es for Subtitle C purposes (see 45 FR 33093, May 19, 1980; 50 FR 638

- 39, Jan. 4, 1985). The U.S. Court of Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded and, consequently, are solid wastes under RCRA (see Ame rican Petroleum Institute v. EPA, 216 F.3d 50, 58

- 59 (D.C.Cir. 2000)).
(d) COMMENTS : Commenters asked how the facility is supposed to know how the raw material is managed when they don’t actually handle the analogous raw material themselves. The commenter also stated that all these requirements are new and that the proposed regulation does not provide certainty because it is not answering all questions about how the recycler is supposed to know how the analogous raw material is handled . (0116, 0117)
(d) RES PONSE : EPA notes that ensuring that recycling is legitimate is a long

- standing requirement and that making recyclers, such as the commenter, aware of the requirement is one of the reasons that EPA is putting it in the regulations rather than keeping it as guidance. EPA expects that many recyclers would be aware of how analogous raw materials are stored. However, if the recycler does not manage an analogous raw material and has no knowledge of one, then the recycler would have to ensure that the materials ar e being contained. EPA notes that the contained standard does not prohibit storage on the land.
(e) COMMENTS : One commenter stated that factor 3 is unworkable for metal recyclers because the requirement that the hazardous secondary material be “contained” if there is no analogous raw material imposes imprecise obligations on the recycler. It is not clear what would be an analogous raw material, so the rule could be interpreted to mean that the materials must be covered and placed in a lined unit and other stringent management standards. (0153)
One commenter stated that the uncertainty of the proposed standard for “contained” as it is referenced in factor 3 creates uncertainty for recyclers. (0159) Another commenter stated that the “contained” standard is so broad it is not clear that even the standards in parts 264 and 265 would meet it but that the Agency will expect that those are the only standards that meet it. The commenter argued that, in addition, the use of the word “applicable” in the contained stan dard when it says that “HSM in units that meet the applicable requirements of 40 CFR part 264 or 265 are considered to be contained” causes uncertainty because it refers to two entire parts of the CFR. The commenter stated as an example that the part 264 a nd 265 requirements would not work for a distillation column because it would not be convenient to shut it down every 90 days to comply with tank requirements and show legitimacy. The commenter suggested that the contained definition just state that the un it is in good condition and operated to prevent releases and that it does not hold incompatible materials. (0199)
(e) RESPONSE : EPA does not agree with the commenters ’ assumption that the only units that would meet the contained standard would be those th at also meet unit standards in part 264 and 265. The contained standard is a performance

- based standard that is designed to prevent releases of hazardous materials into the environment and units of various types can meet it, not just those that comply with the specific and detailed standards laid out in the regulations for hazardous- 151

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waste units in parts 264 and 265 of 40 CFR . EPA argues that a manufacturer would ensure that a valuable feedstock that they paid for did not escape into the environment and expe cts that legitimate recyclers would treat their ingredients in the same manner. Regarding the contained standard, EPA notes that the contained standard does not prohibit storage on the land. In the final rule and preamble response to comments, EPA has addr essed certain questions commenters raised about the contained standard and has determined that it is a clear regulatory standard appropriate for use in the hazardous waste exclusions and in factor 3.
Regarding the commenter’s example of a distillation col umn, EPA notes that a distillation column is a recycling unit and is not used to store material. Factor 3 applies to the storage and management of the hazardous secondary material before it is inserted into the recycling process.
(f) COMMENTS : One comment er suggested that factor 3 be amended to remove the distinction between hazardous secondary material with analogous raw material and those without. The commenter argued that this would provide certainty and that if the change is not made, that the factor s hould not be made mandatory. (0170)
(f) RESPONSE : The ideal method of meeting factor 3 would be for the hazardous secondary material to be managed in the same manner as an analogous raw material, if there is one, as that would show clearly that the materia l is being treated as a valuable feedstock , like in manufacturing . The legitimacy factors are designed to evaluate whether recycling looks like manufacturing rather than discard and that is why managing a material like the analogous raw material is the fir st choice for complying with factor 3. However, if the recycler does not manage an analogous raw material and has no knowledge of one, then the recycler would have to ensure that the materials are being contained , which EPA has determined to be an acceptab le standard that also indicates that the material is being handled as a valuable feedstock

. (g) COMMENTS : Two commenters stated that making factor 3 mandatory is unnecessary for recycling of lead

- acid batteries because existing laws and regulations already address management of the secondary materials as valuable commodities. (0350, 0356)
(g) RESPONSE : EPA has determined it is most appropriate to place a prohibition on sham recycling in the regulations that will apply to all recycling. Any recycling of haza rdous secondary materials that already meets factor 3 because of the conditions of their exclusion or because of their individual management practices will not need to do anything furth er to comply with this factor.

7.3.3 Comments on making factor 4 manda tory
(a) COMMENTS : Several commenters stated that they support making TARs mandatory. One commenter stated that they agreed with EPA’s reasoning for this in the preamble to the proposed rule. (0239, 0272) A commenter added that guidance would be helpful in determining acceptable elevated levels of contaminants that would still pass factor 4. (239)- 152

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(a) RESPONSE : EPA agrees with the commenters and has finalized factor 4 as mandatory. In addition, EPA has revised the factor to provide more guidance as to how it can be met and is willing to consider issuing further guidance in the future, as needed.
(b) COMMENTS : A number of commenters oppose making TARs mandatory. (0031, 0104, 0111, 0125, 0133, 0153, 0159, 0162, 0170, 0177, 0193, 0210, 0216, 0217, 0221, 0225, 0234, 0238, 0242, 0252, 0255, 0258, 0264, 0266, 0274, 0283, 0287, 0308, 0315, 0317, 0340)

Several commenters argue that making TARs mandatory would hamper recycling of hazardous secondary materials in the US by increasing costs and that the regulation would vilify recycling. (0104, 0153, 0210, 0216, 0217, 0225, 0252, 0266, 0283, 0317) One commenter stated that u nder the proposal hundreds of materials, solvents, acids, bases, and other basic chemicals will be subject to the legitimacy factors and many will fail factors 3 and 4 and another commenter stated that the practical effect of the rule will be that recycler s will be required to handle non

- toxic materials in the same way as truly hazardous substances. (0234, 0266) In addition, several commenters stated that an elevated level of an Appendix VIII constituent is not an indicator of “sham recycling.” (0238, 0255, 0274, 0340)
One commenter stated that they are concerned about circumstances where long

- standing legitimate recycling activities could be undermined due to differences in interpretation between authorized states and EPA and argued that i t may be very diff

icult or impossible to show that materials meet the requirements of factor 4. (233) In addition, several commenters argued that making factor 4 mandatory would cause an increase in burden (0031/0193, 0104, 0111, 0133, 0145, 0153, 0162, 0217, 0225, 0234, 02 52, 0255, 0258, 0315, 0317) and that the documentation/ demonstration requirement is particularly burdensome. (0255) One commenter stated that factor 4 should not be codified without guidance as to what constitutes “comparable” amounts of specific constitu

ents. (0317)
A number of commenters argued that the proposed factor 4 should not be mandatory because in some cases the recycling is integral to the process and there is no analogous product that is manufactured without recycling. Some commenters on this matter argued that all the products produced in the mining and mineral processing industry are made from a combination of primary and secondary materials, making it impossible to test for TARs without reconfiguring the entire operation because there is no existing analogous product. This is the case in other industries as well, for materials such as pulping liquor and glacial acetic acid. (0031/0193, 0111, 0162, 0168, 0177, 0212, 0216, 0221, 0283, 0317, 0340) Two commenters added that while there may be pro duct specifications for some of the final products from mining and mineral processing, it is not true in all situations. (0111, 0193) Similarly, a commenter stated that chemical manufacturing processes using the closed loop manufacturing exclusion may be u sing hazardous secondary material streams for which there is no analogous product. (0238) Another commenter argued that the application of factor 4 to the closed loop exclusion makes no sense because it is unclear at what stage the comparison should be mad e and because there will be no analogous product to compare it to. (0255) In a similar vein, one commenter stated that generators will have to determine what products to compare when recycling can result in a dizzying array of consumer products. (0283)- 153

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In regard to additional specific materials, one commenter stated that it is unclear what EPA intends as an “analogous product” to oil reclaimed under 261.6(a)(3)(iv)(C). (0315) One commenter wanted EPA to confirm that for the purpose of factor 4, lead ingot produced by primary lead smelting is the analogous product to lead ingot produced from secondary lead recycling. (0170) In addition, one commenter asked how a recycler conducts these tests when there is no analogous material to electronics scrap and how th is factor would be applied to electronics disassemblers, specifically in the case of CRTs, (0234)
A number of commenters also argued that factor 4 is problematic when secondary materials from a process are returned to that process for recycling or further processing. Several commenters stated that factor 4 is not relevant in the case where by

- products are recycled back into the same process that they came from, so any contaminants are already in the process. (0133, 0182, 0193, 0210)
One commenter provided the example of regenerated hydrochloric acid with trace amounts of metals used in pickling steel for which they argue that millions of gallons of pickle liquor would have to be disposed instead of recycled if factor 4 is finalized. (0182) One commenter st ated that particularly when focused on exclusions that involve use and reuse in industrial processes, the focus of the factor should be on whether the contaminants compromise the efficacy of the product or impair its quality. (0266) In addition, a commente r stated that the closed loop recycling provision at 40 CFR 261.4(a)(8) provides a list of criteria that are applicable for claiming the exclusion and that are clear and can be evaluated. (0317)
A number of commenters provided examples from the mining, pri mary metals, and metals recovery industries to illustrate the point of the difficulties they might meet with the proposed factor 4, including several of them which stated that the TARs factor is not an appropriate indicator of sham recycling or discard in the primary metals and minerals industry. (0111, 0193, 0340)
Examples provided include the following:

 A liquid decanted from the clarifier system is directly reused in the copper leaching production process that includes metals that exceed the regulatory levels listed in Table 1 of 40 CRF 261.24, but which both the Arizona DEQ and EPA have concluded does not need to be regulated as a solid waste.

 A smelter using a secondary material to produce a final product that has a higher level of a hazardous consti

tuent than if it used virgin ore, but that would still meet high

- grade specifications. (0111) The commenter added that in the mining and mineral processing industry, the products are subject to stringent international specifications and/or contract require ments, which limit the amount of non

- target metals that can be present in the products. (0111)

 Mineral processing operations that generate secondary materials containing significant concentrations of gold and silver at concentrations many times greater tha n the ore being processed, but which also possess the RCRA TCLP characteristic for metals due to naturally occurring metallic impurities from the ores because impurities increase in concentration at the same time as target metals. (0031/0193, 0111, 0340) B ecause of the- 154

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value of the precious metals in these materials being returned to the process, precious metals producers take care to ensure that no portion of the materials is lost to the environment. None of EPA’s damage cases include this type of facility or material in the precious metals mining and primary processing sector. (0031/0193)
Commenters also stated that EPA has already determined that a TAR factor makes no sense when applied to the mining industry (0031/0193, 0340) and that EPA should exempt f rom the TAR factor in

- process secondary materials that are recycled as a normal part of precious metals operations. There is no risk to the environment. (0031/0193) Commenters repeatedly stressed that the proposed factor 4 is inappropriate for mineral proc essing of lead, steel, precious metals, and other metals because of the non

- uniformity of the ore, the changing nature of customer specifications, the existence of product standards, the fact that hazardous constituents concentrate in the product at the sa me rate as the desired metal, and because of the prevalence of “in process” materials. (0031/0193, 0111, 0162, 0170, 0221, 0242, 0264, 0340)
The existence of specifications was also brought up by a commenter regarding battery recycling. The commenter state d that batteries are manufactured to ensure that the finished product contains the proper alloy and meets or exceeds the intended use requirements. (0221)
In addition, one commenter stated that the fourth factor should be revised to require a petition only when higher concentrations pose a risk to human health or the environment. (0320)
(b) RESPONSE : EPA is retaining factor 4 as mandatory and has determined that that it is a critical part of the legitimacy determination because it addresses what is happening to the constituents that make hazardous secondary materials hazardous. However, EPA has made revisions to the proposed factor 4 in order to address commenter s’ concerns about what the meaning of “comparable” is and how certain recycling practices could indicate that they had met that standard, particularly in the areas of mineral processing, the closed

- loop exemption, and products that have common commodity sp ecifications , as the comments summarized here describe

. Several commenters provided examples of their recycling practices that were useful in making these revisions, which allow for the use of commodity standards and product specifications in the evaluati on of factor 4 and which also state that if a material is put back into the process from which it is originally generated, as is the case in closed

- loop recycling and many primary metals processes, that recycling is considered to meet factor 4. In addition , the final factor 4 does not include a mandatory documentation requirement or require a petition process to the state. Instead, if a recycler believes that its recycling is legitimate but it doesn’t meet the exact standard in factor 4, it can do an assess ment of its process, document why the recycling is legitimate, and then notify the Regional Administrator using EPA form 8700

- 12, the commonly

- used Site ID form. This revision means that recyclers do not have to wait for an implementing agency to respond t o a petition, as proposed, but instead give the implementing agency the information needed to follow up on legitimacy in the cases where it finds that necessary.

W ith these revisions, factor 4 is flexible enough to apply to all recycling without hampering recycling or limiting the ability of implementing agencies to enforce the regulations.- 155

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(c) COMMENTS : One commenter stated that the final two legitimacy factors are poor indicators of whether there is real value from recycling and that they need to be con sidered as part of the circumstantial evidence of legitimacy. The commenter argued that a recycled material may have higher levels of hazardous constituents but it may not be of any environmental consequence and that this factor should not apply to the pri mary metals industry. (0210)
Several commenters argue that EPA’s speculation that someone could use a recycling exclusion to “launder” toxics and avoid disposal is not enough to justify this regulation and stated that EPA has provided no explanation for i ts departure from its prior determination that TARs should not be mandatory. (0111, 0193, 0255, 0266, 0287)
Commenters argued that the regulated community will be confused if the legitimacy factors are applied to recycling exclusions that existed years be fore the Lowrance Memo regarding F006 was released in 1989. They argued also that previous definition of solid waste regulations did not address this issue and that this regulation goes beyond what case law supports and is a big change from the Lowrance Me mo’s balancing criteria. (0159, 0252, 0255, 0266) One commenter stated that applying the legitimacy factors to pulping liquor is unnecessary. (0168)

T wo commenters stated that t here is no need for consistency between the Definition of Solid Waste rule and NHSM. (0266, 0287)
(c) RESPONSE : EPA disagrees with the commenters that there are not convincing reasons to make factor 4 mandatory. EPA has determined that factor 3 and 4 are good indicators of the value of recycling. Factor 4’s importance stems from the need to ensure that hazardous secondary constituents are not being put through a recycling process just to end up in a product of recycling where they are not needed and where they may threaten human health and the environment. EPA has determined that the legitimate reuse of hazardous secondary materials is a valuable strategy for waste reduction, but the hazardous constituents in any product of a recycling process should be there because they add value to that product and not because hazardous wastes are being recycled in lieu of disposal. Through implementation of the 2008 DSW rule, EPA learned that some stakeholders were stating that factor 4 was, in their words, “optional,” and that was not EPA’s intent in promulgating it as a factor “to be considered.” If recyclers are not seriously examining the hazardous constituents in their products of recycling and consider the factor to be optional, EPA determined that the factor as previously written was not effective. EPA instead opted to revise the factor to in clude more details about the meaning of “comparable” and what categories of recycled products could automatically meet the factor.
EPA also disagrees that there will be confusion about the legitimacy factors being applied to the existing exclusions. We ha ve revised the legitimacy provision from the proposal so that the wording in each existing exclusion is not changed, but the legitimacy requirement dates back to the original definition of solid waste promulgated in 1985 and has always applied to all recyc ling under RCRA, particularly to all the promulgated exclusions and exemptions from the definition of solid waste. If the recycling is not actual recycling, then the condition for those exclusions and exemptions that requires recycling is not met and the h azardous secondary material is a solid and hazardous waste.

.- 156

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EPA also has determined there is value in maintaining consistency in the language for this factor between the DSW rule and the Non

- hazardous Secondary Material (NHSM) rule, as they address simil ar concepts regarding recycling, despite the difference in the specific application of the two rules (that is, the DSW rule is for hazardous secondary materials being reclaimed and the NHSM rule is for non

- hazardous secondary materials being combusted). Wh en it is possible for similar concepts in different parts of the regulations to be defined using the same terms, EPA has determined that it is most appropriate and useful to design the regulations to use that consistent terminology.
(d) COMMENTS : One comm enter stated as an alternative to making factor 4 mandatory for everyone, for recycling processes where there is a risk of exposure, an approach could be developed like the Used Oil program in 40 CFR part 279, which sets benchmarks for a subset of Appendix VIII constituents that is tailored to a specific class of secondary materials. (0225)
(d) RESPONSE : EPA revised factor 4 in the final rule , but in a way different than that the commenter suggested . I t is not feasible to develop benchmarks for all Appendix VIII constituents that would apply to the wide variety and types of hazardous secondary materials being recycled. We have described above the changes we have made to factor 4 to be responsive to the concerns of the commenters.
(e) COMMENTS : O ne commenter argued that m aking TARs mandatory would not prevent releases not already subject to regulation. (0153)
(e) RESPONSE : The purpose of the legitimacy factors is to provide EPA and the implementing agencies a method with which to evaluate a process that claim s to be recycling, either for an exclusion from the definition of solid waste or for some other reason. The TARs factor

— factor 4

— is a way for EPA to include the assessment of toxics in final products in that evaluation. EPA, however, disagrees with the com menter and has determined that the finalization of a mandatory TARs factor will discourage sham recycling from taking place and as a result, could result in lower levels of hazardous constituents in some products, reducing exposure to human health and the environment.
(f) COMMENTS : Several commenters discussed the connection between risk and factor 4 of the legitimacy provision. Commenters stated that there may be scenarios in which the recycled material contains hazardous constituents not found in the ana logous raw materials but the final product has essentially the same properties and potential environmental hazards as competing products made with virgin materials. A commenter argued that the court decision on the Safe Food case stated that differences be tween recycled products and analogous material must be put into perspective based on health and environmental risks. (0125, 0266) Some commenters stated that a material having higher levels of hazardous constituents does not mean that recycling is not legi timate or that there is an increase in risk to human health or the environment. One commenter stated that management of the material has more influence on risk than the presence of a certain constituent, while another argued that recycling that does lead t o final products with higher levels of constituents than analogous products can still be valuable recycling. (0133, 0210, 0255) One commenter stated that preventative regulations must focus on prevention of harm, not just ease in administration. (0210) A c ommenter discussed EPA’s damage case study and stated that- 157

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the study contains incidents where the events took place in the early 1980s and the recycling was not legitimate on its face, not requiring TARs analysis (0159). One commenter argued that the scrap cases used are atypical of scrap metal recycling today and the examples of sand reuse from smelters and battery recycling does not justify the application of TARs to billions of pounds of chemicals manufactured from recycled secondary materials. (0159)
( f) RESPONSE : EPA has long considered the presence of hazardous constituents in a product of recycling (or “toxics along for the ride”) to be relevant in making a legitimacy determination and included this concept as part of the 1989 Lowrance memo on legiti mate recycling of hazardous secondary materials. The presence of toxic constituents that do not add value to the final product and are not part of the analogous products can indicate that the recycler may have intended to run a hazardous secondary material through a recycling process to avoid proper disposal of hazardous waste.
EPA recognizes that in some cases it may happen that a recycling process that does not meet the exact requirements of factor 4 may be legitimate recycling. EPA has added flexibiliti es to factor 4 to state specifically that when a material is added back into the process from which it was generated or when it meets commodity specifications, it is considered to meet factor 4. EPA has gone further to also allow for a recycler that does n ot meet either of these provisions to state that it is legitimate but does not meet the factor. That provision would require the recycler to document why it is legitimate recycling despite not meeting the factor, certify to that fact, and notify the implem

enting agency. This provision allows the flexibility that a recycler needs to operate in this kind of case.
When designing the environmental problems study, EPA set a date that it felt was reasonable to take into account the effect that the passage of RCR A and CERCLA had on the management of hazardous secondary materials. Despite the knowledge of the potential hazards from these materials, EPA continues to identify new damage cases from hazardous waste recycling and cannot discount the existence of these c ases when promulgating regulations. EPA also notes that this action also addresses management of materials under factor 3 as a relevant factor in making a legitimacy determination.
(g) COMMENTS : Some commenters showed concern about how to make TARs determ inations. One argued that the data to make a TARs determination are not already available and, to the extent that similar determinations had been made, Appendix VIII constituents were not targeted and EPA methods would not have been used. (0238) Another st ated that it would be impossible for generators to obtain the information necessary to document compliance with factor 4. (0177)
Regarding testing, some commenters stated that requiring testing for hazardous constituents in Appendix VIII of 40 CFR 261 is unworkable. There are more than 475 compounds in Appendix VIII and testing a single sample for all of them could be extremely high, which commenters estimated as ranging from $2000

- $10,000. (0133, 0225, 0255, 0315) One argued that this cost is multiplied i

f the tests have to be done every time there is a process change. (0225) One commenter stated that the TCLP is not an appropriate test to make this determination, since these materials are not being disposed of in a landfill, the scenario for which the tes t was developed.- 158

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(0193) One commenter stated that i t is unclear what materials a scrap recycler would be required to test or how the tests would be conducted. (0234)
One commenter stated that they were concerned that the generator of the recycled material would be required to have detailed analytical knowledge of the material being recycled and each and every downstream product manufactured from or through the use of the original secondary material, which the commenter feels is unreasonable. (0252)

One com menter stated that it is possible that the recycled product may have elevated levels of some constituents and lower concentrations of other constituents and asked how you determine in that case whether the original product or the product made from HSM prod uct is more “hazardous.” (0238)
One commenter stated that EPA does not provide basis for its beliefs that the four legitimacy factors are substantively the same as the existing legitimacy policy found in Federal Register notices and the Lowrance Memo or th at the vast majority of recycling is legitimate and would meet all four factors. The commenter argues that manufacturers do not typically look carefully at how their hazardous secondary materials are managed as compared to analogous raw materials and at th e hazardous constituents in their products. They typically develop specifications for their products and review the safety of their products based on the requirements under TSCA, FIFRA, OSHA, and other laws designed to assure product safety. (0255, 0317) O ne commenter stated that although the legitimacy policy has been in effect, at no time since 1981 had it been asked to provide specific documentation on the legitimacy of its recycling processes or factor 4 in particular, and that this is a new complex reg ulation. (0317)
One commenter stated that all products contain impurities, but the specter of chemicals in teething rings does not justify the imposition of this regulation. The presence of impurities commonly influences the range of a product’s use and i ts commercial value, whether it is made from secondary materials or not. A rule requiring scrutiny of the fate of impurities would not keep chemicals out of teething rings. (0252)
One commenter argued that EPA’s statement in its discussion of factor 1 that not every constituent of the hazardous secondary material has to make a contribution to the recycling activity cannot be reconciled with the TARs requirement that hazardous constituents must be comparable to or lower than those in products made from virgi n materials. (0340)
(g) RESPONSE : EPA disagrees with the commenters who state that there is a burdensome testing requirement that accompanies factor 4 of the legitimacy provision. EPA has made some revisions to the legitimacy factor to clearly state that a recycling process that incorporates the hazardous secondary material back into the process from which it was generated or one that results in a product that meets widely

- recognized specifications would be considered to meet factor 4. EPA also states that generators can use their knowledge of the product and the process to make a determination regarding factor 4.

EPA has determined that in general, generators know what is in the materials they use to produce their products and they know what it is in the p roducts they are selling on the market to the- 159

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public or to other industries. Generators are best equipped to have the knowledge of what is in these materials, since they are making them. The testing that the commenters refer to would only be necessary if a generator does not know the contents of either their feedstock or their product, in which case testing to acquire that information is critical to make sure that unnecessary toxic constituents are not ending up in commercial products. EPA is not suggesting in this rulemaking that the TCLP is the test that should be run to make these determinations if testing is necessary.
(h) COMMENTS : Several commenters stated that EPA has no jurisdiction under RCRA to impose substantive requirements on the amount of haza rdous constituents that can be present in final products. A commenter stated that h azards posed by products in the marketplace are not in EPA’s jurisdiction. (0193, 0283, 0317) Another commenter stated that Factor 4 would regulate recycling of hazardous se condary materials, whether they are discarded or not, by imposing constituent content standards on the products of the recycling activities and is therefore unauthorized and contrary to law. (0252) Commenters also argued that the Agency should not be able to argue that a recycled secondary material is being discarded just because some metallic impurities end up in the finished product of the recycling process because they are incorporated into useful products. (0111, 0159, 0217)
A commenter stated that EPA knows the difference between the application of legitimacy as guidance or criteria to be considered versus a mandatory regulatory requirement and that the regulations cause uncertainty and codifying the factor is not necessary f or EPA to take enforcement action when required. (0159, 0266, 0287) A commenter stated that finalizing factor 4 would increase regu

latory uncertainty because t he presence of a trace amount of a constituent could effectively “trump” any recycling exclusion (0252) and that the new legitimacy rules would not be consistent with (or a mere codification of) the longstanding “sham recycling” policy. It would significantly expand the scope of the regulatory definition of solid waste. (0252)
(h) RESPONSE : T

he finali zed factor 4, along with the rest of the legitimacy provision, is consistent with the long

- standing policy under the Lowrance Memo and the existing Federal Register discussions, as EPA explained at length in the preamble to the 2008 final DSW rule that fin alized a version of these factors. EPA’s existing guidance has been official EPA policy and has been enforceable, as it describes what is real recycling for the purposes of the RCRA regulations. EPA has revised factor 4 to reduce any regulatory uncertainty , regarding the presence of hazardous constituents

. EPA has seen that in some cases of sham recycling, hazardous constituents are making their way from hazardous secondary materials being recycled into the final products at levels that serve no purpose an

d that could cause harm to human health or the environment. Evaluating whether these materials are being recycled in lieu of proper and safe disposal is under EPA and the other implementing agencies’ RCRA jurisdiction because if the hazardous constituents are being falsely or sham disposed in the product, that would be illegal disposal of hazardous waste . EPA has the ability to ensure that hazardous constituents from what would otherwise be hazardous waste are not being disposed illegally by being sham recy cled.
(i) COMMENTS : A number of commenters expressed concern about how EPA’s proposed factor 4 would impact the scrap metal recycling industry, stating that the proposal was unclear- 160

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and that it didn’t take into account the variability in the constituents i n recycled scrap and the lack of an analogous product. (0153, 0159, 0217, 0255, 0283) One commenter stated that metal scrap is a high cost specification grade commodity, does not pose an environmental risk, and is not considered a waste. (0217) Commenters stated that it is difficult for scrap recyclers to know what final product their materials are incorporated into. (0177, 0283) One commenter stated that this requirement would have a chilling effect on scrap recycling (0258) and another said that meeting t his factor for scrap metal is not feasible. (0274)
A number of commenters presented a series of questions about how they would implement the TARs factor for their scrap metal waste streams: What material is supposed to be tested for toxicity? Each product that comes out of my recycling process that I sell? Every product? What should I compare the product to? Do I ask the purchaser what the raw material is that he is using my product to replace? What if it is a trade secret? What if he changes raw material streams? Do I need to constantly test his raw materials? If I test incorrectly, am I subject to penalties? Did EPA consider how much these tests would cost? (0116, 0117, 0123, 0234, 0308) In addition, commenters asked about the documentation requirement an d stated that because most scrap recyclers have no experience with hazardous waste regulations or the resources to handle toxic substances, there will be significant costs involved in researching compliance, hiring personnel, and putting in place the requi red containment and best management practices. (0234, 0258)
One commenter stated that EPA has not considered the burden to scrap metal or spent lead acid battery recyclers in its RIA. (0255)
(i) RESPONSE : EPA has revised factor 4 of the legitimacy provision to address the concerns of the scrap metal recyc ling industry and similar industries . Scrap metal recycling has always had to be legitimate to qualify for its exemptions in the regulations, because recyc ling that is not really recycling cannot be exempted. However, EPA understands that the scrap metal industry in great measure operates without the need to follow RCRA regulations because of its exemptions and that the proposal raised the concerns listed ab ove. Although EPA has finalized the legitimacy provision for all recycling, which would include scrap metal recycling, EPA has removed the proposed language referring to legitimacy from the individual provisions in the regulations, including the scrap meta l exclusions . EPA instead is promulgating a prohibition on sham recycling that applies to all recycling as the policy laid out in the Federal Registers and the Lowrance Memo did previously. In addition, EPA has determined that documentation of legitimacy i

s not necessary except in the limited cases that the recycler believes its recycling is legitimate but does not meet factor 4. Finally, EPA has revised factor 4 to state that if the product of the recycling meets commodity specifications, that recycling me ets factor 4.

T his additional paragraph on commodity standards will be applicable in the case of scrap metals recyclers with products that meet standards and that are accepted commodities bought and sold freely on the market for recycling , as the commente rs stated . The inclusion of this paragraph is designed to recognize the legitimacy of these types of products from recycling and remove concerns about additional testing and comparing products.
(j) COMMENTS : One commenter stated that the fate of the conta minants in the hazardous secondary material should be examined, not just a comparison of the levels of hazardous- 161

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constituents in the product , because those materials could be introduced into the recycling process with the explicit goal of disposal during t he manufacturing process. (0268) Another commenter stated that in the case of the use/reuse exemption, c omparisons for the TARs factor should be made using raw materials for the use/reuse exclusions rather than using products because a hazardous secondary material can contain a hazardous constituent that does exist in an analogous raw material but which is dwarfed in the final product by a much larger amount of that constituent that comes from other ingredients. (0312) One commenter asked how factor 4 relat es to recycling within the use/reuse exemption at 40 CFR 261.2(e) and what the relevance is of any constituents that are picked up during the original use if the material can still be used as a substitute for a product. (0255)
(j) RESPONSE : As EPA stated in the response to comments to the 2008 DSW rulemaking, where it initially specified that factor 4 could be a comparison of the product of recycling to a product made from analogous raw materials, the Agency has determined that the presence of hazardous ma terials in the recyclable secondary materials is less relevant to assessing the legitimacy of recycling than their presence in the final product, primarily because much recycling, like manufacturing, involves removal or destruction of some hazardous materi als. EPA also found that this statement in the legitimacy provision is not a substantive change from the Lowrance Memo.
In addition, the analysis of the product makes more sense from a practical standpoint when it is considered along with the factors look ing at whether the secondary material is useful to the recycling process and whether the process results in a valuable product. Even if some toxic constituents are removed in the process, the recycling could still be legitimate. Of course, the ultimate det ermination is whether the process is dominated by the production process or the waste disposal process. Manufacture from a raw material could also result in removal of toxic constituents. Thus, mere removal of constituents is not dispositive of whether the recycling is legitimate. There may be some cases in which a particular hazardous constituent in the hazardous secondary material is dwarfed in the final product from the presence of that constituent from other sources, but the possibility of this situatio n is not a compelling reason to EPA to design the entire factor in a way that makes it less workable for all other users of the legitimacy provision.
EPA has made it clear in its preamble to the final rule that comparing the hazardous secondary material t o an analogous raw material is an option for meeting this factor. If a recycler is unable to compare products, they are able to compare the secondary material to the raw material instead.
(k) COMMENTS : T

wo commenters stated that t he term “virgin” materia l is ill

- defined: when a company orders acids or solvents, it provides a specification. The purchasing company has no idea if that material is made from recycled secondary materials. (0159, 0255)
(k) RESPONSE : EPA does not use the term “virgin” in the regu latory language for the final rule.
(i) COMMENTS : The second provision in the proposed TARs factor does not go far enough in stating that the product should not exhibit a hazardous characteristic. It should be required that the product not exceed the LDR standard for uses applied to or in contact with the ground. (0312)- 162

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(l) RESPONSE : Regarding products that are applied to or used on the ground, the existing regulations implementing RCRA already address the commenter’s concern about the applicability of the LDR standards to these materials. In many cases, materials are not eligible for recycling exclusions and exemptions when they are applied to the land, which is the case with the final DSW exclusions promulgated today. In addition, part 266 subpart C of th e RCRA regulations states that products made from hazardous secondary materials must meet the treatment standards in subpart D of part 268

— the LDR standards (or the applicable prohibition levels in § 268.32 or RCRA section 3004(d), where no standards have been established).
7.3.4 Petition p rocess for l egitimacy

COMMENTS: Commenters who opposed the proposed petition process for getting a legitimacy variance provided a variety of reasons for their opposition. (0031/0193/PA

- 001, 0032, 0038, 0111, 0125, 0133, 0145, 0156, 0168, 0194, 0198, 0199, 201, 0205, 0208, 0219, 0229, 02 33, 0238, 0239, 0244, 0250, 0252, 0255, 0257, 0264, 0266/ PA

- 0002, 0269, 0270, 0287, 0290, 0299, 0312, 0317, 0320, 0337, 0340, 0345, 0356, 0360, 0361, 0363)
Some commenters stated that they opposed the petition process because they wanted the regulations t o be as clear and concise as possible and that the petition process would add a layer of complexity and uncertainty without necessarily adding an environmental benefit. (0032, 0201, 0264, 0320, 0337, 0340, 0345, PA

- 0002) A couple of commenters stated that if the legitimacy factors required a petition process because they were not clear and reasonable, EPA should not make them mandatory. (0264, 0317) One commenter asked if a facility would be in violation if it performs the recycling to do the analysis and d oes not get a legitimacy variance. (0255)
Many of the commenters on this issue argued that petitions would be cumbersome and would be an added expense for facilities. (0031/0193, 0125, 0133, 0145, 0194, 0198, 0205, 0208, 0219, 0229, 0238, 0255, 0264, 0266, 0287, 0320, 0337, 0340, 0345, 0356, 0361) Some continued to say that the costs of the petition process could discourage facilities from attempting to operate under the exclusion at all, reducing recycling. (0198, 0205, 0208, 0238, 0250, 0266/ PA

- 0002, 028 7, 0356) One commenter also stated that, in addition, a strict reading of the legitimacy factors could prevent recycling if a petition is denied. (0250)
Several commenters argued that the petition process exceeds EPA’s authority and regulates materials th

at are not discarded. (0111, 0168, 0246, 0255, 0363) Two commenters stated that calling the petition process a “variance” would be a misnomer because no illegitimate recycling is being exempted. (0168, 0255)

In addition, a commenter stated that the existen ce of the petition process would call into question legitimate recycling practices. (0340) Another commenter stated that the requirement for a petition process if factor 3 or factor 4 isn’t met would directly contradict EPA’s assertion that it predicts tha t the vast majority of recycling is legitimate. (0194)
Taking into consideration concerns of implementation, several commenters argued that the assumptions in EPA’s Regulatory Impact analysis on how many facilities would have to apply for petitions are wr ong and that the number of facilities could be in the thousands. (0031/PA

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0001, 0111, 0156, 0189, 0198, 0199, 0202, 0250, 0255, 0317, 0340) Another commenter stated that all 150 primary mineral processing operations would have to apply for a waiver because of the nature of mineral processing. (0031/0193)
In addition, other commenters stated that the petition process would be unworkable because the implementing agencies do not have the manpower to process the petitions. They suggested that it would take auth

orized states and EPA Regional Administrators a minimum of one to two years and more likely more than that to rule on variance petitions. (0031/0193/PA

- 0001, 0111, 0145, 0194, 0202, 0205, 0208, 0252, 0264, 0269, 0287, 0317, 0337, 0340) One commenter stress ed that a requirement to renew the variance after a certain number of years would raise the same concerns. (0193) Several commenters, both from the regulated community and the regulators, expressed concern that states may not have the resources to implemen t a legitimate recycling petition process. (0179, 0194, 0202, 0229, 0233, 0239, 0250, 0251, 0252, 0272, 0299, 0320, 0367) One state commented that it would not pick this part of the rule up or would ask the EPA Regional office to make the determinations. ( 0239) In addition, one commenter expressed concern that the regulatory agency making the determination could change its mind if a new staff person takes over the project. (0252)
Many commenters expressed concern that operations at a facility could be distu rbed while waiting to hear about a petition and stated that EPA did not take into account the costs to industry of ceasing recycling while waiting for variances to be granted. (0031/0193/PA

- 0001, 0125, 0133, 0145, 0168, 0198, 0287, 0317, 0337, 0340, 0356) Several commenters suggested that if EPA were to promulgate a petition process, there should be a phase in period for the regulation (e.g., 3 years). (0168, 0189, 0202, 0345) In addition, several commenters stated that there should be a time limit for revi ew of the petitions by EPA or the state agency (0111, 0189, 0264, 0363) and that EPA should allow recycling to continue until the petition has been decided. (0168, 0189) Another comment was that if EPA promulgates a petition process, there should be generi c petitions promulgated for all the pre

- 2008 exclusions and that all the petition determinations should be posted on one website to assure consistency. (0168)
On the other hand, one commenter stated that posting legitimacy determinations on the internet is problematic because of confidential business information and that states might not have the resources to sift through the confidential business information as would be required to make this information public. (0194)

Several commenters stated that at so me facilities constituent concentrations change regularly. Mining has the additional difficulty that ore concentrations are always changing. There is uncertainty about whether facilities would have to keep submitting petitions to account for these changes or for process changes. (0031/0193, 0145, 0337) One commenter stated that scrap recyclers would have a particularly difficult time doing testing on other people’s materials and would have to constantly reanalyze the materials coming through their facilitie s. (0208)
Several commenters argued that a petition process would lead to inconsistencies in the RCRA program because petitions would be handled by various regulatory authorities who may not make decisions in a uniform manner. (0125, 0229, 0250, 0257, 0270 , 0287, 0290, 0299, 0312)- 164

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One commenter stated that this could also impact long

- standing existing legitimacy determinations. (0250)
Taking a different perspective on the petition process, several commenters stated that they oppose the petition process beca use they can’t imagine a truly legitimate situation where the hazardous secondary material was not being managed as a valuable commodity or where the product contains toxic constituents far above what would be found in an analogous product. The commenters were concerned that the petition process provides a backdoor around the TARs factor (i.e., factor 4) in particular. (0038, 0244, 0257, 0270, 0299, 0312) One commenter stated that if there were an occasion where a petition was being considered, EPA should p ublish its tentative decision in the Federal Register, not just locally. (0244)
In addition, there were some commenters that supported the petition process. (0157, 0177, 0251, 0271, 0321, 0333, 0351) One commenter specified that this was only if factor 4 w ere codified, whi ch they did not support. (0177)
One commenter stated that the need for a petition will be rare and should not create a burden on administrative agencies. (0333) Another argued that the public notice for the proposed petition process is an appropriate way to give the public input into actions in their communities that may impact them. (0321) One commenter stated that the petition process would be useful when there are toxins that are present or elevated but they pose no threat to human healt h or the environment. (0157)
One commenter stated that they support the recognition that such a process might be needed, but changes would have to be made. (0189)

RESPONSE: In response to the arguments presented by the commenters in opposition to the petit ion process and the concerns with how implementation of the petition process could impact recycling, EPA is not finalizing the petition process in this final rule. Instead, EPA has made two changes to its proposal to account for the situations that the pet ition process was meant to address . The first is the additional provisions in factor 4 that describe the specific situations in which EPA considers a product of a recycling process to be comparable to an analogous product or intermediate, which will allevi ate many of the situations in which a petition may have been necessary in the proposed rule . The second revision is replacing a petition provision with the documentation, certification, and notice provision for products that have levels of hazardous consti tuents that are not comparable to or lower than an analogous product or intermediate or that are unable to be compared, but which are not covered by the new provisions.
Under the documentation, certification, and notice process, a recycler must determine that its recycling is still legitimate despite the levels of hazardous constituents in the recycled product not being comparable to those in an analogous product or intermediate. This determination can be made by taking into account exposure of toxics in t he product, bioavailability of toxics in the product or other relevant considerations that show the recycled product does not contain levels of hazardous constituents that pose a risk to human health or the environment. The facility then must prepare docum

entation explaining its assessment and include a certification that the- 165

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recycling is legitimate. In addition, the facility would need to notify the appropriate Regional Administrator (or State Director, in an authorized state) of this finding.
This provisi

on is a less burdensome process for both recyclers and the states implementing the RCRA program because it maintains the self

- implementing nature of the legitimacy requirement. However, because facilities will still have to provide notice to the regulatory agency, it also allows implementing agencies to perform oversight and inspections of recycling facilities if they are concerned about the legitimacy of a specific recycling process. Regarding inconsistencies between the states on legitimacy determinations , EPA provides guidance to the states on matters regarding their RCRA programs, but as a state

- implemented program, some inconsistencies between states are likely to result in many areas of implementation.
7.3.5 Specific examples where a factor is not met but recycling is legitimate

COMMENTS:
Commenters on the 2011 proposal submitted examples of recycling processes that would fall under the proposed legitimacy provisions. These examples fell into varied industrial sectors including but not limited to

—

 Prim ary metals processing and metals recycling (0031, 0111, 0162, 0193, 0194, 0198)

 Chemical manufacturing (0189, 0252, 0266)

 Solvent recycling (0203, 0266, 0367)

 Scrap metal recycling (0242)

 Recycling of oil

- bearing secondary materials (0175, 0203, 0250, 026 2)
Although each example was unique in some way, some of the most common themes that came up throughout the examples were as follows:

 In primary metals processing, many secondary materials are put back into the process to have more metals extracted from them and there can be significant amounts of metals and value in those secondary materials. (0031, 0162, 0193) This can also apply to recycling in other sectors where the hazardous secondary materials are all returning to the process from which they were g enerated. (0203, 0340) Any contaminants in the final product are therefore from the same raw material used to produce the product itself and are not a result of the recycling. In addition, when materials are managed by being returned to the production proc ess, it is hard to find an analogous product made without secondary materials to use for a comparison.

 The final products of the recycling process are often widely

- used commodities with industry specifications and testing of the final product should not b e necessary if it already meets a specification. (0175, 0189, 0193, 0194, 0203, 0212, 0363)

 Recycling of hazardous secondary materials in a closed

- loop process cannot be easily evaluated using the proposed legitimacy standard (0189, 0212, 0274, 0317, 0340 , 0360)

 Commenters wanted information on how the legitimacy standard applies to products with trace levels of contaminants as compared to analogous products. (0242, 0250, 0287, 0317)- 166

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 Factor 4 could force materials that are useable to be discarded. (0031, 0204, 0242)
Another suggestion we received was that different wastes that are similar in composition or risk profile should be interchangeable for the purpose of factor 4. (0203)
Finally, in the context of one example provided, one commenter stated that “T he suggestion that molecules can be discarded when the material containing them is not presents an interesting metaphysical conundrum.” (0252)
Also, it should be noted that several comments that we have organized into this section of the response to commen

ts go into length on process or product examples that we do not find relevant to this particular factor because they do not relate to the role that toxic constituents in a product made from recycled hazardous secondary materials play in a legitimacy determ ination.

RESPONSE:

EPA a ppreciate s the effort the commenters went to in sending these examples in for our consideration. Although we are not able in this response to comments to make any case

- specific legitimacy determinations on these examples due to th e lack of complete information on the processes described, we did use the questions that they raised in making the changes to the legitimacy provisions in the final rulemaking. Specifically, EPA has made it more clear in the finalized factor 4 what would b e considered “comparable” for the purposes of the factor. When there is an analogous product or intermediate to compare the product of the recycling to, EPA has retained the option of comparing the hazardous characteristics and the hazardous constituents

o f both products as one way of making the determination. In addition, EPA has added as an alternative that rather than compare levels of hazardous constituents, a recycler could determine that the product of the recycling process is comparable if it meets w idely

- recognized commodity standards or specifications for that product, providing the specifications address any hazardous constituents that are present in the product. Because many of the products subject to the legitimacy regulations are commodities, th e recyclers manufacturing these products are already subject to specifications and must already be ensuring that their products are in line with them, so that adding this option to the finalized factor 4 addresses many of the concerns about the potential b urden of this factor.
In the case where there is no analogous product to compare the product of the recycling to, the case in many of the examples we received in the comments, EPA has revised factor 4 again to make it clear what would meet the factor. In this case, EPA again allows a recycler to rely on product specifications and show that the product of the recycling meets widely

- recognized commodity standards and specifications. Alternatively, the recycler can show that the material being recycled is bei

ng returned into the original process or processes from which it was generated to be reused. This would address many of the examples submitted regarding the primary metals producers and those who recycle materials in a closed

- loop process.
Finally, EPA ha s removed the proposed petition process for factor 4 and has replaced it with a provision that would allow a recycler who cannot use any of the above ways to meet factor 4, but who still believes that the recycling is legitimate, to assess and document the ir recycling case- 167

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based on risk of exposure or other relevant considerations. The recycler would have to then notify the Regional Administrator, thereby allowing for oversight by the implementing agency, and maintain documentation for three years after the recycling is performed. Based on the details in some of the examples we received, EPA does think that some of the recycling scenarios described may warrant a closer look by the facility’s regulating entity and that the mechanism in the notification provis ion would be appropriate for those recycling processes to ensure there is no discard happening.

These revisions a ddress the examples that were submitted in the comments where the recycling is legitimate but would potentially not have met the proposed facto r 4.
We thank the commenters for taking the time to send in examples and have tried to clarify the provision in the final rule to avoid confusion in its implementation on these points. In multiple cases, the confusion stemmed from commenters applying the legitimacy factors to the hazardous secondary material rather than to the product of the recycling process. The proposed legitimacy standard specified that the product of the recycling should be compared to an analogous product made without hazardous secon dary material and we have retained that comparison in the final rule, while also providing other options for complying with factor 4.

7.4 Proposed new language for legitimacy factor 3
Factor 3 of the definition of legitimacy is designed to ensure that haza rdous secondary materials going for recycling are managed as a valuable product, since this is how EPA would expect raw materials being input into a process to be managed and because this type of management should prevent releases to the environment.

In t he 2011 proposed rule
, EPA proposed to add the following language (in italics) to factor 3: “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 ma terial or in an equally protective manner. ’’ EPA explained in the preamble that this change added some flexibility to the factor because it would mean that a recycler would meet factor 3 if its 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.

F actor 3 also d iscusses how the factor provides guidance for those who are managing a hazardous secondary material that does not have an analogous raw material by stating that “Where there is no analogous raw material, the hazardous secondary material should be contained .”

General Comments on Factor 3
(a) COMMENTS : Several commenters stated that they support the proposed changes to factor 3, particularly as they reinforce the purpose of this factor to ensure that the secondary materials are managed like an analogous raw material and not released . (0058, 0179, 0244)
(a) RESPONSE : EPA appreciates this support and is finalizing this lang u age as part of factor 3.- 168

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(b) COMMENTS : Several additional commenters stated that the requirements of factor 3 are not protective enough or are too ambiguous and that EPA should require the management of hazardous secondary materials in units that meet requirements for tanks, containers, containment buildings, and drip pads. ( 0170, 0257, 0270, 0290)
(b) RESPONSE : The standards being finalized as part of the contained standard are appropriate for hazardous secondary materials being used for recycling. EPA has structure d the factor in a way that, wherever possible, these materials can be considered to meet this factor if they are being managed similarly to the materials they replace or, at least, as valuable inputs to the manufacturing process not being released to the environment, consistent with longstanding legitimacy guidance.
(c) COMMENTS : O ne commenter stated that EPA should dispense with the valuable commodity factor because no damage can occur without a release of materials and the RCRA regulations already protect against environmental dangers that could be caused by the inadvertent release of materials . EP A should clarify that this fact or only applies to storage or management of secondary materials prior to reclamation or other recycling and not to the recycling process itself . (0193)
(c) RESPONSE : The concepts in factor 3 that discuss the management of a hazardous secondary material are very important in determining legitimacy. They have been a part of guidance for making legitimacy determinations for many years and provide a useful perspective on how valuable the hazardous secondary material actually is to the recycling process. EPA doe s not agree that factor 3 should not apply to the hazardous secondary material while it is undergoing the recycling process itself because a hazardous secondary material that is not managed as a valuable commodity can be released to the environment and wou ld therefore not be legitimately recycled. If the hazardous secondary material is not being managed as a valuable commodity up to and until reclamation is completed, the recycling would not be considered legitimate, regardless of the exact step in the proc ess.
(d) COMMENTS : One commenter addressed this factor in the context of scrap metal recycling and stated that it is not clear what scrap metal should be compared to when making a determination that the materials are managed in a manner consistent with th e management of raw material or in an equally protective manner. (0210)
(d) RESPONSE : Scrap m etal would likely not have an analogous raw material and therefore would be covered by the second part of factor 3. It must be contained prior to being recycled.
(e) COMMENTS : One commenter asked what “analogous” means in factor 3 and stated that b ecause naturally occurring ore is a raw material used in mineral processing, uncertainty arises as to whether any hazardous secondary material brought to a mill that proc esses ore would be considered as having "no analogous raw material." The commenter added that this ambiguity discourages reclamation. (0264)
(e) RESPONSE : An analogous raw material is a raw material for which the hazardous secondary material substitutes and which serves the same function and has similar physical and chemical properties as the hazardous secondary material. If a hazardous secondary material serves the- 169

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same function as the ore, has a similar chemical makeup and is in a similar physical state (for example, physical phase and existence of dust), then it would be analogous. If the hazardous secondary material cannot meet those standards, then it would be considered to have “no analogous raw material.”
Factor 3: Comments on New “Equally Protect ive” Language
(f) COMMENTS : Several commenters stated that they support this increased flexibility in this factor. (0175, 0251, 0255, 0272, 0351)
(f) RESPONSE : EPA appreciates this support and finalizing this lang u age as part of factor 3.
(g) COMMENTS : S everal of the comments EPA received expressed the idea that this added flexibility was unnecessary or was too expansive. One commenter stated that this language should be changed to read “in a manner equally protective to human health and the environment” to reduce ambiguity. (0244) One commenter stated that EPA should delete the added language “in an equally protective manner” because t he language that management should be done “in a manner consistent with the man agement of the raw material” provides suffi cient flexibility. (0239) Commenters also stated that they do not support the new language if it allows management in a land

- based unit and another stated that placement on the ground almost invariably results in discard and associated environmental harm. (0244, 0290)
(g) RESPONSE : EPA has designed the legitimacy factors to ensure that recycling that would be considered legitimate mimics real manufacturing as closely as possible. Adding “or in an equally protective manner” allows materials to be managed in a responsible way even if it isn’t exactly the same way the analogous raw material is managed. The phrase “equally protective manner” clearly refers to being protective of human health and the environment and does not have to be further explained in the r egulatory text. In addition, land

- based units should not be categorically prohibited from holding materials to be recycled. In some cases the analogous raw material is stored on the land without losses to the environment and this would be appropriate for t he hazardous secondary material as well.
(h) COMMENTS : One commenter stated that although the flexibility is useful, it doesn’t apply if ther e is no analogous raw material. (0168 )
(h) RESPONSE : EPA points out that in the case of no analogous product, the standard to be met is different and the material must be contained.
(i) COMMENTS : One commenter commented on the preamble example of management in a supersack and stated that whether this manag ement was equally protective would depend on the storage site, the material, and the management particulars at a facility. (0244)
(i) RESPONSE : EPA agrees that, as with all legitimacy determinations, the decision about whether a supersack is appropriate fo r managing a particular material would depend on the specifics of the situation, the hazardous secondary material, and the recycling process.- 170

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Factor 3: Comments on the Contained Standard
(j) COMMENTS : One commenter support ed this language in factor 3. On e commenter stated that the rule should continue to provide that “hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.” The commenter pointed out that a series of releases, regardless of timely clean

- ups, may indicate that hazardous secondary materials in a unit are not being managed as valuable commodities. (0210, 0351)
(j) RESPONSE : EPA agrees with the commenter and is keeping the reference to the contained standard in factor 3 as proposed, in cluding the statement that hazardous secondary materials that are released to the environment and not recovered immediately are discarded. EPA agrees that a series of spills of the same material could also indicate a habitual problem with material manageme nt at the facility and show that the material is not being managed as a valuable commodity, but this situation can be guarded against with the existing language in the factor because the contained standard and the statement the statement the commenter refe rences both can address that kind of series of spills.
(k) COMMENTS : Several comments state that the reference to the contained standard when there is no analogous raw material is not sufficiently stringent to be the standard for factor 3. One commenter s tated that making the legitimacy factor rely on “contained” makes it important that the containment requirement is defined on the basis of technical standards that give it meaningful content. (0244) One commenter stated that there is something lost in the legitimacy factors by just short

- cutting and saying containment is sufficient. (PA

- 0013)
(k) RESPONSE : The contained standard, under which the management unit must be in good condition, with no leaks or releases to the environment and must be designed to p revent such releases, is a sufficiently stringent standard for determining whether the material is being managed as a valuable product when there is no analogous raw material. This requirement that a hazardous secondary material be contained is consistent with the idea that material management practices during normal manufacturing would ensure that the valuable material inputs are managed appropriately.
(l) COMMENTS : A commenter stated that if there is no analogous raw material, the secondary material shou

ld be contained only in a non

- land

- based unit. (0239)
(l) RESPONSE : There is no reason to categorically prohibit land

- based units from holding materials to be recycled in the case that there is no analogous raw material to compare them to. As with the use of the contained standard elsewhere in this rulemaking, there may be materials that are used in recycling that can be managed in a land

- based unit without any concern of loss or damage to the environment and this factor allows for those situations, where a ppropriate.
(m) COMMENTS : Two commenters stated that referring to the contained standard would be regulating the storage of secondary materials over whi ch EPA has no RCRA jurisdiction and would be in violation of the ABR decision, which strikes down EPA’s attempt to impose storage- 171

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requirements with respect to recycling in mineral processing. (0193, 0199) One commenter stated that making containment mandatory as a legitimacy factor app lied by itself is arbitrary and capricious . The commenter argued that t o find that such a perfectly valuable feedstock becomes a waste when there is no intent to discard, simply because it is not managed in the manner preferred by EPA allows regulators to find that a le gitimate process is sham . The commenter stated that releases by themselves are not incontrovertible proof of an intent to discard in a way that masquerades as recycling and that this change ignores the AMC I court’s holding that, under RCRA, material must be thrown away or abandoned before EPA may consider it to be a waste. (0210) One commenter argued that mismanagement and/or releases of these materials can be adequately addressed under the Clean Air Act and the Clean Water Act. (0210)
(m) RESPONSE : EP A di sagrees with this comment. The Agency is not “regulating the storage of secondary materials over with EPA has no RCRA jurisdiction.” If the contained standard is not met, the material is a waste. Rather, EPA is regulating the material when it becomes a was te (and in the case of materials subject to this rule becomes a hazardous waste)

. Thus, the Agency is regulating material o ver which it has jurisdiction. In fact, the conditions in this rule regarding containment are based on the ABR decision. The Agency i s not covering material that is placed on the ground even for a few minutes, as noted in ABR (at p. 1051), but is tailoring the containment requirement to ensure that the material does not get released to the environment in a manner that would show it is a waste rather than a valuable commodity

. Material that goes into the environment and is left there is a waste and is discarded, consistent with the court’s holding in AMC I.

Moreover, EPA has authority to regulate hazardous secondary materials that may be released to the envi ronment where they may harm the environment or human health. EPA has provided flexibility to make the factor applicable to all sorts of hazardous secondary material recycling scenarios, but a material that has not been contained, and h as been released to the environment has been discarded and is not legitimately recycled. Factor 3 of a legitimacy determination states that the hazardous secondary material has to be managed as a valuable commodity. This question has been a part of the leg itimacy determinations all the way back to the Lowrance memo and is a critical part of ensuring that the hazardous secondary materials are actually worth enough to those managing them that they will be kept out of the environment, where they might do some harm. It is clear that a material that is released into the environment and never makes it to the recycling process cannot have been legitimately recycled and that is why this factor is an important part of the legitimacy determination. EPA is finalizing t he reference to the contained standard as part of factor 3.
(n) COMMENTS : Several comments discussed the particulars of the contained standard itself. One commenter stated that this “extremely narrow and unclear definition” of contained discourages reclam

ation by lack of clarity, apparent stringency , and punitive consequences. The commenter que stioned the difference between windblown dust and fugitive air emissions and whether the movement of materials across man

- made surfaces counts as precipitation runof f

. (0264) In addition, several commenters argued that putting a reference to the proposed “contain ed ” standard in the legitimacy factors would mean that a single leak or fugitive air emissions would transform the storage unit into a hazardous waste treatme nt unit. (0168, 0255) In addition, one commenter stated that this standard would improperly make it so that failure to- 172

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“immediately” recover secondary materials released to the environment makes them discarded and another questioned how fast a recov ery has to be to be “immediate.” (0210, 0264)
One commenter stated that the definition of contained in § 260.10 is so broad it is not certain that any such unit exists. The commenter used distillation columns as an example, stating that a distillation column coul

d not meet the standards in parts 264 and 265 because it ought not be shut down to be emptied. The commenter argued that the contained standard should be changed to state that the unit is in good condition and designed and operated to preve nt releases and that it does not hold incompatible materials and addresses potential for fire and explosions. (0199)

(n) RESPONSE : Using a reference to the contained standard as part of factor 3 where there is no analogous raw material is an appropriate way to apply the requirement that the hazardous secondary material be treated as a valuable commodity because if a material is contained, that ensures that the material will actually make it into the recycling process to be recycled and will not be allowed to escape and be discarded. Comments on the particular details of the design of the contained standard are addressed in chapter 6.2 of this Response to Comment document.
(o) COMMENTS : Several commenters argued that finalizing this definition would result in an unmanageab le number of legitimacy petitions because of the reference to the contained standard. (0168, 0255)
(o) RESPONSE : EPA is not finalizing a petition process for materials that do not meet factor 3 or 4. The options available to meet factor 3 provide sufficient flexibility to ensure that legitimate recycling will pass this factor. If a hazardous secondary material is not managed like an analogous raw material and is not being contained prior to recycling, then it has escaped the recycling process and cannot be considered re al recycling.
7.5 Proposed new language for legitimacy factor 4 (“comparable” instead of “not significantly higher”)

(a) COMMENTS : Several commenters expressed support for the new language proposed for factor 4. (0032, 0114, 0179, 0244, 0251, 0270, 0272, 0332, 0351) One commenter stated that this change would remove a level of ambiguity from the factor. (0332) One commenter stated tha t they don’t support codifying factor 4, but if it is codified, the “comparable” language is preferable to “not significantly higher.” (0177)
(a) RESPONSE: EPA agrees with the commenters and is finalizing factor 4 of the legitimacy standard with the term “comparable” instead of the previously used “not significantly higher.”
(b) COMMENTS: Some commenters also stated that guidance on this factor or specific methodologies would be helpful and asked EPA to be more clear on what is acceptable and what isn’t. F or example, they argued that the terms “small acceptable range” and “would likely be considered comparable” from the preamble are too vague. (0143, 0159, 0175, 0177, 0270, 0299, 0332, 0363)- 173

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(b) RESPONSE : EPA does not consider the meaning of the term “comp arable” to be a change from its long

- standing policy and the previous use of the phrase “not significantly higher.” In the regulatory text of the final rule, EPA provided further information about when the recycling process would be considered comparable, including when the product of the recycling process meets widely recognized commodity standards and specifications or, in the case that there is no analogous product, when the hazardous secondary materials are being recycled back into the original process or processes from which they were generated. EPA may provide further guidance in the future regarding the application of this term and provision, if needed.
(c) COMMENTS : Several commenters suggested that the conjunction between parts of factor four shoul d be “and,” not “or.” (0032, 0038, 0244, 0255, 0257, 0290, 0351)
(c) RESPONSE : EPA notes that this was a typographical error in the 2011 proposal and agrees with the commenters that in the proposed rule the conjunction between the parts of factor four shou ld have been “and.” EPA has ensured that the conjunction is correct in the corresponding part of the finalized factor 4.
(d) COMMENTS : A number of commenters oppose the change to “comparable” from “not significantly higher.” (0104, 0111, 0115, 0145, 0156, 0168, 0170, 0175, 0193, 0198, 0202, 0236, 0337, 0340, 0356, 0363, 0364, 0367)
Some of the commenters argued that that this is a substantive change even though EPA states in the proposal that it isn’t. Commenters argued this is a substantive change becaus e EPA changed the words used in the regulation and in the examples in this section from previous rules and also because EPA is taking comment on the change. (0111, 0115, 0168, 0175, 0193, 0198, 0199, 0202, 0236, 0255, 0340, 0363, 0367). Commenters also arg ued that the term “not significantly elevated” implies that there can be higher levels of contaminants whereas “comparable or lower” is more stringent and does not allow that (0111, 0115, 0156, 0193, 0198, 0233, 0356, 0363, 0367). Others commented that und er the “not significantly higher” language you could have trace constituents and you cannot have them under the “comparable” language. (0199, 0202, 0364) Commenters also stated that the change in language will lead to confusion (0236) and that there is no reasoning provided for the change. (0255, 0340) Several commenters stated that the term “comparable” is inherently ambiguous and developing parameters for determining comparable levels seems overly burdensome. (0170, 0299, 0317, 0356)

One commenter stated that the term should not be changed because “not significant” and “not significantly elevated” more accurately implies the absence of discard than “comparable or lower.” (0175)
One commenter stated that the new language suggests only a quantitative compari son. (0367) Commenters also argued that under the new language, any increased concentration might be cited as a violation or second

- guessed, regardless of how it compares to the existing concentration in the analogous product and that the proposed standard would create regulatory uncertainty because it does not account for the variability in processes and in customer specifications. (0145, 0337, 0356) Another commenter argued that it is unrealistic to expect that the recycling or reclamation process will re duce concentrations of various constituents.- 174

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Recycling finds a legitimate and beneficial use for a potentially hazardous secondary material. The old language allowed enough flexibility for recycling without being concerned about being “sham.” (0337)

Two co mmenters stated that there is no need for this rule to be consistent with the NHSM rule because EPA has the discretion to promulgate different regulatory definitions of solid waste. (0168, 0255) One commenter stated specifically that the term “comparable” doesn’t make sense for mining industry products since the dore wouldn’t pose any increased risk with higher levels of Appendix VIII constituents. (0193)
(d) RESPONSE : EPA disagrees with the commenters who requested that EPA return to “not significantly hig

her” when discussing levels of hazardous constituents in the context of factor 4. EPA has added clarifications into the regulatory text of factor 4 to address some of the situations raised by commenters regarding the flexibility of factor 4, including a pr ovision that would address mining materials being sent back through the original process for further extraction and one to address products of recycling that meet commonly

- used specifications. We expect that these additions to the factor will address the c oncerns of many of the commenters who opposed changing the wording of the term from “not significantly higher” to “comparable.”

EPA maintains that there is not a substantive difference between the two terms and is not suggesting that a different standard must be met by changing them. It is important to use language that is consistent with the Non

- Hazardous Secondary Materials rule in discussing this concept, because both rules are interpreting the statutory definition of solid waste.

EPA has determined tha t to be done properly, recycling must be done safely and that ensuring that the constituents in the final product do not represent a threat to human health or the environment is a critical piece of this accounting.
(e) COMMENTS: Several commenters stated that EPA should specifically codify that “the product of the recycling process” must be a “first

- generation” product, not products subsequently produced from a first generation product. (0257, 0290, 0312)

Other commenters stated that EPA must define “analo gous product” for factors 3 and 4 (0225, 0363) and one requested a confirmation that the appropriate product for comparison under Factor 4 would be the final product, particularly when there are product specifications. (0363)

One commenter asked whether t he comparison of the “final product” would stand when hazardous secondary materials are recycled in a manufacturing process but no constituents of the hazardous secondary material contribute to the final product (e.g., secondary acid used for leaching copp er). In that case, in EPA’s foundry sand example, the product being compared should be the product of the foundry operation, not the sand itself. (0363)
(e) RESPONSE : EPA agrees with the commenters that the analogous product that the product of the recycli ng is being compared to should be a material that provides a meaningful comparison and can contribute to answering the question of whether the recycling is real or disposal in the guise of recycling. EPA is not making a change to the language of the regula tory text as the- 175

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commenter suggested, by adding the term “first

- generation,” because in many cases this language may raise more questions than it answers and, given the wide variety of recycling covered by this provision, this distinction may not be approp riate . EPA also notes that regarding product specifications, the promulgated language specifically discusses specifications as a way of showing that factor 4 is met.

The term “

analogous product ” in factors 3 and 4 is not being given a definition in the re gulations. This term is used to describe a product that is similar in physical form and make up to the product of the recycling and that is being used in the same manner.
In the foundry sand example cited by the commenter, under factor 4 as it is being pro mulgated, foundry sands being reused in the foundry sand loop would be considered to meet factor 4 because they are bring returned to the process from which they were generated. If the foundry sand is leaving the sand loop (such as the example where it was sent for use as playground sand), it would have to be compared to the product it is replacing.
(f) COMMENTS : Two commenters argued that the comparable test should be applied to the hazardous secondary material and not the product. (0179, 0272)
(f) RESPONSE : EPA disagrees with the commenters that the test of whether a material is comparable must be applied to the hazardous secondary material rather than the product. EPA allows for a person making a legitimacy determination to make the comparison in t his mann er, but finds that it is more appropriate to base the factor on a comparison of the final products. EPA makes this finding for a number of reasons. One, because of the high level of variability in the potential feedstocks for a process, in many cas es it may be difficult to make a useful comparison between a hazardous secondary material being used in a process and the alternate non

- waste material for which it is a substitute. In addition, a process might be designed around the use of an available haz ardous secondary material, making a comparison similarly impossible. Finally, EPA notes that manufacturing and recycling processes both sometimes entail removing hazardous constituents from feedstocks, whether virgin or secondary, so a comparison of the in puts to the process may not distinguish between sham recycling and manufacturing. Hazardous constituents from the hazardous secondary material used in the recycling process that are not part of the final product but end up in the residuals would be managed as a new hazardous waste, if appropriate, under the RCRA regulations.
(g) COMMENTS: One commenter stated that EPA should publish a definition of “comparable” for the purposes of better enforcement and that “comparable” should be defined as materials wher e the presence of the Appendix VIII constituent is present at a level of less than 25% over what is routinely found in similar virgin products. (0351) A different commenter stated that factor 4 must make clear the fundamental basis for determining comparab ility between materials, which is, in their opinion of the DC Circuit court’s rulings, that the product of the recycling and an equivalent product must be equivalent from a perspective based on health and environmental risks. (0244)

One commenter stressed that in cases when the finished product would be applied to or used on the ground and the comparable product did not contain measurable concentrations of the- 176

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hazardous constituent, the product should meet LDR standards for the hazardous constituents. (025 7)
Another commenter suggested that the determination of what is “significant” should include a lifecycle assessment that takes into account the toxics avoided when avoiding extraction of raw materials. (0174)

One commenter stated that the addition of the phrase “or lower than” places an arbitrary limit on Appendix VIII concentrations instead of allowing an evaluation of whether an Appendix VIII concentration is significant to human health and the environment. (0199)
One commenter stated that the relevant q uestion to legitimacy is whether destruction or release of contaminants is purposeful rather than merely incidental. (0175)
(g) RESPONSE : EPA appreciates the suggestions from the commenters on how to improve factor 4. EPA has made some revisions to factor 4 of legitimacy to respond to some of the suggestions received by commenters on how they would know if they met the factor and how to more clearly define what we mean by “comparable” and what would qualify.
EPA does not agree that a numerical cut

- off for levels of contaminants is workable for factor 4 because of the arbitrary nature of whatever number is picked. No matter where a bright line is drawn, there is always a potential case of a material that contai ns a level just above the allowable threshold that may be able to argue legitimacy. EPA has determined that the case

- by

- case nature of legitimacy determinations means an approach of having a bright

- line for factor 4 would not be effective or workable.

EPA also does not think that a life

- cycle approach to factor 4 is workable because of the complexity of determining in each specific case what toxic exposures are reduced from the recycling of each unit produced with the hazardous secondary material. Without a tool to allow for such assessments across all hazardous waste recycling, it would be difficult to allow for the concept’s use in regulation. Life cycle analyses are important for determining benefits from recycling, but are not as helpful in distinguishi ng real recycling from sham recycling.
EPA finds that the relevant question to legitimate recycling is not necessarily whether the destruction or release of the contaminants in purposeful or incidental, as the commenter suggested, but whether or not the r ecycler is, as a whole, really recycling some part of the hazardous secondary material, whether it is the hazardous portion or not, and whether the material is simply being put into a manufacturing process for no purpose other than to avoid proper disposal or not. The answer to this question will be revealed when all the factors of legitimacy are looked at as a whole and factor 4 does not by itself show whether the process is legitimate or not.
EPA is allowing for an evaluation of whether a recycling proce ss is legitimate even when it does not technically meet the “comparable” factor. In these cases, the recycler would have to prepare documentation showing why the recycling is still legitimate based on lack of exposure from toxics in the product, lack of bi oavailability of toxics in the product, or other relevant- 177

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considerations. The recycler would have to also prepare a certification statement that the recycling is legitimate and would have to notify the Regional Administrator of their activity using EPA for m 8700

- 12, the Site ID form.
Regarding products that are applied to or used on the ground, the existing regulations implementing RCRA already address the commenter’s concern about the applicability of the LDR standards to these materials. In many cases, m aterials are not eligible for specific recycling exclusions and exemptions when they are applied to the land. In addition, part 266 subpart C of the RCRA regulations states that products made from hazardous secondary materials must meet the treatment stand ards in subpart D of part 268

— the LDR standards (or the applicable prohibition levels in § 268.32 or RCRA section 3004(d), where no standards have been established).
(h) COMMENTS : One commenter stated that these changes to factor 4 result in the impermis sible regulation of recycled hazardous secondary materials. (0202) Another argued that the DC Circuit Court recognized in Safe Food that a material does not have to be identical to an existing product to be outside the scope of the definition of solid wast e under RCRA. (0317)
(h) RESPONSE : EPA does not agree with the commenters that the changes to factor 4 result in the impermissible regulation of recycled hazardous secondary materials. EPA has, in the final rulemaking, made some changes to factor 4 to more clearly define what we mean by “comparable” and what kinds of recycling would be comparable, and to eliminate requirements for hazardous secondary materials beyond those necessary to show that real recycling is taking place, not disposal. EPA has determin ed that factor 4, as it is being finalized with these revisions, allows for those materials that are being legitimately recycling to be regulated appropriately even if the product of the recycling is not identical to an existing product.

7. 6 Comments on d ocumentation of l egitimacy
(a) COMMENTS : State organizations ASTSWMO and NEWMOA, as well as most states, supported requiring documentation of legitimate recycling for both the generator and recycler (with exceptions noted in their comments about certain lo ng

- standing recycling exclusions, including lead

- acid batteries, circuit boards, scrap metal, and closed loop recycling) (0058, 0178, 0179, 0251, 0257, 0268, 0270, 0271, 0272, 0290, 0299). Most state environmental agencies cited the ability to implement an d enforce the RCRA recycling program as the primary reason why documentation is needed. However, a few states supported requiring documentation for the 2008 recycling exclusions only (0032, 0225). One state agreed that some documentation may be necessary f

or inspections, but also stated that common business records would likely suffice in most cases (0351). An environmental organization coalition suggested we provide a consistent format and require clear documentation of both generators and recyclers (0215, 0244). Several other commenters, including some industry and waste management companies, supported documentation of legitimate recycling (0156, 0172, 0304, 0321, PA 0012). Industry generally opposed the documentation requirement and felt that it would pos e significant practical challenges, especially for Factor 4 (0159, 0238, IL 0011). Some industry commenters felt that “up

- front” documentation is not necessary since EPA can rely on § 261.2(f) for documentation (0076, 0115, 0199, 0202, 0210, 0238, 0287, 03 17, 0363). Other commenters argued that for- 178

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companies that rely heavily on the existing exclusions, it would be easy to inadvertently miss documenting every instance (i.e., closed loop recycling) and the consequences could be severe. In fact, one industry association argued that documentation may actually cause more non

compliance due to the huge administrative burden, especially for large facilities that utilize many of the recycling exclusions and that the voluminous paperwork could result in inspectors m issing more obvious sham recycling (0133).
Other commenters objected to any recordkeeping requirements for documenting that a recycling activity is legitimate, arguing the policy is not new so, therefore, no new documentation should be required. They argu ed that since EPA already believes most recycling is legitimate, requiring documentation for all recycling is overly burdensome, expensive, and not necessary. Some industry commenters argued that EPA offered no evidence in the record that documenting the l egitimacy of a recycling practice would have any additional environmental benefit. Some commenters asserted that requiring documentation for all recycling might actually cause more

non

- compliance, especially for the more frequently used recycling exclusion s, such as the use/reuse and closed

- loop recycling exclusions (0076, 0168, 0201, 0202, 0208, 0210, 0225, 0274, 0283, 0317).
Finally, there was ample confusion in the comments on who would be required to put together and provide the documentation. The Agen cy proposed that the requirement would apply to the “persons performing the recycling.” If the generator sent his hazardous secondary materials off

site to a recycler, then the recycler would be the one responsible for maintaining the documentation. If the generator recycled his hazardous secondary materials on

- site, then the generator would be responsible for documenting that the recycling activity was legitimate. However, some commenters still expressed confusion over who would be responsible for the docu mentation (0133, 0204, 0274).

(a) RESPONSE : The Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation of legitimate recycling is not required, unless the facility has determined it is legitimat ely recycling, but does not meet the technical requirements of factor 4 (as explained below). In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. The Agency has previously acknowledged th

e legitimacy of these recycling practices when it first promulgated the material

specific and industry

- specific exemptions from the definition of solid waste. At that time it took into consideration the legitimacy of the recycling practices as they are gen erally implemented. After review of the public comments, the Agency has determined that routine documentation of legitimacy is an unnecessary burden for persons legitimately recycling under the pre

- 2008 recycling exclusions.
However, the Agency is requiri ng documentation on legitimacy determinations under two circumstances: (1) persons operating under the generator

- controlled exclusion originally finalized in the 2008 DSW final rule and (2) persons legitimately recycling under any recycling exclusion or ex

emption where the recycling does not meet the technical requirements of factor 4 (i.e., hazardous constituents in the recycled products are not comparable or are unable to be compared to those in analogous products, unless the recycled product meets widely recognized commodity specifications or the hazardous secondary material is returned to the production- 179

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process). In these cases, the persons recycling would be required to keep documentation of the legitimacy of their recycling.
The Agency has determined t hat requiring documentation under the generator

- controlled exclusion is appropriate because this exclusion is generic and can be used by a wide variety of industries recycling any of a number of hazardous secondary materials. Also, because recycling is typ ically not the primary business of generators who recycle on site, the Agency finds it is important to require documentation as evidence that a generator has considered the process in regards to the four factors of legitimacy.
The Agency has also determine d that documentation is necessary for those rare cases of legitimate recycling that have significantly higher levels of hazardous constituents in the recycled product than in an analogous product; or has no analogous product, has no widely

recognized commo dity specifications for the recycled product, and is not returned to the production process. In those cases, due to the self

- implementing nature of the legitimacy determinations, it is important that the recycler perform the proper analysis and document ho w the recycling is still legitimate. In these cases, in addition to documenting legitimacy, the recycler must notify the implementing agency that it is legitimately recycling despite not meeting factor 4.
Finally we would note that 40 CFR 261.2(f) applies whenever a person is claiming that a hazardous secondary material is not a solid waste, which oftentimes is because the material is being recycled. Section 261.2(f) states that, in the context of an enforcement action to implement Subtitle C of RCRA, a pe rson claiming that a material is not a solid waste or is conditionally exempt from regulation is responsible for showing that they meet the terms of the exclusion and must provide appropriate documentation to show why they are eligible. For the legitimacy requirement finalized in this action, under § 261.2(f), in the event of an enforcement action, persons claiming that their recycling activity is legitimate would have the burden to provide documentation showing how the recycling meets all four factors, exc ept as otherwise noted. That is, they would need to show how the recyclable hazardous secondary materials provide a useful contribution to the recycling process and are stored as valuable commodities, and how the product of the recycling activity is valuab le and comparable to a legitimate product.
(b) COMMENTS : Some industry commenters stated that requiring documentation would be useful to generators. Specifically, one company wrote “The proposed standard would give generators of secondary materials object ive criteria against which to judge marketing claims of recyclers and to help assure that materials that are provided to such recyclers are managed appropriately” (0172). Other commenters stated their support for reasonable documentation and agreed that it was necessary (0156, 0304, 0321). One organization supported requiring documentation for the 2008 exclusions only (0367). However, other commenters expressed the view that requiring documentation was at odds with EPA’s statements that the regulated

commun ity fully understands the legitimate recycling requirement (0125). Furthermore, one commenter noted they don’t oppose recordkeeping but cautioned against overly prescriptive documentation guidance (0146).- 180

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(b) RESPONSE : While we agree that documentation wou ld be useful to generators, the Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determined it is legitimately recycling, but does not meet the tec hnical requirements of factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. The Agency has previously acknowledged the legitimacy of these recycling practices when it first promu lgated the material

- specific and industry

- specific exemptions from the definition of solid waste, when at that time, it took into consideration the legitimacy of the recycling practices. After review of the public comments, the Agency has determined that r outine documentation of legitimacy is an unnecessary burden for persons legitimately recycling under the pre

- 2008 recycling exclusions.
However, the Agency is requiring documentation on legitimacy determinations under two circumstances: (1) persons operat ing under the generator

- controlled exclusion originally finalized in the 2008 DSW final rule, and (2) persons legitimately recycling under any recycling exclusion or exemption where the recycling does not meet the technical requirements of legitimacy facto r 4 (i.e., the hazardous constituents in the recycled products are not comparable or are unable to be compared to those in analogous products, unless the recycled product meets widely recognized commodity specifications or the hazardous secondary material is returned to the production process).
Finally, we note that under § 261.2(f), in the event of an enforcement action, persons claiming that their recycling activity is legitimate would have the burden to provide documentation showing how the recycling me ets all four factors. In addition, generators can always exercise their discretion and ask the recycler for information and documentation that shows how the recycling is legitimate under today’s legitimate recycling standard.


## 8.0 Revisions to Solid Waste V ariances and Non

- Waste Determinations

(a) COMMENTS : Some commenters supported EPA’s proposed changes to the variances and

non

- waste determinations to help ensure consistency and protectiveness. [0179, 0268, 0271, 0272]
(a) RESPONSE : EPA agrees with commenters who supported the proposed changes to the solid waste variances and non

- waste determinations to ensure the protection of human health and the environment and foster greater consistency on the part of implementing agencies.
(b) C OMMENTS : Some commenters opposed the proposed changes to the solid waste variances. [0076, 0133, 0199, 0202, 0204, 0214, 0238, 0363] These commenters said that EPA has made no showing that there was a problem from these determinations in the past, that the variances have been inconsistently approved, or that the approvals have not been protective and thus EPA does not have adequate justification for revising the long

- standing variance procedures. [0076, 0133, 0199, 0202, 0204, 0214, 0225] Commenters said th at if EPA has concerns about the non

- waste determination provisions, EPA should address those concerns with that provision only and also argued that any actual problems with a potential decision can be addressed with the individual RCRA

- authorized state. [ 0133, 0199, 0202, 0204] One commenter said to newly assign and/or transfer concerns about the relatively new non

- waste determination process to old variance- 181

-

provisions that have been used for many years is simply arbitrary and capricious. [0199] Another

co mmenter said that EPA can provide comments during the public comment period for state draft decisions relating to variances and non

- waste determinations. [0133] Some commenters said that the existing process already has built

- in safeguards, since the reque sts are subject to public comment and response, and already have extensive controls and procedures are established under the provisions of 40 CFR 260.33. [0097, 0107, 0133, 0199, 0204, 0225]
(b) RESPONSE : In response to opposing comments, EPA finds that it has provided sufficient rationale for each final change in the preamble to the final rule as well as further on in this section of the response to comments document. As evidence of inconsistent state dete rminations, EPA points to the partial reclamation variance provision. Some of the partial reclamation variances were granted as the Agency intended and have required RCRA Part B storage and treatment permits for the incoming hazardous waste material. Other states, however, have issued partial reclamation variances that contradict the intention of the partial reclamation variance provision. For example, EPA publicly expressed its disagreement in a November 18, 2010, letter to Indiana’s Department of Environm ental Management (IDEM) concerning the tentative approval of a facility’s request for a partial reclamation variance, a copy of which is found in today’s docket. In our letter, we made clear that we did not think IDEM should grant a partial reclamation var iance to incoming hazardous wastes that were not “sufficiently commodity

- like to qualify for the variance.”

EPA is not concerned only with non

- waste determinations. For example, currently there is no national tracking of petitions granted by the state s

. Under the final rule, notification is required for both solid waste variances and non

- waste determinations to facilitate state

- to

- state consistency in determinations and enable effective oversight of both solid waste variances and

non

- waste determinations. Furthermore, EPA finds the approach suggested by some commenters to address case

- specific issues with states and provide comments on determinations as part of the public comment process is limited in effectiveness. The commenters’ approach would require E PA to correct misinterpretations through repeated actions with individual states or facilities, whereas the final rule approach is more efficient in that it clarifies the regulations in one action for all states and facilities.
(c) COMMENTS : Some comment ers were concerned about the state agency resources necessary to implement these changes and one state commenter said they may choose not to adopt or seek authorization for non

- waste determinations due to resource constraints. [0133, 0179, 0199, 0251, 0272 ] One commenter expressed concern over state resources being consumed in reviewing and processing non

- waste determination requests under 40 CFR 260.34. [0133]
(c ) RESPONSE : EPA does not anticipate that the final rule changes will strain state resources

an d, in fact, anticipates that some changes will reduce burden on states. This is because of the following reasons : (1) notice in the event of a change in circumstances provides states the opportunity to review the change and only re

- review the variance or n on

- waste determination if necessary; (2) the periodic renewal requirement should not be burdensome given that most states already place term limits on their state

- approved solid waste variances; (3) biennial notification should not pose an undue burden on states because there are only a few facilities in each state- 182

-

operating under a variance or non

- waste determination; (4) changes to clarify that all the partial reclamation variance criteria must be met may serve to reduce the number of petitions to states for this variance ; and (5) requiring applicants of non

- waste determinations to explain why they cannot meet another existing exclusion reduces the time spent for the state in making this evaluation. Furthermore, EPA maintains that greater consistency in im plementing the solid waste variances and non

- waste determinations ensures that the regulatory provisions operate as intended and will adequately protect hu man health and the environment.
(d) COMMENTS : One commenter said that greater consistency does not by definition provide greater benefit within the individual states and may slow down an already burdensome process. [0214] One commenter agreed that a federal uniform system of approval of solid waste variances and non

- waste determinations would help assure consistency and protectiveness of determinations made by the various states and EPA regions; however, there must be a process to ensure timely review and decision

- making, otherwise the process will inhibit recycling. [0205]
(d) RESPONSE : Furthermore, EPA maintains that greater consistency in implementing the solid waste variances and non

- waste determinations ensures that the regulatory provisions operate as intended and will adequately protect human h ealth and the environment. States that are authorized to implement the RCRA program are thus authorized to make their own determinations regarding variances and non

- waste determinations. EPA finds that the revisions under the final rule, such as notification and application of the partial reclamation variance

c riteria, establish a common framework for these decisions and enables sharing of information among states. This information exchange and regulatory clarity may also reduce time to process determinations.
(e ) COMMENTS : A few commenters said that EPA should specify a maximum time limit for states or EPA to make determinations (e.g., not to exceed 60 days) in order to minimize disruption to businesses. [0125, 0186] A few commenters said the process for obtaining and operating under variances and non

- waste det erminations can and should be streamlined. [0125, 0186]
(e ) RESPONSE : Although we understand commenters' concern about the length of time an applicant would need to wait before receiving a formal determination from their regulatory authority, requiring decisions on solid waste variances and non

- waste determinations to be made within a specific timeframe would be difficult, as each case varies in complexity with some requiring more time to review than others. Furthermore, EPA would be challenged to prescr ibe one time frame that would accommodate numerous state regulatory agencies that vary in staffing and workloads. Therefore, we are not requiring regulators to issue determinations within a certain period of time.
(f ) COMMENTS : A few commenters opposed EPA ’s proposal to require compliance with the legitimate recycling standard in 40 CFR 260.43 because this would consume more state resources and because variance petitions already involve case

- by

- case review processes. [0133, 0199, 0242, 0255] Other commenter s were concerned that if EPA mandated that all four legitimacy factors are mandatory and apply to all recycling exclusions, that state agencies would be inundated with petitions to review the legitimacy of industry recycling activities, which will- 183

-

lead to substantial delays in obtaining the necessary legitimacy determinations which will potentially interrupt production. [0199, 0202, 0204] This commenter said that EPA should include a “phase

- in” period. [0202] One commenter said that legitimacy is inherent t o the variance procedures and that this is another example of EPA applying redundant, duplicative regulation that serves no purpose other than to increase the paperwork, regulatory, and economic burden on both affected states and industry. [0242]
(f ) RESPO NSE : EPA does not agree with commenters who opposed requiring petitions for a partial reclamation variance to consider whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43. EPA’s long

- standing policy is that all r ecycling of hazardous secondary materials must be legitimate, including both excluded recycling and the recycling of regulated hazardous wastes. Although the partial reclamation variance criteria are similar in some aspects to the legitimate recycling stan dard, the criteria are not exact . Therefore, EPA finds it important to consider both the legitimate recycling standard in 40 CFR 260.43 and the partial reclamation criteria when choosing to grant a partial reclamation variance. Based on adverse comments th

e Agency received, EPA is not finalizing the petition process under the legitimate recycling standard in this final rule and thus states will not have to review these petitions. For more information on this issue, see the preamble to the final rule or othe r applicable sections of this response to comments document.
(g ) COMMENTS : One commenter questioned whether EPA has the authority to go back and review existing variances against the new variance regulations. [0293] One commenter states that that EPA’s adm

inistrative record for the proposed rule does not support changes that would require implementing agencies to re

- evaluate existing variances or non

- waste determinations. [0363]
(g ) RESPONSE : EPA agrees that the final changes to the partial reclamation vari ance criteria only apply to facilities receiving variances after the effective date of the final rule. The changes are not retroactive and thus would not apply to facilities currently operating under existing partial reclamation variances, unless and until the facility’s variance come up for renewal.
(h ) COMMENTS : One commenter noted an apparent discrepancy between the preamble and the proposed rule text. The preamble on page 44127 states that the 40 CFR 260.33(c) requirements are also meant to apply to th e non

- waste determinations of 40 CFR 260.30; however, the proposed rule text of 40 CFR 260.33(c) only mentions 260.31, 260.32, 260.34, and 260.43. [0038]
(h ) RESPONSE : 40 CFR 260.30 simply lists the solid waste variances and non

- waste determinations ; the s tandards and criteria for the variances and non

- waste determinations are instead found at 40 CFR 260.31 (standards and criteria for variances from classification as a solid waste) and 260.34 (standards and criteria for non

- waste determinations). Because 40 CFR 260.33(c) states that in the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria, EPA properly references the regulatory citations which contain the criteria (i.e., 40 CFR 260.31 and 260.34).- 184

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### 8 .1 Requirement that applicant re

- apply for a v ari ance in the event of a c hange

(a) COMMENTS : Several commenters supported EPA’s proposed requirement that an applicant

re

- apply for a variance in the event of a change in circumstances that affects how a mate rial meets the criteria upon which a solid waste variance has been based, as is currently required for

non

- waste determinations. [0038, 0177, 0179, 0201, 0233, 0244, 0251, 0255, 0270, 0272, 0304, 0321, 0332, 0333, 0351] One commenter recognized the additio nal workload these revisions will produce for both industry and regulatory agencies but stated it made sense to help generators ensure the conditions for which the variances or non

- waste determinations were issued do not change over time. [0038] A few comm enters said that codifying this requirement could help promote 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 va riance. [0177, 0244, 0351] One commenter stated that this requirement was responsible and warranted. [0233] One commenter said that Tennessee has been addressing such changes to processes, markets, and service contracts as conditions of the variance. [0177]
(a ) RESPONSE : EPA agrees with the majority of commenters that finalizing a requirement to require facilities to take action in the event of a change in circumstances will ensure the hazardous secondary material remains eligible for a variance and co ntinues to meet the variance criteria over time. Therefore, EPA has finalized the proposed requirement at 40 CFR 260.33(c).
(b) COMMENTS : Some commenters opposed the proposed requirement. [0133, 0225] Commenters said that, 40 CFR 260.33(c)
, as proposed, im plies that a full re

- application will have to be submitted to the regulatory agency, which will place an additional burden on already stressed resources of RCRA authorized states. [0133, 0225] A few commenters suggested, as an alternative, that EPA promulg ate a requirement for generators to “recertify” on an annual or biennial basis that management of the material continues to meet the conditions of the variance

or non

- waste determination. [0225, 0290] One commenter stated that only a modification to an app roved variance should be submitted and approved, instead of reopening the entire original petition up for public and legal review. This commenter noted that this is consistent with permit modification procedures, where the applicant chooses to reopen certa in permit conditions for revision. [0351]
(b) RESPONSE : EPA agrees with those commenters that suggested ways to reduce the administrative burden on states and the regulated community. Therefore, in today’s final rule, EPA is requiring that, in the event of a change, the facility must send a description of the change to the regulatory authority and the regulatory authority will determine whether the facility must

re

- apply for a variance. This change in procedure allows both the regulatory authority and regul ated community to avoid spending unnecessary resources where the change in circumstances is found to be of no conseq uence to the original variance that the regulatory authority has granted. EPA notes that re

- applying for a variance should be less burdensom e than the initial application because a facility would only have to update its original application.
(c) COMMENTS : One commenter said that administrative authorities (i.e., authorized states) have consistently utilized their current discretion to require similar “re

- opener” conditions in variances granted under the provisions of 40 CFR 260.31. [0097]- 185

-

(c) RESPONSE : EPA acknowledges that regulatory authorities may already use discretion to review variances based on changes in circumstance as specified in con ditions of the variance. However, EPA finds that relying on state discretion is inadequate in terms of ensuring national consistency in how determinations are made. Thus, EPA has determined that the changes in the final rule are necessary.



### 8.2 Notificatio n requirement for variances and non

- waste d eterminations

(a) COMMENTS : Some commenters supported EPA’s proposed biennial re notification for facilities granted a solid waste variance or non

- waste determination. [0038, 0177, 0179, 0225, 0233, 0244, 0251, 0272, 0304, 0321, 0333, IL

- 0009] A few commenters argued that

re notification supports transparency, including public reporting , of all variances and non

- waste determinations and will enable states and EPA to track them at a national level. [0177, 0244, IL

0009] Some commenters supported this requirement since it would provide state programs with updated information about the faci lity’s activities, which enables better monitoring of compliance, including helping to prioritize inspections. [0179, 0225, 0244, 0251, 0272] One commenter stated that re notification will provide for more regular review of recycling practices by both regul

ators and the regulated community. [0223]
Some commenters opposed EPA’s proposed biennial notification for facilities granted a solid waste variance or non

- waste determination. [0097, 0107, 0121, 0125, 0133, 0159, 0186, 0199, 0201, 0204, 0214, 0238, 0255]
(a) RESPONSE : EPA agrees with those commenters who support notification , including renotification, in order to enable better compliance monitoring and to improve transparency. Therefore, EPA is finalizing a requirement in 40 CFR 260.33(e) that facilities receiving a variance or non

- waste determination must provide initial notification and re

- notification every two ye a r s thereafter in compliance with 40 CFR 260.42.

This renotification requirement serves to meet EPA’s goal to foster greater consistency on the part of implementing agencies and to help ensure the proper implementation of the solid waste variances and non

- waste determinations. The intent of the notification is to enable variances and

non

- waste determinations to be tracked nationally and over t ime, which facilitates state

- to

- state consistency in determinations. Additionally, notification enables effective oversight of facilities receiving solid waste variances and non

- waste determinations because it provides regulatory authorities with a mechani sm for receiving regularly updated information (such as information regarding quantities of hazardous secondary materials managed under the determination). Furthermore, this information can be used to identify facilities which may have undergone changes to their reclamation process es significant enough to trigger a review of the determination under 40 CFR 260.33(c).
(b) COMMENTS : One commenter preferred initial notification, re

- notification in the event of a change, notification when the generator ceases m anaging under the variance or non

- waste determination, and biennial reporting, instead of biennial notification. [0270]- 186

-

(b) RESPONSE : EPA notes that hazardous secondary materials that are managed under an approved variance from solid waste classification or a non

- waste determination are not hazardous wastes, and thus are not subject to hazardous waste requirements, such as the biennial report.
(c ) COMMENTS : A few commenters argued that imposing additional notification requirements, as specified in 40 CFR 260.42(d), is redundant to the current requirements for petitioner’s to submit case

- by

- case variance request applications to the administrative authority, and the subsequent required formal petition review process which includes public participation. Thes e commenters stated that EPA already knows who these companies are by virtue of the application. [0097, 0107, 0133, 0199, 0201, 0214, 0238] One commenter said that the information that EPA seeks already exists in databases associated with current regulatory filings and or as specifically required as conditions of variances administered by the state and thus additional reporting requirements are burdensome and redundant. [0120]
(c) RESPONSE : EPA does not agree that the solid waste variance or non

- wa ste determination application itself constitutes adequate notification. Currently, individual facility applications are not tracked nationally and there exists no consolidated list of facilities operating under a solid waste variance or non

- waste determin a tion. Notification, using EPA f orm 8700

- 12, ensures that standard information regarding facilities receiving solid waste variances and non

- waste determinations can be collected, stored, and used to enable compliance monitoring and to foster consistency in implementing the regulations.
(d) COMMENTS : A few commenters said that EPA proposes multiple and duplicative forms of notification and that under the proposal a party would have to notify its RCRA regulator (1) with its application; (2) every two years the reafter; (3) within 30 days of the end of operations; and (4) in the event there is a change in circumstances. These commenters argued that the two

- year notification requirement is unnecessary and duplicative. [0125, 0186] Some commenters said that the req uirement to notify in the event of a change is more than adequate and that biennial notification is simply an exercise in paperwork as most of these site specific variances are fixed and unchanging. [0159, 0255] Some commenters argued that EPA’s proposed n otification requirement creates an additional disincentive for the regulated community to pursue resource conservation and increases the recordkeeping burden and resource requirements for the administrative authorities. [0097, 0107, 0214]
(d) RESPONSE : We also do not agree that the notification requirement is duplicative of the requirement to send notice in the event of a change because the two requirements serve different purposes and require different information. In the event of a change, facilities’ mus t send a description of the change in circumstances to EPA or the authorized state, who then make an evaluation as to whether a facility should re

- apply for a solid waste varian ce or non

- waste determination. Under 40 CFR 260.42, facilities submit informati on, such as type and quantity of hazardous secondary material being managed, using EPA f orm 8700

- 12, which enables the information to be entered into EPA’s database where it can be accessed by both EPA and state regulatory authorities. Furthermore, EPA doe s not agr ee that notification using EPA f orm 8700

- 12 poses an undue burden. The form is relatively simple to complete and is currently being used for facilities excluded from the definition of solid waste under 40 CFR 261.4(a)(23).- 187

-

Additionally, EPA is cur rently developing an electronic submission process, which will further reduce reporting burden.
(e) COMMENTS : One commenter argued that EPA has made no demonstration that they need biennial information from facilities that have received solid waste varian ce or non

- waste determinations. [0199] A couple of commenters stated that EPA does not need to be notified about which materials are not being discarded, how much material is not being discarded, when the facility plans to not discard it, or when the facil ity ceases to not discard it. [0199, 0204] This commenter also did not understand why the EPA says that they want new information on material they have already decided did not involve discard. [0199]
(e) RESPONSE : EPA is requiring biennial notification in order to (1) enable variances and non

waste determinations to be tracked nationally and over time, which facilitates state

- to

- state consistency in determinations; (2) enable effective oversight of facilities receiving solid waste variances and non

- waste de terminations because it provides regulatory authorities with a mechanism for receiving regularly updated information (such as information regarding quantities of hazardous secondary materials managed under the determination); and (3) provide information th

at 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).
(f) COMMENTS : One commenter argued that EPA has no authority to impose requirements on excluded materials and such an approach is contrary to law. [0214]
(f ) RESPONSE : EPA disagrees that EPA does not have the authority to require conditions for hazardous secondary materials being recycled. As noted in the Background section o f the preamble to the final rule, in the Safe Food court case, 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 re cycled materials meet certain handling, storage, and reporting conditions and the resulting fertilizers have concentration levels for certain hazardous constituents that fall below specified thresholds. It is therefore within EPA’s discretion to determine conditions under which a hazardous secondary material is not being discarded and thus may be excluded from hazardous waste regulation.
(g ) COMMENTS : One commenter argued that the notification requirement as stated at 40 CFR 260.42 does not clearly state t hat the notification is for information only and does not constitute a “renewal” process. This commenter stated that, if not specifically designated as “information only,” the notification will lead to uncertainty as to whether or not the Administrator wil l make changes to or deny the exclusions under which the recycling facility is currently operating. [0121] Similarly, another commenter said it is unclear if EPA’s intent of the biennial notification is to allow the agency to reconsider the variance. [0315 ]
(g ) RESPONSE : EPA is not intending the notification , including the biennial renotification, to be used by regulatory authorities to deny or change a variance or non

- waste determination. The chief purpose of the notification requirement is to provide noti fication to the states and EPA in order to track variances and non

- waste determinations at a national level and to enable more- 188

-

effective compliance monitoring. Although regulatory authorities may use the notification information to identify facilities whic h may have undergone changes to their reclamation process es significant enough to trigger a review of the determination under 40 CFR 260.33(c), the decision to deny or change a variance or non

- waste determination would likely be based on other information provided by the facility.
(h ) COMMENTS : One commenter is concerned with the notification provisions that are unclear when a facility stops recycling under the variance or non

- waste determination and whether notification is a requirement or a condition. [0 363]
(h ) RESPONSE : This commenter did not specify their concerns regarding notification when a facility stops recycling under the variance, however, u nder 40 CFR 260.42, a facility must notify within 30 days of ceasing management of hazardous secondary mat erials under a variance or

non

- waste determination. For purposes of this provision, a facility has stopped managing hazardous secondary materials if the facility no longer generates, manages and/or reclaims hazardous secondary materials under the regulatio n(s) above and does not expect to manage any amount of hazardous secondary materials for at least one year.
Notification is a condition of approved variances and non

- waste determinations granted by the regulatory authority. If facilities fail to submit not ifications as required under 40 CFR 260.42, the hazardous secondary materials may potentially lose their special status under a variance or non

waste determination and thus may become subject to RCRA hazardous waste regulation from the point of generation.


### 8.3 Proposed revisions to partial reclamation v ariance
8.3.1 Comments on introductory text
(a) COMMENTS : Many commenters agreed with EPA’s proposed changes either as is or with comment. These commenters said that the proposed changes would improve the clarit y of the introductory language, more accurately identify the characteristics of a commodity

- like material
, foster national consistency, and ease enforceability. [ 0032, 0038, 0058, 0114, 0177, 0179, 0183, 0225, 0233, 0251, 0257, 0268, 0272, 0290, 0304 , 0321, 0351] Many commenters agreed with EPA that the revised introductory text is clear and that all criteria should be met to foster consistent variance decisions. [ 0038, 0058, 0114, 0177, 0179, 0233, 0244, 0251, 0257, 0290, 0304, 0351, 0272, 0321 ]. Som e commenters disagreed with the proposed changes. [0097, 0107, 0133, 0157, 0199, 0204, 0255]
(a) RESPONSE : The Agency agrees with those commenters who supported the proposed changes to the partial reclamation variance at 40 CFR 260.31(c) and thus has fina lized the changes in today’s rule.
(b ) COMMENTS : One commenter said that several words such as "commodity

- like," "sufficient economic value ," and "substantial" may be vague and difficult to interpret. This commenter said t he agency could promulgate guidan ce or change the federal language in 40 CFR 260.30(c) to define certain terms. [0351]- 189

-

(b ) RESPONSE : The Agency finds that today’s preamble discussion along with today’s regulatory revisions to the variance criteria serve to appropriately define how EPA is using these terms in the partial reclamation variance, particularly when a material becomes commodity

- like. For example, EPA notes in its preamble that criteria ( 2 )

– ( 5 ) define the fundamental characteristics that indicate whether a partia lly

- reclaimed material is “commodity

- like.” This includes whether the partially

- reclaimed material has sufficient economic value that it will be purchased for further reclamation, whether the partially

- reclaimed material is a viable substitute for a produc t or intermediate produced from virgin or raw materials and which is used in subsequent production steps, whether there is a market for the partially

- reclaimed material as demonstrated by known customer(s) who are further reclaiming the material, and wheth er the partially

- reclaimed material is handled to minimize loss.
(c ) COMMENTS : Several commenters specifically addressed the proposed change that the partially

- reclaimed material must also be legitimately recycled as specified in 40 CFR 260.43 in order to qualify for a variance. [0032, 0038, 0097, 0107, 0133, 0225
, 0257, 0199] Some of these commenters were in favor of the proposed change. [0032, 0038, 0225, 0257] Other of these commenters stated that adding 40 CFR 260.43 as a new condition for both § 260.3 1(c) is not needed and should be removed. [0097, 0107, 0133, 0199]
(c ) RESPONSE : EPA agrees with those c ommenters who supported requiring that the partially

reclaimed material be legitimately recycled. EPA’s long standing policy is that all recycling must be legitimate recycling. Additionally, EPA finds that legitimate recycling to be inherent in the demonstration that a hazardous secondary material is sufficiently commodity

- like so as to be eligible for the partial reclamation variance. EPA therefore find s that the provision requiring that the partially

- reclaimed material be legitimate recycled as specified in 40 CFR 260.43 to be appropriate.
(d) COMMENTS : One commenter said that they would support including the legitimacy criteria as long as EPA required generators to consider only criterion (4) whether there was an end market for the material. [0225]
(d) RESPONSE : EPA disagrees with the commenter who sai d EPA should only consider criterion (4), whether there is a market for the partially

- reclaimed material, when determining whether to grant a partial

- reclamation variance. EPA finds that failure to consider all of the criteria, including whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste
, whether the partially

- reclaimed material has sufficient economic value that it will be purchased for further reclamation, whether the partially

- reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials and which is used in subsequent production steps, and whether the partially

- re claimed material is handled to minimize loss would result in inconsistency of determinations and would not be protective of human health and the environment.
(e ) COMMENTS : Two commenters were c oncern ed that EPA’s proposed revisions restrict an administrat ive authority’s consideration of other treatment systems (i.e., both less and more complex treatment systems) to which the partial reclamation variance is ap plicable and the- 190

-

administrative authority’s decision

- making discretion during the rulemaking proces s. [0097, 0107]
(e) RESPONSE : The Agency recognizes that reclamation of hazardous secondary materials may involve multiple steps and hazardous waste may be recycled in any number of steps in accordance with the hazardous waste regulations. It is because of the wide variability in industrial processes that the Agency is finalizing changes to the partial reclamation variance in order to assist regulatory authorities with applying the variance appropriately and consistently.
(f) COMMENTS : Some commenters conte nd that EPA’s proposed amendments do not provide additional clarification regarding the applicable point at which the var iance is applied to a material because EPA removes the phase “if, after initial reclamation, the resulting material is commodity

- like l

ike (even though it is not yet a commercial product, and has to be reclaimed further),” which clearly defines the point in a multiple step reclamation process where EPA intends that the variance is to be applied. [0097, 0107]
(f) RESPONSE : The Agency disag rees that EPA’s proposed amendments do not provide additional clarification regarding the applicable point at which the variance is applied to a material. The language in the final rule states: “The Administrator may grant requests for a variance from clas sifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity

- like material. A determination that a partially

- reclaimed material for which the variance is sought is commodity

- like will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on whether all of the following decision criteria are satisf ied.”
(g ) COMMENTS : A few c ommenters said that EPA has made no demonstration that discretion has been abused or resulted in damage over the years such that EPA must now make revisions to the partial reclamation variance

. [0133, 0157, 0199 , 0204, 0255] One commenter said that EPA is being arbitrary, unreasonable and unsupported in its approach to defin e the characteristics of a commodity

- like material and that EPA has provided no information in the docket that supports its implications in t

he preamble that states are inconsistent in their application of the variance and that the grante d variances are not protective. [0157] One commenter stated that EPA has not provided “record evidence” to justify proposed changes to the partial reclamation variance, but instead justifies these changes with the conclusor y statement that this variance has been granted for some materials that are not yet commodity

- like and that are still clearly hazardous waste. 76 Fed. Reg. at 44129. [0255]
(g ) RESPONSE : The Agency finds that some partial reclamation variances granted by the states conflict with EPA’s original intent to provide the variance for hazardous secondary material that is sufficiently commodity

- like

. Balancing the factors, as was EPA’s original direct ion in 1985, has resulted in subjective interpretations that differ across states and which, in some cases, do not align with the original intent of the partial reclamation variance. As a result, the Agency has determined that specifying that all criteria must be met will foster greater consistency in the issuance of state

- to

- state partial reclamation variances . For example, EPA publicly expressed its disagreement in a November 18, 2010, letter to Indiana’s Department of Environmental- 191

-

Management (IDEM) conc erning the tentative approval of a facility’s request for a partial reclamation variance, a copy of which is found in today’s docket. In our letter, we made clear that we did not think IDEM should grant a partial reclamation variance to incoming hazardous wastes that were not “sufficiently commodity

- like to qualify for the variance.”
Similarly, EPA’s record does provide an adequate basis for how the Agency intended the partial reclamation variance to operate. In the preamble to the 1985 DSW final rule (Jan uary 4, 1985; 50 FR 655), the Agency made clear that incoming materials to a partial reclamation facility were hazardous wastes and that the facility processing these incoming materials must obtain appropriate RCRA Part B storage and treatment permits. Add itionally, the Agency points to the partial reclamation variance it issued to WRC on August 13, 2002 (67 FR 52617) as a public example of the how the Agency intended for the partial reclamation variance to be implemented. In this case, the Agency’s partial reclamation variance to WRC for the partial reclamation of F006 electroplating sludges required WRC to obtain RCRA Part B storage and treatment permits fo r the incoming hazardous waste.
(h) COMMENTS : One commenter stated that E PA argues that dewatered F006 metal

- bearing sludges are not commodity

- like because they are not smelter ready. However, EPA contradicts this argument in its response to comments when the World Resources Variance was issued in 2003. Furthermore, EPA has sta ted that dewatered F006 sludges can be eligible for a partial reclamation variance when destined for reclamation. See the following EPA letters at RCRA Online

- PPC 9 441.1996(05) and 9441.1995(24). This commenter disagrees with EPA’s argument that F006 slu dges have not been substantially processed by the dewatering process to render them commodity

- like. This commenter argues that plating facilities invest significant capital and energy costs to convert the initial treated F006 sludge
, which is a liquid with suspended solids
, to a solid with a water content of forty to sixty percent. [0157]
(h) RESPONSE : EPA maintains that dewatered F006 sludges are not commodity

- like if they are not properly dewatered. Moreover, even dewatered sludges would not be commoditie s because g enerators of F006 sludges normally dewater these hazardous wastes as part of their operations to reduce transportation and subsequent handling costs, regardless of whether the materials will be partially reclaimed or discarded. Similarly, as the commenter admits , once dewatered, the F006 sludges still contain an inordinate amount of water that prevents the material from being smelter

- ready, and hence commodity

- like. Only when the F006 sludge has been further dried and blended to meet the contract specifications of the smelter is the material commodity

- like and ready for further reclamation. Therefore, incoming dewatered F006 wastes at a partial

reclamation facility are still a hazardous waste requiring the facility to obtain a RCRA Part B storage and treatment permit . In the case of WRC , the Agency’s partial reclamation variance to WRC for the partial reclamation of F006 electroplating sludges required WRC to obtain RCRA Part B storage and treatment permits fo r the incoming hazardous waste. Therefo re, EPA does not agree that the preamble is in conflict with the WRC variance or RCRAOnline letters.
(i) COMMENTS : A commenter argues that dewatered F006 sludges are eligible for a variance if their metal content is similar or exceeds those of mined ore re serves. Simply put, if a certain metal content of ore is viewed by commerce to be a commodity and valuable enough to extract from the earth then wastes with similar metal content are commodity

- like and reclamation of the- 192

-

metals should be promoted. The comm enter states that EPA argues that sludges are not commodity

- like because they are not smelter ready. However, ore reserves aren't smelter ready either but they are a commodity. [0157]
(i) RESPONSE : The Agency also disagrees with the comment that dewatered F006 sludges are eligible for a variance if their metal content is similar or exceeds those of mined ore reserves. The proper comparison is not of the concentration of recoverable metals contained in dewatered F006 sludges to the concentration found in mi ned ore reserves. Instead the proper comparison is of the partially

- reclaimed F006 concentrate (as well as other materials prepared to the satisfaction of other contract specifications) to the metal concentrate produced from virgin ores through beneficiati

on. This concept is articulated with Criterion 3: Whether the partially

reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps.
Stated differently, the Age ncy finds that there is a difference between ore reserves and the metal contained in the ore. As an example, copper ore found in the United States normally contains less than 1 percent copper. Only when the copper ore has undergone a beneficiation process is a copper concentrate produced (with a concentration of 25%

- 35% copper concentration) that is smelter ready and commodity

- like. And only when a commodity

- like copper concentrate has undergone smelting is a copper commodity produced. I f the dewatered F006 metal

- bearing sludges were commodity

- like, then the material also would be smelter

- ready with one or more buyers for the material. But that is not the case, the generators of the dewatered F006 must pay the partial

- reclamation facility to process their ma terial (as well as blend it with other shipments of F006 metal

- bearing sludges) to produce a commodity

- like material that is smelter

- ready. Only then will a smelter purchase for the material.
(j) COMMENTS : One commenter stated the current variance for partially reclaimed HSM is a valuable tool to help change the perception that hazardous se condary materials are worthless and to promote the recovery of nonrenewable resources. [0157]
(j) RESPONSE : Although EPA agrees that the intent of the variance for pa rtially

- reclaimed hazardous secondary material is a valuable tool to promote recovery of resources, EPA does not agree that the existing variance is being implemented with that intent. Therefore, EPA has finalized revisions to the variance to ensure proper and consistent application of the variance.
(k ) COMMENTS : One commenter was concerned with EPA’s proposal to narrow the partial reclamation variance by eliminating the ability of a Regional Administrator to consider other relevant factors when granting such a variance

. [0255]
(k) RESPONSE : EPA has determined that in order to reduce the inconsistency in state

- to

- state partial reclamation variances, the criteria must be made more prescriptive. Balancing the factors, as was EPA’s original direction in 1985, has resulted in subjective interpretations that differ across states and which, in some cases, do not align with the original intent of the partial reclamation variance.- 193

-

(l) COMMENTS : One commenter was concerned by the significant burden imposed on the

r eclaimer to demonstrate that a material has under gone ‘substantial” reclamation,’ ‘will be purchased,’ and ha s a ‘guaranteed end market.’ [0255]
(l ) RESPONSE : EPA does not agree that there is significant burden imposed on the reclaimer to demonstrate that a material is commodity

- like and therefore appropriate for a partial

- reclamation variance. This is because EPA finds that many of the criteria can be satisfied with normal business records, such as invoices, contracts, and bills of lading.
(m ) COMMENTS : T

wo commenters also disagreed with EPA’s proposed revisions stating that the current terms and terminology within the partial reclamation varia nce are both concise and clear and that t

he current terms and terminology within the partial reclamation variance only appear to lack clarity when they are interpreted to have been promulgated as prescriptive conditions and criteria. [0097, 0107]
(m) RESPONSE : EPA disagrees with these comments. EPA has found that balancing the different criteria, as was EPA’s original direction in 1985, has resulted in subjective interpretations and inconsistent decisions that differ across states and which, in some cases, do not align with the original intent of the partial reclamation variance. Therefore, EPA has determined that in o rder to reduce the inconsistency in state

- to

- state partial reclamation variances, the criteria must be made more prescriptive. EPA also finds that requiring all criteria to be met is a more effective framework for determining when a partially

- reclaimed mat erial is commodity

- like and therefo re not a solid waste.
(n) COMMENTS : A few commenters disagreed with inserting the word “whether” at the beginning of each criterion because it implied the criterion was more prescriptive. These commenters also argued that EPA’s proposed insertion of the word “partially” before “reclaimed” disregards the fact that EPA has acknowledged that more than one processing step may be necessary before the inherent value of a usable product is recovered. [0097, 0107]
(n) RESPONSE : EP A disagrees with commenters who opposed insertion of the word “whether” in each criterion. The intent of this change is to make the criteria more prescriptive in order to reduce the inconsistency of partial reclamation variance determinations. EPA also disagrees that adding the word “partially” in front of “reclaimed” disregards the fact that EPA has acknowledged that more than one processing step may be necessary before the inherent value of a usable product is recovered. EPA recognizes that reclamation of hazardous secondary materials may involve multiple steps and hazardous waste may be recycled in any number of steps in accordance with the hazardous waste regulations. However, EPA maintains that a variance from the definition of solid waste is appropr iate only for partially

- reclaimed material that is commodity

- like, as demonstrated by satisfaction of the partial reclamation criteria.

8.3.2 Comments on proposed c riterion 1: Whether the degree of partial reclamation the materi al has undergone is substant ial
(a) COMMENTS : Some commenter supported Criterion 1 as proposed. [0114, 0332]- 194

-

(a ) RESPONSE : The Agency agrees with the comments

. (b) COMMENTS : Some commenters supported the overall provisions in 40 CFR 260.31(c) but expressed concerns about using the subjective term "substantial" in determining whether a material meets criterion 1, as described in § 260.31(c)(l). [0179, 0183, 0244, 0251, 0272, 0299] Some commenters stated that if EPA states that if Criterion 1 is meant to answer the relevant question o f whether the partial reclamation that has been completed is substantial and “that the material produced is not the original hazardous waste, ” then the criterion should contain that precise language. [0244, 0293]
(b ) RESPONSE : EPA agrees with commenters th at adding a clarifying statement to criterion (1) is helpful and has added “ as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste ” after “substantial.” We find that this language clarifies (and res ponds to the comment regarding the term “substantial”) that the process used to generate the hazardous waste (such as dewatering of sludge) would not be considered “substantial” under this criterion. Therefore, by emphasizing that the partial reclamation p rocess must be substantial in the first criterion, the Agency is reiterating that the material produced by the partial reclamation process must be commodity

- like as supported by also meeting criteria (2)

- (5).
(c ) COMMENTS : One commenter agre ed with the agency's revisions i f certain definitions (e.g., "commodity

- like," "sufficient economic value", and "substantial" ) were adopted. [0351]
(c ) RESPONSE : It is EPA’s intent with this final rule to clarify how the partial reclamation varia nce should be applied . Although specific definitions would be difficult to promulgate given the broad applicability of the terms, EPA notes that today’s preamble discussion along with today’s regulatory revisions to the variance criteria serve to better define how EPA is using these terms in the partial reclamation variance, particularly when a material becomes commodity

- like. For example, EPA notes in its preamble that criteria 2

– 5 define the fundamental characteristics that indicate whether a partially

- reclaimed material is “ commodity

- like.”
(d ) COMMENTS : One commenter stated that EPA has proposed replacing the term “processing” within the text of criterion 1 of 40 CFR 260.31(c), with the term “partial reclamation.” While the term “partial reclamation” can be considered a fo rm of processing, the use of the term in place of the term “processing” does not provide additional clarification of EPA’s intent for establishing the criterion. [0107]
(d) RESPONSE : EPA disagrees with this commenter who argued that EPA’s use of “partial reclamation” in place of “processing” did not provide additional clarification. The term “processing” is a broad, general term that can refer to a number of processes, such as the process used to generate the hazardous waste. However, the intention of the partial reclamation variance is to evaluate, specifically, the degree of partial reclamation and therefore it makes sense to use “partial reclamation ” in criterion 1. Additionally, this revised language for the first criterion conforms to the revised chang es in the introductory text of the partial reclamation variance.- 195

-

8.3.3 Comments on proposed c riterion 2: Whether the partially

- reclaimed material has sufficient economic value that it will be purchased for final reclamation
(a) COMMENTS : Some commenters supported the proposed revisions and said the revisions better explain the qualities that the material must demonstrate to be eligible for a variance. [0114, 0179, 0272, 0351] One commenter stated that the revisions to criterion 2, especial ly the section that deals with the evidence to support the value of a material after it is reclaimed, is well written and serves to clarify and improve the concept of legitimate recycling. [0299]
(a) RESPONSE : The Agency agrees with these commenters. As w e have stated previously, the partial reclamation variance is for those hazardous secondary materials that ha ve been partially

reclaimed but must be reclaimed further, as long as the partial reclamation has produced a commodity

- like material. That is, if t he partially

- reclaimed material is being purchased for further reclamation, the Agency considers the partially

- reclaimed material to have sufficient economic value, regardless of how each party calculates the value to be paid. Evidence to support this crit erion may include sales information; demand for the materials; and business contracts, such as contracts specifying quantities of material sold, details of the transaction, and the effective price paid for the partially reclaimed material by purchasers (i. e., after subtracting transportation costs and any other goods or services rendered in exchange for the material purchased).
However, based upon comments received, EPA is making one change to the proposed second criterion. As noted above, EPA understands that reclamation of hazardous waste may involve multiple steps and thus EPA finds it is more appropriate to ensure that the partially

- reclaimed material is purchased for “further reclamation” rather than “final reclamation” to allow for processes that use more than one reclamation step in processing the partially

- reclaimed material. Therefore, the final second criterion in today’s rule reads: “Whether the partially

- reclaimed material has sufficient economic value that it will be purchased for further recla mation.”
(b) COMMENTS : One commenter stated that the proposed wording of criterion 2 would restrict certain legitimate recycling activities. Therefore, this commenter recommended that the EPA change the w ording of criterion 2 to read, “ Whether the partially

- reclaimed material ha s significant economic value.” [0332]
(b) RESPONSE : EPA disagrees that the final rule changes will unnecessarily restrict recycling. Today’s changes clarify how the partial reclam ation variance has always been intended to ope rate with regard to uses of the partially

- reclaimed material ; thus, any recycling that is consequentially restricted from the variance as a result of the changes was never intended to be excluded from hazardous waste requirements. EPA maintains that hazard ous waste must be managed under appropriate hazardous waste requirements in order to ensure protection of hu man health and the environment.
(c) COMMENTS : One commenter raised the issue of market forces potentially preventing individual generators with sma ll volume shipments of partially reclaimed materials being able to obtain the same economic benefits as large volume shipments from a partial reclamation facility because the later shipments were “more attractive” to a smelter, even if small volume generat ors- 196

-

had a higher concentration of recoverable materials than the partial reclaimer. In effect, small volume generators might have to pay the smelter to reclaim their highly valued materials whereas the partial reclamation facility would be paid for their lower concentrations of partially reclaimed materials. [0312]
(c) RESPONSE : The Agenc y agrees that an individual F006 generator attempting to send F006 to a smelter faces a different economic landscape than a partial reclaimer also sending material to a smelter, even when the individual facility has concentrations higher than those found i n materials sold to smelters by partial

- reclamation facilities. This is because a generator with high concentrations of a recoverable metal in a partially

- reclaimed material may not be able to provide a smelter with smelter

- ready material. A smelter most o ften will not accept an incoming material that contains substantial amounts of water or other materials that could upset or adversely affect the smelting process. Additionally, the transaction costs of a smelter doing business with 20 different generators with relatively small volumes of material far outweigh the transaction costs of doing business with one partial reclamation facility with a relatively large amount of material, including the partial reclamation facility accepting responsibility in meeting the detailed specifications of the smelter.
(d) COMMENTS : Some commenters contend that the terms “useful contribution” and “valuable material” in 40 CFR 260.43 (legitimacy) are similar in principle, and based on a hazardous secondary material ’ s inherent v alue. These commenters stated that an apparent conflict exists between the definition of the term “valuable,” within EPA’s proposed revisions to criterion 2 of 40 CFR 260.31(c) and EPA’s proposed revis ions to the introductory text which applies 40 CFR 260. 43 .” As proposed, these commenters stated that the administrative authority will be required to consider EPA’s conflicting definitions during the review of petition requests for partial reclamation variances, 40 CFR 260.31 (c). These commenters suggest remo ving “the value of the material after it has been reclaimed,” and replace it with the new wording “partially reclaimed material has sufficient economic value that it will be purchased for final reclamation.” [0097, 0107]
(d) RESPONSE : EPA does not agree th at there is a conflict between criterion (2) and the legitimate recycling criteria in 40 CFR 260.43 in regards to the concept of a valuable product. Legitimacy must be taken into account in satisfying the criteria for a partially

- reclaimed material, as wel l as for a reclaimed material. In other words, whether the process first involves a secondary material being partially

- reclaimed followed by final reclamation, or a secondary material being reclaimed without intermediate processing, both outputs (e.g., the partially

- reclaimed material and the product of the reclamation process ) must satisfy legitimacy criteria.
In addition to being legitimate recycling, a partially

- reclaimed material must also satisfy the criteria of the partial reclamation variance in or der to be sufficiently commodity

- like to be granted such a variance. That is, if the partially

- reclaimed material is being purchased for further reclamation, the Agency considers the partially

- reclaimed material to have sufficient economic value, regardles s of how each party calculates the value to be paid. Evidence to support this criterion may include sales information; demand for the materials; and business contracts, such as contracts specifying quantities of material sold, details of the transaction, a nd the effective price paid for the partially reclaimed material by purchasers (i.e., after subtracting transportation- 197

-

costs and any other goods or services rendered in exchange for the material purchased). If the materials are not commodity

- like, as could be the case under the commenters proposed language, EPA would not find them appropriate for this variance.
8.3.4 Comments on proposed c riterion 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
(a) COMMENT S : Some c ommenters supported the criterion as proposed . [0114, 0179 and 0251] Two commenters did not agre e with the proposed criterion. [0097, 0107]
(a) RESPONSE : EPA agrees with these commenters.
(b) COMMENTS : One commenter recommended the Agency replace the phrase “which feed subsequent production steps” with “that is used in a subsequent manufacturing process.” [0244]
(b) RESPONSE : EPA agrees with the commenter who suggested replacing the phrase “which feed subsequent production steps,” in order to improve clarity. Therefore, the Agency is

mo difying this criterion to read “whether the partially

- reclaimed material is a viable substitute for a product or intermedia te produced from virgin or raw materials which is used in subsequent production steps .” With this clarification, the Agency is making clear that, while multiple steps may be involved in producing a commodity

- like material, it is only when the partially

- rec laimed material is a viable substitute for a product or intermediate is it considered “commodity

- like.”
(c) COMMENTS : One c ommenter recommended c riterion 3 should state more plainly that "it is a substitute for ingredients, intermediates, or commercially available virgin/raw materials." The commenter also stated that t he phras e "analogous to" is very weak and recommended that t he word "replace" should be substituted for this phrase in all cases. [0299]
(c) RESPONSE : EPA does not agree with the suggested c hange to state that the partially

reclaimed material “is a substitute for ingredients, intermediates, or commercially available virgin/raw materials” because EPA is concerned that this language may introduce confusion in distinguishing between when a parti ally

- reclaimed material is “commodity

- like” as compared to raw or virgin material that would need to undergo substantial processing before meeting this definition. Therefore, EPA is maintaining the proposed language to read “is a viable substitute for a pr oduct or intermediate produced from virgin or raw materials.”
(d) COMMENTS : Two commenters did not agre e with the proposed criterion. [0097, 0107] These commenters suggest changes to the regulatory text to change the concept to being one where the partial

ly

- reclaimed material just has to contribute to the production of a viable substitute and where the partially

- reclaimed material has to be a viable substitute to the degree that it is already like an analogous raw material. . [0097, 0107]
(d ) RESPONSE : EPA does not agree with these comments because the suggested changes would maintain the possibility of comparing the partially reclaimed material to an analogous raw material such as that virgin ore. This is an incorrect comparison. The correct comparison is a- 198

-

commodity

- like material produced from a partial reclamation process that is a “viable substitute for a product or intermediate produced from virgin or raw materials which is used i n subsequent production steps.” By adopting this proposed substitute regulatory language, the Agency would basically allow states to continue with their current review process, potentially resulting in incorrect partial reclamation variance determinations.
8.3.5 Comments on proposed c r iterion 4: Whether there is a guaranteed end market for the partially

- reclaimed material
(a) COMMENTS : One c ommenter supported the changes but also urged that, in the preamble to the final rule, EPA recommend its Background Document: Providing Context

– Th e Example of F006 Electroplating Sludges as guidance in applying this criterion. [0114]
(a) RESPONSE : The Agency agrees with the comment and has determined that the example provided in the background document represents a realistic description of a three

- party partial reclamation process involving a generator, partial reclamation facility and final reclamation facility that often occurs. However, as discussed elsewhere, a hazardous waste undergoing partial reclamation to produce a commodity

- like material m ay involve more than three steps and parties. If more than one partial reclamation process is involved to produce a commodity

- like material, the material would remain under hazardous waste regulation until a commodity

- like material was produced satisfying all five criteria.
(b) COMMENTS : Another c omme nter agreed with this requirement, but did not believe that the criterion is specific enough to meet EPA’s stated objective and that EPA should change the criterion to match its explicit def inition of “guarant eed market” and require satisfaction of “whether there is a guaranteed and secure long

- term market for the p artially

- reclaimed material.” [0244] One commenter agreed that having a guara nteed end market is an appropriate concept, but that end markets may n ot be predictable. This commenter said t his lack of predictability, as evidenced by historical downturns in various markets due to known and unknown factors, is a reason why this factor can be a poor indicator of value. Therefore, this commenter recommende d that the EPA include in the final rule more empirical and measurable ways to define this concept.” [0299]
(b) RESPONSE : The Agency has not determined that it is necessary to add the phrase “and secure long

- term market for the partially

- reclaimed material.” As discussed in the preamble, the use of contracts and sales agreements, which often run more than one year, should be sufficient to satisfy this criterion. Additionally, the Agency has determined that the existence of contractual arrangements b etween buyers and sellers is the most useful and measurable indicator that an end market will exist both in favorable and unfavorable economic conditions.

8.3.6 Comments on proposed c riterion 5: Whether the partially

- reclaimed mater ial is handled to minimize loss
(a) COMMENTS : One commenter supported the proposed change [0114]. One commenter stated that the term "minimize loss" in Factor 5 (the extent to which the reclaimed material is- 199

-

handled to minimize loss) should be better defined. For example, t his commenter stated that at a minimum it should meet the "contained" requirement for hazardous secondary materials and be managed by the handler "exactly" like any other commodity or material of value. [0299] Two commenters disagreed with the proposed cha nges. [0097, 0107]
(a) RESPONSE : EPA agrees with the commenter that supported the proposed change. EPA
, however, does not find that the phrase “minimize loss” needs to be better defined. As we have discussed elsewhere and in the preamble to the 2011 July DSW proposal, evidence to support this criterion may include documentation of facility procedures used to minimize loss (e.g., inspections, training) and storage and management equipment designed to minimize loss. Additionally, under today’s final rule, pa rtially

- reclaimed materials must meet the legitimate recycling criteria in 40 CFR 260.43, which requires that the hazardous secondary materials be managed as a valuable commodity. This criterion explains that, where there is an analogous raw material, the hazardous secondary materials must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material should be containe d, as defined in 40 CFR 260.10.

8.3. 7 Comments on e liminating existing c riterion 6: Other relevant f actors
(a) COMMENTS : Most commenters suppor ted the removal of criterion 6 because the criterion was too subjective and removing the criterion would reduce ambiguity, provide for greater clarity
, and ensure consistent and appropriate decision

- making. [ 0322, 0038, 0058, 0114, 0179, 0225, 0244, 0251, 0257, 0272, 0290, 0299, 0304, 0321, and 0351]

. Several commenters, however, disagreed with the Agency’s proposal to eliminate criterion 6 [0097, 0107, 0177, 0255, and 0332].
(a) RESPONSE : EPA agrees with those commenters who supp ort the elimination of c riterion 6 in order to reduce ambiguity and ensure consistent and appropriate application of the partial reclamation variance.
(b) COMMENTS : Two commenters stated that removing criterion 6 clearly conflicts with the intent of t he partial reclamation vari ance by imposing restrictions on the administrative authority’s decision

- making discretion. [0097 and 0107] Other commenters stated tha t eliminating c riterion 6 would eli minate the ability to consider “ good projects that do not fit perfectly into a box” an

d that an applicant’s history of compliance could be an important “other relevant factor” that should be considered when evaluating an application for a variance. [0177, 0322]
(b) RESPONSE : The Agency disagrees with commenters who stated that removing crit erion 6, clearly conflicts with the intent of t he partial reclamation variance by imposing restrictions on the administrative authori ty’s decision

- making discretion. EPA has determined that in order to reduce the inconsistency in state

- to

- state partial rec lamation variances, the criteria must be made more prescriptive. Balancing the factors, as was EPA’s original direction in 1985, has resulted in subjective interpretations that differ across states and which, in some cases, do not align with the original i ntent of th

e partial reclamation variance. One important way to accomplish this is to- 200

-

require that all criteria be met and to eliminate criterion 6, which allowed the administrative authority the ability to discount important factors or criteria.
The Age ncy finds that discretion on the part of the administrative authority would continue to exist in reviewing and granting partial reclamation variances so long as the petitioner satisfied all five variance criteria. The Agency agrees with the commenter who s aid that an applicant’s history of compliance could be considered as part of a partial reclamation variance determination. However, rather than requiring that compliance be considered under a sixth criterion, EPA notes that compliance would likely be a fac tor in determining how the facility is meeting the legitimate recycling criteria in 40 CFR 260.43 and the partial reclamation variance criteria (1)

- (5). For example, regulatory compliance could be used regarding whether the partially

- reclaimed material is handled to minimize loss.

8.3.8 General comments on proposed changes to partial reclamation v ariance

(a) COMMENT S : One commenter stated that the proposed revisions to the partial reclamation variance at 40 CFR 260.30(c) would inhibit legitimate recycling. [0205]
(a ) RESPONSE : EPA disagrees with the commenter that stated that final rule changes will unnecessarily restrict recycling. Today’s changes clarify how the partial reclamation variance has always been intended to operate; thus, any recycling that is consequentially restricted from the variance as a result of the changes was never intended to be excluded from hazardous waste requirements. EPA maintains that hazardous waste must be managed under appropriate hazardous waste requirements in order to ensu re protection of hum an health and the environment.
(b) COMMENTS: One commenter sought clarification regarding whether changes to the variance at § 260.30(c) would also impact the applicability of § 261.6(c). For example, this commenter asked, if a partia lly recycled material is accepted for further recycling, but is not yet a commodity

- like material (and therefore still a hazardous waste), is this material a "recyclable material" per § 261.6(a) o r would it be regulated under proposed §266.30? Additionally , this commenter asked whether the facility where the material is further rec ycled require a Part B permit o r is it covered under § 261.6(c)? [0205]
(b) COMMENTS : Prior to the point that partial reclamation produced a commodity

- like material, the material would have to be managed as a hazardous waste. Thus, a facility receiving the hazardous waste would be required to obtain a Part B permit for storage of the hazardous waste.
(c) COMMENTS : One commenter expressed concerns about the timeliness of the variance review and decision

- making process. Without timely reviews, this commenter said the variance process will inhibit recycling by causing uncertainty and undue expense and delays, possibl y causing generators to dispose of their hazardous secondary materials rather than incur the risk and burden of recycling. [0205]- 201

-

(c) RESPONSE : The Agency finds that the revisions in the final rule may assist with the timeliness of review for variances be cause the revisions reduce ambiguity regarding whether a partial reclamation variance is appropriate.
(d) COMMENTS : One commenter said their understanding that a requirement to manage a material as hazardous waste includes requiring compliance with the 2 68.40 LDR treatment standards when land placement of the material takes place during reclamation even if the reclamation facility were a permitted TSD. This commenter said that appears to contrast with a 260.30(c) variance promulgated at 67 FR 52617 (Aug 1 3, 2002), where placement of the material “on a concrete pad which covers several acres” routinely took place during the drying process. Since the concrete pad was not described as being part of a 260.10 containment building or tank, this commenter request s clarification of whether the hazardous wastes being processed at the recycler were required to meet LDR treatment standards prior to placement on the concrete pad.” [0312]
(d) RESPONSE : EPA agrees that a recycler would need to comply with the LDR treatme nt standards if hazardous waste was being land disposed (e.g., prior to placement on the concrete pad). However, EPA does not agree that hazardous waste is being land disposed when it is placed on concrete pads as part of the partial reclamation process.

(e ) COMMENT S : One commenter said requiring all the partial reclamation variance criteria to be met would appear to require a reexamination of the site

- specific 260.31(c) variance issued by the EPA at 67 FR 52617 (Aug 13, 2002). In that variance, the commen ter said that EPA acknowledged the partial reclamation steps being performed were “not elaborate, and [lacked] substantial physical processing,” but used the latitude to reach a decision. This commenter said that simple drying and blending could easily be regarded as not being sufficiently “substantial” to meet the proposed 260.31(c)(1) and, thus, the petition be denied. [0312]
(e ) RESPONSE : The Agency disagrees with these comments. We see no reason to conclude that drying and blending would not be substan tial if the petitioner is also able to satisfy Criteria (2)

- (5). However, the Agency also agrees with commenters that adding a clarifying statement to criterion (1) is helpful and has added “as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste” after “substantial.” We have determined that thi

s language clarifies that the process used to generate the hazardous waste (such as dewatering of sludge) would not be considered “substantial” under this criterion. Therefore, by emphasizing that the partial reclamation process must be substantial in the first criterion, the Agency is reiterating that the material produced by the partial reclamation process must be commodity

- like as supported by also meeting criteria (2)

- (5).
(f ) COMMENTS : One commenter said that EPA states that, when evaluati ng the 260.3 1(c)(2) criterion, the value of a material produced at a later stage of reclamation cannot be used to justify a variance for the partially

- reclaimed material p roduced earlier in the process. Yet this commenter says that in its F006 Reclamation guidance the EPA appears to allow use of the theoretical, “on paper” value of precious metals present. This commenter goes on to say that p recious metals present at parts per million concentrations must undergo very, very substantial additional reclamation before they would be worth the “spot price” appearing in market listings.- 202

-

For example, this commenter says that F006 containing 100 ppm gold would, “on paper”, appear to be worth over $4600 per ton, but the owner could never obtain that sum for the F006 sludge becaus e the gold needs to undergo extensive processing to enrich it from 100 ppm to 99+% concentration, and that processing would be costly. At a “later stage of reclamation” the gold is worth over $4600, but not while it merely resides at 100 ppm in the F006 sl udge. It is this commenter’s understanding from emailed information provided by WRC (Pottsville PA) in 2009 that their partially reclaimed F006 materials are “merged with virgin copper concentrates ,” so the floatation processing step

- - which could have po tentially enriched the gold in the partially reclaimed materials

- - would be bypassed.] [0312]
(f ) RESPONSE : The Agency’s understanding is similar to the information provided to this

c ommenter that WRC’s partially reclaimed F006 materials are “merged with virgin copper concentrates ,” so the floatation processing step

- - which could have potentially enriched the gold in the partially reclaimed m aterials

- - would be bypassed. Further, our understanding of WRC operations is that contract specifications betwe en WRC an d the smelter or final reclam ation facility will specify the different concentrations of precious metals they will accept in lieu of copper concentrations contained in F006. Therefore, our understanding is that the product produced from the smelti ng process will contain concentrations of gold and other valuable metals that will be subsequently reclaimed in the production of downstream products even if the value of the material at that point is not exactly equal to the future value of the metals bei ng recovered

. (g ) COMMENTS : One commenter suggest ed that the Aug 13, 2002
, variance be revisited to confirm that it reflects the proposed changes to 40 CFR 260.31(c), particularly the selection of 2% minimum metal content threshold that was established as the minimum allowable concentrat ion for incoming F006 sludges. This commenter noted that a possible threshold of perhaps 18% metal

-- not 2%

-- is referenced in the F006 Reclamation document. This commenter asks whether the 2% value have mistakenly origin ated from the minimum metal concentration for input to the virgin ore processing phase (e.g., mining and beneficiation) rather that of the virgin ore con

centrate phase (e.g., smelting). [0312]
(g ) RESPONSE : The Agency has determined that the 2% value did n ot mistakenly originate from the minimum metal concentration for input to the virgin ore processing phase (e.g., mining and beneficiation) rather that of the virgin ore concentrate phase (e.g., smelting). The Agency based this minimum metal threshold based on the metal recovery rate of the smelter as represented by the concentration of recoverable metal found in the slag produced as a result of the smelting process. As an example, if the concentration of copper found in the slag was 2%, and the concentratio n of copper contained in the incoming partially

- reclaimed F006 entering the smelting process was 2%, then the useful contribution provided by the incoming copper was zero. To avoid this situation, the Agency, in its response to the rulemaking petition, req uired the incoming partially

- reclaimed F006 to have at least a minimum concentration of 2% to ensure that a useful contribution was occurring, realizing that the concentration of copper in the smelter’s slag receiving the partially reclaimed material was c onsiderably less than 2%.- 203

-



### 8.4 Require applicant e xplain w hy t hey c annot m eet an e xisting DSW e xclusion

(a) COMMENTS : Several commenters supported EPA’s proposed requirement that facilities seeking non

- waste determinations to demonstrate why they cannot m eet, or should not have to meet, one of the existing exclusions under 40 CFR 261.2 or 261.4. [0032, 0038, 0177, 0179, 0225, 0251, 0257, 0270, 0272, 0333] One commenter agreed that, as a practical matter, it would seem facilities seeking such a determinatio n would have already evaluated existing exclusions before making an application for a non

- waste determination and thus requiring this information be provided to regulatory agencies should not be overly burdensome and should expedite regulatory agency revie w. [0038] Other commenters said that this requirement would reduce burden on states. [0177, 0257] A few commenters said that this slight reduction in burden may not be enough of an incentive for states to seek authorization for issuing non

- waste determinat ions. [0179, 0251, 0272]
(a) RESPONSE : EPA agrees with those commenters who supported this proposed change to require that petitioners explain or demonstrate why their hazardous secondary materials cannot meet, or should not have to meet, the existing DSW exclusions under 40 CFR 261.2 or 40 CFR 261.4. EPA agrees that this type of evaluation should already have been conducted by facilities that are formally petitioning the state or EPA for a non

- waste determination. This provision provides the regulatory aut hority with the information it needs, while helping to reduce the number of applications because facilities will be forced to evaluate whether an existing self

implementing exclusion may be used.
(b) COMMENTS : Some commenters opposed EPA’s proposed require ment that facilities seeking non

- waste determinations demonstrate why they cannot meet, or should not have to meet, one of the existing exclusions under 40 CFR 261.2 or 261.4. [0121, 0199, 0255]
One commenter said that there may be legitimate requests whe re the use of an existing exclusion is too close to call and the facility wants more comfort. [0199] Another commenter said that it understands that EPA is trying to reduce administrative burden on itself by requiring a person to demonstrate that a non

- was te determination is needed and another exclusion does not apply; however, it is usually the case that these are exactly the questions that the regulated community is asking of EPA. This commenter stated that it is unreasonable for EPA to place the burden o f interpreting EPA’s regulations on those who are regulated before consenting to conduct a non

waste determination. [0255]
One commenter said that a petitioner may seek a non

- waste determination as an alternative to a specific exclusion if, for example, it might create a conflict with the operation of an identical facility in a different state or EPA region. This commenter argued that consistency among the various states and EPA regions is not guaranteed and thus petitioners are often left with operating un

der different provisions under the regulations in different states. This commenter went on to say that, in some cases, the accepted provision in on e state, by definition, may negate the applicability of an accepted provision in another state and thus a pet itioner will be unwilling to provide justification for the purpose of receiving a non

- waste determination at the risk of disqualification of an accepted exclusion in another state or region for the same process. [0121]- 204

-

One commenter said that EPA must unde rstand that the bias of a facility is to try its best to use exclusions where possible and that the agency could always add conditions at their discretion. This commenter also said that these requests are also subject to public comment and response and the level of information required in the request should make it obvious if exclusions could potentially apply. [0199]
(b) RESPONSE : EPA does not agree with the opposing arguments presented by the commenters as a basis for not finalizing the proposed change. T hese arguments, including that a facility may want more comfort in a determination and that EPA shouldn’t put the burden on facilities to interpret regulations, are precisely why EPA and authorized states would benefit from receiving an explanation or demo nstration from the facility why they cannot or should not have to meet an existing exclusion. This information would enable regulatory authorities to review and resolve questions regarding whether a non

- waste determination may be warranted. Additionally, E PA does not find convincing the argument that a facility may be unwilling to provide justification at the risk of disqualification of an accepted exclusion in another state or EPA region. In fact, by finalizing this change, EPA is fostering greater consist ency in state

- to

- state interpretations.
Additionally, EPA disagrees that the public comment process would be sufficient for determining whether a facility could use an existing exclusion because (1) EPA finds it unlikely that many public comments would fo cus on other existing exclusions in the regulations; and (2) this undermines one of the purposes of the requirement, which is to reduce the number of non

waste determination petitions that are reviewed (and thus are published for public comment) in

or der t o reduce burden on states.



### 8.5 R egional a dministrator to approve v ariances and n on
- waste d eterminations

(a) COMMENTS : Several commenters disagreed with EPA’s proposed change to make the Regional Administrator, as opposed to Administrator, the decision

- maker in regards to granting solid waste petitions and non

- waste variances, since it would create the opportunity for in consistencies among regional interpretations. [0069, 0179, 0251, 0257, 0272, 0290, 0312] Some commenters requested that EPA clarify in the final rule that the petitions for a solid waste variance and non

- waste determination be sent to the “Regional Adminis trator or the Director of the authorized state.” [0032, 0177, 0225, 0257, 0290, 0293, 0351] One commenter said that EPA must clarify in the regulations and not the preamble that the authority to approve variances lies with the states. [0293] One commenter was surprised by the proposed elimination of the states’ role in this area of environmental regulation and requested that EPA not eliminate and reduce the states’ role. [0177] One commenter said that it is inconsistent for the EPA to propose taking back

su ch an important determination that should be made at a state level. [0236] One state disagreed that EPA’s concurrence should be required prior to an authorized state granting or denying requests for variances and non

- waste determinations. [0332]

One comme nter supported EPA’s proposed change to make the Regional Administrator the decision

- maker. [0333] One commenter recommended that the final rule stipulate that the EPA be the sole receiver, decision

- maker, and be responsible for granting or denying any sol id waste variance and non

- waste determination for the sake of national consistency. [0299]- 205

-

Some commenters said that EPA should be made available to provide guidance and perhaps review and comment on requests from the state or generator. [0177, 0205] One commenter argued that EPA is notoriously slow in its decision

- making process and thus vesting EPA with sole authority to make variance and non

- waste decisions should be avoided unless absolutely necessary. [0133]
(a) RESPONSE : EPA recognizes the commenters ’ concerns who argued that designating the Regional Administrator, rather than the Administrator, as the person responsible for evaluating such petitions and deciding whether to grant a solid waste variance or a non

- waste determination may increase inconsi stency by virtue of there being ten Regional Administrators as compared to the one Administrator. Because the Agency is striving for as much consistency as possible, we have decided not to finalize this proposed change.
EPA did not intend in the July 2011 proposed rule to undermine or remove the authority of State Directors of authorized states to grant or deny solid waste variances and non

- waste determinations and we regret the confusion. We have clarified in the preamble to the proposed rule that the rul

e does not change in any way the delegation of authority to states authorized to administer the hazardous waste regulations and thus, authorized states that have adopted these provisions may continue to evaluate and decide whether to grant a solid waste va riance or a non

waste determination, as they do currently. In response to the commenter who supported a clarification in the final regulatory language, we note that there are several places in the regulations that reference the role “Administrator” and tha t this role is delegated to the state when the state becomes authorized.
EPA, therefore, disagrees with the commenter who argued that EPA should be the sole authority to grant or deny variance and non

- waste determinations because this would be inconsisten t with an authorized state’s authority to conduct the RCRA program.
EPA will continue to be available to provide guidance and review and comment as necessary or upon request from the state or generator.


### 8.6 Require periodic r enewals

(a) COMMENTS : Some comm enters supported a periodic renewal requirement for variances and non

- waste determinations. [0177, 0244, 0321, 0332] One commenter said that this would achieve the goal of national consistency, transparency and environmental protection and argued that, whi le the proposed 40 CFR 260.33(c) would require applicants to re

- apply in the event of a change, these requirements are not the same as a regulatory re

- evaluation of a variance or non

waste determination. This commenter went on to say that, because these de terminations result in the lifting of potentially critical environmental safeguards, a periodic renewal should be required. This commenter stated that otherwise one is relying almost entirely on the exempted party to self

- report a change in circumstances t hat affects an existing exemption and, because of the economic disincentive to do so, there must be requirement to periodically re

- examine the variance or non

- waste determination. This commenter also said that another important benefit of a renewal is the accompanying public process, including public notice, opportunity to comment, and public hearings. [0244]- 206

-

A few commenters said that variances should be limited to five years. [0321, 0332] One commenter said that maximum time limit on Tennessee variances and exclusions is five years, after which reapplication by the generator and evaluation by the regulatory agency is required. [0177] One commenter said that an authorized state should be able to reserve the right to renew variances on a more frequent sched ule, if warranted by the facility’s compliance history or related enforcement issues. [0332]
(a) RESPONSE : EPA agrees with the commenters that supported a renewal requirement for solid waste variances and non

- waste determinations. Variances and non

- waste determinations are granted based on case

- specific circumstances of a particular hazardous secondary material being recycled. Many of the variance and non

- waste determination criteria specifically consider factors such as, the manner in which the hazardous secondary material is recycled, the market factors of the recycling process, the value of the hazardous secondary material, and contractual arrangements. However, these factors are not static and, instead, change and evolve over time. It is therefore prude nt that regulatory authorities periodica lly review these case

- specific situations to ensure that the hazardous secondary material continues to meet the criteria of the variance or

non

- waste determination. Therefore, EPA is adding a provision to 40 CFR 260. 33(d) that solid waste variances and non

- waste determinations shall be effective for a fixed term not to exceed 10 years, which is the same term limit for RCRA hazardous waste permits under 40 CFR 270.50(a).
EPA is establishing a time limit of ten years (rather than two or five years, as suggested in the July 2011 proposal) considering the need to provide regulatory certainty to support business investment, as well as the fact that 10 years is the same as the duration of RCRA permits under 40 CFR 270.50(a ). The ten

- year time frame also ensures that renewals occur regularly enough in order to evaluate significant changes in recycling processes, technologies, and market factors that may affect the terms of a variance or non

- waste determination.
(b) COMMENTS : Several commenters opposed a periodic renewal process for variances and

non

- waste determinations. [0032, 0038, 0058, 0097, 0107, 0179, 0199, 0233, 0251, 0257, 0272, 0315, 0351]
Some commenters said that a periodic renewal requirement is not necessary b ecause the proposed revision to 40 CFR 260.33(c), which requires the applicant to re

- apply in the event of change, provides sufficient means of oversight without burdening states to completely reevaluate the variance or non

- waste determination. [0179, 0251 , 0272, 0351] One commenter suggested that all variances and non

- waste determinations granted include the condition that the determinations become void if any of the facts described in the application change unless they receive a written determination for the petition grantor that the changes do not impact the decision. [0058]
A few commenters suggested a requirement for generators to “recertify” that they continue to meet the conditions of an approved variance or non

- waste determination on an annual or b iennial basis, rather than require a full application be submitted for renewal. [0032, 0038, 0257] One commenter said that if EPA is truly concerned about consuming agency resources, the requirement to renew periodically (e.g., every two or five years) sim ply does not make sense.- 207

-

[0199] A few commenters said that periodic renewal poses an undue burden on both the regulatory authorities and the regulated community. [0233, 0351]
One commenter said that, while there may be some merit to a renewal process on a two

- or five

year basis, making this a requirement may dissuade generators from seeking variance or non

waste determinations for no other reason than to avoid the bureaucratic exercise involved. [0038] Another commenter was concerned that a renewal proces s would discourage further investment in their catalyst reclamation business because of the uncertainty that EPA or a state may reverse its decision. [0315]
A few commenters said that the administrative authority already has discretion under 40 CFR 260.33 to require specific reporting, recordkeeping, and application renewal requirements as conditions of the variance determination. [0097, 0107, 0233]
(b) RESPONSE : EPA disagrees with those commenters who argued that periodic renewals would not be needed if EPA finalized the proposed change to require notice in the event of a change in circumstances that affect how a hazardous secondary material meets the conditions of a variance or, as currently required for a non

- waste determination. As one commenter noted, the requirement to provide notice in the event of a change relies on a facility self

- reporting that change and thus, this requirement may not be consistently implemented. A periodic time limit, in this case ten years, however, triggers a re

- review of the circumstances without relying on self

reporting by the facility.
EPA understands that the “recertification” process suggested by commenters may serve to reduce burden on states. However, a recertification process would not allow the public an opportunity to review and comment, as is provided in the full application process. Therefore, EPA finds that replacing a periodic renewal with a periodic recertification is not sufficient. Instead, in order to better address resource burden on states, EPA is establis hing a longer term limit of ten years, rather than the two to five years as suggested in the July 2011 proposal.
Regarding the commenter that argued that periodic renewals would disrupt business investment, EPA finds that a time limit of ten years (rather than two or five years, as suggested in the July 2011 proposal) is a sufficient amount of time to provide regulatory certainty to support business investment, given that ten years is the same as the duration of RCRA permits.
Furthermore, EPA disagrees wi th commenters who opposed this change on the basis that regulatory authorities already use discretion to review changes in circumstances. Relying on

case

- by

- case discretion to provide notice in the event of a change could allow certain hazardous secondary materials to remain excluded from Subtitle C regulation, despite a change in circumstances that renders the variance invalid and which could present a risk to human health and the environment. It would also contradict the Agency’s goal to foster greater co nsistency on the part of implementing agencies.
(c) COMMENTS : One commenter said that EPA should not add a periodic renewal to the final rule until EPA has proposed specific language. [0038]- 208

-

(c) RESPONSE : EPA asked for comment on whether to require vari ances and nonwaste determinations to be renewed peri odically, and, if so, what time period would be appropriate (e.g., two or five years). Additionally, EPA described in the preamble to the proposed rule the purpose of such a renewal period which would hel p ensure the hazardous secondary material s continue to meet the criteria and remai n valid over time. EPA also addressed how a renewal time limit would still be needed in light of notification, because notification still relie s on the applicant to recognize when there is a need to reconsider a va riance and take action, while a specif ic renewal period would mandate a reconsiderati on. EPA also considered, on the other hand, that mand ating a renewal period would be an addit ional burden to the states, and may no t be necessary in all situations and that regulators could always st ipulate time limits in specific de terminations, if warranted. EPA request ed comment on whether to require a re newal period and, if so, how to minimize the burden on the states. EPA finds that it sufficiently described the changes the Agency was considering in the preamble to the proposed rule and thus, after considering comments received, is able to appropriately make a decision in this final rule.



### 8.7 Require states to share copies of the petitions and tentative d ecisions with EPA

(a) COMMENTS : Several commenters opposed a requirement for states to share copies of the variance and non

- waste determination petitions and tentative decision with EPA for comment. [0032, 0038, 0058, 0159, 0177, 0233, 0251, 0257, 0290, 0332] A few commenters said that if the state is authorized to administer the RCRA Subtitle C program, then the state bears the responsibility to issue these decisions; EPA’s role is to conduct oversight reviews. [0032, 0257] Another commenter said that, under the provisions of 40 CFR 260.33, EPA already has the opportunity, as a member of the general public, to comment on proposed decisions. [0038] One commenter said that Tennessee is very diligent in processing its app lications and said that it is inconsistent that its inspectors are adequate to review the hundreds of recycling processes under current exclusions but are inadequate to make a determination on a case

- by

- case application. [0159] Another commenter argued tha t state authorities are in a much better position to evaluate these matters and that it is not uncommon for states to seek EPA guidance when required. This commenter stated that formalizing this relationship simply adds another layer of bureaucracy that wi ll burden regulators and result in unnecessary delays for generators and recyclers. [0233] Still another commenter said that New Hampshire already works very closely with their EPA region and thus this requirement is unnecessary. [0251] One commenter said that, although they are in favor of informing and seeking input from EPA, as needed, they disagreed that EPA concurrence should be required prior to granting or denying requests for variances and non

- waste determinations. [0332] One commenter strongly supp orted the existing system of state regulatory review and implementation rather than having this responsibility delegated solely to EPA. [0177] One commenter said that EPA could collect final decisions, provide data back to authorized states, and provide gu

idance on making determinations to improve consistency. [0058]
(a) RESPONSE : EPA recognizes commenters’ concerns who argued that requiring states to share copies of solid waste variance and non

- waste determination petitions with EPA for review and comment would likely increase the duration of the petition process. EPA also did not intend that this process would usurp an authorized state’s authority to grant or deny petitions. Therefore, EPA is not codifying this requirement in the final rule. EPA, however, will likely continue to- 209

-

work with the states in order to increase state

- to

- state consistency in such determinations and may pursue non

- regulatory efforts to collect and share solid waste variances and non

- waste determinations as part of implementing the f inal rule.
(b) COMMENTS : Some commenters supported a requirement to share with EPA copies of petitions and state’s draft decisions. [0179, 0244, 0272, 0351] One commenter said that this would formalize information sharing and increase transparency, encour age collaboration, and improve national consistency. [0244]
One commenter supported sharing copies of the variance and non

- waste determination with EPA for comment but questioned why this would be a regulatory requirement and said it seemed more appropri ate to have it in EPA and the state’s Memorandum of Understanding (MOUs). [0290] Another commenter agreed with sharing petitions but strongly disagreed with waiting on the EPA to review and confirm a state decision. [0351]
(b) RESPONSE : EPA acknowledges c ommenters who supported a requirement to share with EPA copies of the petitions in order to improve information sharing and increase transparency and national consistency. However, EPA finds that a regulatory requirement is not necessary to achieve this ob

jective and also agrees that a formalized EPA review will increase the duration of the review process. Instead, EPA may work with the states to pursue non

- regulatory efforts to collect and share solid waste variances and non

- waste determinations as part of implementing the final rule. These non

- regulatory efforts could consider using agreements, such as MOUs.
(c) COMMENTS : One commenter said that, if finalized, this process should be completely transparent and all communications and transmissions should be made a part of the permanent record. In addition, this commenter said a mechanism should exist that allows the petitioner the ability to seek the consistent application of the regulation and/or appeal inconsistent determinations. [0121]
(c) RESPONSE : EPA is not finalizing a formal process in the regula tions for reasons stated above and thus is not finalizing a mechanism that allows petitioners to appeal decisions. The existing variance and non

- waste determination process currently enables EPA to submit

co mments on a variance and non

- waste determination during the public comment process held by the state. By submitting comments, EPA’s comments become a part of the public record.
(d) COMMENTS : Some commenters encouraged EPA to develop an online list of vari ances and

non

- waste determinations issued by EPA and state programs to help promote consistency. [0179, 0244, 0251, 0272, 0304, 0312
, IL

- 0009] Other commenters were concerned with protecting a company’s confidential business information and proprietary ope ration information, so as not to provide an unfair advantage to competing companies. [0156, 0238, 0255] One commenter commended EPA for this bold plan and requested that EPA expand online access to include a list of use/reuse determinations, rulemaking var iances for the remanufacturing exclusion, and any other informal process being employed by regulatory agencies to exclude materials from RCRA in order to improve state

- to

- state consistency in determinations. [0312] One commenter agreed with sharing a copy of any final decision with EPA and other states. [0351]- 210

-

(d) RESPONSE : EPA acknowledges comments that supported development of an online list of variances and non

- waste determinations. Under the final rule, EPA is finalizing a requirement for facilities th

at are granted a variance or non

- waste determination to submit notification under 40 CFR 260.42. Additionally, EPA is also requiring notification under the remanufacturing exclusion. These notifications will enable EPA to provide public reports of who is o perating under these regulatory provisions.
EPA acknowledges commenters’ concerns regarding confidential business information. EPA will ensure that proper procedures are followed in regards to CBI prior to posting information publicly.
(e) COMMENTS : One commenter argued that, to restore a level of public participation comparable to that of other applications and permitting under RCRA, EPA should make petitions for variances and non

- waste determinations available online, in local newspapers, and in local public libraries before a determination has been made and should allow the public to oppose and request hearings on determinations. This commenter said that supporting documentation submitted for a petition should be publicly available on the designated we bsite. [0244]
(e) RESPONSE : The current procedure for evaluating variances and non

- waste determinations requires notification via newspaper advertisement or radio broadcast in the locality where the recycler is located. Additionally, the Administrator may hold a public hearing upon request. EPA acknowledges that this commenter suggests posting notice online and in libraries, in addition to local newspaper; however, EPA did not propose changes or request comment on the public comment process component of th e variance and non

- waste determination petition process and therefore is not finalizing changes in the final rule.
(f) COMMENTS : One commenter said that EPA should not add this requirement to the final rule until EPA has proposed specific language. [0038 ]
(f) RESPONSE : For reasons stated above, EPA is not finalizing this requirement in the final rule.
(g) COMMENTS : One commenter recommended that the rules be modified to remove the requirement to provide public notice and comment for applications that are denied. This commenter argued that, when applications are denied, public participation would add no value to the process and provide no environmental benefit. [0332]
(g) RESPONSE : EPA did not propose changes or request comment on the public comment pr ocess component of the variance and non

- waste determination petition process and therefore is not finalizing changes in the final rule.



## 9.0 Remanufacturing Exclusion 9.1 General c omments
(a) COMMENTS: One commenter argued against using the term “remanufacturing,” stating that the common sense definition of the term “remanufacturing” does not match EPA’s regulatory- 211

-

definition [0157]. Another commenter supported the fundamental goals of the remanufacturi ng exclusion but is not convinced that the approach EPA is taking will achieve those goals and avoid unintended consequences. However, the commenter did not specifically state what unintended consequences it was concerned with, other than to note that it u ses hazardous secondary materials as fuels in cement kilns [0165]. Two commenters stated that instead of proceeding with the remanufacturing exclusion, EPA should instead retain the transfer

- based exclusion. [0175, 0214]
(a) RESPONSE: EPA is not defining the term “remanufacturing” in the regulations but instead is promulgating a specific exclusion from the definition of solid waste that lays out in very specific terms the types of spent solvents used for specific chemical functions and then sent to a

reman ufacturer in one of four manufacturing sectors to be reclaimed into commercial

- grade solvents to be used again in a similar chemical function. The Agency has determined that this approach will achieve its goals of significantly lower life

- cycle environment al impacts while
, at the same time, reducing the regulatory barriers to recycling these higher

- value spent solvents. Also, EPA notes that commercial recyclers and RCRA

- permitted TSD facilities are eligible to reclaim a wide variety of hazardous secondary m aterials, including solvents, under the verified recycler exclusion, which is also being codified in today’s final rule.
(b) COMMENTS: Some commenters disagreed with EPA’s analysis of the benefits of remanufacturing spent solvents. One commenter argued tha t burning solvents in cement kilns has equal or better environmental benefits than remanufacturing spent solvents and found that EPA’s analysis of the benefits of remanufacturing versus burning for energy recovery was flawed [0269]. Another commenter did n ot think EPA’s technical analysis included an accurate representation of the waste management business and disagreed that merely removing a main regulatory barrier (i.e., eliminating the need for a RCRA permit) will result in large amounts of these solvent s being remanufactured. This commenter argued that the vast majority of the solvents targeted by this exclusion are too dirty to be reclaimed in a cost

- effective manner [0243].
(b) RESPONSE: EPA’s analysis was focused on specific higher

- value solvents bein g remanufactured into those same solvents to be use d in similar chemical functions and the environmental benefits associated with this type of recycling. Because of the limited nature of this exclusion, EPA ’s analysis was similarly limited. In addition, EP A recognizes that n ot all spent solvents will be good candidates for the remanufacturing exclusion . However, for those higher

- value solvents that are lightly contaminated, the Agency has determined that this exclusion will provide reduced barriers to reman ufacturing and encourage this specific type of reclamation.
(c) COMMENTS: Two commenters noted that use of the term “continuing use” in reference to post

- remanufacturing use of a reclaimed material is confusing and would prefer the term “subsequent use” i

n order to avoid confusion with a different RCRA concept of “continued use.” [0257, 0312]
(c) RESPONSE: EPA agrees that the terms can be confusing and has not used “continuing use” in the regulatory text of the remanufacturing exclusion.- 212

-

9.1.1 Support
(a) COMMENTS: Several commenters supported adding the remanufacturing exclusion to the definition of solid waste. [0146, 0161, 0177, 0179, 0233, 0266, 0271, 0313, 0351, 0364, TRANS

- PA

- 0002] One commenter supported the remanufacturing exclusion because (1) it i s less complex and more straightforward; and (2) it would be limited to 18 specific solvents listed in the exclusion. [0332] Some commenters also noted that they only support the remanufacturing exclusion if the transfer

- based exclusion is revised or repla ced with the alternative Subtitle C regulations. [0069, 0157] One commenter noted that they supported the concept of remanufacturing and agreed that commercial recyclers should not be eligible. [0177]
(a) RESPONSE: EPA appreciates the support for the reman ufacturing exclusion and is finalizing the exclusion largely as proposed in today’s final rule. EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to the list of 18 spent solvents, at least at this point in time. E

PA determined that these 18 spent solvents are good candidates for remanufacturing because the se higher

- value solvents are used in large volumes as processing aids and because there are existing markets for these solvents to be remanufactured to serve simi lar purposes to those of the original commercial

- grade materials. (b) COMMENTS: Several commenters supported the remanufacturing exclusion for its sustainability goals, but one did not support it if EPA was using the exclusion to simply replace the transfe r

- based exclusion. [0179, 0189, 0266, TRANS

- PA

- 0002]
(b) RESPONSE: EPA appreciates the support for the remanufacturing exclusion and notes that a primary reason for finalizing the exclusion is for the environmental benefits, especially in terms of sustaina bility. EPA is not using the exclusion to replace the transfer

- based exclusion and notes that the exclusion has been carefully crafted specifically for the remanufacturing of these higher

value spent solvents.
9.1.2 Do not support
(a) COMMENTS: Several com menters did not support the remanufacturing exclusion. [0159, 0197, 0272] Other commenters supported the goals of the remanufacturing exclusion but desired the exclusion to be done in its own rulemaking. [0032, 0038, 0225, 0257, 0270, 0290, 0321] Some comm

enters did not support the remanufacturing exclusion because specific regulatory language was not proposed. [0032, 0038, 0199, 0225, 0238, 0244, 0251, 0257, 0269, 0270]
(a) RESPONSE: EPA has determined that the preamble language discussing the remanufactur ing exclusion contained enough detail and information to allow comment on the proposed remanufacturing exclusion. In the July 2011 DSW proposal, the remanufacturing exclusion was presented in a narrative form that closely resembles the regulatory language being finalized today. The proposed rule also included a large amount of detail on the scope, applicability, and conditions of the remanufacturing exclusion. The proposal laid out exactly what solvents, industry sectors, and chemical functions were permiss ible in the remanufacturing exclusion. The proposal then clearly stated what was required for notification, the remanufacturing plan, records of shipments and confirmations of receipts, tanks and container management standards and the speculative accumulation requirement. EPA has determined that between the narrative and- 213

-

detailed explanation of the remanufacturing e xclusion, commenters were provided with more than enough information to comment on the remanufacturing exclusion, and thus, we are finalizing it in today’s final rule.
(b) COMMENTS: One commenter was worried that a failed remanufacturer would abandon the h azardous secondary material. [0058]
(b) RESPONSE: The economic incentives of manufacturing are different than typical hazardous waste recycling and will ensure that abandonment does not occur in remanufacturing. The economic incentive for a company receiving the spent solvents is to sell or directly use (avoiding purchase of virgin product) the remanufactured solvent products to realize an economic value. The company sending these higher

- value spent solvents for remanufacturing will have little economic incentive to pay the receiving company more than a nominal amount of money, since it w ill be transferring something of intrinsic market value (materials that can be easily remanufactured for profit). So, unlike the RCRA

- permitted waste handler which can charge a considerable fee for receiving discarded waste, the company receiving these higher

- value spent solvents for remanufacturing will realize most of its profit from the sale or use of the remanufactured solvents

. In addition, the requirement for the generator and the remanufacturer to produce a remanufacturing plan will also ensure the two parties have investigated the recycling opportunity to make sure it is feasible.
(c) COMMENTS: More than one commenter did no t like EPA’s characterization of third

- party commercial recyclers. [0165, 0367] Other commenters did not support the remanufacturing exclusion because RCRA

- permitted TSD facilities were not eligible to receive the hazardous secondary material. [0185, 0243, 0246]
(c) RESPONSE: EPA has determined that the remanufacturing exclusion should be limited to true manufacturers recycling specific higher

- value spent solvents used for specific chemical functions. However, commercial recyclers and RCRA

- permitted TSD fa cilities are eligible to reclaim a wide variety of hazardous secondary materials, including solvents, under the verified recycler exclusion, which is also being codified in today’s final rule.
(d) COMMENTS: Two commenters did not support the remanufacturin g exclusion because they argued that more environmental loopholes would be created. [TRANS PA 0004, TRANS PA 0005]
(d) RESPONSE: EPA disagrees that the remanufacturing exclusion will create environmental loopholes and notes that the conditions of the exclu sion have been determined to prevent discard. Those conditions include notification, a remanufacturing plan with a certification by the remanufacturer, recordkeeping, proper storage, and no speculative accumulation , All of the conditions of the exclusion m ust be met for the material to be excluded from the definition of solid waste

. (e) COMMENTS: One commenter stated that the remanufacturing exclusion may be more burdensome than § 261.6(c). [0199]- 214

-

(e) RESPONSE: EPA disagrees that the remanufacturing exclusi on is more burdensome tha n section 261.6(c)
, but notes that facilities are free to remain under section 261.6(c) instead of choosing to operate under the new remanufacturing exclusion in section 261.4(a)(27).
(f) COMMENTS: One commenter did not support the remanufacturing exclusion because the commenter argued the exclusion needed more transparency built in to allow public participation and environmental justice. [TRANS PA 0005]
(f) RESPONSE: EPA is codifying a narrow remanufacturing exclusion focused on 18 higher

value spent solvents that are used in four specific manufacturing sectors and remanufactured in those same sectors. EPA has determined that the conditions of the exclusion, which inc ludes notification, are sufficient to protect the public and additional participation requirements beyond what apply to traditional manufacturing are not necessary.



### 9.2 Conditions for exclusion

(a) COMMENTS: One commenter suggested EPA further investigate material specifications and shorter storage time frames at the remanufacturer and financial assurance. [0058]
(a) RESPONSE: The Agency has determined that the conditions of this narrowly

- focused remanufacturing exclusion are sufficient to allow for reduce d RCRA regulation while promoting the recycling of high

er

- value solvents. The Agency determined that the speculative accumulation time frame is sufficient for a storage time frame and financial assurance is not required since remanufacturers, as a type of intra

- industry recycler, profit primarily from the sale of their product and can switch their inputs between raw materials and hazardous secondary materials if market conditions shift. Thus, the economics of remanufacturing are similar to traditional manuf acturing and not the typical incentives seen with hazardous waste recycling, where financial assurance is necessary to prevent discard.
(b) COMMENTS: One commenter asked EPA to clarify that the presence of other solvents or water in the solvent to be reman ufactured or that the presence of by

- product solvent in the spent solvent does not negate the eligibility of the material for this exclusion. The commenter also asked EPA to clarify that the remanufacturing process does not need to recover all of the solve nt (meeting relevant specifications) to qualify for the exclusion. [0189]
(b) RESPONSE: As long as the solvent to be remanufactured is on the list of 18 spent solvents and the remanufacturer can process it to recover sufficient amounts of that solvent, the presence of water or other contaminants in minor amounts does not negate the exclusion. EPA notes that the remanufacture of the spent solvent must meet the legitimate recycling standard that applies to all hazardous secondary material recycling. Any resid uals from the remanufacturing process are subject to applicable hazardous waste regulations, including the hazardous waste determination requirements.
(c) COMMENTS: One commenter asked EPA to consider the reduced air requirements of 40 CFR 264.1058 or 265. 1058 because the burden of compliance will be reduced and will encourage use of the exclusion while not negatively impacting the environment. [0189]- 215

-

(c) RESPONSE: As a condition of the exclusion, during remanufacturing and during storage of the hazardous s econdary materials prior to remanufacturing, EPA is requiring compliance with the applicable Clean Air Act standards or the appropriate RCRA air emission standards, which are the same as the commenter requested as detailed in the regulatory language of 40 CFR 261.4(a)(27).
(d) COMMENTS: One commenter suggested expanding the remanufacturing exclusion to cleaning and degreasing solvents since they meet the exclusion’s purpose and intent. The commenter also stated the remanufacturing exclusion conditions, such as notification, preparation of a remanufacturing plan, maintenance of records of shipments, and hazardous waste container requirements, will discourage the use of the exclusion. The commenter went on to say the “contained” standard should apply to the re manufacturing exclusion so it would be easier to comply with the exclusions

. Lastly, the commenter stated that generators or reclaimers should not have to estimate the energy and environmental benefits of remanufacturing. [0201]
(d) RESPONSE: EPA disagrees that cleaning and degreasing solvents meet the remanufacturing exclusion’s purpose and intent. The remanufacturing exclusion’s purpose and intent is to encourage higher

- value solvents to be remanufactured and then used in similar chemical processes. The e xclusion focuses on the functions of aiding chemical manufacturing and processing because the solvents performing these functions retain their original physical and chemical properties. In these functions, the solvents are not contaminated by substances, s uch as inks and greases, which are difficult to separate, but are only mixed with pure product ingredients, from which they can be readily separated in a commercially feasible manner. Allowing cleaning and degreasing solvents does not coincide with the int ent of the exclusion to remanufacture “higher

- value” solvents back into solvents that can function in similar “high

value” ways. Therefore, these additional s olvents are not included in the remanufacturing exclusion. EPA does not agree that the conditions will discourage use of the exclusion since manufacturers are already using these chemicals and managing them in similar ways.
Finally, as part of the remanufacturing plan, the generator and remanufacturer are requir ed to identify the types and estimate the volumes of spent solvents but they will not be required to estimate the energy and environmental benefits of remanufacturing.
(e) COMMENTS: One commenter preferred full hazardous waste regulation over the proposed conditions. The commenter also wanted the remanufacturing plan to be updated by the generator and remanufacturer within a certain time frame. The commenter agreed with the use of a standardized bill of lading and standards identical to Subparts I and J. L astly, the commenter wanted speculative accumulation units to be labeled with an accumulation start date and documentation. [0251]
(e) RESPONSE: EPA notes that generators and remanufacturers can choose to continue to operate under full RCRA Subtitle C haza rdous waste regulations instead of using the remanufacturing exclusion if they prefer. EPA appreciates the support for the recordkeeping and storage standards. The Agency is requiring the remanufacturing plan to be developed and updated when necessary inst ead of updated in a certain time frame. EPA also notes that the- 216

-

speculative accumulation provision is being modified in today’s final rule to include recordkeeping.
(f) COMMENTS: The commenter states that the exclusion should specify that the solvents be used by the company that remanufactures the solvent and that the exclusion should not apply to commercial recyclers. The commenter stated that without this clarification, the exclusion would be too much like the transfer

- based exclusion. [0257]
(f) RESPONS E: EPA agrees that the remanufacturing exclusion is not applicable to commercial recyclers as laid out in the regulatory language which limits the exclusion to four specific manufacturing sectors. EPA determined that the remanufactured solvents could be us ed within those four sectors as long as they were used in high

- value processes again. The specific chemical functions allowed are reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions).
(g) COMMENTS: A few commenters stated that the basic notification, recordkeeping and accumulation requirements are reasonable. The commenters supported the use of routine business records for recordkeeping and stated that the container standards and air e missions requirements are feasible. [0266, 0002]
(g) RESPONSE: EPA appreciates the support for the remanufacturing exclusion and is finalizing the exclusion largely as proposed in today’s final rule, including requirements for notification, recordkeeping, storage, air emissions, and a limit on accumulation as provided by the speculative accumulation provision.
(h) COMMENTS: The commenter argued that the exclusion should be modified so solvents can be remanufactured by RCRA

- permitted recycling facilities. Th e commenter does not agree that the conditions for the exclusion are protective enough because of the potential risks during storage and operation and thus, the commenter suggested financial assurance for remanufacturers. The commenter also asked for publi c participation or regulatory agency approval for the remanufacturer. The commenter goes on to explain EPA has mischaracterized how RCRA

- permitted facilities operate in regards to over

- accumulation of wastes. The commenter claims they cannot think of a sin gle case where a permitted facility over

- accumulated secondary materials resulting in discard. Because of this, the commenter thinks the exclusion should be extended to permitted facilities and that the generator should document the arrangements in the rem

anufacturing plan. [0367]
(h) RESPONSE: As discussed in the market forces study in today’s docket, it is generally in the best interest of commercial third

- party recyclers to maximize the amount of hazardous secondary material they can accept to increase profits. This market structure creates a perverse market incentive to over

- accumulate hazardous secondary materials, which can result in discard, which the remanu

facturing exclusion seeks to avoid. The damage case study has ample evidence of commercial recyclers over

- accumulating and abandoning hazardous secondary materials, which resulted in damage to human health and the environment. In contrast, the market force s study shows that facilities engaged in industrial intra

- company recycling, where companies generate hazardous secondary materials as by

- products of their main production processes and recycle the- 217

-

hazardous secondary materials used in production, have mor e flexibility in waste management decisions than a commercial recycler does. When a commercial recycler’s primary or entire income is from accepting hazardous secondary materials for recycling and selling recycled products, there is no economic alternative if the market crashes to stay in business unless the company can afford the cost of a hazardous waste management permit and the cost of becoming a hazardous waste disposal facility. Remanufacturers, on the other hand, as a type of intra

industry recycler, profit primarily from the sale of their product and can switch their inputs between raw materials and hazardous secondary materials if market conditions shift. For these reasons, the remanufacturing exclusion is limited to four specific manufacturing sect ors and RCRA permitted facilities are not eligible. In addition, EPA does not agree that financial assurance is necessary for this specific exclusion for the same reasons.
EPA notes that permitted facilities are eligible to reclaim a wide variety of hazard ous secondary materials, including solvents, under the verified recycler exclusion, which is also being codified in today’s final rule.
9.2.1 Designated solvents
(a) COMMENTS: Commenters asked EPA to clarify if the exclusion covers only pure solvent formul ations or does it include substances like mineral spirits that may contain those solvents. The commenters then stated if EPA meant the latter, the designation as high

- value material is questionable. [0121, 0272]
(a) RESPONSE: EPA took comment on whether to expand the remanufacturing exclusion beyond the 18 higher

- value solvents and determined, at this time, to keep the eligible solvents at the original 18. EPA agrees with the commenter that the exclusion only covers those solvent formulations and does not i nclude other hazardous secondary materials that may contain some small amount of those 18 solvents in order to ensure that the materials are actually higher

- value solvents and fit the intent of the exclusion.
(b) COMMENTS: The commenter asked EPA to expan d the exclusion to all materials and industries that meet the requirement of encouraging sustainable materials management. The commenter also feared the value of the material may change due to market forces which could alter the material’s regulatory requi rements leading to uncertainty and reduction in commercial viability. [0121]
(b) RESPONSE: EPA does not agree with comments that suggested adding chemicals to the list, but did not provide specific data or information that would lead the Agency to add chem icals to th is specific exclusion at this point in time. While EPA may expand the list of eligible hazardous secondary materials for the remanufacturing exclusion based on additional data in the future , the currently available information only supports the inclusion of the proposed list of 18 spent solvents. EPA also notes that part of the reason for keeping the exclusion focused on 18 specific higher

- value solvents is to avoid issues related to changes in market forces that might reduce the viability of the remanufacturing operations.- 218

-

(c) COMMENTS: The commenter wanted to emphasize that just because a secondary material is reclaimed for a cleanup solvent does not mean the material is not “high value” or “of lesser quality” or that the secondary material shou ld only be considered for reduced regulatory burden for certain types of third

- party tolling. The commenter goes on to say their industry has moved away from use of most of the purported “high value” chemicals that EPA lists in the conditional exemption be cause most of the 18 compounds are defined as toxic substances and hazardous air pollutants under other statutes. The commenter’s association noted that they sometimes use virgin solvent for cleanup, similar to what would be used for process operations. Th e reclamation process used for the commenter’s materials is distillation. These reclaimed solvents are then reused in process operations. The purity may be the same as virgin solvents but there may be limitations to their use because the reclaimed solvents are blends. The commenter argued that even though they are used in different process applications than the original solvents, they are still a “high value” material.
The commenter is also concerned that the remanufacturing exclusion will further limit or greatly increase the cost of third

- party reclamation for its solvents, which will have a negative business impact. Lastly, the commenter stated that the bottom line is that it is management and oversight of the secondary material, not what people pay for i t or how they use it, which makes the reclamation legitimate. [0146]

(c) RESPONSE: EPA does not agree that the remanufacturing exclusion will significantly impact third

- party recycling since it is a narrow exclusion limited to remanufacturing 18 higher

- val ue spent solvents in four specific manufacturing sectors. Furthermore, EPA notes that third

- party facilities are eligible to reclaim a wide variety of hazardous secondary materials, including solvents, under the verified recycler exclusion, which is also b eing codified in today’s final rule.
EPA disagrees with those commenters who did not support including many of the identified solvents on the list because of their toxicity. In the 2011 DSW proposal, EPA acknowledged that the eligible solvents have suspect ed or recognized hazardous health effects associated with their manufacture, processing, and use. Although EPA and industry have been working to find substitutes for the more hazardous of these solvents or to find ways to use less of them, this has not yet been widely achieved. With respect to the pharmaceutical sector in particular, complex chemical processes already registered with the Food and Drug Administration are involved, making this a very challenging area to address in terms of chemical substitution and process changes. In addition, some of these solvents are building blocks and primary intermediate chemicals, making them difficult to replace. Until lower

- risk substitutes for t hese solvents are found, from a health risk standpoint it is preferable to minimize the volume of virgin solvents manufactured and to limit exposure to those already manufactured. This is something that the remanuf acturing exclusion can achieve.
(d) COMMEN TS: The commenter claims that the mere prospect of the designated solvents becoming speculatively accumulated or disposed of does not make them discarded or otherwise provide EPA with regulatory authority over such materials. [0175]
(d) RESPONSE: EPA disag rees with the comment er that EPA does not have the authority to regulate hazardous waste recycling , including the solvents designated as eligible for the- 219

-

remanufacturing exclusion . As EPA noted in the July 2011 DSW proposal, the RCRA statute and the legisl ative history show that Congress expected EPA to regulate as solid and hazardous wastes certain materials that are destined for recycling ( see 76 FR 44097, citing numerous sections of the statute and U.S. Brewers’ Association v. EPA , 600 F. 2d 974 (D.C. Ci r. 1979); 48 FR 14502

– 04, April 3, 1983; and 50 FR 616

– 618). Moreover, the case law discussed in today’s final rule clearly shows w here EPA has properly regulated the recycling of solid and haz ardous wastes.
(e) COMMENTS: The commenter supported the propos ed 18 designated solvents and did not want the list to be expanded. The commenter was worried about unexpected consequences coming from the new exclusion so the commenter suggested that EPA wait and see how the exclusion actually works. [0179]
(e) RESPONSE : EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to the list of 18 spent solvents, at least at this point in time. EPA determined that these 18 spent solvents are good candidates for remanufacturing because the y are used in large volumes as processing aids and because there are existing markets for all of these solvents to be remanufactured to serve similar purposes to those of the original commercial

- grade materials.
(f) COMMENTS: The commenter did not support the entire list of 18 solvents. The commenter did not support the inclusion of chloroform, chloromethane, ethyl benzene, xylene, methanol, and MTBE as eligible solvents for this exclusion. Chloroform has health and safety risks and lacks a current market. Chloromethane lacks a market and is a toxic gas at room temperature. Ethyl benzene and xylene are not “higher

- value” because current market conditions are such that the fee charged to reclaim them is less than the cost of incineration. Methanol had a low m arket value when recovered which results in the recycler charging the generator to reclaim the methanol. MTBE has a low demand since it is no longer used as a fuel additive so the commenter no longer recycles it. The commenter goes on to say generally the list of 18 solvents contains toxic chemicals so they do not reclaim them. [0243]
(f) RESPONSE: EPA disagrees with th e commenter who did not support including many of the identified solvents on the list because of their toxicity. In the 2011 DSW proposal, E PA acknowledged that the eligible solvents have suspected or recognized hazardous health effects associated with their manufacture, processing, and use. A lthough EPA and industry have been working to find substitutes for the more hazardous of these solvent s, or find ways to use less of them, this has not yet been widely achieved. With respect to the pharmaceutical sector in particular, complex chemical processes already registered with the Food and Drug Administration are involved, making this a very challe nging area to address in terms of chemical substitution and process changes. In addition, some of these solvents are building blocks and primary intermediate chemicals, making them difficult to replace. Until lower

- risk substitutes for these solvents are f

ound, from a health risk standpoint it is preferable to minimize the volume of virgin solvents manufactured and to limit exposure to those already manufactured. This is something that the remanuf acturing exclusion can achieve.- 220

-

In addition, EPA does not agr ee that charging a fee for reclaiming certain solvents makes them ineligible for the remanufacturing exclusion. As part of proposing this exclusion, EPA determined that there are existing markets for each of the 18 designated solvents to be

r emanufactured into new solvents and to be used again for similar uses in the four specific sectors.
(g) COMMENTS: The commenter did not want the list of 18 solvents to be expanded until the utilization, effectiveness, and safety of the exclusion could be evaluated. [02 51] The commenter was also concerned that given the complexity of corporate ownership structures, the exclusion could be utilized by a waste management division of a large corporation whose primary business is manufacturing. [0251, 0272]
(g) RESPONSE: EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to the list of 18 spent solvents, at least at this point in time. EPA determined that these 18 spent solvents are good candidates for remanufacturing because they

are used in large volumes as processing aids and because there are existing markets for all these solvents to be remanufactured to serve similar purposes to those of the original commercial

grade materials.
EPA has required a remanufacturing plan as one of the conditions of the exclusion, which includes a certification by the remanufacturer that the facility is a remanufacturer under one of the four eligible sectors. This requirement will limit the exclusion to real manufacturers.
(h) COMMENTS: The commenter w ished for EPA to expand the list of chemicals because in many cases the listed chemicals are used as reaction media, as chain link terminators in polymerization reactions, and even as ingredients. Thus, the commenter stated that EPA should include all mate rials that are (i) used in reactors, extractors, purifiers, or blending equipment in pharmaceutical, organic chemical, or plastics and resin manufacturing and (ii) remanufactured and reused as high

- value products. The commenter also asked for benzene, acet one, and isopropyl alcohol to be added to the eligible chemicals list. These three chemicals typically become mixed with pure product ingredients that can readily be separated, allowing the reuse of both. [0742, 0002]
(h) RESPONSE: EPA does not agree with comments that suggested adding chemicals to the list, but did not provide specific data or information that would lead the Agency to add these chemicals to the list at this point in time. While EPA may expand the list of eligible hazardous secondary materi

als for the remanufacturing exclusion based on additional data, the currently available information only supports the inclusion of the proposed list of 18 spent solvents. In addition, EPA notes that recycling facilities are eligible to reclaim a wide variety of hazardous secondary materials, including those solvents that are not eligible for the remanufacturing exclusion, under the verified recycler exclusion, which is also being codified in today’s final rule.
(i) COMMENTS: The commenter agrees that t he proposed solvents are appropriate for remanufacturing and supports the sustainable use of those solvents. [0351]- 221

-

(i) RESPONSE: EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to the list of 18 spent solvents, at least at this point in time. EPA determined that these 18 spent solvents are good candidates for remanufacturing because they are used in large volumes as processing aids and because there are existing markets for all these solvents to be remanufacture d to serve similar purposes to those of the original commercial

grade materials.

9.2.2 Chemical functions
(a) COMMENTS: The commenter argues that EPA is overstating the significance of a product serving the same function as the original spent material. Thi s commenter thinks a material can serve a new purpose or be incorporated into a new product and not be considered “discarded” within the ordinary meaning of the term. The commenter quotes RCRA legislative history saying some waste is reclaimed or put to a new use and is not part of the discarded materials disposal problem. Finally, the commenter says the new type of product remains “in commerce” to the same extent as a secondary material that is simply remanufactured to its original state. [0175]
(a) RESPONSE: While EPA agrees that some materials can be recycled and not be subject to EPA’s authority, in general, without this exclusion, these 18 designated solvents would be regulated when they are spent and no longer able to serve their useful purpose. Thus, EPA is establishing the remanufacturing exclusion to allow them to be remanufactured (through reclamation) into a new product, provided the conditions of the exclusion are met. EPA is focusing on these specific solvents used in specific chemical func tions because in these functions, the solvents are not contaminated by substances, such as inks and greases, which are difficult and costly to separate.

9 .2.3 Manufacturing sectors
(a) COMMENTS: The commenter does not agree with EPA’s comments about commer cial recyclers over

- accumulating. The commenter says, “Just because there may be an incentive to

over

- accumulate does not mean all (or even most) commercial recyclers do so.” The commenter also argues that commercial recyclers legitimately recycling materi als can hardly be said to be discarded just because EPA says so. [0175]
(a) RESPONSE: As evident in the damage case study and the market forces study, which are background documents for both the 2008 DSW final rule and the 2011 DSW proposed rule,

over

- acc umulation has been and continues to be an issue for the commercial hazardous waste recycling industry. EPA agrees that not all commercial recyclers over

- accumulate, but we have determined that the remanufacturing exclusion should be narrowly defined and fo cused. Commercial recyclers have the option of using today’s verified recycler exclusion if they so choose.
(b) COMMENTS: This commenter is pleased that EPA included the pharmaceutical and basic organic chemical manufacturing sectors in the remanufacturing exclusion. The commenter also agrees with EPA that the remanufacturing exclusion will enable industry to increase recycling. [0266]- 222

-

(b) RESPONSE: EPA appreciates the support for the remanufacturing exclusion and is finalizing the exclusion largely as prop osed in today’s final rule. EPA agrees with those commenters who supported the remanufacturing exclusion and limiting it to four specific manufacturing sectors.
(c) COMMENTS: The commenter recommended including the emerging biofuels sector and any handlers that recycle K061 electric arc furnace dust for the recovery of zinc to the listed manufacturing sectors in the remanufacturing exclusion. [0299]
(c) RESPONSE: EPA acknowled ges that the industry sectors that were nominated for inclusion in the remanufacturing exclusion participate in recycling activities; however, these sectors’ recycling activities do not include the types of practices or functions that are within the scope of the remanufacturing exclusion. Th is commenter suggested industries that send their hazardous secondary materials to a third party, who is not necessarily a manufacturer, but a facility that would recover the hazardous secondary material and who would th en sell the recycled product to another person.
As discussed in the market forces study in today’s docket, it is generally in the best interest of commercial third

- party recyclers to maximize the amount of hazardous secondary material they can accept to i

ncrease profits. This market structure creates a perverse market incentive to over

accumulate hazardous secondary materials, which can result in discard, which the remanufacturing exclusion seeks to avoid. In contrast, the market forces study shows that fa cilities engaged in industrial intra

- company recycling, where companies generate hazardous secondary materials as by

- products of their main production processes and recycle the hazardous secondary materials used in production, have more flexibility in wast e management decisions than a commercial recycler does. When a commercial recycler’s primary or entire income is from accepting hazardous secondary materials for recycling and selling recycled products, there is no economic alternative if the market crashe s to stay in business unless the company can afford the cost of a hazardous waste management permit and the cost of becoming a hazardous waste disposal facility. Remanufacturers, on the other hand, as a type of intra

- industry recycler, profit primarily fro m the sale of their product and can switch their inputs between raw materials and hazardous secondary materials if market conditions shift.
It is also not clear that the suggested industry sectors will know what function their hazardous secondary materials will be used for after remanufacturing. As discussed previously, the remanufacturing exclusion encourages higher

- value materials to be remanufactured and then used in the same high

- value processes again. Furthermore, this exclusion focuses on the function s of aiding chemical manufacturing and processing because the solvents performing these functions retain their original physical and chemical properties. In these functions, the solvents are not contaminated by substances, such as inks and greases, which a re difficult to separate, but only mixed with pure product ingredients, from which they can be readily separated in a commercially feasible manner. T he suggested industry sectors provided by commenters do not appear to coincide with the intent of remanufac turing high

- value hazardous secondary materials that retain their original physical and chemical properties. Therefore, these additional sectors will not be included in t oday’s remanufacturing exclusion.- 223

-

(d) COMMENTS: The commenter suggested including comp anies such as Safety

- Kleen, with a Part “B” hazardous waste treatment facility permit. [0351]
(d) RESPONSE: EPA acknow ledges that the industry sector that was nominated for inclusion in the remanufacturing exclusion participate s in recycling activities; ho wever, these sectors’ recycling activities do not include the types of practices or functions that were within the scope of the remanufacturing exclusion. The commenter suggested industries that send their hazardous secondary materials to a third

- party rec ycler , who is not necessarily a manufacturer, but a facility that would recover the solvent or other hazardous secondary material and who would then sell the recycled product to another person. While having a part B RCRA permit ensures the storage and recy cling are adequately regulated, commercial recyclers do not fit within the scope of the remanufacturing exclusion.
It is also not clear that the suggested industry sectors will know what function the hazardous secondary materials will be used for after re manufacturing. As discussed previously, the remanufacturing exclusion encourages higher

- value materials to be remanufactured and then used in high

- value processes again. Furthermore, th e remanufacturing exclusion focuses on the functions of aiding chemical manufacturing and processing because the solvents performing these functions retain their original physical and chemical properties. In these functions, the solvents are not contaminated by substances, such as inks and greases, which are difficult to sepa rate, but only mixed with pure product ingredients, from which they can be readily separated in a commercially feasible manner. The suggested industry sector provided by the commenter do es not appear to coincide with the intent of remanufacturing hazardous secondary materials that retain their original physical and chemical properties. Therefore, th is additional sector will not be included in the remanufacturing exclusion.

In addition
, EPA notes that recycling facilities with RCRA part B permits are eligibl e to reclaim a wide variety of hazardous secondary materials under the verified recycler exclusion, which is also being codified in today’s final rule.

9.2.4 Notification
(a) COMMENTS: Several commenters were in favor of requiring notification for the

rema nufacturing exclusion. [0094, 0299] One commenter specified that notification should be done every other year and biennial reporting of the quantities of excluded recycled wastes should be an added requirement. [0094]
(a) RESPONSE: EPA agrees with the comm enters and has included a biennial notification requirement in the remanufacturing exclusion at 40 CFR 261.4(a)(27)(vi)(A).
(b) COMMENTS: The commenter stated that notification for ceasing to manage hazardous secondary materials under the remanufacturing exclusion is an unnecessary burden. The commenter suggested making the notification due in 60 days instead of 30 days because it is difficult to acquire the necessary signatures within 30 days. [0143]- 224

-

(b) RESPONSE: EPA disagrees that requiring notification when the facility ceases to manage hazardous secondary materials under the remanufacturing exclusion is unnecessary and burdensome. The form is a fairly simple, well

- known electronic form that the companies will have already used to notify of their intent to use the remanufacturing exclusion so the Agency finds it is reasonable to require its use when the companies decided to end their remanufacturing process. In addition, the Agency finds that 30 days is a reasonable amount of time to use the form and obt ain the necessary signatures.
(c) COMMENTS: The commenter proposed that after the initial notification of excluded/exempt activity, instead of requiring updated notification every two years, EPA should make the requirement to re

- notify only when key pieces of information change, such as facility name; owner/operator; or the type of regulated activities. [0257]
(c) RESPONSE: EPA has determined that it is easier on facilities and regulatory authorities to require re

- notification every two years instead of onl y when a change occurs. This eliminates confusion over how much of a change would require re

- notification, ensures that the information provided to and used by regulatory authorities remains meaningful and up

- to

- date, and enables the implementing agencies to adequately monitor compliance of those facilities claiming the remanufacturing exclusion.
9.2.5 Remanufacturing plan
(a) COMMENTS: The commenter was concerned that the remanufacturing plan was burdensome. The commenter argues that the original notificat ion would provide the state and EPA enough information and if more information was needed, that could be requested of the facility on a case

- by

- case basis. The biggest concern came from the requirement to jointly create the remanufacturing plan. The commen ter states this could lead to unnecessary transaction costs and limit the speed and flexibility with which new combinations of generators and remanufacturers could begin operations. Lastly, the commenter doubted resource

- strapped agencies would ever read t he reports. [0266]
(a) RESPONSE: EPA has determined that the remanufacturing plan is a necessary condition of the exclusion to ensure that the generator and remanufacturer have the resources and expertise to undertake the remanufacturing and meet the terms of the exclusion. In addition, the plan is to be maintained on

- site, where it can be readily accessed by a state inspector. It is not required to be submitted to the state agency.
9.2.6 Record of shipments
(a) COMMENTS: The commenter agreed that specific information must be included in the record but argued that a manifest is also necessary and would create standardized recordkeeping. [0058]
(a) RESPONSE: EPA disagrees that a manifest is necessary and has determined that keeping standard business records o f shipments and confirmation of receipts for 3 years is sufficient to be able to track the shipments of hazardous secondary materials.- 225

-

(b) COMMENTS: The commenter did not support standardized shipping records because it would interfere with companies’ business practices. [0266]
(b) RESPONSE: EPA agrees that normal business shipping records are sufficient and is not requiring standardized shipping reco rds.
(c) COMMENTS: The commenter notes that the remanufacturing exclusion would not change the requirements in Kentucky without a statutory change. Therefore, authorized states could design compliance review forms for inspectors to use while on inspection s. [0351]
(c) RESPONSE: EPA agrees that authorized states can be more stringent than the federal RCRA program and can design their inspection forms in any manner they wish.
(d) COMMENTS: One state commented that for ease of enforcement, all information sho uld be required to be immediately available to RCRA inspectors.
(d) RESPONSE: EPA has determined that the recordkeeping requirements for the remanufacturing exclusion include maintaining an up

- to

- date remanufacturing plan and records of shipments and conf

irmation of receipts for a period of three years from the date of shipments.
9.2.7 Management in tanks and containers
(a) COMMENTS: The commenter supported establishing technical standards for tanks and containers that would be the same as those found in 40 CFR part 264 subparts I and J. [0058]
(a) RESPONSE: EPA agrees with the commenter and has finalized very similar technical standards for tanks and containers used in the remanufacturing exclusion in 40 CFR part 261 subparts I and J.
(b) COMMENTS: The co mmenter supported using the technical standards of the National Emission Standards for Hazardous Air Pollutants (NESHAP) where applicable or standards equivalent to those found in 40 CFR part 264 or 265 subparts AA, BB and CC. [0058]
(b) RESPONSE: EPA agre es with the commenter and has finalized similar technical air emission standards for tanks and containers used in the remanufacturing exclusion in 40 CFR part 261 subparts AA, BB, and CC.
(c) COMMENTS: The commenter recommended eliminating all of the information from the “Management in Tanks and Containers” section and simply requiring compliance with 40 CFR parts 264 and 265 subparts I and J. [0299]

(c) RESPONSE: EPA agrees with the commenter that comp liance with 40 CFR parts 264 subparts I and J technical standards are appropriate for these hazardous spent solvents but in order to use language appropriate for excluded material, the Agency has finalized very similar technical standards for tanks and con tainers in 40 CFR part 261 subparts I and J.- 226

-

(d) COMMENTS: The commenter stated that the proposed conditions were sufficient, provided that part 265 subparts I and J are used instead of part 264 for tanks and containers and the closure plan and financial a ssurance requirements were excluded. [0351]
(d) RESPONSE: EPA has finalized very similar technical standards as those found in 40 CFR part 264 subparts I and J for tanks and containers in 40 CFR part 261 subparts I and J . There are slight substantive diffe rences between the part 264 and 265 standards and since the commenter did not explain their reasoning, we are finalizing technical standards modeled on part 264. Because the facilities eligible for the remanufacturing exclusion have to be manufacturers, EP A determined financial assurance was not necessary. In addition, a closure plan is not required but when the use of the u

nit(s) managing excluded hazardous spent solvent is ultimately discontinued, all owners and operators must manage any remaining hazardo us spent solvents that are not remanufactured as hazardous waste and remove or decontaminate all hazardous residues and contaminated containment system components, equipment structures, and soils. These hazardous spent solvents and residues, if no longer i ntended for remanufacturing, would also no longer be eligible for the exclusion (which only applies to materials that will be remanufactured) and would therefore be hazardous waste. These systems would be subject to the requirements for product tanks under 40 CFR 261.4(c), which allow 90 days for removal of hazardous material after the unit ceases to be operated for manufacturing.
9.2.8 No speculative accumulation
(a) COMMENTS: The commenter agreed that not having an accumulation time or quantity limit othe r than speculative accumulation will allow small businesses to accumulate quantities sufficient for shipment directly to remanufacturers. [0272]
(a) RESPONSE: EPA agrees that small businesses need more time to accumulate the quantities necessary for utiliz ing the remanufacturing exclusion and is allowing accumulation up to the speculative accumulation time frame.
9.2.9 Other suggested conditions
(a) COMMENTS: The commenter was concerned that market conditions and the possibility of poor quality material b eing managed under this exclusion may result in abandonment of this material by an unsuccessful remanufacturer. The commenter supported financial assurance on those facilities to ensure against discard and notification to monitor compliance. Lastly, the

co mmenter did not see the need for an approval process and stated that without an approval process, a public participation process would be overkill. [0058]
(a) RESPONSE: EPA has determined that financial assurance is not necessary for the limited remanufact uring exclusion because it is limited to manufacturers and specific higher

- value solvents that will be remanufactured into the same high

- value solvents and used in similar chemical functions. EPA is requiring the same notification that is required of the o ther recycling exclusions under 40 CFR 260.42. While the exclusion also requires the generator and the remanufacturer to work together on a remanufacturing plan, it is not subject to approval and there is no specific public participation requirement.- 227

-

(b) C OMMENTS: The commenter argued that notification, the remanufacturing plan, tank and container standards, and financial assurance are all in the nature of regulations and are not relevant to defining discard. The commenter also argued that a public particip ation process would not define the absence of discard. [0175]
(b) RESPONSE: EPA disagrees with the commenter and has determined that the conditions of the exclusion, taken as a whole, work to prevent discard. The Agency also notes that there is no specific financial assurance or public participation process required as part of the remanufacturing exclusion.

(c) COMMENTS: The commenter suggested using the “contained” policy instead of the requirements in 40 CFR part 264 subparts I and J, because it would be sufficiently protective of human health and the environment while encouraging remanufacturing. [0233]
(c) RESPONSE: EPA disagrees that the contained standard is sufficient for the remanufacturing exclusion. The hazardous secondary materials eligible to be reclaimed under this exclusion are all hazardous solvents in liquid form. Although the 40 CFR part 264 tank and container standards were developed for hazardous wastes, an analysis was done for the 2011 DSW proposed rule which showed that they were compara ble to product storage standards, including regulations promulgated under OSHA, DOT, and industry standards. In addition, the tank and container technical standards have the benefit of being standards that the regulated community is familiar with and are d esigned to prevent the spent solvents from being discarded through leaks or explosions.
(d) COMMENTS: The commenter asked EPA to clarify what happens to “non

- usable” portions that are created by the remanufacturing process (e.g., still bottoms from solven t distillation and any other intermediates that serve no economic purpose). The commenter thinks those materials would fall under Subtitle C regulations. The commenter also recommended that all five conditions from “Conditions for the Re

- Manufacturing Excl usion” be met simultaneously and that all five conditions be of equal importance. The commenter asked EPA to clarify whether the conditions are limited only to the industrial sectors mentioned or if other sectors can be included. Lastly, the commenter aske d if under the condition in 5(d) would there be a requirement for Professional Engineer certification on tank used. [0299]
(d) RESPONSE: EPA is clarifying that any residuals from the remanufacturing process are newly generated waste that are subject to a h azardous waste determination and management as hazardous waste if found to be hazardous. All the conditions of the exclusion apply and have equal weight. The exclusion is limited to the four manufacturing sectors listed: pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and paints and coatings manufacturing sectors (NAICS 325510). EPA also notes that as part of meeting the technical standards, tanks need to be assessed and a written assessment reviewed and certified by a qualified Professional Engineer. This written assessment w ill need to be kept on file at the remanufacturer’s facility or other facility that stores or treats the hazardous secondary material th at attests to the tank system's integrity.- 228

-



### 9.3 Potential rulemaking variance process to add candidates 9.3.1 General comments

(a) COMMENTS: The commenter supports a specific petition process for requesting a hazardous secondary material, industry sector, and/or functional use be added to the exclusion. [0058]
(a) RESPONSE: EPA has determined that a separate rulemaking petition process is not necessary and that the current process in 40 CFR 260.20, including the administrative procedure for processing the petition is the best vehicle for addressing additional hazardous second ary materials, industry sectors, and/or functional uses to be added to the remanufacturing exclusion. Given the variety of hazardous secondary materials, manufacturing processes, and markets for potential remanufactured materials, a general process gives t he most flexibility for petitioners to submit information on potential excluded materials. EPA makes it clear in the final rule that this petition process is available for other hazardous secondary materials to be added to the remanufacturing exclusion if sufficient information is provided in the petition showing the hazardous secondary material(s) is a suitable candidate.
(b) COMMENTS: The commenter stated that a petition process to remove a material or an industry could lead to uncertainty and reduce the commercial viability of the recycling efforts. If the process and materials are unchanged, based on the information provided to obtain the exclusion, then the ability to operate under the exclusion should remain unchanged. [0121]
(b) RESPONSE: EPA does no t agree with the commenter that petitions to remove a material or an industry from the remanufacturing exclusion should be banned. New information could be produced that would warrant a petition for removal of a material or an industry. Therefore, EPA has determined that the current rulemaking petition process in 40 CFR 260.20, including the administrative procedure for processing the petition is the best vehicle for removing or adding additional hazardous secondary materials, industry sectors, and/or funct ional uses to the remanufacturing exclusion.
(c) COMMENTS: The commenter supports a petition process and urged EPA to adopt the petition process. The commenter stated that as people become familiar with the exclusion, and as new material usages and new app lications arise, they will call for similarly valuable solvents

– and other materials

– to be exempted. The commenter also added that such a petition process would not increase the risk of discard because the Administrator would have to be convinced that t he addition would not do so. [0266]
(c) RESPONSE: EPA has determined that a separate rulemaking petition process is not necessary and that the current process in 40 CFR 260.20, including the administrative procedure for processing the petition is the best vehicle for addressing additional hazardous secondary materials, industry sectors, and/or functional uses to the remanufacturing exclusion. Given the variety of hazardous secondary materials, manufacturing processes, and markets for potential remanufacture d materials, this general petition process gives the most flexibility for petitioners to submit information on potential excluded materials and for the implementing agencies to address such petitions

.- 229

-

(d) COMMENTS: The commenter argued that the petition pr ocess should only be addressed by EPA, not at the state level, so that there would be regional and national consistency. [0299]
(d) RESPONSE: EPA does not agree that EPA, rather than the authorized state, should determine the outcome of the petition if the state has been authorized for reviewing and granting petitions. EPA has determined that a separate rulemaking petition process is not necessary and that the current process in 40 CFR 260.20, including the administrative procedure for processing the petiti on is the best vehicle for addressing additional hazardous secondary materials, industry sectors, and/or functional uses to the remanufacturing exclusion.

(e) COMMENTS: The commenter supported the petition process for other high

- value materials if the aut horized state is the primary reviewer, or with 30 days maximum for EPA review if the Agency must be the main decision

- maker. The process laid out in the proposal of regulatory adoption is unnecessarily burdensome. The state should adopt the petition proces s and requirements in regulation, file for authorization, and then follow the rules. The commenter deferred to industry for comments on other possible processes eligible for the remanufacturing exclusion. [0351]
(e) RESPONSE: EPA has determined that a sepa rate rulemaking petition process is not necessary and that the current process in 40 CFR 260.20, including the administrative procedure for processing the petition is the best vehicle for addressing additional hazardous secondary materials, industry sector s, and/or functional uses to the remanufacturing exclusion. If the state is authorized for the petition process in 40 CFR 260.20, then the state will review the petition. If the state is not authorized, EPA is the implementing agency and responsible for re viewing and acting on petitions filed under this provision.
(f) COMMENTS: The commenter urged EPA to develop a standard petition process so that interested persons could propose additional solvents for the exemption. The commenter thinks that as people bec ome familiar with the exclusion, there will likely be a call for similarly valued solvents to be exempted. [0002]
(f) RESPONSE: EPA has determined that a separate rulemaking petition process is not necessary and that the current petition process in 40 CFR 260.20, including the administrative procedure for processing the petition , is the best vehicle for addressing add ing add itional hazardous secondary materials, industry sectors, and/or functional uses to the remanufacturing exclusion. Given the variety of hazardous secondary materials, manufacturing processes, and markets for potential remanufactured materials, this general, established process is best suited for petitioners to submit information on potential excluded materials and for implementing agencies to address petitions.
9.3.2 Specific candidates
(a) COMMENTS: The commenter suggested expanding the remanufacturing exclusion to petroleum refineries (NAICS 324110), frequently associated petrochemical manufacturers (NAICS 325110) and synthetic rubber man ufacturers (NAICS 325212). These three sectors are significant generators of spent solvents. The commenter also suggested adding spent- 230

-

hydroprocessing catalysts from petroleum refineries to the remanufacturing exclusion because they are relatively high

- val ue secondary materials, given their valuable metals content (e.g., vanadium, nickel, molybdenum, cobalt). Spent catalysts are frequently regenerated or “remanufactured” so that they can substitute for virgin catalysts at refineries. [0175]
(a) RESPONSE: EP A acknowledges that the industry sectors that were nominated for inclusion in the remanufacturing exclusion participate in recycling activities; however, these sectors’ recycling activities do not include the types of practices or functions that fit within the scope of the remanufacturing exclusion. Under the remanufacturing exclusion, a manufacturer m ust send their hazardous secondary material to another manufacturer, from one of the permissible industry sectors, provided that the remanufacturer uses the hazardous secondary material in one of the four permi

ssible functions. The commenter suggested industry sectors that send their ha zardous secondary materials to third party recyclers who have to regenerate the solvents and/or catalysts before they can be reused at the refineries or related facilities.
As discussed previously, the remanufacturing exclusion encourages higher

- value materials to be remanufactured and then used in high

- value processes again. Furthermore, this exclusion focuses on the f unctions of aiding chemical manufacturing and processing because the solvents performing these functions retain their original physical and chemical properties. In these functions, the solvents are not contaminated by substances, such as inks and greases, which are difficult to separate, but only mixed with pure product ingredients, from which they can be separated readily in a commercially feasible manner. T he suggested industry sectors provided by the commenter do not appear to coincide with the intent of remanufacturing high

- value hazardous secondary materials that retain their original physical and chemical properties. Therefore, these additional sectors will not be included in the remanufacturing exclusion.

In addition, EPA does not agree with the comm enter that spent hydroprocessing catalysts should be added to the exclusion
, because the commenter did not provide specific data or information that would lead the Agency to add these hazardous secondary materials to the list at this point in time. While E

PA may expand the list of eligible hazardous secondary materials for the remanufacturing exclusion in the future based on additional data, the currently available information only supports the inclusion of the proposed list of 18 spent solvents.
(b) COMME

NTS: The commenter suggested adding spent catalysts to the remanufacturing exclusion. [0189]
(b) RESPONSE: EPA does not agree with the commenter that spent catalysts should be added to the list, because the commenter did not provide specific data or inform ation that shows that spent catalysts meet the intent of the remanufacturing exclusion. W hile EPA may expand the list of eligible hazardous secondary materials for the remanufacturing exclusion in the future based on additional data, the currently availabl e information only supports the inclusion of the proposed list of 18 spent solvents

. (c) COMMENTS: The commenter suggested extending the remanufacturing exclusion to refractory recycling programs undertaken by fiber glass manufacturers. They state that the se- 231

-

refractories qualify as “higher

- value hazardous secondary materials,” and there are significant environmental benefits from the recycling of refractories. [0241]
(c) RESPONSE: EPA does not agree with the commenter that refractory recycling programs shou ld be added to the exclusion
, because the commenter did not provide specific data or information that shows why the materials would qualify as “higher

- value” and meet the intent of the remanufacturing exclusion. While EPA may expand the list of eligible ha zardous secondary materials for the remanufacturing exclusion in the future based on additional data, the currently available information only supports the inclusion of the proposed list of 18 spent solvents.
(d) COMMENTS: The commenter suggests expanding the remanufacturing exclusion to scrap metal, scrap tires, and K061. The commenter suggested EPA should allow broad access to the remanufacturing exclusion as facilities invest heavily in manufacturing processes that use previously spent materials. The com menter was concerned that such a narrow exclusion will cause materials with value to slip through and instead be regulated as solid wastes instead of byproducts and co

- products that are used in the manufacturing process. [0260]
(d) RESPONSE: EPA does not a gree with the commenter that scrap metal, scrap tires and K061 should be added to the remanufacturing exclusion. First, the commenter did not provide specific data or information that shows how these materials meet the intent of the remanufacturing exclusi on. Second, scrap metal already has an exclusion from the definition of solid waste when recycled. Scrap tires are generally not hazardous and typically are regulated under State solid waste management authorities. K061 is typically recycled by third

- party recyclers and does not fit the model of the remanufacturing exclusion. In addition, K061 is eligible to be reclaimed under the verified recycler exclusion, which is being codified in today’s final rule.
(e) COMMENTS: Several commenters suggested expanding the remanufacturing exclusion to include metal

- bearing hazardous secondary materials because these secondary hazardous materials are managed as a valuable commodity due to their metal content [0359]. Two commenters s tated that F006 would be an example of metal

- bearing hazardous secondary material that should be included. [0003, 0364] Another commenter suggested adding precious metal

- bearing materials to the remanufacturing exclusion. The commenter stated that financia l incentives are in place to foster careful management. The commenter suggested a more stringent standard for “high value” in regards to precious metal

- bearing materials, with the exc lusion limited to precious metal

- bearing materials for which the generato r receives payment, pursuant to a prearranged contract. The commenter then suggested conditions that should apply to precious

- metal bearing materials. [0183]
Some examples one commenter provided are:
Spent cupric chloride etchant from electronics manufacturing can be reclaimed off

- site to recover copper. The reclaimed copper can be used in the manufacture of copper hydroxide fungicides, copper sulfate and tribasic copper chloride for use as mineral supplements in the hog and chicken feedstock indus tries, and copper oxide for the pigment market as well as for the treated wood industry.- 232

-

Spent ammoniacal etchant is reclaimed off

- site to recover the ammonium chloride portion, which is used in new etch solution. The new etch solution is then returned to the electronics industry, but the metal constituent is incorporated into copper sulfate, copper oxide, and a variety of other specialty formulations.
Other spent plating baths, such as electroless copper, electroless nickel, and gold are reclaimed by suppl iers or other chemical processors. Cyanide bearing solutions often contain reclaimable precious metals. Any precious metals are typically recovered by chemical suppliers/manufacturers and returned to the market.
Solder dross, a byproduct of electronics man ufacturing, is treated off

- site and then sent back to electronics facilities and other solder users.
The commenter suggested the following conditions for metal

- bearing hazardous secondary materials if those materials were to be included in the remanufactur ing exclusion.
1. The hazardous secondary material must contain a metal. Metals common to the electronics industry are copper, gold, nickel and tin.
2. It must contain an acceptable concentration as determined by the marketplace. If the metal

bearing hazar dous secondary material has a positive market value and a buyer is willing to pay a fee to collect the material for recycling, then the metal

- bearing hazardous secondary material should qualify for the exclusion. In some instances, buyers may charge to acc ept metal

- bearing secondary materials but that is not indicative of the metals’ inherent value.
3. Since remanufactured metals can be used in virtually any application, the commenter suggested that EPA require remanufactured metals to meet the same necessa ry quality and performance specifications as virgin metals used in a specific application. Also, the commenter noted it is impractical to require recycling facilities to first determine and then disclose the applications for all the recycled metals they pr ocess. [0359]
(e) RESPONSE: EPA does not agree with the commenters that metal

- bearing hazardous secondary materials should be added to the remanufacturing exclusion, because these types of hazardous secondary materials do not meet the intent of this specif ic exclusion, i.e., they are not high

- value secondary materials being remanufactured into similar high

- value commercial products. Rather, they are most often reclaimed by commercial third

- party recyclers. While EPA may expand the list of eligible hazardous secondary materials for the remanufacturing exclusion in the future based on additional data, the currently available information only supports the inclusion of the proposed list of 18 spent solvents. EPA also notes that there are already a number of excl

usions from the definition of solid waste for metal

- bearing secondary materials, including scrap metal, precious metals, etc. Finally, metal

- bearing hazardous secondary materials are eligible to be reclaimed under the verified recycler exclusion, which is being codified in today’s final rule.- 233

-



### 9.4 Other issues

(a) COMMENTS: The commenter supports financial assurance, public participation and regulatory agency approval as part of the remanufacturing exclusion , but is concerned about a shortage of state res ources to review and approve these requirements. [0179]
(a) RESPONSE: EPA has decided financial assurance, public participation and regulatory agency approval are not necessary for the remanufacturing exclusion. Since the remanufacturing exclusion will be limited to higher

- value solvents going to manufacturers with greater flexibility than commercial recyclers to adjust to unstable markets, there is less of a need for financial assurance. In addition, the requirement for both parties to prepare and maintain a remanufacturing plan will ensure that they have verified that they can remanufacture the spent solvents back into commercial

- grade solvents. Furthermore, since the remanufacturing exclusion will be limited to manufacturing facilities, which are typicall y at already existing locations, there is not a need for upfront approval, although both parties will have to notify prior to operating under the exclusion.
(b) COMMENTS: The commenter was concerned with interstate transport issues, but since draft rule te xt was not provided, it is difficult to predict what the interstate transport implications would be and therefore, how they should be addressed. [0272]
(b) RESPONSE: The remanufacturing exclusion will operate in the same way as the other RCRA definition of solid waste exclusions; that is, both states will have to adopt the exclusion for the spent solvent to be exempt from the hazardous waste manifest and shipping requirements for hazardous waste. We do not envision increased transportation to result from th e remanufacturing exclusion and thus, should not see any significant interstate transport issues with the remanufacturing exclusion.

9.4.1 Intermediate facilities
(a) COMMENTS: The commenters noted that spent solvents should be shipped directly from the generator to the remanufacturer with no intermediate stops. [0179, 0251, 0272, 0299] The lack of a proposed accumulation time or quantity limit, other than speculative accumulati on, provides ample opportunity for small business to accumulate quantities sufficient for shipment directly to remanufacturers. [0179, 0251]
(a) RESPONSE: EPA agrees with commenters that spent solvents may not go to intermediate facilities under the remanu facturing exclusion. The remanufacturing exclusion is based on a direct business arrangement between the hazardous secondary material generator of spent solvents and the remanufacturer, such that the spent solvents will be shipped directly from the generat or to the remanufacturer. EPA agrees that small businesses will have enough time to accumulate enough spent solvent to take advantage of the remanufacturing exclusion.- 234

-

9.4.2 Exports
(a) COMMENTS: Two commenters stated that EPA should not limit the use of t he remanufacturing exclusion to hazardous secondary materials in the United States. Export of these materials for legitimate manufacturing does not constitute discard. EPA simply has no basis in the record to conclude that export of materials for legitimat e remanufacturing presents significant environmental concerns. [0175, 0266]
(a) RESPONSE: Until the spent solvents are actually remanufactured into a product, the hazardous secondary materials are the same materials with the same chemical and physical prop erties as RCRA hazardous waste. These same solvents have been regulated when exported for the history of the RCRA program. We have structured the remanufacturing exclusion on the basis that these hazardous secondary materials will not be discarded because they are higher

value solvents that are to be remanufactured into similar high

- value solvents. However, with exports of hazardous secondary materials, management and monitoring would likely be hindered by international differences in waste management polic y. We further note that U.S. law (e.g., CERCLA liability), while providing a strong incentive for not mismanag ing waste domestically, would not apply to hazardous secondary material exported for re manufacturing. Furthermore, we understand the validity of a rguments regarding limitations of the Agency and the states to enforce proper management and legitimate recycling of the hazardous secondary material at foreign reclamation sites. Since there is no way to monitor and verify that the remanufacturer is meeti ng the conditions of the exclusion abroad, EPA has determined that the remanufacturing exclusion will be limited to the United States.
(b) COMMENTS: Several commenters argued that the remanufacturing exclusion should be limited to generation and reclamati on within the United States. [0179, 0251, 0272, 0351]
(b) RESPONSE: EPA agrees with these commenters and is not allowing exports under the remanufacturing exclusion.
9.4.3 Financial assurance/Public participation
(a) COMMENTS: Remanufacturers should be sub ject to financial assurance requirements and public participation requirements. These materials still pose a significant risk to human health and the environment and since generators are no longer in control of the hazardous secondary materials, those who are should be subject to a stringent set of requirements that are designed to prevent discard. [0233]
(a) RESPONSE: EPA has decided financial assurance and public participation are not necessary for the remanufacturing exclusion. Since the remanufacturing exclusion will be limited to higher

value solvents going to manufacturers with greater flexibility than commercial recyclers to adjust to unstable markets, there is less of a need for financial assurance. Furthermore, the remanufacturing exclusion is limited to specific sectors of manufacturing facilities, and EPA has determined that additional public participation req uirements beyond any normally required of this type of manufacturing are not necessary. Finally, the requirement for both the generator and the remanufacturer to produce and maintain a certified remanufacturing plan will ensure that- 235

-

both entities have veri

fied the appropriateness of the hazardous secondary materials for the remanufacturing process prior to operating under the exclusion.
(b) COMMENTS: Commenters supported requirements for financial assurance, public participation and regulatory agency approv al but think there are limited state resources available to review and approve such requirements for non

- RCRA permitted facilities. [0251, 0272, 0299] One commenter stated that the most appropriate way to regulate remanufacturers is with the generator

- cont

rolled exclusion or the proposed alternative standards. [0251]
(b) RESPONSE: EPA has decided financial assurance, public participation and regulatory agency approval are not necessary for the remanufacturing exclusion. Since the remanufacturing exclusion will be limited to higher

- value solvents going to manufacturers with greater flexibility than commercial recyclers to adjust to unstable markets, there is less of a need for financial assurance. Furthermore, the remanufacturing exclusion is limited to specific sectors of manufacturing facilities, and EPA has determined that additio nal public participation requirements beyond any normally required of this type of manufacturing are not necessary (although both parties will have to notify prior to operating under the exclusion). Finally, EPA does not agree that the generator

- controlled exclusion is more appropriate than the remanufacturing exclusion. The remanufacturing exclusion was designed specifically for certain generators and manufacturers that are not eligible for the generator

- controlled exclusion since they are two separate ent ities. In addition, EPA is not finalizing the proposed alternative standards but notes that generators are free to choose to recycle their hazardous secondary materials under today’s verified recycler exclusion instead of the remanufacturing exclusion if t hey wish.
(c) COMMENTS: The commenter opposed financial assurance, public participation and agency approval. The commenter stated that facilities remanufacturing these products are doing so to lower their own costs and to increase revenues. They added that financial assurance would ensure that only a few huge companies would find this exclusion financially worthwhile. These additional procedural hoops would not increase the benefits of reclamation, but they would diminish them by incrementally lowering use of the exclusion. Each additional overhead cost associated with the exclusion will reduce and possibly eliminate those benefits. [0266]
(c) RESPONSE: EPA has decided financial assurance, public participation and regulatory agency approval are not necessary for the remanufacturing exclusion. Since the remanufacturing exclusion will be limited to higher

- value solvents going to manufacturers with greater flexibility than commercial recyclers to adjust to unstable markets, there is less of a need for financial assurance. Furthermore, the remanufacturing exclusion will be limited to manufacturing facilities, typically already in existence, and may reduce the environmental impacts at such facilities, thus, negating the need for public participation or regulatory a gency approval.
(d) COMMENTS: The commenter opposed financial assurance and public notice for remanufacturers and stated that if the factory or plant is not changing its normal business practice, there is little reason for public notice. Increased truck tr affic and declining home values associated with TSDFs would be absent since raw material is replaced by waste and the plant- 236

-

looks the same as before. The CERCLA “Right

- to

- know” provisions would apply for notification. [0351]
(d) RESPONSE: EPA agrees that f inancial assurance is not necessary for the remanufacturing exclusion. Since the remanufacturing exclusion will be limited to higher

- value solvents going to manufacturers with greater flexibility than commercial recyclers to adjust to unstable markets, the re is less of a need for financial assurance. In addition, since the remanufacturing exclusion will be limited to manufacturing facilities, which are typically already in existence, there is not a need for upfront approval, although both parties will have to notify prior to operating under the exclusion.

9.4.4 Record of environmental benefits
(a) COMMENTS: Several commenters did not think that estimating the energy and environmental benefits of remanufacturing versus the use of virgin feedstocks should be r equired as part of the remanufacturing plan. One commenter thought it should be optional. This commenter noted that while the environmental benefits are positive, the driving factor behind the recycling effort may be economical. Estimating the energy and e nvironmental benefits of remanufacturing versus the use of virgin feedstocks could also be a negative factor and there is no guidance to determine when the use of energy and impact on the environment is sufficiently negative to warrant prohibition of the r ecycling activity. Therefore, it is only relevant if it shows an improvement beyond normal manufacturing or if it would result in the violation of environmental regulations; and it only seems to be necessary to include it in the plan under those circumstan

ces. Another commenter argued that estimating the environmental benefits of the remanufacturing activities would be overly burdensome and discourage use of the remanufacturing exclusion. Estimates of benefit can be obtained by making some general assumptio ns based on estimated volumes of material subject to the exclusion. Additional paperwork burden is not needed. Similarly, a standard shipping paper is unwarranted. A standard bill

- of

- lading is effective in tracking shipments. Another commenter opposed esti mating the energy and environmental benefits because of concerns about cumulative disincentives. EPA should not create additional requirements that would lead to “interesting” but not essential information. [0058, 0233, 0266]
(a) RESPONSE: EPA agrees with the commenters that estimating energy and environmental benefits in the remanufacturing plan is not necessary to participate in the remanufacturing exclusion, so in the final rule, this element is not requir ed in the remanufacturing plan.



## 10. 0 Comment on R evisions to Other Recycling Exclusions and Exemptions 10.1 General c omments
(a) COMMENTS : One commenter commended EPA for shining a light on environmental justice and stated that EPA’s analysis of the 2008 DSW final rule’s impacts on low

- income/minority

c ommunities was very encouraging. However, this commenter stated that the proposed 2011 revisions should introduce opportunities for communities to participate in decisions surrounding facility exemptions. This commenter argued that EPA should consider the exemption process to be akin to the permitting process, since both can have serious consequences for the surrounding- 237

-

community. Therefore, this commenter argued that the final rule should include a framework that requires public notice to be given when a f acility applies for a RCRA exemption. [0200]
(a) RESPONSE : EPA agrees with the commenter’s concerns regarding opportunity for public participation. In fact, one of the reasons EPA has withdrawn the 2008 DSW transfer

- based exclusion in the final rule is bec ause the exclusion removed the opportunity for public participation, as compared to what is required for recyclers seeking a hazardous waste permit. However, EPA maintains that, in many cases where EPA has evaluated and promulgated certain exclusions based on the case

- specific characteristics of the hazardous secondary material or recycling process, self

- implementation is appropriate because it allows for proper implementation of the RCRA program while ensuring efficient use of state and EPA resources. Addi tionally, EPA notes that, for some self

- implementing exclusions, such as the generator

controlled exclusion at 40 CFR 261.4(a)(23) and the remanufacturing exclusion at 40 CFR 261.4(a)(27), the Agency has required notification as a condition of the exclusio n in order to enable adequate compliance monitoring and public reporting.
(b) COMMENTS : One commenter argued that the frequency, nature, and severity of damage caused by several categories of recyclers, including scrap metal facilities and battery recycler s, requires EPA to re

- examine whether exclusions for these industries should exist at all. This commenter said that, while EPA did not solicit comment on the elimination of these exemptions, the evidence is persuasive that a re

- examination by the Agency is necessary and prudent. [0244] Another commenter argued that the damage cases should cause EPA to question the wisdom of treating hazardous waste differently based on whether it is destined for disposal, treatment, or recycling. [0197]
(b) RESPONSE : As sta ted in the July 2011 proposed rule, EPA emphasizes that we are not reopening comment on any substantive provisions of the regulatory exclusions or exemptions. (76 FR 44138)
(c) COMMENTS : One commenter argued that EPA should add requirements to auto disman tlers, parts recovery, and junkyard facilities, including management requirements, emergency planning, access to on

- site fire hydrants, periodic inspections and testing, radiation detectors, and best available control technology for air and water pollution control equipment. [0248] Another commenter was concerned about the unmonitored transfer and transportation of materials slated for recycling to coke ovens and excluded under 40 CFR 261.4(a)(10). [0061]
(c) RESPONSE : EPA’s July 2011 proposal requested comment on including requirements for legitimacy, notification, and containment for pre

- 2008 existing exclusions. Because EPA did not consider or request comment on other conditions for the pre

- 2008 exclusions in the July 2011 proposal, the commenters ’ sug gestions are outside the scope of this rulemaking. Moreover, EPA is de ferring action in regards to explicitly requiring contained standard and notification requirement for pre

- 2008 exclusions until further study is conducted.
(d) COMMENTS : One commenter as ked what EPA proposed to do for the hazardous waste universe that is already using existing exclusions or exemptions and whether these facilities would be “grandfathered in” or are expected to re

- apply for the exclusion. [0299]- 238

-

(d) RESPONSE : EPA is not tak ing final action regarding notification and contained for existing pre

- 2008 exclusions. In the final rule, EPA is applying its legitimate recycling definition in 40 CFR 260.43 to all hazardous secondary material recycling, including recycling under a pre

- 2 008 existing exclusion. The Agency has clarified in the preamble to the final rule that it does not intend for the current recycling legitimacy determinations to change due to the codification of the legitimacy factors. We consider the factors we are final izing to be consistent with the criteria in the Lowrance Memo and previous preamble statements on legitimate recycling. Therefore, we do not anticipate that implementing agencies will revisit past legitimacy determinations. If recycling was considered legi

timate under the Lowrance Memo, its status should not change as a result of the final rule. To make it more clear that this is not a new requirement, the Agency is codifying a prohibition against sham recycling in 40 CFR 261.2(g) instead of adding a provis ion in each exclusion referring to the legitimacy provision in 40 CFR 260.43. This codification will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions to revisit previously

- made legitimacy determinations. In regards to the contained standard and notification requirement, EPA is deferring action on these requirements until further stud y is conducted.
(e) COMMENTS : One commenter said that EPA should apply such marking or recordkeep ing requirements to 40 CFR 261.1 (c)(8). This commenter said that New York State has applied this type of provision through the Electronic Equipment Recycling a nd Reuse Act of 2010, Article 27 Title 26 of the NYS Environmental Conservation Law by requiring all regulated electronic waste collection sites, consolidation and recycling facilities to remove electronic waste from the site within one year of receipt and maintaining records to demonstrate compliance with this requirement. [0312] One commenter said that Kentucky has a statute regulating lead acid batteries and requires retailers to accept all waste batteries and store less than 90 days prior to being recyc led. [0351]
(e) RESPONSE : EPA a grees with applying recordkeeping requirements to the speculative accumulation provision at 40 CFR 261.1(c)(8) and has finalized that change in the final rule.
(f ) COMMENTS : Several commenters supported applying additional re quirements to the pre

2008 recycling exclusions and exemptions. This included applying the following provisions:

1. the legitimacy criteria at 40 CFR 260.43 [0038, 0107, 0179, 0215, 0244, 0251, 0268, 0272, 0321, 0351, IL

- 0002]; 2. the definition of contained at 40 CFR 260.10 [0038, 0107, 0161, 0179, 0197, 0215, 0244, 0251, 0272, 0321, 0351, 0364, IL

- 0 002, PA

- 0006, PA

- 0010, PA

0012] 3. the notification requirements at 40 CFR 260.42 [0038, 0061, 0161, 0179, 0197, 0203, 0215, 0244, 0251, 0268, 0270, 0271, 0272, 029 0, 0312, 0321, 0351, 0364, IL

- 0002, IL

- 0005, IL

- 0009, PA

- 0006, PA

- 0010, PA

- 0012] and- 239

- 4. the recordkeeping for speculative accumulation at 40 CFR 261.1(c)(8). [0107, 0179, 0197, 0215, 0244, 0251, 0270, 0272, 0321, 0351, 0364, IL

- 0002, PA

- 0006, PA

- 0010, PA

- 001 2]
Two commenters agreed with applying one or more conditions to the other exclusions. [0239, PA

- 0012] One commenter supported the proposal but had concerns about applying the conditions to certain recycling exclusion categories. [0179, 0272] One commente r said that the notification would reduce social injustice in that they require biennial disclosure of information to affected communities. [0161] A few commenters said the proposed revisions would allow state programs and the regulated community to better ensure that these materials are being handled appropriately, especially by notifying states of their recycling activities and by keeping records to document compliance with the speculative accumulation provision. [0179, 0251, 0272]
Commenters argued that EPA should finalize the proposal to impose requirements for the 32 categories of hazardous wastes that were excluded from full RCRA controls because these exempt industries are known to release dangerous materials, such as spent sulfuric acid, shredded ci rcuit boards, toxic chemicals from scrap metal, petroleum refinery waste, steel manufacturing waste, wood preservatives, spent chlorofluorocarbons, lead batteries and more. [0215, 0244] One commenter said that EPA must adopt the proposed new regulatory req uirements in order to prevent future damage cases. This commenter argued that the prevention of one damage case every two years would more than offset the total compliance cost of all of the proposed revisions to the pre

- 200 8 recycling exclusions. [0244]
(f ) RESPONSE : EPA understands commenters who support additional requirements in order to avoid potential damage cases and protect human health and the environment. However, the EPA has determined that it does not have enough information to determine if add ing certain requirements to the existing recycling exclusions and exemptions would be the most effective method for addressing the damage cases or whether a more targeted approach would be more appropriate.
Regarding legitimacy, in lieu of adding a legit imacy requirement to the specific recycling exclusions, EPA is instead codifying a general statement in 40 CFR 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. EPA finds tha t this will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions to revisit previou sly

- made legitimacy determinations. EPA also notes that today’s final legitimacy standard includes modifications that address implementation concerns for certain hazardous secondary materials and processes, such as scrap metal and closed

- loop recycling. Fo r more information on these modifications, please see the othe r sections on legitimacy in the preamble.
Regarding the contained standard and notification, for reasons stated in sections 10.2.1 and 10.2.2 of this document, the Agency is deferring action on applying the contained standard and notification to the pre

- 2008 exclusions in order to consider whether these conditions are- 240

-

necessary and how best to implement these conditions in the context of the case

- specific circumstances of the regulatory provisio ns.
(g ) COMMENTS : One commenter said that EPA can expect significant pushback from many of the 32 recycling industries. The commenter stated that, in fact, in a recent email to its members, the Institute of Scrap Recycling Industries called upon its member s to protest the proposed rule. This commenter argued that the exemption from regulations enjoyed by the scrap metal industry has contributed to the creation of no less than 52 of EPA’s documented damage cases or over 23 percent of the total contaminated s ites documented by EPA. [IL

- 0002] Another commenter expressed concern with the scrap metal recycling industry and stated that these facilities are not inspected regularly, are not tested for all known hazardous materials on site, have permits that are not adequately reviewed, do not hold public hearings, ignore public comments, do not have emergency response and evacuation plans, do not publicly disclose findings, are not well inspected and do not have settlements and fines that come back to the community. [IL

- 0004]
(g ) RESPONSE : EPA understands commenters’ concerns. However, for reasons stated above
, EPA is de ferring action in regards to explicitly requiring additional conditions for pre

- 2008 exclusions until further study is conducted.
(h ) COMMENTS : One co mmenter urged EPA to make coke ovens excluded under 40 CFR 261.4(a)(10) to be subject to notification. This commenter also urged EPA to close other serious gaps that could create a potentially unacceptable likelihood of adverse effects to human health and the environment. [0061]
(h ) RESPONSE : For reasons stated in the preamble to the final rule, EPA is deferring action in regards to the notification requirement until further study is conducted. In its July 2011 proposal, EPA emphasized that we are not reope ning comment on any substantive provisions of the regulatory exclusion or exemptions. (76 FR 44138) Therefore, comments on adding additional conditions to the exclusions are outside the scope of the proposal.
(i ) COMMENTS : Many commenters did not support adding requirements to pre

- 2008 existing exclusions and exemptions. Several of these commenters stated that they do not support “reclassification” of scrap metals as solid and hazardous wastes. [0028, 0030, 0032, 0036, 0037, 0041, 0048, 0053, 0055, 0056, 0 060, 0062, 0069, 0070, 0076, 0080, 0081, 0085, 0089, 0092, 0093, 0095, 0096, 0097, 0098, 0099, 0101, 0102, 0106, 0111, 0112, 0115, 0116, 0017, 0118, 0121, 0123, 0130, 0132, 0133, 0134, 0137, 0139, 0142, 0144, 0145,0148, 0153, 0154, 0159, 0162, 0163, 0166, 0168, 0169, 0170, 0171, 0172, 0175, 0177, 0182, 0189, 0191, 0193, 0194, 0196, 0198, 0199, 0201, 0202, 0204, 0205, 0207, 0208, 0210, 0212, 0213, 0214, 0216, 0217, 0223, 0225, 0226, 0229, 0234, 0236, 0238, 0252, 0253, 0255, 0257, 0258, 0261, 0262, 0263, 0275 , 0279, 0283, 0284, 0287, 0288, 0292, 0301, 0302, 0308, 0317, 0322, 0323, 0335, 0340, 0343, 0345, 0346, 0350, 0354, 0355, 0356, 0361, 0363, 0366]
Several commenters argued that these wastes have been excluded for a number of years without any additional re quirements to meet. These commenters said that there will be an undue burden to the regulated community, as well as the states, without any benefit to environment. These commenters explained that there is burden in just learning the rules, but also in test ing and from- 241

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potential hazardous waste liability as a result of failing to notify, contain materials, and meet and document legitimacy. Some commenters said that most scrap metal recyclers are small businesses and do not have hazardous waste expertise. A f ew commenters compared EPA’s proposal to stopping every driver on the road and submitting them to a breath alcohol test in order to find drunk drivers. These commenters explained that a drunk driver may or may not be found but the effort on the part of the enforcers and motorists would be tremendous. Commenters said that imposing such a stringent regulation with such a remote likelihood or uncovering potential wrongdoing is not in anyone’s best interest. [0032, 0037, 0041, 0048, 0053 0055, 0056, 0060, 0062, 0070, 0080, 0081, 0085, 0089, 0092, 0095, 0099, 0101, 0102, 0106, 0108, 0111, 0112, 0116, 0017, 0123, 0142, 0145, 0148, 0154, 0162, 0172, 0177, 0189, 0191, 0193, 0194, 0196, 0198, 0207, 0212, 0217, 0225, 0226, 0229, 0234, 0257, 0258, 0262, 0263, 0279, 028 3, 0284, 0288, 0317, 0335, 0343, 0354, 0355, 0356, 0363]
Several commenters argued that the additional requirements will severely affect business and jobs. These commenters said that the requirements burden the creation and continuation of recycling opport

unities; for example, scrap metal recyclers would need insurance now that they take in hazardous wastes. These commenters said that local licenses, training, and inspection procedures do not allow for scrap metal recyclers to accept hazardous materials and thus these facilities would need to hire lawyers and consultants to figure out RCRA hazardous waste requirements. Many commenters went on to say that many scrap metal recyclers are small and family

- owned businesses that can little afford the cost of these new regulations, including testing. These commenters said that if they were responsible for filing paper work and testing every type of scrap they produce on every load shipped or stored, the cost of doing business would increase. These commenters also sa id that more paperwork equates to less time monitoring production, equipment, and safety and having to higher more employees that are not production related would financially hurt their companies. [0030, 0037, 0041, 0055, 0056, 0060, 0062, 0070, 0080, 0089 , 0092, 0098, 0102, 0108, 0116, 0017, 0118, 0137, 0139, 0144, 0166, 0191, 0204, 0208, 0226, 0229, 0234, 0236, 0279, 0288, 0323, 0335, 0354]
Several commenters argued that the additional requirements will discourage recycling. These commenters said that scr ap metal will be too expensive to buy and steel manufacturers will just purchase from overseas or virgin materials and said that it will be cheaper and easier to just dispose of materials. These commenters explained that many scrap dealers do not accept an y materials that have a hint of being hazardous waste. These commenters stated that this proposal will label recycled material as hazardous waste because it is imposing requirements under hazardous waste authority and is proposing that this material be lis ted on hazardous waste forms. These commenters argued that the regulatory uncertainty would harm those companies with a commitment to compliance while providing a competitive advantage to scrap importers and bad actors because legal operators will have to incur additional expenses to comply with new regulations, while the illegal operators will continue to operate at even a more competitive advantage. These commenters explained that, as their business costs rise, the possibility of customers finding more co st

- efficient ways of disposing their recyclables is very real. [0028, 0030, 0037, 0041, 0048, 0055, 0056, 0060, 0062, 0069, 0070, 0080, 0085, 0089, 0092, 0095, 0096, 0098, 0108, 0116, 0017, 0118, 0137, 0139, 0145, 0148, 0153, 0166, 0170, 0191, 0196, 0198, 0202, 0207, 0208, 0216, 0217, 0223, 0226, 0229, 0236, 0279, 0288, 0292, 0302, 0335, 0354, 0366]- 242

-

Some commenters highlighted issues with specific exclusions or hazardous secondary materials:

 Batteries : Some commenters argued that batteries are recycled at a rate of nearly 100% and that these requirements would create barriers and risks that would hinder recycling. Commenters argued that the Agency itself has recognized this successful industry in the Universal Waste Rule 60 FR 25492, 25505. Furthermore, comm enters said that the damage cases involving batteries are old and involved off

- site facilities, not generators. Commenters also said that batteries are sufficiently regulated under RCRA, CERCLA, CAA and CWA. [0170, 0196, 0212, 0350] One commenter recognize d the damage caused from recycling spent lead

- acid batteries; however, this commenter recommends that the requirements of 40 CFR part 266 subpart G be modified to be at least as stringent as 40 CFR 273.2. This commenter also suggested that EPA consider dev eloping or applying existing standards to the recycling operations. [0177]

 Drums : One commenter argued that the issue is with enforcement of existing regulations such as making determinations and not properly managing the residuals removed from the drums. This commenter argued that EPA should clarify that once the residuals are removed from an empty container that those residuals are subject to part 260

- 273 HW regulations and that EPA should study whether off

- site drum recycling facilities should be requir ed to notify. [0177]

 Mercury

- containing Wastes : One commenter argued that the issue is with enforcement of existing regulations [0177]

 Precious Metals : A few commenters argued that there are very few damage sites regarding the recycling of precious metals and that the results of EPA’s analysis show that EPA should focus on the actual recycling operation and not on on

- site recyclers or generators of precious metals. Additionally, these commenters argued that the precious metals requirements are alread y subject to notification, manifest, speculative accumulation. Commenters stated that EPA determined in 1985 what conditions were appropriate and that recycling of precious metals was legitimate and that EPA also already addressed the “sham recycling” issu e in the 1985 rule, explaining that sham operations were not included under the exemption. [0177, 0213]

 Scrap Metals : Commenters argued that over the years, the scrap metal recycling industry has made great strides in implementing environmental and safety controls, as well as significant technological advances to increase the amount of recyclable metal that can be recovered, which has resulted in 60% of U.S. steel produced using recycled scrap. Commenters said these efforts have been driven by consistent p olicies promoting sustainable manufacturing, resources conservation, and waste minimization as well as regulatory changes and that the DSW proposal will be counterproductive; by requiring a constituent analysis and comparisons to “analogous products,” the rule is expected to drive steel manufacturers away from using scrap metal as feedstock. Commenters said that such a shift will increase water, coal, and other natural resource use and increase the electricity, energy, and waste disposal volumes as well as GHG emissions. Agency should focus on off

- site recyclers, not generators. Additionally, commenters argued that- 243

-

many of the scrap metal damage cases were either pre

- TSCA or pre

- RCRA or were unauthorized activities that were subject to regulations. Some comm enters urged EPA to not classify scrap metal as hazardous waste because scrap metals recyclers would be confused to be hazardous waste companies

. These commenters said that scrap metal recyclers go to great lengths to ensure that no hazardous material or c hemicals enter the facility and have implemented improvements to operations to reduce or eliminate any handling of hazardous waste. Additionally, commenters noted that Congress passed the Superfund Recycling Equity Act in 1999 that provides an exemption fr om liability under CERCLA for those who ship scrap metal (as well as batteries and other materials). One commenter said EPA should 1) describe in detail why it believes the damage cases represent a “waste disposal problem” associated with scrap metal recyc ling; 2) provide a reasoned explanation for the reversal of EPA’s longstanding position that scrap metal is not a solid waste; 3) set forth a specific reasoned explanation as to why, given its prior regulatory determination to the contrary, imposition of t he four conditions is necessary to protect human health and the environment; 4) explain why current federal, state, and local regulatory controls are not sufficient; and 5) propose specific regulatory text. [0030, 0037, 0048, 0056, 0060, 0081, 0085, 0089, 0093, 0095, 0096, 0099, 0108, 0139, 0177, 0191, 0208, 0217, 0223, 0226, 0275, 0288, 0292, 0335, 0343, 0366]

 Commercial Chemical Products (CCPs): A few commenters argued that EPA must clarify in its final rule that it is not revisiting regulatory determin ations such as that made in the August 8, 2002, letter recognizing that crude sulfate turpentine is a CCP which is itself a fuel and therefore not a solid waste. These commenters said that additional requirements are not necessary because there is no justi fication and notification is duplicative of Chemical Data Reporting Rule. [0168, 0169]

 Coke By

- product Wastes: One commenter said that their process description was referred to as the largest

- use effective recycling process in the justification for the co ke by

product exclusion (57 FR 27880

- 27888) and said that, at one location alone, over 28 million pounds of residues and 73 million pound of by

- product have been recycled without any environmental problems. [0182]

 Sulfuric Acid : One commenter argued that there is a long history of legitimate recycling under 261.4(a)(7) and there is no record that additional regulatory requirements are necessary. [0202]

 Shredded Circuit Boards : One commenter argued that EPA has already considered a range of issues in propo sing and ultimately adopting the exclusion for shredded circuit boards (62 FR 26011). Furthermore, this commenter said the exclusion includes a containment requirement. This commenter also said that EPA has determined that the shredded circuit boards have positive economic value (the smelter pays the shredder for the circuit boards) and that the value provides an incentive for handlers to prevent releases to the environment. Furthermore, this commenter stated that EPA has also explicitly reviewed the “TARs factor” stating that “reported assays for circuit boards are comparable in lead and lower in arsenic content than reported primary copper concentrate- 244

-

assays.” Therefore this commenter stated that EPA has already evaluated what conditions were necessary. [0 213]

 Closed Loop : A few commenters argued that recirculation, reuse, return, reflux and recycle streams are commonly employed in large

- scale chemical reaction or separation processes such as distillation, fractionators, stripping, extraction, and chemical reactors. These commenters said that, in these processes, material circulating in pipes and returning for additional processing is not secondary material in that it is not “spent” at the point of once through. Additionally, these commenters argued that th ere is no analogous product with which to compare legitimacy and that these common industrial practices should remain excluded from RCRA without a requirement for legitimacy and documentation requirements. Additionally, one commenter argued that acetic aci d recycled to make explosives for the military results in 45 million pounds of acetic acid and acetic anhydride recycled per year. This commenter did not agree that EPA is now requiring extensive documentation to prove that this 70

- year

- old chemical recycl ing loop is legitimate. [0216, 0274]

 Pulping Liquor : A few commenters argued that pulp liquors are not discarded and that, in prior proposals, EPA has recognized that the ongoing recycling of spent pulping liquors into regenerated pulping chemicals is car ried out essentially by all pulp mills and is an economic necessity. These commenters said that EPA analyzed the economical viability of the process, the extent to which material is handled before reclamation, the time between generation and reclamation, t he location of the reclamation operation, whether the reclaimed material is used for the purpose for which it was originally produced, whether the person who generates also reclaims, and other factors. These commenters argued that there is no question that this recycling is legitimate and that periodic demonstration of legitimacy criteria compliance is a waste of resources. Furthermore, these commenter noted that EPA’s damage case analysis does not include pulp mills or black liquor. [0142, 0163, 0168, 0169 ]
(i ) RESPONSE : EPA did not anticipate at the time of the proposal that the additional requirements

— legitimate recycling, contained, and notification

— would present an undue burden on facilities. As discussed in more detail below, this is because EPA consi ders certain requirements, like legitimate recycling and containment, inherent in the definition of solid waste recycling exclusions and assumes that most of the regulated community already meet these standards. Notification was considered to be a simple r eporting requirement that would pose minimal additional burden.
However, upon review of the comments, EPA has determined that there is a high potential for unintended consequences for finalizing these additional requirements to existing recycling exclusio ns and exemptions and that more study is needed before taking action. Therefore, EPA is not making any changes to the language of the 32 recycling exclusions and exemptions at this time. In the case of the legitimacy provision, EPA is instead codifying a g eneral prohibition against sham recycling. In the case of the contained standard and notification requirement, EPA is deferring any action until further study is conducted. EPA’s response to comments and burden implications of each of the provisions is dis cussed in more detail below.- 245

-

(1) Legitimacy . With respect to legitimacy, it has been EPA’s long

- standing policy that all recycling of hazardous secondary materials must be legitimate. If a facility is engaged in sham recycling, this, by definition, is not real recycling and that material is being discarded. Additionally, EPA considers the four legitimacy factors codified in 40 CFR 260 .43 to be subs tantively the same as the existing legitimacy policy, which has been articulated in the 1989 Lowrance Memo and in various DSW Federal Register notices. In proposing to codify legitimate recycling for all exclusions, we did not intend to raise questions about the status of general legitimacy determinations that underlie existing exclusions from the definition of so lid waste, or about case

- specific determinations that have already been made by EPA or the states. As noted in the comments, EPA generally considered the legitimacy of the recycling process when the original determinations were promulgated, and the Agency did not intend to force companies to have to reexamine long standing legitimate recycling practices. Therefore EPA is not revising the pre

- 2008 exclusions and exemptions to include a legitimacy requirement.

Howeve r, as discussed in section VIII of the pre amble, these material

- specific exclusions from the definition of solid waste do not negate the basic requirement that the hazardous secondary material must be legitimately recycled. Therefore, EPA is codifying a general statement in § 261.2(g) that makes i

t clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. By codifying a prohibition on sham recycling that applies to all hazardous secondary materials being recycled, we are confirming that we expect a nyone operating under a recycling exclusion or exemption to be doing so legitimately. EPA finds that this will give implementing agencies a clear regulatory statement that can be used to enforce against sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions to revisit previously

- made legitimacy determinations.
Additionally, the Agency has, based on the public comments, made adjustments to the legitimacy factors to build in more flexibility for meeting each factor and thus ease the use of the standard. For example, EPA has modified factor 4 to rely on widely

- reco gnized commodity standards in the case where there is no analogous product as a way of recognizing industry standards that ensure their products are legitimate. EPA gives the example in the regulatory text of commodity specification grades for common metal s, which would be relevant to scrap metal recyclers, among other metal recyclers. EPA has also included a provision that states that when “hazardous secondary materials being recycled are returned to the original process or processes from which they were g enerated to be reused, the product of the recycling process is comparable to a legitimate product or intermediate,” and thus would meet factor 4. This revision addresses concerns regarding the closed loop exemption at § 261.4(a)(8) as well as mineral proce ssing to produce primary metals, because these processes always include materials looping back into the process to ensure that all the valuable metals that can be extracted from the ore are being collected for use.
For more information and responses to co mments on legitimacy, please see the preamble to the final rule or other applicable sections of this document.- 246

-

(2) Contained . With respect to the contained standard, EPA has long determined that hazardous secondary materials that are released to the envir onment and are not destined for recycling are clearly discarded. Based on the environmental problems study, the results of which showed mismanagement of hazardous secondary materials as one of the major causes of damage, EPA requested comment in the 2011 p roposed rule on applying the proposed contained standard to all hazardous secondary materials. EPA assumes that the vast majority of recycling facilities contain their hazardous secondary materials and thus would already meet the contained standard. Theref ore, EPA assumed that the contained standard would not present any additional burden to the regulated community, but could be used to enforce against those facilities that were mismanaging their materials. However, as the commenters’ noted, EPA has already promulgated certain management standards for some exclusions based on the case

- specific characteristics of the hazardous secondary material or recycling process (e.g., drip pads used to manage wastewaters and/or spent wood preserving solutions under 40 CF R 261.4(a)(9)). Thus, EPA understands that simply applying the contained standard wholesale across the 32 recycling provisions, may not be the most efficient or effective course of action as EPA would not be considering how the contained standard would wor k within each specific exclusion and its existing conditions. Therefore, EPA is deferring action on applying the contained standard to the pre

- 2008 exclusions until we can more adequately address commenters’ concerns.
(3) Notification . With respect to not ification, EPA’s intent was to provide basic information to regulatory authorities in order to enable adequate compliance monitoring of the exclusions. EPA had requested comment on requiring notification under 40 CFR 260.42 using the Site ID Form (EPA Form 8700

- 12), which is the same provision used for the 2008 DSW final rule exclusions. Given that this form is familiar to the regulated community, we had not considered this requirement to pose an undue burden. However, based on comments we received, we unde rstand that using the same notification requirement developed for hazardous secondary materials that were recently excluded in 2008 presents challenges when used for hazardous secondary materials that have been excluded for many decades. For example, the n otification provision in 40 CFR 260.42 requires information on types of hazardous secondary materials (using hazardous waste codes) and quantities of these materials. However, as noted by commenters, this is difficult, for example, for scrap metal recycler s, because these facilities currently do not distinguish between

non

- hazardous scrap metal and scrap metal that would be hazardous waste were it not for the exclusion. Requiring notification in this instance may infer that scrap metal recyclers would be

re quired to extensively test their hazardous secondary material in order to determine if the scrap metal was hazardous, and therefore excluded, and to determine which hazardous waste code to report on the form. Additionally, the notification presents challen ges for facilities with numerous closed

- loop recycling processes because the form would require these facilities to specifically list each process. We also understand commenters’ concerns regarding the burden on states who must review and process these for ms. Because the majority of pre

- 2008 exclusions do not include notification requirements, EPA does not have precise data regarding how many facilities are recycling hazardous secondary materials under these exclusions. This lack of data hinders EPA’s abili

ty to more precisely estimate the burden on states and whether such a requirement would be environmentally beneficial. Therefore, EPA is deferring action on applying notification to the pre

- 2008 exclusions until we can more adequately address commenters’ c oncerns.- 247

-

(j ) COMMENTS : Several commenters argued that EPA lacks jurisdiction to add requirements to materials that are not solid wastes. These commenters said that EPA is required to demonstrate that it was wrong 25 years ago and that management in compli ance with the existing conditions constitutes discard and that EPA’s proposal effectively opens up the exclusions. Many commenters said that, when an Agency departs from a former position, it is obligated to furnish a reasoned explanation for that change a nd cited Dillmon v. NTSB , 588 F.3d 1085, 1089

- 95 DC Circuit Court 2009 and FCC vs. Fox 129 S. Ct. 1800, 1811 (2009). [0036, 0037, 0041, 0081, 0085, 0089, 0093, 0095, 0096, 0111, 0137, 0139, 0142, 0148, 0162, 0163, 0168, 0169, 0182, 0193, 0198, 0202, 0205, 0208, 0213, 0217, 0253, 0255, 0261, 0275, 0288, 0335, 0340, 0363, 0366]
(j ) RESPONSE : EPA disagrees with comments that state EPA does not have the authority to add requirements to hazardous secondary materials being recycled. As noted in the Background

sec tion of this preamble, in the Safe Food court case, 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 mate rials meet certain handling, storage, and reporting conditions and the resulting fertilizers have concentration levels for certain hazardous constituents that fall below specified thresholds. It is therefore within EPA’s discretion to determine conditions under which a hazardous secondary material is not being discarded and thus may be excluded from hazardous waste regulation.
Additionally, EPA agrees that more information is needed before determining whether adding requirements to the pre

- 2008 exclusions is needed to make them more enforceable. EPA’s request for comment on this issue was based on conclusions drawn from the environmental problems study, which evaluated over 200 damage cases, and the Correlation of Recycling Damage Cases with Regulatory Excl usions, Exemptions or Alternative Standards , which analyzed which damage cases were likely operating under a pre

- 2008 exclusion. From these studies, EPA concluded that over half of the damage cases were likely operating under an existing exclusion. However , EPA did not examine the specific underlying causes of the damage cases (whether they were based on the lack of oversight of pre

- 2008 exclusions or on other causes). Thus EPA has decided that additional information is needed to determine whether additiona l regulatory action is needed, or whether the problems should be addressed through some other method, such as outreach and compliance assistance.
(k ) COMMENTS : Several commenters argued that EPA has not justified the need for additional regulatory controls on 32 exclusions and said that EPA’s record does not support this regulatory change. These commenters stated that EPA failed to conduct a thorough analysis t o support this change and that EPA’s record needs to show that significant environmental problems have been caused by a meaningful number of facilities operating in compliance with the exclusions. These commenters argued that many of the damage cases invol ve civil or criminal violations, indicating that the problem was non

- compliance with the regulations, not inadequate regulations. Therefore, these commenters stated that EPA has plenty of authority to go after those who are engaging in sham recycling or ca using harm to the environment. Some commenters said that the scrap metal industry is already subject to health and safety laws, worker compensation laws, local laws, and environmental laws, such as air, water, and storm water rules, which limit releases to the environment. These commenters said that, even if EPA could demonstrate isolated, atypical- 248

-

cases of damage, the Agency may not lawfully subject the entire scrap metal recycling industry to RCRA Subtitle C based on those few cases. These commenters stat ed that EPA’s proposal is vague and confusing and commenters cannot determine with any certainty what will be required and how much it will cost. These commenters urged EPA to meet with industry representatives and to follow the Administrative Procedures A ct and propose changes first. These commenters stated that industry could not reasonably anticipate this regulatory change because the DSW rulemaking was supposed to respond to the Sierra Club petition, which did not include these additional requirements. Furthermore, these comments argued that they only had 90 days to comment, which was not enough to sufficiently provide detailed, and comprehensive comments. Furthermore, commenters said that EPA’s analysis does not include many of the exclusions and that t he one

- size

- fits

- all approach fails to reflect EPA’s recognition over the years of the need to tailor any conditions for regulatory exclusions and exemptions to the specific characteristics of the recycling activities, such as with the solvent

- contaminated wipes rule. [0037, 0048, 0056, 0060, 0081, 0085, 0089, 0095, 0099, 0101, 0106, 0111, 0115, 0118, 0134, 0139, 0142, 0144, 0153, 0163, 0168, 0171, 0172, 0175, 0177, 0189, 0191, 0193, 0196, 0198, 0199, 0201, 0202, 0205, 0208, 0210, 0213, 0216, 0217, 0225, 02 26, 0234, 0236, 0238, 0246, 0252, 0255, 0262, 0263, 0275, 0283, 0288, 0292, 0308, 0322, 0323, 0340, 0355, 0356, 0363, 0366]
A couple of commenters argued that scrap metal recyclers in particular were surprised by the 2011 proposal. These commenters explain ed that: in 1985, EPA initially thought scrap might be more often discarded but exempted it from RCRA Subtitle C because it needed “to study types of scrap metal and types of management practices further before deciding on an appropriate regulatory regime. ” (50 FR 624) In 1996, EPA concluded its further study and confirmed that processed scrap metal and unprocessed home and prompt scrap are excluded from RCRA because they are not solid wastes. (61 FR 2338) In the proposed rulemaking, EPA noted it was contin uing to evaluate regulation of “unprocessed scrap.” In 1997, EPA issued its final rule and confirmed that its initial concerns expressed in 1985 were unfounded and that these materials should be excluded from regulation (62 FR 25998). EPA determined not to impose any regulatory requirements saying this would be premature and is better addressed in the future DSW rulemaking. In 2003, EPA proposed to exclude “hazardous secondary material” but says that they are not proposing to revisit existing exclusions. (6 8 FR 61565). In 2007, EPA issued a supplemental proposal and again said the proposal, based on three studies, did not apply to excluded scrap metal (72 FR 14188). In 2008, EPA issued its final rule and again confirmed that scrap metal is not affected (73 F R 64713). In 2009, the Sierra Club sought judicial review of the 2008 DSW rule; the petition only focused on the two new 2008 exclusions and did not raise any concerns with EPA’s decisions that scrap metal should remain excluded. In 2009, EPA published a F ederal Register notice describing possible options for addressing Sierra Club’s issues; none mentioned any possible changes to the exclusion. In 2010, EPA and Sierra Club entered into a settlement agreement which included a commitment to consider changes t o the 2008 DSW rule exclusions, but did not include anything on scrap metal. Then in 2011, EPA sought comment on requiring notification, documentation of legitimacy, and containment for scrap metal. [0208, 0366]
(k ) RESPONSE : EPA disagrees with comments th at argue that fact that the environmental problems study includes cases with civil or criminal violations demonstrates existing regulations are adequately enforceable. On the contrary, the frequency of violations in the damage cases may- 249

-

demonstrate the nee d for greater, not less, oversight, particularly in the case of sham recycling, where discard via over

- accumulation of material can become a major problem before the Agency can take action

. For example, in one of the damage cases, a facility whose primar y business was mixing electric arc furnace dust (K061) with agricultural lime for sale as a micronutrient lost its customers and could not sell its product. However, the facility continued to accept K061, and, after approximately seven months, the facility had accepted over 60,000 tons of this hazardous waste and stored it on the ground in piles up to 30 feet high, with no prospect of it being used to produce a product and, thus, legitimately recycled. While the initial recycling of the K061 hazardous waste was legitimate, when the facility failed to produce a product that was actually sold, the K061 could no longer be considered legitimately recycled, resulting significant risk to human health and the environment from discarded material. Therefore EPA is co difying a general prohibition against sham recycling, in order to prevent such cases from occurring.

However, in the case of containment and notification, EPA has determined that additional information about the underlying causes of the damage cases would be useful to determine whether additional regulatory action is needed, or whether the problems should be addressed through some other method, such as outreach and compliance assistance.
EPA understands commenters’ concerns regarding the limitations of th e correlation analysis, including the fact that EPA could only correlate with confidence 7 of the 32 recycling exclusions to damage cases in its environmental problems study. The analysis was hampered by a lack of precision in the data. For example, becaus e notification is not required for the majority of pre

2008 exclusions, we can only conservatively identify damage case correlations where the type of hazardous secondary material very clearly matches to an exclusion (e.g., scrap metal). We lack informatio n to make inferences for broadly applicable exclusions, (e.g., use/reuse) or for broadly defined hazardous secondary materials (e.g., metal

- bearing wastes). Therefore, by virtue of some exclusions’ broad applicability, we were unable to correlate them to s pecific damage cases. Although it is difficult to assign specific damage cases to certain exclusions, we note that in the environmental problems study only 20% of the facilities in the damage cases were operating under a RCRA permit at the time of damage. Thus, EPA can generally conclude that the majority of the damage cases were operating outside of RCRA, inferring these facilities were either operating illegally or likely operating under an exclusion, exemption, or alternate standard. I n the case of conta inment and notification, EPA finds that additional information about the underlying causes of the damage cases would be useful to determine whether additional regulatory action is needed, or whether the problems should be addressed through some other metho d, such as outreach and compliance assistance.
EPA understands commenters that argued they did not have adequate time to comment on applying the contained standard and notification for pre

- 2008 recycling exclusions. Contrary to the legitimate recycling st andard, which has been EPA’s long

- standing policy and has been articulated in the 1989 Lowrance memo and various Federal Register notices, EPA had not previously indicated it was considering the contained standard and notification for pre

- 2008 exclusions p rior to the 2011 proposal. Although the 2011 proposed rule provided an opportunity for public comment, EPA understands commenters’ concerns, with notification in particular, as- 250

-

these provisions would impact thousands of businesses, many of which may not be closely following DSW rulemaking activity. EPA agrees that a more inclusive approach to a potential rulemaking that involves stakeholders in upfront discussions would likely result in gainful information, more effective strategies for addressing issues, a nd better communication with the regulated community.
(l ) COMMENTS : EPA should not eliminate the “carve out” for batteries under 261.4(a)(23) because this will provide an opportunity for battery breakers to avoid RCRA. (0212)
(l ) RESPONSE : In its July 2011 proposed rule, EPA had not intended to remove the provision in 40 CFR 261.4(a)(23) which makes those hazardous secondary materials that are already subject to material

- specific management conditions under another exclusion or that are spent lead

- acid batteries managed under 40 CFR 266.80 or § 273.2 ineligible for the generator

- controlled exclusion. Under the final rule, this provision has been finalized at 40 CFR 261.4(a)(23)(ii)(D).
(m ) COMMENTS : One commenter would like to see § 261.4(a)(12)(i) expan ded to include hydrogen manufacturing facilities [0069]
(m ) RESPONSE : In its July 2011 proposal, EPA emphasized that we are not reopening comment on any substantive provisions of the regulatory exclusion or exemptions. (76 FR 44138) Therefore, this comment is outside the scope of the proposal.


### 10.2 Specific c omments 10.2.1 Contained s tandard
(a) COMMENTS : Several commenters noted that, according to EPA’s website, there is a 16

- page guidance document for deciding if containment is appropriate. These commenters asked if EPA had considered what it will cost recyclers to learn, understand, and implement the regulations. Additionally, these commenters asked EPA whether the definition of containment requires that a facility log in each material that should be contained, for example, a scrap metal recycler would have to log and label every car, refrigerator, lawnmower, pipe, copper wire, etc. These commenters said that the contained standard may be met if they comply with “parts 264 and 265”; however, they h ave never been subject to these requirements. A few commenters said that containing scrap metals would be time consuming and very expensive and will increase costs, slow down productivity, and discourage recycling. [0037, 0048, 0050, 0056, 0060, 0070, 0081 , 0089, 0095, 0117, 0123, 0139, 0150, 0208, 0217, 0288, 0292, 0308]
A few commenters said that containing scrap metals would be time consuming and very expensive because buying storage containers, and the ground to store them on, is a costly endeavor. Comm

enters said that scrap metal recyclers can simply not afford to roof their large tracts, which is what the proposal would require. These commenters said that the contained standard will increase costs, slow down productivity, and discourage recycling. [012 3, 0137] Commenters also asked what the recycled materials need to be contained in. and said that constructing a “land

- based unit” to hold recycled materials would be prohibitively expensive and asked whether a fence would be considered a land

- based unit. [0139, 0150]- 251

-

A few commenters said the proposed definition of contained seems to assume hazardous recyclable materials in flowable form, such as liquids or dusts. However, these commenters noted that some hazardous recyclable materials, such as spent lead acid batteries, scrap metal, and circuit boards, are solid objects. These commenters stated that a container is not necessary to prevent environmental impacts during storage of such materials and in fact may not be the best means of securing the materials. These commenters stated that EPA should not apply the contained standard to existing exclusions or it should develop a standard that is broad enough to be appropriate for all secondary materials or develop individual containment standards for each specifi c waste type. [0172, 0207] One commenter said that the contained standards should not be required for metal scrap because steel scrap is a solid material that will not migrate or be released and can be stored safely on land. [0217]
One commenter opposes ap plying the contained provision to pre

- 2008 exclusions because EPA previously stated that such performance and storage standards were unnecessary for hazardous secondary materials handled as valuable products and that case

- by

- case specific analysis could be used to determine whether such materials were adequately contained based on local conditions and the measures employed by the facility. This commenter also said that if a material is not managed to prevent significant releases, than the existing rules wou ld require that it be considered a solid waste. [0283]

(a) RESPONSE : As explained in the preamble to the final rule and in other sections of this document, EPA is not specifically applying the contained standard to the pre

- 2008 existing exclusions and is, instead, deferring action until we can more adequately address commenters’

concerns. EPA notes that the third factor of the legitimate recycling standard, which EPA is applying to all hazardous secondary recycling, uses the contained standard. The third f actor states, “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 ma nagement 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 immediat ely are discarded.” Therefore, where scrap metal has an analogous raw material, it would need to be managed in a manner consistent with the management of the raw material (i.e., virgin ore) and would not have to meet the contained standard.
(b) COMMENTS : One commenter stated that the new requirements should be tailored to reflect that both generator and reclaiming wood preserving facilities operate under existing exclusions from the definition of solid waste, the provisions of which largely duplicate or o verlap with several of the proposed conditions. For example, wood preserving facilities must manage preservative solutions and wastewater “to prevent release to either land or groundwater or both,” recycling units must be constructed so “prior to reuse [th ey] can be visually or otherwise determine to prevent such release,” any drip pads used must “comp[y] with the standards in part 265, subpart W...,” and facilities must submit one

- time notices that they will operate under this exclusion to the Regional Admin istrator. [0100]- 252

-

(b) RESPONSE : EPA agrees with this commenter that the Agency should further study how the contained standard would work within each specific exclusion and its existing conditions, such as the commenter’s example of drip pads used to manage wastewaters and/or spent wood preserving solutions under 40 CFR 261.4(a)(9)). Therefore, EPA is deferring action on specifically applying the contained standard to the pre

- 2008 exclusions until we can more adequately address commenters’ concerns.
(c) COM MENTS : A few commenters said that in the definition of contained and in the preamble discussion, EPA creates uncertainty whether the loss of any hazardous secondary material from its containment would put the whole recycling process at risk of losing its l egitimacy shield. This commenter stated that this is not a reasonable expectation of an active, complex loop manufacturing process in a large industrial setting, such as a pulp mill. This commenter said that at such facilities, despite active maintenance a nd monitoring programs, it is hardly possible to eliminate leaks or spills from ever occurring. This commenter went on to say that, in addition, when such instances occur and a hazardous waste is generated, regulations already require recordkeeping and rep orting and thus the addition of the contained provision is unnecessary. [0142, 0163]
(c) RESPONSE : As EPA noted in the 2011 DSW proposal and as reflected in many of the public comments, of particular concern is the lack of preventative measures in the cont ained standard in the 2008 DSW final rule. Given that the contained standard is one of the major requirements for determining that hazardous secondary materials reclaimed are not discarded, this lack of specificity could undermine the exclusion. That is, i f 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 i s adding a regulatory definition of “contained” that resolves this uncertainty without sacrificing the flexibility that would allow the implementing authority to take into account a wide variety of case

- specific circumstances when necessary. This definitio n specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus are not being discarded. We note that the elements of the contained definition are al l measures that are used to prevent releases and ensure operation and maintenance of the storage unit in the same manner as a production unit.
If these criteria were not met 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 adding to 40 CFR 261.4(a)(23) the following: (1) a hazardous secondary material released to the environment i s 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.- 253

-

As noted above, EPA is not specifically applying the contained standard for the pre

- 2008 existing exclusions, which includes scrap metal recycling and is, instead, deferring action until we can more adeq uately address commenters’ concerns. However, the contained standard is being codified for the generator

- controlled exclusion under 40 CFR 261.4(a)(23) and is included in factor three of the legitimate recycling standard in 40 CFR 260.43.
(d) COMMENTS : On

e commenter said that the requirement to contain a hazardous secondary material is covered under the legitimacy criteria. [0157]
(d) RESPONSE : The third legitimacy factor in 40 CFR 260.43 states, “The generator and the recycler must manage the hazardous se condary 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 the re 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.” Therefore, hazardous secondary materials only have to meet the contained standard in 40 CFR 260.10 in cases where there is no analogous raw material.
(e) COMMENTS : A few commenters argued that the contained standard is unnecessary and too burdensome for battery collectors who do not also reclaim lead

- acid bat teries. These commenters noted that EPA on several occasions has recognized that individual lead

- acid batteries qualify as “containers.”

9 One commenter said that lead

- acid battery cases are highly durable, designed to protect the form and function of the b attery through harsh conditions, including contained the lead and acid inside. Commenters said that EPA should maintain a consistent policy regarding batteries and containerization. Additionally, commenters stated a change in regulations is not necessary t o address damaged used batteries, because the Battery Council International have put in place appropriate damaged battery handling procedures and have circulated extensive training materials. One commenter said that, to avoid future confusion, EPA must be clear that entities regulated by 40 CFR 266.80(a), particularly retailers, garages, and distributors, will not be required to meet the land

- based unit containment standard proposed at 40 CFR 260.10. [0212, 0221, 0345, 0350]
(e) RESPONSE : EPA is not specifi cally applying the contained standard to the pre

- 2008 existing exclusions and is, instead, deferring action until we can more adequately address commenters’

concerns. However, EPA notes that the third factor of the legitimate recycling standard, which EPA is applying to all hazardous secondary recycling, includes a reference to the contained standard. The third factor states “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

9 Letter to Jean M. Beaudoin, BCI Environmental Co mmittee from Sylvia Lowrance, Office of Solid Wa ste Director, November 17, 1989 (RO 13339)

. Letter to Christopher L. Freed, Chemical Waste Management, Inc. from Bruce R. Weddle, Office of Solid Waste Acting Director, November 10, 1993 (RO 13638).- 254

-

materials that are released to the environment and are not recovered immediately are discarded.” Therefore, in cases where batteries have no analogous raw material, they must meet the performance

- based contained standard in 40 CFR 260.10.
(f) COMMENTS : One commenter pointed out that the proposed containment requirement is not clear or consistent with language in the proposed rule, which states, “In addition, EPA would like to clarify that managing a hazardous secondary mater ial 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.” This commenter stated that this is not consis tent with the language suggesting that metal scrap should be complying with hazardous waste management containment standards. [0217]
(f) RESPONSE : Units under the contained standard do not have to meet the applicable requirements of 40 CFR parts 264 or 265 . However, if hazardous secondary materials are managed in units that meet the applicable requirements of 40 CFR parts 264 or 265, these units would be considered to be contained.
However, as stated above, where scrap metal has an analogous raw material, it would need to be managed in a manner consistent with the management of the raw material (i.e., virgin ore) and would not have to meet the contained standard.
(g) COMMENTS : One commenter said that storing waste in off

- site land

- based units should conti nue to be regulated under Subtitle C as waste piles, surface impoundments, or landfills. Additionally, this commenter said that EPA considers the material to be discarded when the generator ships off

- site, so off

- site management should be subject to full r egulation, as currently required. This commenter said that the only exception would be when analogous raw product materials are stored in land

- based units (e.g., metal slags, scrap metal); additional protections would then be imposed on land

- based units. T his commenter also asked whether material considered a product is subject to hazardous materials tank and container storage requirements and, if not, then container standards similar to those in part 262 should be required. [0239]
(g) RESPONSE : In its July 2011 proposal, EPA requested comment on applying the contained condition to hazardous secondary materials being managed under a pre

- 2008 existing exclusion or exemption from full Subtitle C hazardous waste regulation. Because these hazardous secondary mat erials are excluded or exempted from hazardous waste regulation, hazardous waste requirements, such as management standards, do not apply currently. Furthermore, EPA did not request comment on applying hazardous waste requirements to the pre

- 2008 exclusion s and exemptions.

10.2.2 Notification
(a) COMMENTS : A few commenters argued that most states have not accepted the 2008 DSW final rule exclusions so any notification and other feedback that EPA has received is limited in scope and therefore not adequate t o evaluate whether to extend notification to other pre

- 2008 exclusions. [0028, 0208] One commenter argued that EPA has failed to show that the pre

- 2008- 255

-

exclusions have resulted in detrimental impacts that would have otherwise been avoided by such notificat ion requirements. [0283]
(a) RESPONSE : EPA agrees that the Agency needs to collect more information regarding whether and how to apply notification to the pre

- 2008 exclusions. EPA is not requiring notification for the pre

- 2008 existing exclusions in the fi nal rule and is, instead, deferring action until we can more adequately address commenters’ concerns.
(b) COMMENTS : Some commenters supported applying the notification requirement to the pre

2008 exclusion in order to make states aware of the activities and to enable compliance monitoring of the conditions of the exclusion. One commenter said, while the initial burden on states might be quite heavy to process, the long

- term benefit of knowing where these facilities are so they can be evaluated periodicall y justifies this burden. [0038, 0257, 0290] One commenter said that Kentucky law already requires annual registration, reporting, and fee payment and that this change would not affect the regulated community inside the state. [0351]

Another commenter said that notification would be beneficial because it both helps to identify these facilities and provides an extra enforcement tool, however, this commenter says that it is likely that generators can be identified through knowledge of the industries and proces ses. This commenter also said that if CESQGs had to notify, the impact would be significant. Additionally this commenter said that lead acid battery recycling is the most successful types of recycling and

re

- notification would be a significant paperwork in crease without demonstrable benefit if this requirement were placed on generators. [0312]
(b) RESPONSE : EPA understands commenters who support notification for the pre

- 2008 recycling exclusions as a method for enabling effective compliance monitoring and, thus, greater protection of human health and the environment. However, as stated above, EPA is not requiring notification for the pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address all comm enters’ concerns.
(c) COMMENTS : Several commenters argued that the notification requires an EPA ID number, which facilities that have not been previously regulated by EPA do not have. Additionally, these commenters said the notification requires facilitie s to list the materials managed under the exclusion and to report the EPA hazardous waste numbers for the hazardous secondary materials and that this would burdensome for facilities to list and test every component. Commenters argued that this would add im measurably to the cost of handling and processing scrap metal. Commenters also argued that EPA Form 8700

- 12 has a 52

- page instruction manual and asked whether EPA considered the cost to have staff read and understand the form. These commenters did not thin

k notification was necessary because regulators already know who they are and they are inspected from time to time. [0048, 0050, 0055, 0056, 0060, 0062, 0070, 0081, 0089, 0095, 0101, 0116, 0117, 0123, 0137, 0139, 0144, 0150, 0208, 0217, 0249, 0275, 0288, 0 292, 0308]
(c) RESPONSE : EPA acknowledges commenters’ concerns regarding how facilities would list materials managed under the exclusion, including reporting of EPA hazardous waste numbers. EPA also understands that submission of the form would result in f acilities obtaining an EPA ID number. In response to this and other comments on notification, EPA is not requiring notification- 256

-

for the pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address co mmenters’ concerns.
(d) COMMENTS : A few commenters said that, rather than requiring updated notification every two years, they would support a requirement to notify in the event of a change to a facility’s operating status under an exclusion or exemption. [0058, 0157, 0333] Other commenters argued that biennial notification should not be applied to sites where hazardous recyclable materials are generated but not reclaimed because EPA has no evidence that “generator

- only” sites have been or will be the sourc e of environmental damage. [0207, 0274]
(d) RESPONSE : EPA acknowledges these comments. For reasons stated above, EPA is not requiring notification for the pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address commenters’ concerns.
(e) COMMENTS : One commenter conceded that knowing who these facilities are is potentially useful to the states and EPA because these sites would be identified and the notification requirement would provide additiona l enforcement avenues. However, a few commenters noted that the biennial notification is significantly more stringent than the current requirement applied to other RCRA

- regulated facilities (except LQGs and TSDFs, which report biennially). [0094, 0157, 025 7] Commenters stated that some states would be interested in a regulation change for a

re

- notification requirement for the existing regulated universes before requiring exempt and excluded activities to re

- notify. [0094, 0257]
(e) RESPONSE : EPA acknowledg es these comments; however, changes to the reporting requirements of hazardous waste facilities is outside the scope of the rulemaking.
(f) COMMENTS : One commenter argued that the Hazardous Secondary Material Addendum is burdensome for facilities operatin g under an exemption/exclusion because they are not in the habit of quantifying hazardous secondary material or determining what waste code(s) would apply. Additionally, this commenter said that the Site ID form would have to be modified to collect this in

formation and that they are doubtful the form would be ready in time for the proposed rule’s December 2012 effective date. [0094, 0157, 0257] A few commenters also argued that most states are already having difficulty keeping their head above water due to continually diminishing resources and that having a biennial notification that coincides with biennial reports could be a significant strain. [0094, 0157, 0257, 0333] One commenter said that if EPA can rejuvenate past plans for MyRCRAID, a website where th e public could apply for an ID or submit a subsequent notification, it would reduce the implementer’s burden. [0094, 0157, 0257] Another commenter argued that the notification provision would place a serious burden on the limited resources of authorized st ates. [0107] One commenter is concerned that the requirement of biennial reporting will overwhelm their data processing resources because the notification requirement will impact thousands of facilities currently not subject to RCRA. This commenter estimat ed that the notification requirement would apply to 9,000 new facilities in just three industries. [0157]
(f) RESPONSE : EPA acknowledges commenters’ concerns regarding the proposed notification. In response to this and other comments on notification, EPA i s not requiring notification for the- 257

-

pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address commenters’ concerns.
(g) COMMENTS : One commenter said that notification should be for information on ly and not a renewal process. If not specifically designated as “information only,” this commenter stated it would lead to uncertainty as to whether or not the Administrator will make changes to or deny the exclusions or exemptions. [0121] A few commenters argued that would be outrageous if failure to notify would potentially result in the loss of the exclusion for recycling processes that are legitimate. [0159, 0210, 0317]
(g) RESPONSE : EPA agrees that the notification would serve as “information” only an d would not require review or approval by the Administrator. EPA disagrees with commenters’ who argue that failure to notify should not potentially result in the loss of the exclusion. 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, both of which indicate that the hazardous secondary material may be discarded. For these reasons, the Agency has finalized notification as a conditio n of the exclusions in the final rule.
EPA, however, is not requiring notification for the pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address commenters’ concerns.
(h) COMMENTS : One commen ter urged EPA to not place any notification requirements on use/reuse operations. This commenter said that one facility in Tennessee has more than 100 recycling loops at a single facility and thus notifying for each specific process would be an issue. [015 9] Another commenter argued that notification should not apply to spent pulping liquor because if pulp mills were to close or to change operations, the state would be well aware of that action. Additionally, this commenter said that notification would be d uplicative of reporting under the Chemical Data Reporting Rule. [0163] One commenter argued that a notification requirement poses a challenge for Environmental, Health & Safety Communications Panel members, for example when lead

- acid batteries are removed from a telecommunications facility or when telecommunications cable is removed from the ground. [0207] Another commenter said that additional notification requirements for 40 CFR 261.4(a)(12) would be duplicative because all major refiners already have EPA hazardous waste numbers and are already known under other regulatory programs. [0262]
(h) RESPONSE : In response to these and other comments, EPA is not requiring notification for the pre

- 2008 existing exclusions in the final rule and is, instead, deferrin g action until we can more adequately address commenters’ concerns.
(i) COMMENTS : A few commenters objected to the placement of notification information in the RCRAInfo database to be freely accessed by the public. These commenters strongly emphasized that in many cases information associated with recycling activities should not be compromised as it is propriety information. [0159, 0238, 0317]
(i) RESPONSE : Although RCRAInfo is not available to the public, some information from notifications would be availa ble to the public via EPA’s websites. However, companies may- 258

-

claim certain information as confidential business information, which would prohibit public disclosure.
(j) COMMENTS : One commenter argued that there can be no misunderstanding as to the stigma

a ttached to the label “hazardous waste” and that suppliers who learn that their scrap materials are listed on a hazardous waste form are going to question the wisdom of keeping these materials in commerce at all. This commenter also argued that labeling rec ycled materials as hazardous waste has enormous legal consequences where local and state laws give exclusive franchises to single firms to handle “waste.” [0208]
(j) RESPONSE : In response to these and other comments, EPA is not requiring notification for t he pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequately address commenters’ concerns.
(k) COMMENTS : One commenter said that states were adamant that they wanted to keep the financial assurance questi on on the Addendum to the Site ID form. [0257]
(k) RESPONSE : Because the 2011 proposed rule proposed to withdraw the transfer

- based exclusion, the question regarding financial assurance under the 2008 transfer

- based exclusion would have no longer been nece ssary. EPA will modify the Addendum to the Site ID form in accordance with the final rule.
(l) COMMENTS : One commenter urged EPA to make coke ovens excluded under 40 CFR 261.4(a)(10) to be subject to notification. This commenter also urged EPA to close oth er serious gaps that could create a potentially unacceptable likelihood of adverse effects to human health and the environment. [0061]
(l) RESPONSE : EPA understands commenters who support notification for the pre

- 2008 recycling exclusions as a method for e nabling effective compliance monitoring and, thus, greater protection of human health and the environment. However, as stated above, EPA is not requiring notification for the pre

- 2008 existing exclusions in the final rule and is, instead, deferring action until we can more adequatel y address commenters’ concerns.


### 10.3 Correlation of recycling damage c ases
(a) COMMENTS : One commenter expressed support for the analysis titled “Correlation of Recycling Damage Cases with Regulatory Exclusions, Exemptions, or Alternative Standards.” This commenter stated that, despite the fact that EPA’s method was highly conservative, the EPA study found that 118 damage cases out of a total 223 (53 percent) were likely correlated with an exemption. The commenter went on to say that this dramatic finding is probably a significant understatement: only nine of the damage cases considered by EPA were operating under RCRA permits when damage occurred, implying that the other 214 facilities

— 96 percent

— were operating under exemptions. This commenter also noted the environmental risks associated with scrap metal, battery, drum, and mercury

- con taining waste recycling. [0244]- 259

-

Several commenters stated that the Correlation of Recycling Damage Cases analysis is flawed and incomplete and to provide no support for EPA’s consideration to add requirements to the other (pre

- 2008) existing exclusions and exemptions. [0111, 0133, 0157, 0175, 0199, 0204, 0213, 0225, 0238, 0355] One commenter requested that EPA correct the erroneous information in th e 2011 Correlation analysis. [0175]
Several commenters argued that EPA failed to link any damage cases with particular exclusions, such as the use/reuse exclusion, characteristic by

- products and sludges, and closed

- loop recycling. These commenters said th at of the 32 exclusions EPA evaluated, half of the damage cases are associated with only seven recycling exclusions and thus EPA is not justified in adding conditions to all 32 exclusions and exemptions without showing the need to do so. [0111, 0133, 0168, 0175, 0193, 0198, 0199, 0202, 0213, 0238, 0269, 0355, 0363] One commenter argued that EPA should apply changes only to those exemptions that are likely correlated to a meaningful number of damage cases, arguing that the error harms its member companies be cause its suggests that there is a flaw in the exclusion that may require correction. [0168] One commenter said that none of the damage cases are a result of the 2008 DSW rule exclusions. [0246]
Several commenters argued against specific damage case corre lations identified in EPA’s analysis. [0111, 0175, 0193, 0208, 0213, 0340] A few commenters argued that the five damage cases correlated to the precious metals exclusion all involved third party recyclers and, in two cases, individuals that were attempting to recover precious metals from photographic film, circuit boards, and other components outside of the mining and mineral processing industry and thus none of these damage cases justifies the imposition of regulatory conditions on the precious metals excl

usion used by this industry. [0111, 0193, 0340] Another commenter opposed EPA’s identification of a damage case at an automobile salvage yard to be correlated with 40 CFR 261.4(a)(12) for oil

- bearing hazardous secondary materials and recovered oil from pet roleum refining operations. [0175] One commenter conducted their own analysis of the 52 damage cases correlated with the scrap metal recycling exclusions and concluded that none of the damage cases could be shown to be a result of companies likely operatin g under 40 CFR 261.4(a)(13) and/or 261.6(a)(3)(ii). This is because, the commenter said, the 52 cases included (1) contamination that did not involve site contamination, but instead involved air emissions or other damage from operations not associated with scrap metal processing; (2) contamination that predated the 1997 scrap metal exclusion; (3) sites that are no longer operating and thus would not be causing ongoing discard that warrant new conditions; (4) contamination associated with metal smelters, fou

ndries, and other related waste management activities not associated with exempt/excluded scrap metal processing; (5) illegal open burning of cable and other materials; and (6) mismanagement of PCB

- containing electrical equipment and/or other PCB waste. [0 208] Another commenter argued against the correlations of five damage cases to the precious metals exclusion arguing that in these cases (1) the damage occurred prior to the adoption of the precious metals exclusion in 1985; (2) the contamination was from other recycling (e.g., mercury) and not precious metals recycling; (3) the operations were illegal; or (4) the operations were not managed in a fashion reflecting prevailing industry practice. [0213]
Some commenters argued that the number of damage cases and damage cases correlated to exclusions or exemptions was not significant. [0168, 0175, 0199, 0246, 0255, 0355] A few commenters said that EPA identified 132 damage cases to be associated with hazardous- 260

-

secondary materials that were likely exempted from Subtitle C under an existing exclusion; however, these 132 cases represent only 2.5% of the 5,321 facilities that EPA estimates were operating under these existing exclusions as of 2007. [0168, 0246, 0255] Thus, one commenter stated that the damage cases a re isolated incidents compared to the vast amount of recycling activity that takes place with no environmental or public health impacts. [0168] Another commenter urged EPA to place the 223 identified damage cases in context in that the damage

cases occurre d over 25 years in a nation with a population over 300 million and a land area of over 3.5 million square miles. This commenter asked EPA what percentage, by volume, of total hazardous secondary materials recycled during the 25

- year

- period did not result i n any environmental damage. Additionally this commenter asked EPA to consider the damage incidents caused by primary manufacturing, transportation, and agricultural operations. [0175]
Commenters said that EPA should gather new data on these materials in a more responsible way (i.e., Information Collection Request) to determine whether targeted changes to these exclusions

are n eeded. [0133, 0199, 0204, 0269]
(a) RESPONSE : The goal of EPA’s analysis to correlate damage cases with existing exclusions was to a ssess whether certain hazardous secondary material recycling exclusions, exemptions, or alternate standards are adequately protecting human health and the environment. Because the majority of exclusions, exemptions, and alternative standards do not include notification requirements, EPA does not have precise data regarding which and how many facilities are recycling hazardous secondary materials under reduced regulation. This lack of data hinders EPA’s ability to collect information regarding what regulatio ns a specific facility was operating under when damage occurred. Because this information is limited, the Agency had developed a methodology that correlates the type of hazardous secondary materials identified in the damage cases to regulations that likely governed the management of the hazardous secondary material. EPA used this methodology to identify patterns related to the types of hazardous secondary material involved in damage cases and whether those materials were likely to be managed under an exclus ion, exemp tion, or alternate standard.
EPA understands commenters’ concerns regarding the limitations of this analysis, including that EPA could only correlate with confidence 7 of the 32 recycling exclusions to damage cases in its

en vironmental problems s tudy. EPA finds this result is more a lack of precision in the data and less that some recycling exclusions have no damage cases. For example, because notification is not required for these exclusions, we can only conservatively identify damage case correlations where the type of hazardous secondary material very clearly matches to an exclusion (e.g., scrap metal). We lack information to make inferences for broadly applicable exclusions (e.g., use/reuse) or for broadly defined hazardous secondary mate rials (e.g., metal

- bearing wastes). Therefore, by virtue of some exclusions’ broad applicability, we were unable to correlate them to specific damage cases. Additionally, due to the lack of data it is difficult to analyze current trends in damage cases, an d thus even more difficult to accurately project what the number of future damage cases might be under different scenarios. However, although it is difficult to assign specific damage cases to certain exclusions, we note that in the environmental problems study only 20% of the damage cases were operating under a RCRA permit at the time of damage. Thus, EPA can generally conclude that the majority of the damage cases at third party recyclers- 261

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were operating outside of RCRA, inferring these facilities were eit her operating illegally or operating under an exclusion, ex emption, or alternate standard.
Regarding other comments on the analysis, including comments on specific damage case

- to

exclusion pairings and on comparing the number of damage cases to the total number of affected entities, EPA agrees with commenters that more information is needed prior to taking final action on specific conditions of the pre

- 2008 recycling provisions. EPA finds it may need to consider each exclusion in terms of evaluating specif ic regulatory gaps and whether additional conditions are needed to ensure protection of human health and the environment. Therefore, we

are not finalizing specific conditions for the pre

- 2008 recycling provisions in today’s rule and are instead deferring a ction until EPA can more adequately address commenters’ concerns, including comments on the record. Before the Agency would take any such action, the Agency would provide the regulated community, as well as other stakeholders the oppo rtunity for notice and comment.
(b) COMMENTS : One commenter questioned three of the exclusions EPA evaluated, including the used oil standards regulated under 40 CFR part 279, the universal waste standards, and drum damage cases. The commenter said EPA failed to explain why the se associations were needed to evaluate excluded hazardous secondary material recycling. [0111]
(b) RESPONSE : EPA included the used oil standards and the universal waste standards in the damage case correlation analysis because these standards have fewer requirements than full Subtitle C regulation. Additionally, drum recycling often operates without RCRA hazardous waste controls because 40 CFR 261.7 excludes residues of hazardous waste in empty containers.
(c) COMMENTS : Commenters said that, although EP A tries to identify the time when damage cases may have occurred compared to when exclusions came into existence, there were other very significant statutory and regulatory factors over these years that should have reduced the possibility of similar damage cases in future years. For example, during the time period when EPA was adding exclusions, EPA was also incorporating other sweeping changes such as the land disposal restrictions and the toxicity characteristic regulations. [0133, 0199, 0204, 0225, 0355] One commenter said that EPA has used a base year of 1982 for the damage case study, yet none of the exclusions being correlated to the cases was in existence in 1982. This commenter stated that the damage case basis should be much more recent in order to be relevant to the current and future set of circumstances EPA proposes to regulate. [0199] A few commenters said that there are numerous facilities/sites in the damage case profiles that had documented operations as long as 50 to 100 years ago. These comm enter stated that, although it may be difficult to determine when damage occurred, it is likely that industrial activities during the distant past were the cause for many of the cited environmental damages. These commenters stated that the damage case prof iles unduly exaggerate potential for future environmental damages caused due to recycling and reclamation. [0225, 0355]

(c) RESPONSE : The Agency maintains that the scope of the environmental problems study is appropriate for the purpose of the DSW rulema king effort. Specifically, w e continue to find that 1982 is an appropriate cut

- off year for the damage case study as it best reflects the point where- 262

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companies became aware of their responsibilities and liabilities for safe management of their hazardous se condary materials intended for recycling. 10 Although the CERCLA statute and the initial RCRA hazardous waste regulations became effective in 1980, there was an initial “phase in” period during which industry and other affected entities began to change their practices with regard to hazardous material recycling, and during which federal and state agencies were developing guidelines and procedures for implementing these new authorities. Thus, we deliberately did not include a number of recycling damage cases t hat occurred during the early 1980s that appeared to have been caused by companies and individuals who were not cognizant of their new responsibilities and potential liabilities under RCRA and CERCLA.
Of the damage cases that met our criteria, we agree that for certain types of damage, such as groundwater or soil contamination, determining when exactly the damage occurred and which property owner caused the damage is difficult. However, in general, the damage cases include multiple types of damage and ce rtain damage, such as abandonment of materials or observed violations of proper storage and containment, can be easily attributed to current facility owners and to post

- 1982 activities. For example, Alco Pacific, a lead recycling facility may have started operations in 1954, but it was 1990 when the company abandoned 98 drums and left over 1,300 cubic yards of lead

- contaminated rubber debris and sand with no containment to prevent dispersal from wind or rainwater. Additionally, it was 1989 when Myers Drum, a drum reconditioning facility, was found to be storing 95% of their 20,000 drums on their side and that spillage, sump overflows, and structural failures were observed. In 1986, Continental Steel, which manufactured wire and rod products from scrap metal, abandoned their facility leaving 220 drums of product material and 50 containers of lead

- cadmium batteries on

- site. These damages occurred well after RCR A and CERCLA became effective. 

## 11.0 Spent Petroleum Catalysts

(a) COMMENTS :
Summary of comments on e xcluding spent petroleum catalysts from the definition of solid waste
EPA received a few comments supporting the approach that spent petroleum catalysts sent to recycling should not be regulated as solid waste, noting that o ne of the largest types of recla imed materials by the petroleum refining industry is spent catalysts. Commenters state that even if EPA has the discretion to classify the recycled catalysts as discarded or not discarded, EPA should exclude the catalysts from the regulatory definition of solid waste on the same conditions as EPA excluded other materials under the 2008 DSW rule. That is, EPA should remove the language in the 2008 exclusions that renders K171 and K172 per se ineligible for the exclusions. [076, 175, 351]

One commenter took i ssue with EPA’s decision to not allow spent petroleum catalysts to be eligible for the 2008 DSW rule exclusions because of pyrophoric properties of the catalysts. 73

10 We would note, however, that even if EPA changed the date to the 1990’s, EPA still identified dozens of damage cases, and thus, changing the cut

- off date, as some commenters suggest, would not impact the study’s overall findings.- 263

-

Fed. Reg. 64714. The commenter stated that in the experience of their members , the catalys ts sometimes have self

- heating properties, but rarely are pyrophoric or otherwise exhibit the RCRA characteristic of ignitability. The commenter notes that the listing background document for the petroleum refin ing hazardous waste listing final rule reveal s that EPA has only anecdotal information suggesting that catalysts are pyrophoric. See Listing Background Document f or t he 1992

- 1996 Petroleum Refining Listing Determination 76

- 77, 83 (Oct. 31, 1995). Also, the background document tends to conflate the de scriptors “self

- heating” and “pyrophoric.” See id. at 76. The commenter cited public comment on the October 20, 2003 notice of data availability (“NODA”) concerning the VPRA petition to amend the land disposal restrictions (“LDRs”) for K171 and K172 from c ompanies who have not observed spent catalysts exhibiting the pyrophoric or self

- heating properties, or in cases where the catalysts were self

- heating, comments argued it would not exhibit the hazardous waste characteristic of ignitability or reactivity.

T he commenter also stated there are other pyrophoric materials or functionally similar materials that are excluded from the definition of solid waste either under the 2008 DSW rule or under pre

2008 provisions. For example, EPA has identified pyrophoric magnesium waste and scrap as a secondary material that may be reclaimed. See 64 Fed. Reg. 44722, 44725, 44728 (Aug. 17, 1999). As a by

- product being reclaimed, magnesium waste would not be a solid waste under 40 C.F.R. § 261.2(c)(3) & Table 1. This would b e so, whether or n ot the material was “contained.” As another example, the commenter states that EPA has referred to pyrophoric catalysts in the inorganic chemical industry. EPA, Sector Notebook Project: Inorganic Chemicals 58 (1995). If such catalysts wer e spent and reclaimed, they would be eligible for the transfer

- based exclusion in the 2008 rule. The commenter added that the same would be true of pyrophoric catalysts in the organic chemical industry, which have been identified by EPA, the World Bank Gro up, and the European Commission. Moreover, the Department of Energy has described spontaneous heating and pyrophoricity in connection with a number of different metals, in addition to magnesium. See DOE Handbook: Primer On Spontaneous Heating And Pyrophori city 19

- 38 (Dec. 1994) (reproduced as Attachment E to these comments). For example, in the case of aluminum: [V]ery fine chips and shavings are occasionally subject to somewhat the same type of combustion as described for magnesium. Powdered or flaked alum inum in its pure form can ignite spontaneously in air and can be explosive in air. Id. at 32.

Moreover, the commenter argues that there are other materials that EPA originally listed as hazardous wastes on the basis of ignitability that are eligible for th e exclusions in the 2008 DSW rule. F003 and F005 are spent solvents that were liste d on the basis of ignitability. 40 C.F.R. § 261.31(a). The ignitability characteristic is defined differently for liquids such as these solvents, but is still concerned with the causation of fires. Liquids that have a “flash point” of less than 140 degrees Fahrenheit exhibit the ignitability characteristic. 40 C.F.R. § 261.21(a)(1). Nevertheless, all spent solvents remain eligible for the 2008 rule exclusions so long as the

r elevant conditions are met.
Therefore, the commenter argues that EPA provides no data to support its claim that the catalysts “present additional risks that are not presented by other types of metal

- bearing hazardous secondary materials” (i.e., risks assoc iated with spontaneous ignition), see 76 Fed. Reg. 44141, and that the example of pyrophoric magnesium disproves EPA’s claim. Thus, the commenter- 264

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argues that materials that are pyrophoric (or otherwise ignitable), that are reactive, that may explode or cau se serious fires, or that may generate deadly hydrogen cyanide gas are excluded from the definition of solid waste as long as they meet any conditions the definition imposes. Thus, nothing meaningfully distinguishes the catalysts such that they should not be eligible for exclusion on the same conditions as other excluded materials. [351]
On the other hand, two commenters argued that spent petroleum catalysts should not be eligible for a general exclusion from the definition of solid waste. Commenters stated that spent catalyst recyclers have consistently sought to insure that such materials are properly containerized, stored, transported, handled and managed in accordance with adequate safeguards when shipped to their facilities for recycling . Commenters sta ted that i nclusion of spent catalysts within the proposed generic DSW exclusions for hazardous secondary materials sent for reclamation, which are not tailored to the unique properties of spent catalysts, potentially could undermine these goals. Commenters said that such proposed changes could also affect the manner and cost of materials management by the companies that generate the vanadium

- containing materials, and create disincentives for legitimate reclamation of spent catalysts. [177, 304]

One commente r stated that w hile EPA has improved the storage requirements (contained standards and requirements), several other issues specific to spent catalyst management are not addressed such as: requirements for full reclamation of the metals and removal of react ive properties of the material; proper shipping requirements under DOT regulations for pyrophoric and reactive material; short accumulations periods to avoid speculation based on fluctuating metals prices, and compliance with benzene NESHAPS regulations. I n addition, commenters stated that EPA's Proposal to include spent catalyst within the generic DSW exclusions could legitimize limited processing which does not satisfy the requirements for complete reclamation. For instance, some refiners could process sp ent catalyst through a thermal desorber simply to remove the oil. If the oil is collected, such as might be done "at a generato r controlled reclamation site,” this could be construed as exempt recycling, even though the remaining material will have virtual ly all the ignitable/reactive and toxic properties as the original material generated by the refiner. Moreover, nearly all of the valuable materials would remain in the spent catalyst, defeating RCRA's fundamental goal of "resource conservation and recover y."
The commenter went on to express a preference for a material

- specific exclusion for spent catalyst reclamation that would (1) ensure safe spent catalyst management and (2) avoid unnecessary regulatory burdens that would deter legitimate reclamation. T he commenter noted that when EPA adopted the generic exclusions for certain types of hazardous secondary materials from the definition of solid waste (DSW) on October 30, 2008 (73 FR 64688), EPA specifically carved out spent catalyst (K171/K172) from these generic exclusions, and stating that:
EPA is planning to propose

- in a separate rulemaking from today's final rule

- to amend its hazardous waste regulations to conditionally exclude from the definition of solid waste spent hydrotreating and hydrorefining ca talysts generated in the petroleum refining industry when these hazardous secondary materials are reclaimed (see entry in the Introduction to the Fall 2007 Regulatory Plan, 72 FR 69940, December 10, 2007).... 73 FR at 64714. The reason that EPA decided not to include spent catalyst within the scope of the generic DSW exclusions was precisely in order to consider the need for- 265

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specific conditions to address the unique properties of spent catalysts not shared by other hazardous secondary materials: It is large ly because of these pyrophoric properties that EPA is considering a separate proposal to conditionally exempt these catalysts from hazardous waste regulation. This future proposal will allow the agency to consider and seek comment on specific conditions to address the pyrophoric properties of these hazardous secondary materials, particularly during transportation and storage prior to reclamation, in order for the Agency to determine that they are not being discarded. As a result of this separate effort, the se spent catalysts will not be eligible for today's exclusions. Id.

The commenter suggested that a specific conditional exclusion would be tailored to the unique properties of spent catalyst and ensure safe management of these hazardous materials. The

com menter stated that s pecific conditions beyond simple storage requirements are required to ensure the safe and proper reclamation of spent catalyst in either case. A uniform and consistent set of specific conditions would then apply to both reclamation unde r the control of the generator and to third party reclaimers. In addition, a specific conditional exclusion would avoid unnecessary regulatory burdens both to the refiner and to the reclaimer in times of low metals prices.

The commenter notes that i n the K 171 /K172 hazardous waste listing proceeding, EPA specifically evaluated the unique risks of spent catalyst management and found that strict regulation is needed to prevent safety and environmental problems. Numerous examples show that mismanagement (even at RCRA permitted facilities) can cause fires, the release of t oxic metals, and other damage. The commenter stated that s pent catalyst is a specialized material: very few companies are experienced with its pro perties and risks and that RCRA regulation of

s pent catalyst has resulted in the development of a small cadre of qualified companies and personnel with the necessary experience and expertise to safely and properly reclaim spent catalyst

.
The commenter went on to state that i f EPA were to include spent catalyst within the proposed generic DSW exclusions, EPA must address the specific conditions applicable to the management and reclamation of spent catalyst and apply them to everyone reclaiming spent catalyst. The commenter stated that EPA's proposed dual system of regulation

-- where spent catalyst under control of the generator (on site or off site) would have minimal conditions applied, while third party reclaimers would basically have to meet full current RCRA

r equirements

-- makes no sense because t he re is no fundamental difference between spent catalysts managed "under the control of the generator" (whether processed on site or off site, or whether managed directly by the generator, by a third party contractor or tolling contractor) and spent catalyst transferred for reclamation. Otherwise, the commenter stated that rule would unnecessarily deter reclamation by third parties in low metal market conditions and encourage unsafe transport of spent catalyst and incomplete reclamation under the control of t he generating company. [304]
(a) RESPONSE : EPA agrees with comments that state spent petroleum catalysts sent for recycling should be eligible for the DSW exclusions under 40 CFR 261.4(a)(23) and (24). In the- 266

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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 at the time, the Agency was planning to propose

— in a separa te 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 h azardous secondary materials are reclaimed.
However, EPA did not end up proposing a separate exclusion for spent petroleum catalyst, and instead included a provision in the 2011 proposed contained standard that address es the risk of fires and explosions, w hich is included in the final rule. As discussed in Section XI of the preamble to the 2014 DSW rule, t his provision addresses the pyrophoric properties of the spent petroleum catalysts
, and also ensures a uniform standard for both spent petroleum catalysts and other hazardous secondary materials that may be reactive, ignitable or otherwise pose a risk of fire. However, EPA does not support commenters’ claim that spent petroleum catalysts are “rarely” pyrophoric as a reason for the exclusion; under the conta ined standard for both the generator

- controlled exclusion and the verified recycler exclusion, any hazardous secondary material that poses a risk of fire or explosion must have that risk addressed in order to ensure that the material is legitimately recycl ed and not discarded.
EPA does not agree that it is necessary to promulgate a separate exclusion for spent petroleum catalyst. As discussed in comment response (b) in this section (below), EPA does not agree that the additional conditions that the commente r suggests are necessary to identify those spent petroleum catalysts that are legitimately recycled and not discarded. By making spent petroleum catalysts eligible for both the generator controlled

- exclusion and the verified recycler exclusion, the 2014 DS W final rule avoids the potential dual system of regulation of catalysts and supports the existing recycling infrastructure to help ensure that the spent catalysts will be safely and legitimately recycled.
For comments stating that hazardous secondary mate rials (including spent catalysts) are never discarded when sent for recycling, see Section 2 of this response to comment document and Section XIII.A. of the preamble to the final rule.
(b) COMMENTS :
Summary of comments on containment standards for spent petroleum catalysts

One commenter stated that n o special containment standards are necessary for spent petroleum catalysts. Because the commenter does not agree that spent petroleum catalysts sent to reclamation can be considered discarded, they also argue that no special containment standards are needed for a solid waste exclusion. However , the commenter stated that to define the absence of discard, it is sufficient to provide that the catalysts (or any other secondary materials) are “contained,” just as E PA did in the 2008 DSW exclusions. Materials are either contained or not. If they are contained, and are genuinely destined for recycling, they are not discarded. The commenter noted that this was precisely the point EPA made in responding to comments in t he 2008 DSW rule:- 267

-

[D]etailed standards are not necessary to determine that valuable materials destined for recycling are not discarded when managed in non

- land

- based units. As with land

- based units, the regulatory authorities can identify hazardous secondary materials that have been released from the unit and determine that the released material is discarded.73 Fed. Reg. 64729.
However, the commenter goes on to say that a ssuming (without conceding) that special containment requirements can be relevant to defining discard (o r its absence), the language concerning fire prevention that EPA proposes would be entirely adequate. That is, it would be sufficient to provide that the storage unit “addresses any potential risks of fires and explosions.” 76 Fed. Reg. 44149 (proposed to be codified at 40 C.F.R. § 260.10).] [175]
Another commenter stated that EPA should adopt a more specific definition of "contained" and a clearer definition of storage requirements. The commenter argues that the simple statement in the Proposal's definitio n of "contained" (40 CFR § 260.10) that the unit "addresses any potential risks of fires" is not sufficient to adequately address this very specific and unique hazard of spent catalysts. The commenter argues that while EPA proposes to improve the storage r equirements ("contained" standards), several other issues specific to spent catalyst management are not addressed, such as: requirements for full reclamation of the metals and removal of material's reactive properties; proper shipping requirements under DO T regulations for pyrophoric and reactive material; short accumulation periods to avoid speculation based on fluctuating metals prices; and, compliance with benzene NESHAPS regulations.
The commenter notes that over the years, generators of spent catalyst have attempted to claim various types of recycling exclusions, many of which did not address any specific management safeguards needed to minimize potential risks to the environment. In some cases, these attempts to exclude spent catalyst from the hazardo us waste rules portrayed spent catalyst as "simply another oil bearing waste" similar to oily sludges and generic byproducts of the refining process. The commenter states that these repeated attempts by some generators to deregulate spent catalyst without regard to its environmental risks demonstrate that some generators have no more knowledge or concern of spent catalyst's unique properties and the proper management methods needed to safely handle this material than the third party companies which have att empted to obtain an exclusion, variance or delisting of partially

- reclaimed spent catalyst residuals. [304]
(b) RESPONSE : EPA disagrees with the comment that no special contained standard addressing the potential of fire is needed for a solid waste exclusi on for spent petroleum catalyst in order to determine it is not being discarded. EPA notes that a hazardous secondary material that is on fire is obviously not being legitimately recycled. Addressing those risks, particularly for a hazardous secondary mate rial that has been known to exhibit pyrophoric properties, is as much a part of “containing” the material as ensuring that the unit is in good condition.
EPA also disagrees with the comment that in order to identify non

- discarded hazardous secondary mater ial, a contained standard for spent petroleum catalyst needs to include (1) requirements for full reclamation of the metals and removal of material's reactive properties; (2) proper shipping requirements under DOT regulations for pyrophoric and reactive ma terial; (3) short accumulation periods to avoid speculation based on fluctuating metals prices; and, (4)- 268

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compliance with benzene NESHAPS regulations. The suggested requirement for full reclamation and removal of reactive properties is unrelated to whether or not the material is contained, and is addressed by the definition of legitimate recycling. DOT regulations for reactive material would continue to apply to any reactive material (waste or not). Accumulation times are addressed by the limit on speculativ e accumulation, and benzene emissions

-- if not addressed directly at the facility via NESHAPS

-- would be covered by other parts of the contained standard, which requires the facility take steps to prevent unpermitted fugitive air emissions

. Instead, EPA is finalizing, as proposed, a contained standard that “ addresses any potential risks of fires and explosions.” This performance

- based standard addresses the potential for discard of all hazardous secondary materials, including spent petroleum catalysts, vi a fires and explosions.
(c) COMMENTS : Request for clarification on the regulation of spent petroleum catalysts
One commenter noted that EPA states that the new contained standard might allow EPA to remove the "ineligibility of Kl71 and Kl72 from the DSW e xclusion, and on other regulatory options, including adding more conditions (such as specific container standards) specific to pyrophoric materials to the exclusion." The commenter stated that EPA's wording is unclear here, but the overall issue seems to b e that the ineligibility of Kl71 and Kl72 from the DSW exclusion is no longer relevant if there is no exclusion at 40 CFR 261.4(a)(24) and (25). It appears that Kl71 and Kl72 would be eligible for the proposed "alternative" requirements but this warrants c larification.
(c) RESPONSE : In response to the request for clarification on the regulation of spent petroleum catalysts , under the 2011 DSW proposal, spent catalysts would have been eligible for the generator

- controlled exclusion and the alternative Subtit le C standards. However, in the final rule, EPA is finalizing the verified recycler exclusion (instead of the alternative Subtitle C standards), therefore, to clarify, under the final rule spent petroleum catalysts are eligible for both the generator

- contr olled exclusion and the verified recycler exclusion. 

## 12.0 Implementation Issues

(a) COMMENTS : One commenter said that small businesses often times have a very difficult time figuring out how new or revised regulatory rules apply to them and suggested that EPA consider developing a small business compliance guide, or fact sheet, that helps explain the DSW final rule. [0124]
(a) RESPONSE : EPA plans to support implementation of the final rule, including developing fact sheets and other guidance documents that will assist compliance.
(b) COMMENTS : Some commenters said, should EPA not remove the legitimacy criteria requirement in all various recycling exclusions and exemptions, EPA must provide the regulated community with sufficient time to address the requirem ent. These commenters said that EPA admits that the proposed codified legitimacy criteria in 40 CFR 260.43 generally will be a more- 269

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stringent requirement than that found under the current regulations, such as the regulated community will have to create and review legitimacy documentation. Additionally, these commenters said that EPA has underestimated the potential for requests for legitimacy determinations as a result of these proposed changes. Therefore, these commenters stated that EPA should not require compliance for at least three years from the promulgation date of the final rule. [0133, 0199, 0225, 0238]
(b) RESPONSE : With respect to legitimacy, it has been EPA’s long

- standing policy that all recycling of hazardous secondary materials must be legitim ate. If a facility is engaged in sham recycling, this, by definition, is not real recycling and that material is being discarded. Additionally, EPA considers the four legitimacy factors codified in 40 CFR 260 .43 to be subs tantively the same as the existing legitimacy policy, which has been articulated in the 1989 Lowrance Memo and in various DSW Federal Register notices. In proposing to codify legitimate recycling for all exclusions, we did not intend to raise questions about the status of general legitimac y determinations that underlie existing exclusions from the definition of solid waste, or about case

- specific determinations that have already been made by EPA or the states. As noted in the comments, EPA generally considered the legitimacy of the recyclin g process when the original determinations were promulgated, and the Agency did not intend to force companies to have to reexamine long standing legitimate recycling practices. Therefore EPA is not revising the pre

- 2008 exclusions and exemptions to include a legitimacy requirement.

However, as discussed in section VIII, these material

- specific exclusions from the definition of solid waste do not negate the basic requirement that the hazardous secondary material must be legitimately recycled. Therefore, EPA is codifying a general statement in § 261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is discarded and thus, is a solid waste. By codifying a prohibition on sham recycling that applies to all hazardous secondary materials being recycled, we are confirming that we expect anyone operating under a recycling exclusion or exemption to be doing so legitimately. EPA finds that this will give implementing agencies a clear regulatory statement that can be used to enforce a gainst sham recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling under the pre

- 2008 exclusions to revisit previously

- made legitimacy determinations.
Additionally, the Agency has, based on the public comments, made adjustments to the legitimacy factors to build in more flexibility for meeting each factor and thus ease the use of the standard. For example, EPA has modified factor 4 to rely on widely

- recognized commodity standards in the case where there is no an alogous product as a way of recognizing industry standards that ensure their products are legitimate. EPA gives the example in the regulatory text of commodity specification grades for common metals, which would be relevant to scrap metal recyclers, among other metal recyclers. EPA has also included a provision that states that when “hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused,” the product of the recycling proces s is comparable to a legitimate product or intermediate and thus would meet factor 4. This revision addresses concerns regarding the closed loop exemption at § 261.4(a)(8), as well as mineral processing to produce primary metals, because these processes ge nerally include materials looping back into the process to ensure that all the valuable ingredients from the process or metals that can be extracted from the ore are being collected for use.- 270

-

Furthermore, EPA has reduced the overall burden of 40 CFR 260.43 by only requiring documentation of legitimacy for pre

- 2008 existing exclusions in cases where recycling does not meet factor 4 but is still legitimate (rather than for all recycling, as EPA originally proposed in its July 2011 proposed rule). Moreover, EP A has not finalized the petition process in order to further reduce burden on industry and states.
Therefore, in consideration of these changes, EPA finds that it is appropriate to require compliance with the DSW final rule no later than six months from t he date the rule is published in the Federal Register.
For more information and responses to comments on legitimacy, please see the preamble to the final rule or other applicable sections of this document.
(c) COMMENTS : One commenter said that EPA should clarify that the periodic need to ship secondary materials offsite to a fuel blender does not affect the generator

- controlled exclusion. This commenter explained that its members anticipate that at times they may accumulate more secondary materials than t hey would expect to use if the material were reclaimed. At such times, this commenter went on to say that its members would want to send the secondary material to a third party for disposal (e.g., fuel blending); however, an offsite shipment could jeopardi ze the conditional exclusion for the secondary materials that are reclaimed onsite and any equipment in which those materials have been commingled. This commenter argues that the decision to send the material offsite is the point it becomes a waste and thu s this decision would not impact the exclusion for secondary materials being reclaimed onsite. This commenter asks EPA to clarify in the final rule as to how third party transfers impact the conditional exclusion. [0146]

In another scenario, this commenter says that a manufacturer may determine that a reclaimed secondary material does not possess the characteristics for its intended use, for instance the water content of the material may be too high. This commenter asks EPA to clarify in the final rule that at the point in time that a reclaimed material would be discovered not to be fit for its intended use (i.e., “off spec”) it would be discarded and therefore not put at risk the conditional exclusion for other materials that have been collected or stored w ith that material. [0146]
(c) RESPONSE : Under the generator

- controlled conditional exclusion at 40 CFR 261.4(a)(23), hazardous secondary materials are only excluded if they are reclaimed. Hazardous secondary materials that are burned for energy recovery or that are recycled as use constituting disposal are ineligible for the exclusion and must be managed according to the appropriate hazardous waste regulations.
Therefore, a generator who commingles in the same storage unit some amount of hazardous secondar y material that may be reclaimed onsite and thus excluded under generator

- controlled exclusion with some amount of material that may be sent off

- site for fuel blending and thus regulated as hazardous waste must manage the entire mixture as hazardous waste, in accordance with the mixture rule. The storage unit, additionally, would be considered a hazardous waste unit.- 271

-

With respect to the commenter’s second scenario, the manufacturer may choose to discard its recycled product if it finds that the product is not fit for its intended use. At this point, the discarded product would become subject to the solid and hazardous waste regulations, as is the case with any wastestream. EPA confirms that this would not impact the original excluded hazardous secondary mat erial which was recycled into the product so long as the recycling process met the legitimate recycling definition in 40 CFR 260.43.
(d) COMMENTS : One commenter urged EPA to clarify that inadvertent noncompliance with recordkeeping should not nullify the c onditional exclusion. This commenter’s concern is that if recordkeeping has a legal status of a requirement and it is inadvertently forgotten, the deviation should not nullify the exclusion for the company. This commenter said that it would be arbitrary fo r a minor infraction to destroy the conditional exclusion. [0146]
(d) RESPONSE : Recordkeeping, such as the provision to document legitimacy under the generator

- controlled exclusion, is a condition of the exclusions. Therefore, failure to meet keep certain records could potentially result in the loss of the exclusion for the hazardous secondary materials (i.e., the hazardous secondary materials would become solid and hazardous wastes and subject to full Subtitle C regulation). Recordkeeping as a condition pr ovides states and EPA the ability to properly enforce against facilities that blatantly disregard the recordkeeping provisions, while leaving the flexibility to tailor enforcement appropriately for those cases where failure to document was due to an uninte ntional oversight.
(e) COMMENTS : One commenter stated that EPA should make it clear that a party that in good faith relies upon the representations of a recycler is not responsible for the failures of that recycler under CERCLA, RCRA, or otherwise. [0172]
(e) RESPONSE : EPA intends that if a generator has met its conditions of an exclusion , including the that recycling is legitimate recycling, prior to transferring the hazardous secondary materials to another facility, then the generator would not be liable under RCRA if the hazardous secondary materials were subsequently discarded by the other facility. However, the final rule does not limit or otherwise affect EPA’s ability to pursue potentially responsible persons under section 107 of CERCLA for releases or threatened releases of hazardous substance s.
(f) COMMENTS : In response to EPA’s request for comment on the hazardousness of reclamation residuals and whether the derived

- from rule would need to be modified to regulate residuals from excluded recycling a s hazardous waste (76 FR 44141), one commenter recommended no change to the derived

- from rule. [0351]
(f) RESPONSE : EPA agrees with the commenter and has made no modifications to the derived

from rule. EPA confirms that the “derived from” rule articulated in 40 CFR 261.3(c)(2) does not apply to residuals from the reclamation of excluded hazardous secondary materials, such as reclamation of hazardous secondary materials under the generator

- controlled exclusion. These residuals are a new point of generation f or the purposes of applying the hazardous waste determination requirements of 40 CFR 262.11. Therefore, if the residuals exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be considered hazardous wastes (unless otherwise excluded) and would have to be managed accordingly.- 272

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(g ) COMMENTS : One commenter concurred with EPA’s clarification that, after mixing excluded hazardous secondary materials with regulated hazardous waste, the reclaimer must manage the entire mixt ure as hazardous waste for the purpose of reclamation. [0177] Another commenter stated that EPA’s discussion of the issue was extremely confusing and recommended that it be simplified by stating that the mixture rule applies to the hazardous secondary mate rials as it would with any other wastes. [0299]
(g ) RESPONSE : EPA agrees with the commenter that supports EPA’s clarification. With respect to the commenter who stated that the discussion could be simplified, EPA notes that, in this case, the circumstances around which mixing can occur are more nuanced than simply applying the mixture rule. This is because the 2008 DSW final rule exclusions are conditioned on the fact that the hazardous se condary materials are reclaimed and, thus, the mixture of excluded hazardous secondary materials and hazardous waste must also be reclaimed. A generator, for example, cannot transfer hazardous secondary materials under the exclusion only to have the destination facility commingle the excluded material with other regulated hazardous waste, resulting in a hazardous waste mixture which is then disposed, such as by being burned for energy recovery. This scenario, although in line with the mixing rule, would fl y in the face of the exclusion. Furthermore, EPA’s discussion also i ncluded clarification as to which requirements (i.e., the conditions of the exclusion or the hazardous waste requirements) apply to the mixture.
(h ) COMMENTS : One commenter stated that it had no comments regarding EPA’s discussion on rejected loads under t

he 2008 DSW final rule exclusions. [0177]
(h ) RESPONSE : EPA acknowledges this comment.
(i ) COMMENTS : Several commenters agreed that EPA should allow flexibility in dealing with interstate transportation issues and allow for shipments of hazardous secondary materials from a state which does not adopt the exclusion to a state that has adopted the exclusion. [0156, 0175, 0177, 0178, 0179, 0251, 0272] One commenter argued that if the state with the receiving facility determines that the rules are suitable and t he material can be managed in a manner protective of human health and the environment, then a generator should not be penalized for making an effort to recycle the materials. This commenter said that if the hazardous secondary material is not subject to re gulation in the receiving state, the shipping paper could have a notation providing the appropriate regulatory citation indicating that the hazardous secondary material is being recycled. [0156] One commenter argued that EPA should leave it up to the recei ving state to decide whether (and if so, under what conditions) to allow imports from states that have not adopted the exclusion. This commenter said that as long as state programs remain at least as stringent as EPA’s program, EPA would seem to have no re al interest in resolving such conflicts and should allow the states the flexibility to resolve such conflicts themselves. [0175] One commenter said that EPA should require that the generating states have, at a minimum, requirements that mirror MassDEP’s Tr ansport and Manifest Standards in its hazardous waste recycling program as described in MassDEP’s alternative manifest system for hazardous recyclable materials. [0178] Another commenter said that for a number of years, states have allowed shipments of was te that may be hazardous in one state and not in another on a hazardous waste manifest provided that appropriate notation is made on the status of the waste in the respective states. [0179]- 273

-

Two commenters said it would be difficult to predict what the inte rstate transport implications would be with the remanufacturing exclusion because EPA did not provide draft rule text and requested comment on a multitude of variables. [0179, 0251]
(i ) RESPONSE : Regarding interstate transport under the generator

- controlle d exclusion, the remanufacturing exclusion, and the verified recycler exclusion (which replaced the transfer

based exclusion in the final rule), if the originating state has adopted the exclusions, but the receiving (or transfer) state has not, then the ha zardous secondary materials are subject to the hazardous waste requirements (e.g., manifesting) of the receiving state upon reaching the border of that state (i.e., the hazardous secondary materials must be managed as hazardous waste and would no longer be managed under the exclusion). Furthermore, if the originating state has not adopted the rule, but the receiving state has adopted the rule, the hazardous secondary materials must be managed as regulated hazardous waste not only in the originating state, b ut also in the receiving state.
(j ) COMMENTS : One commenter argued that the lack of information on the effectiveness of existing regulation on interstate solid waste transportation is a glaring oversight. This commenter said that the regulations on solid w aste should be harmonized with DOT rules on hazardous waste transport and that EPA does not offer an assessment of how the proposed rule will affect interstate transportation of hazardous secondary materials. This commenter went on to say that not every st ate is currently regulated under the EPA DSW rules and thus the patchwork of state regulations and DOT rules creates uncertainty for industry and inefficiency in the regulatory framework. [0104]
(j ) RESPONSE : EPA understands the commenter’s concern regarding the state

- to

- state differences in RCRA regulations, however, this is inherent in the RCRA statute, which allows states the authority to direct their own RCRA program, provided it is as stringent as the fe deral program. Additionally, excluded hazardous secondary materials meeting the definition of a DOT hazardous material must be transported in accordance with DOT requirements.
(k ) COMMENTS : Some commenters concurred with EPA’s clarification that solvent s till bottoms, as a residual from the reclamation of spent solvents, can be burned for energy recovery without invalidating the DSW final rule exclusion for the spent solvents because the still bottoms are a new point of generation. [0177, 0189, 0299]
(k ) R ESPONSE : EPA agrees with commenters who supported this clarification. Still bottoms from the reclamation of the solvent s listed in 40 CFR 261.31(a) as F001

– F005 are themselves listed hazardou s waste and are not products of solvent r eclamation. These still bottoms are a ne w point of generation, and they ma y be burned for energy recovery under the hazardous waste regulations without invalidating the exclusion.



## 13.0 State Authorization COMMENTS : One commenter r ecommend ed that EPA urge all RCRA authorized states to adopt this latest rule to avoid confusion over which regulations apply in any given state and keep the competitive playing field on a more level basis. [0167]- 274

-

Two commenters argue d that the combined DSW changes (2008 final rule and 2011 proposed rule) are broader in scope and/or more stringent than the current state regulations . Therefore, given concerns over: (1) some states adopting the proposed rule and other states not adopting the rule, (2) some requirement s being more stringent and therefore requiring adoption, and (3) the entire proposed rule being broader in scope and/or more stringent than current state programs
, the y recommend that
, in the final rule
, the EPA require states to adopt in order to maintain primacy. [0299] [ 0367 ]

One state commenter noted that the legitimacy and standards and criteria for variances from classification as a solid waste (as discussed in Section XI of the proposal ) are standards that would be considered more stringent and , thus , requir e modification of the RCRA program to adopt equivalent, consistent and no less stringent requirements. Until the state promulgates equivalent standards and receive s authorization from EPA to administer those standards, responsibility for administer ing and enforcing tho se standards would fall to EPA. This commenter stated that EPA should be aware that it will not be immune to increased demands on its own resources if the rule is finalized without substantial revision. [ 0225 ]
One commenter noted that, because not all of the states have adopted the 2008 standards, there will be confusion and a greater chance for mistakes to be made between states with different hazardous materials
, which will likely increase those compliance costs . This commenter said, given the problems many states are already facing with their budgets, that this is a problem that many states can do without. Another commenter stated that, because the p roposed DSW rule requires more information for notification, more information about ha zardous secondary and recyclable materials, extra recordkeeping, reclamation plans, petition processes, potential permitting activities, and a potential increase in the regulated universe , that the resources needed to implement the proposed DSW rule would place an undue burden on authorized states . [104] [ 0299 ]
To help with state authorization, one commenter recommends that EPA either: (1) develop one checklist that combines both the 2008 DSW final rule and the proposed DSW rule, or (2) retract the 2008 DSW final rule and promulgate a new DSW rule with the combined set of regulations. [299]

RESPONSE : EPA agrees with comment s urging EPA to encourage states to adopt this final rule, and we also agree that uniform adoption of this rule would confer many benefi ts. We plan to advise states to pick up the rule as soon as possible, and we will conduct vigorous outreach to accomplish that goal.
EPA disagrees with comments stating that the Agency should determine that the DSW rule as a whole must be adopted by all s tates. It is true that revisions to the definition of solid waste being finalized today are more stringent than those promulgated under the 2008 DSW final rule, so those states which have adopted the 2008 DSW final rule would be required to modify their pr ograms. However, when compared to the federal program that was in place when the 2008 DSW final rule was finalized, many of today's revisions would be considered less stringent.- 275

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Therefore, authorized states that have not adopted the 2008 DSW final rule are not required to modify their programs to adopt these exclusions and the federally authorized state hazardous waste regulations applying the full subtitle C requirements will continue to apply in those states.
EPA agrees that t

he revisions to the definiti on of legitimacy are more stringent than the current federal hazardous waste program because they codify implicit requirements that have been largely implemented through guidance. In addition , the additional recordkeeping requirement in the speculative acc umulation provision in 40 CFR 261.1(c)(8), is also more stringent than the current federal hazardous waste program. Finally, the changes to the standards and criteria for variances from classification as a solid waste discussed in section IX are more strin gent than the current federal hazardous waste program. In these cases, all authorized states will be required to modify their programs to adopt equivalent, consistent and no less stringent requirements. In promulgating these changes, EPA has carefully cons idered the impact to state programs and has taken steps to minimize the burden to states.

It should be noted that f

inal decisions regarding whether a state rule is more stringent under 40 C.F.R. 271.1(i)(1) or broader in scope than the federal program unde r 40 C.F.R. 271.1(i)(2) are made when the Agency authorizes state programs.
Finally, in implementing the final rule, EPA will explore ways to facilitate the state authorization process, including the possibility of developing a combined checklist for both the 2008 and 2014 DSW regulatory changes for those states that have not adopted the 2008 rule. 

## 14.0 Administrative Rulemaking Requirements
14.1 EO 12866 and 13563: Reg planning and r eview and Regulatory Flexibility Act (RFA)

(a) COMMENTS : Several comment ers said that the DSW Regulatory Impact analysis did not comply with the requirements of the Executive Orders regarding Improving Regulation and Regulatory Review (Executive Order 12866 and Executive Order 13563).
On January 18, 2011, the President issued Executive Order 13563, entitled Improving Regulation and Regulatory Review. 76 Fed. Reg. 3821 (Jan. 21, 2011). That order supplements and reaffirms Executive Order 12866 of September 30, 1993. Exec. Order No. 13563 § 1(b). Under those executive orders, an agency must “(1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify).”
Section 1(b) of Executive Order 13563 states that "each agency must ... propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs." Section 1(c) states, "In applying these principles, each agency is directed to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible." The proposed rule has not satisfied the requirements of Executive Order 13563. The proposed requirements, the RIA, and the ICR need to be dramatically revised,
Finally, the Agency has failed to materially assess the Solid Waste Rule’s likely effect on employment and job creation under 42 U.S.C. § 7001(e). RCRA commands EPA to conduct- 276

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“continuing evaluations of the potential loss or shifts of employment which may result from the administration or enforcement” of the Solid Waste Rule. The Agency ought to comply with this directive using a regulatory “no action” option as the employment impact baseline.
EPA is obligated to examine the rule’s potential impacts on this newly regulated set of activities
, companies, and industries. The fact that the Agency has not done so is a clear violation of the relevant EPA guidance and severely constrains its ability to conduct a meaningful and complete analysis of regulatory impact, and this, in turn, ensures that EPA is not in compliance with EOs 13563 and 12866 and the RIA's conclusion that the proposed rule does not constitute an "economically significant" regulatory action {i.e., not expected to have an annual effect on the economy of $100 million or more) is in error. [104, 140, 154, 175, 208, 225, 238]

(a) RESPONSE : The objectives of Executive Order 12866 are to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory de cision

- making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public. In pursuing these objectives, the regulatory process shall be conducted so as to meet applica ble statutory requirements and with due regard to the discretion that has been entrusted to the Federal agencies. EO 13563 reaffirms and enhances EO 12866.
Based on comments from stakeholders, and in compliance with EO 12866 and EO 13563, EPA has revised the Regulatory Impact Analysis (RIA) by adding a clearer declaration of regulatory need, a revised baseline pre

- 2008 cost estimate, a revised estimate of the number of facilities affected, a more robust benefits analysis, and a more thorough examination of impacts. Additionally the RIA for the 2014 final DSW rule includes an assessment of employment impacts resulting from the final rule. See Chapter 7F of the RIA for more detail.

The final RIA also reflects the substantive differences between the 2014 DSW f inal rule and the 2011 DSW proposed rule, which has greatly reduced the potential costs. As discussed in the preamble to the final rule, these changes include finalizing the verified recycler exclusion, rather than the alternative Subtitle C recycling stan dards, making no changes to the pre

- 2008 recycling exclusions and exemptions, revising the legitimacy standard to acknowledge the legitimacy of in

- process recycling and of commodity

- grade recycled products, and removing the documentation requirements from the legitimacy standard except in cases where the recycling cannot meet factor 4 (toxics along for the ride) on its fac e. As a result of these changes, estimated cost savings increased. Based on the impact estimates presented in the RIA supporting these re visions, EPA does not expect that the finalized changes will be “economically significant” because the changes result in additional estimated annualized cost savings, thus compliance with the final rule is much less than the $100 million annual effect thre shold of Section 3(f)(1) of Executive Order 12866. The revised RIA estimates that the 2014 DSW rule will result in a future annual costs savings of $1.0 to $2.0 million per year, depending on discount rate used, as compared to a baseline of full implementa tion of the 2008 DSW rule. This cost savings is based on the assumption that same number of states would adopt the 2014- 277

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DSW rule as would adopt the 2008 DSW rule. However, because the 2014 DSW rule addresses many of the concerns states raised about the 200 8 DSW rule, there is a potential that more states would adopt it, thus increasing the upper bound of annual cost savings to $17.5 m illion to $59 million per year.
(b) COMMENTS : Several commenters said that EPA’s regulatory impact analysis was based on inco rrect or incomplete information. Executive Order 13563 requires EPA to use the best available science and supporting studies conducted in accordance with sound and objective scientific practices and data collected by accepted methods or best available meth ods. The Order recognizes that unless EPA follows the law and substantiates the quality of its information “through documentation or other means appropriate to the information,” the sufficiency of its science and statistics, and hence the integrity of its regulatory choices, are in doubt. M uch of the data and assumptions included in the proposed rule's RIA is flawed and not supported by strong science or documented facts. (104, 202, 208, 225)
(b) RESPONSE : EPA has used the best available information in deve lopment of the RIA, and has documented the uncertainty of the data by analyzing seven cost estimation uncertainty factors which may influence the future actual cost (or cost savings) of each final rule element in any given year. These seven factors are not necessarily additive (i.e., compounding) in any given year. The factors indicate the upper and lower bounds of potential overestimates and underestimates of costs, which is documented in the RIA. See the Executive Summary and Chapter 6 of the 2014 D SW RIA for further information.
(c) COMMENTS : One commenter objected to the fact that the RIA refers to the various changes that EPA is proposing as "options," which implies that some choice will be made among the "options." However, these proposed revisions to the RCRA regulations are not "options"

- they are the proposed changes. The construction and wording of the RIA serve to evade the fact that EPA is proposing numerous additional requirements on a large number of entities. (140)
(c) RESPONSE : The proposed rev isions to RCRA regulations are “options” to the extent that EPA could have taken action or not on any combination of them, and in fact EPA has finalized some of these options but not others, based on the public comments. Thus EPA disagrees that the use of this term in the RIA somehow “evaded” the fact EPA proposed additional requirements, which were all described in the preamble to the proposal. The final RIA refers to the various “elements” of the final rule, since there is no longer a question of which el ements would apply.
(d) COMMENTS : Several commenters objected to EPA’s use of full Subtitle C as the baseline for calculating the impacts to the pre

- 2008 recycling exclusions, instead of assuming the pre

2008 exclusions were in place for the baseline. The RIA estimates that the entire DSW proposal will produce a net benefit of $73.6 to $79.5 million per year, but attributed $79.3 million of that net benefit to recycling under the pre

- 2008 recycling exclusions. RIA at p. 4. Therefore, virtually 100% of the n

et cost benefit claimed by EPA for its 2011 proposal is attributed by EPA to recycling activities that have long been available under current regulations and upon which EPA now seeks to increase the regulatory burdens.- 278

-

In other words, EPA reaches the con clusion that facilities that currently recycle secondary materials pursuant to pre

- 2008 DSW exclusions will reap a cost savings of $19,532 per year if the July 22 Proposal is finalized. See RIA at 101

- 02. This supposed "cost savings" figure is a fantasy. C urrently, facilities relying on pre

- 2008 DSW exclusions do not incur any costs complying with the RCRA regulations. Thus, there are no cost savings deriving from EPA's July 22 Proposal for facilities relying on pre

- 2008 DSW exclusions. EPA is simply wrong when it estimates savings with respect to the Proposed Rule's impact on the pre

- 2008 exclusions, because the proposed changes will add significant new and costly compliance requirements. EPA is likewise wrong to characterize these "savings" as avoided cost s. Under EPA's own prior analysis, discard does not occur when the pre

- 2008 exclusions are used; EPA cannot now portray the use of the pre

- 2008 exclusions as avoiding the cost of RCRA jurisdiction.
Specifically, in Chapter 4, Section 4C

- Baseline Regulat ory Cost Savings for the Pre

- 2008 Recycling Exclusions: ln this section of the RIA (page 101). EPA assumes that the avoided RCRA regulatory costs for facilities operating under the pre

- 2008 DSW exclusions, will on a per

- facility average annual basis, be th e same as the 14 RCRA regulatory requirements avoided as presented in Exhibit 4A above for the 2008 DSW exclusions.'' EPA estimates this cost savings as $19,532/year for 5,321 facilities. Again, EPA is wrong to characterize the use of the pre

- 2008 exclusio ns as avoided costs. EPA promulgated these exclusions for activities that EPA clearly viewed as legitimate and set a jurisdictional line because EPA was persuaded during various rulemakings over the years that discard was not occurring. If discard does not occur, RCRA jurisdiction never attaches and RCRA regulatory requirements are not avoided. [0133, 0171, 0193, 0196, 0198, 0202, 0238, 0350, 0355]
(d) RESPONSE : EPA agrees that the 2011 DSW RIA incorrectly set the baseline of Subtitle C for the pre

- 2008 rec ycling exclusions cost estimate and has corrected this error in the final RIA. The 2014 DSW RIA now assumes there are zero baseline RCRA regulatory costs for facilities operating under the pre

- 2008 DSW exclusions since they are excluded from RCRA regulatio n. For hazardous secondary materials under pre

- 2008 DSW exclusions, the recovery costs net out to zero due to equivalent pre

- and post

- 2014 DSW rule costs and are not estimated. Facilities do not need to wait for any approval of legitimacy documentation by the Agency or State. Legitimacy documentation (when necessary) is to be prepared, certified and stored on site. A notification is only required to be sent to the regulatory agency when a facility is required to prepare legitimacy documentation to satisfy F actor 4 of the legitimacy recycling criteria. The RIA assumes that recycling under the pre

- 2008 DSW exclusions will meet the legitimacy provisions of the DSW Final Rule and there will be no cause for a change in management due to identified “sham recycling ” that would affect the total cost estimates. For the RIA it is assumed there are zero baseline costs associated with activities included in revisions to pre

- 2008 DSW exclusions under the DSW final rule (legitimacy documentation and certification kept on s ite and notification to the regulatory agency when legitimacy documentation is prepared, only in cases where the recycling is legit imate but factor 4 is not met).
(e) COMMENTS : Some commenters expressed concern about the impact of state adoption on the impacts of the rule. The 2011 DSW RIA fails to take into account the limited adoption of the 2008 Final Rule by the States and the limited number of facilities that have allegedly gained from the projected cost savings. To date, only 4 States and Territori es

– regulating 49 facilities,- 279

-

have adopted the 2008 Final Rule. EPA’s cost saving projections envisioned approximately 5,600 facilities potentially affected by “deregulatory” 2008 Rule. Yet three years later, only a minute number of the potentially affect ed facilities have been positively impacted by the 2008 Rule.
EPA failed to consider the wide range of possible scenarios for future applicability of the proposed rule based on state action into the future. For example, a more thorough analysis is

necessar y to assess the impact of the Proposal’s replacement of the 2008 transfer

- based option with a Subtitle C substitute and its addition of notification, recordkeeping, “contained in”, and tolling restrictions. The RIA also fails to acknowledge or attempt to c onsider a particular legal complication of these rulemakings. The 2008 Final Rule was presented by EPA as a relaxation of regulations in place at the time of its finalization and States were therefore not required to adopt the 2008 Rule. Each of the regula tory changes in this Proposed Rule, if finalized as written, would result in more stringent regulation and thus require State adoption.
Put another way, the 2008 Final Rule invited the States to manage the reclamation of spent materials, listed sludges and listed byproducts in a framework outside of Subtitle C of RCRA. To date, few have chosen to do so to date. However, the 2011 RIA (building on the faulty assumptions of the 2008 RIA) projects that over the next 50 years all of the States will have adopted the 2008 rule and EPA determined facility impacts based on this projection. EPA did not explain how it arrived at its projection or why its projection may be reasonable. It certainly does not appear that any attempt was made to ask States whether they anti cipate adopting the2008 rule.
The Proposed Rule appears to take back some of the management discretion given to the States under the 2008 Rule, but under a different management scheme than existed before. Thus States (other than the four mentioned above) w ill be in a quandary as to whether their current waste management program is more or less stringent than one comprised of the 2008 Final Rule plus the current 2011 Proposal (if finalized as proposed). The RIA makes no attempt to assess what this means for State obligations and therefore cannot quantify how States will revise their application of the rules on the affected industry facilities and material streams. [0238, 0355, 0363]
(e) RESPONSE : EPA agrees that state adoption should be considered in estimati ng the impacts of the DSW rule and has adjusted the analysis to account for state adoption rates. States have been reluctant to adopt the 2008 DSW rule in part because EPA has been reconsidering it, and also because of state concerns about the protectivene ss of the transfer

- based exclusion, but once the 2014 DSW rule is in effect, EPA anticipates a greater state adoption rate. Public comments indicate that 52 states and territories would likely adopt the 2008 DSW generator

- controlled recycling exclusion and 44 states would likely adopt the 2008 DSW offsite transfer

- based recycling exclusion. The 2014 DSW RIA assumes that 44 states/territories would have adopted the 2008 DSW exclusions in the baseline. The 2014 DSW RIA assumes the lower 44 state adoption rate because there are many more affected 2008 DSW transfer

- based recycling exclusion facilities than the count of affected 2008 DSW generator

- controlled exclusion facilities.- 280

-

Previously in EPA’s RIA for the 2008 DSW exclusions final rule, industry implementat ion cost estimates were presented for a hypothetical scenario in which 100% of eligible facilities submitted notifications for the 2008 DSW exclusions. However, the 2014 DSW RIA derives a future exclusion notification scenario relative to the actual 3.2% a nnual percentage of facilities which have submitted DSW exclusion notifications under the 2008 DSW final rule as of April 11, 2012. This actual notification rate is applied in the RIA as a most likely scenario over the 50

- year future period of analysis (i. e., 2014 to 2063). Using this 3.2% average annual notification rate over the future 50 year period of analysis, the cumulative average annual count of facilities assumed notifying under the 2008 DSW final rule is 54% of all facilities potentially eligible for the 2008 DSW exclusions. See Chapter 3 of the 2014 DSW RIA for further discussion of the annual notification rate and cumulative av erage annual notification rate.

S ee Section XX of the preamble to the 2014 DSW final rule for more information on state authorization, including information for the states about the stringency of the final rule elements for the purpose of state adoption.
(f) COMMENTS : Some commenters expressed concern about EPA’s use of the ICR to calculate labor costs. Agency’s cost estima tes are based largely on empirically foundationless estimates of labor time and recordkeeping and reporting cost. EPA relies on estimates found in Paperwork Reduction Act Information Collection Request (ICR) time burden calculations previously submitted to the Office of Management and Budget. However, the source documents reveal that the estimated time burdens are only assumptions derived from thin air.
For example, EPA estimates that submittal of the required notification using EPA Form 8700

- 12 will requir e” 0.1 hours of managerial time at $101.68 per hour, 0.3 hours of technical labor at $69.32/hour, and 0.1 hours of clerical labor at $24.67 per hour.” The only empirically based data in this formulation are the hourly labor compensation rates, taken from B ureau of Labor Statistics survey findings. The estimates of labor time, however, are pure assumptions.
Inexplicably, EPA failed to obtain credible estimates of burdens and costs. The Agency easily could have surveyed potentially affected facilities and determined the actual time required for recordkeeping and reporting. Alternatively, EPA could have used its own staff to carry out these tasks as an experiment. Either approach would have yielded a more credible cost estimate. Instead, EPA chose arbitrary and unfounded assumptions. Such conduct is arbitrary, capricious and contrary to law, and in clear violation of both the letter and the spirit of Executive Or der 13563. [154, 196, 350, 355]
(f) RESPONSE : EPA disagrees with the comment that ICR estimates ar e not appropriate for estimating labor costs under the RIA. The EPA’s use of ICRs for preparing RIAs is a standard and acceptable procedure and it is logical for these two analyses to use consistent assumptions. The labor assumptions for notification are c onsistent with those assumed in the approved 2008 DSW ICR. For further discussion of comments on the ICR, see section 14.2 of this response to comments document.
(g) COMMENTS : Many commenters disagreed with EPA’s estimates of the impacts of the 2011 DSW p roposal to facilities operating under the pre

- 2008 DSW exclusions. The additional- 281

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conditions will pose an undue burden on businesses without any environmental benefit and will discourage recycling. Companies operating under the pre

- 2008 exclusions go to gr eat lengths to ensure that they do not handle hazardous waste. If EPA were to add conditions to the exclusions, companies would be required to obtain additional insurance, local licenses, training, new inspection procedures, lawyers, and consultants in ord er to maintain compliance and to prepare for an inadvertent loss of the exclusion, which would make it a handler of hazardous waste. Commenters argued that many scrap metal businesses are small and family

- owned and cannot afford these new requirements and thus, these regulations will severely affect business and jobs. [133, 140, 193, 199, 202, 204, 208, 225, 238, 355]
(g) RESPONSE : In response to the comments received about the impacts of the 2011 DSW proposal to legitimate recycling under the pre

- 2008 recy cling exclusions, EPA has determined that there is a high potential for unintended consequences for finalizing additional requirements to the pre

- 2008 existing recycling exclusions and exemptions and that more study is needed before taking action. Therefor e, EPA is not making any changes to the language of the 32 recycling exclusions and exemptions at this time. In the case of the legitimacy provision, EPA is instead codifying its long

- standing policy against sham recycling (See comment response (h)).
(h) C OMMENTS : Many commenter disagreed with EPA’s estimates of the impacts of the 2011 revised definition of legitimate recycling. E PA has severely underestimated future average annualized costs to the regulated community to comply with the proposed legitimacy revisions addressed in the RIA. [104, 111, 133, 140, 171, 193, 194, 199, 208, 216, 225, 238, 255, 350, 355, 363, PA

- 0001]
Estimate of facilities that will need to document legitimacy
The RIA dramatically undercounts the number of legitimacy petitions. The RIA assumes that only a "rare" 5 percent of waste streams (266 streams) will need to undertake a legitimacy petition, but this appears to ignore the effect of the Appendix VIII constituent

- by

- constituent comparable or lower requirement, which will likely cause more facilities to decide to seek legitimacy petitions. The RIA predicts that 5,321 facilities are using the pre

- 2008 DSW exclusions and that each facility will have to perform one legitimacy determination. This incorrectly assumes that there is only one affected stream per facility and that the stream does not vary over time. In reality, many facilities will have a number of different streams that fall under various pre

- 2008 DSW exclusions. The RIA asserts that ''for the total population of pre

- 2008 recycling exclusion facilities, the aggregate annual cost for codifying that all four legitimacy factors be met under the legitimacy definition assuming 5% of the facilities use legitimacy petitions and the remaining 95% use legitimacy documentations." [Fo otnote 27: RIA page 119.] Thus, EPA assumes 5,321 facilities will submit 266 legitimacy petitions.

EPA admits that EPA does not have accurate data on the annual quantities of pre

- 2008 excluded hazardous secondary materials. EPA discusses a TRI methodolog y for estimating the count of facilities using the pre

- 2008 exclusions. A large error in this methodology is that it only gives a count of facilities that may use the pre

- 2008 exclusions (5,321). EPA does not show how- 282

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frequently each facility might use par ticular exclusions; this can be quite frequently, especially with respect to the §261.2(e)(i) and §261.4( a)(8) exclusions, among others.
Availability of Informati on for Legitimacy Determination
EPA estimates that average cost of documenting and demonstrati ng compliance with the four "legitimacy criteria" (including the certification that carries with it serious enforcement consequences) will be approximately $2,000/facility. RIA at p. 118. This extremely low number appears to be based on EPA's assumption th at the information necessary to demonstrate compliance with the four criteria is readily available, and no new information needs to be generated. This assumption is wrong, and therefore EPA's $2,000/facility estimate is wrong. Facilities are not currently required to create and maintain documentation that each of the four "leg itimacy criteria" is being met.
Company Survey Information
One company with facilities in Louisiana and in other states conducted a crude survey of its various facilities to get a bett er understanding of how frequently the pre

- 2008 exclusions are used and what it would take to develop legitimacy documentation under §260.43 for each of these recycling points and maintain that documentation for enforcement inspections. This company has

- 88 facilities (Louisiana and other states) that are comprised of 260 manufacturing and research plants. The types of facilities range from large integrated industrial complexes to some with only one manufacturing plant. The survey consisted of reviewing si mplified process flow sheets, as opposed to detailed piping and instrument diagrams, to obtain a crude estimate of the number of recycling points. For some large sites, only a few plants were reviewed to get an average frequency per plant. For initial impl ementation of the proposed changes, the company estimated the number of man

- hours it would take to identify and characterize each recycling point with a §260.43 legitimacy document assuming that all the required information was readily available. The compa ny also estimated the time it would take to develop a tracking system so the §260.43 documents could be maintained. The company also assumed a 100% success rate for developing self

- implementing legitimacy documentation under §260.43, so that no petitions f or
non

- waste determinations or legitimacy variances would be needed. For ongoing costs, the company estimated man

- hours to review and update existing documents and to review all new engineering projects for the possibility of new recycling points. For man

- hour costs, the company used a rate of $70/hour or approximately the same rate that EPA used in the RIA for technical manpower. [Footnote 31: RIA, Chapter 5, page 105, $69.32/ hour for technical labor.] Given these assumptions and the type of survey conduc ted by the LCA member company, the company's estimate s should be conservatively low.
The member company estimated its initial implementation costs to develop and track §260.43 legitimacy documents to be approximately $11 million, with ongoing costs of appr oximately $4 million/year. Per facility, these costs would be $125,000 (initial) and $45,000 (annual). In the RIA (Chapter 3 Section 3A), EPA estimates that 5.321 facilities use the pre

- 2008 exclusions based on TRI data and repeats this same number in the preamble for the Proposed Rule. [Footnote 32: 76 Fed. Reg. 441 45.] Using the LCA member company's estimate of facility costs, the total costs to industry could conservatively be estimated at >$650 million (initial) and >$230- 283

-

million (annual), which is sig nificantly higher than EPA's estimates of the implementation costs of the Proposed Rule with respect to the pre

- 2008 exclusions [ 0133]
Impacts to Specific Industries
Mining Industry
Finalization of EPA's proposal would inevitably lead to (1) the shutdown (whether temporary or permanent) of most mining facilities while operations are revamped, with consequent loss of employment; (2) enormous costs to revamp operations at mining facilities; (3) costs to build and maintain acceptable storage facilities for hu ndreds of tons of in

- process secondary materials while a variance petition was being considered by EPA or an authorized State: (4) lost revenues from having to send gold

- rich secondary materials for permanent treatment and disposal, rather than recovering and selling the gold contained in them; and (5) costs incurred to pay a third party with a RCRA permit to treat, store or dispose of the in

- process secondary materials. All of these costs would be new costs incurred by a mining facility due to an EPA decis ion to make the TAR criterion mandatory, but subject to a variance procedure. Moreover, none of these costs was even considered by EPA when preparing its RIA that purports to assess the costs and benefits of the July 22 Proposed Rule. Finally, all of these costs would be wholly unnecessary, given that EPA is already aware that the gold

- and other metals

- rich secondary materials recycled by Newmont and other precious metals mining facilities are being legitimately recycled to recover their metals values, and are not part of a "sham" recycling activity to dispose of unwanted wastes. [193, 363, PA

- 0001 ]
Scrap Recycling
EPA’s Regulatory Impact Analysis (“RIA”) fails to consider the impact of this proposal on the scrap metal and electronics recycling industries, as well as the related metalworking, steel manufacturing, and other industries in the scrap metal and electronics supply, recycling and consumption chain. Estimates of the economic impact of portions of this proposal on just the scrap metal supply/recyclin g chain could easily exceed $1 billion . [208]
(h) RESPONSE : In response to the comments received about the impacts of the 2011 DSW proposal to legitimate recycling under the pre

- 2008 recycling exclusions, EPA has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, legitimacy documentation should not be required, unless the facility has determined it is legitimately recycling, but does not meet Factor 4 on its face.
In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. EPA has previously acknowledged the legitimacy of these recycling practices when it first promulgated the material

- specific and industry

- specific exemptions from the definition of s olid waste, when at that time it took into consideration the legitimacy of the recycling practices. After review of the public comment, EPA has determined that routine documentation of legitimacy is an unnecessary burden for persons legitimately recycling under the pre

- 2008 recycling exclusions.- 284

-

However, the Agency is requiring documentation on legitimacy determinations under two circumstances: (1) persons operating under the generator

- controlled exclusion and the verified recycler exclusion, and (2) person s legitimately recycling under any recycling exclusion or exemption where the hazardous constituents in the recycled products are not comparable or are unable to be compared to those in analogous products (unless the recycled product meets widely recognize d commodity specifications or the hazardous secondary material is returned to the production process). In these cases, the persons recycling would be required to keep documentation of the legitimacy of their recycling.
The Agency has determined that requi ring documentation under the generator

- controlled exclusion and the verified recycler exclusion is appropriate because this exclusion is generic and can be used by a wide variety of industries recycling any of a number of hazardous secondary materials.

In addition, as explained above in section VIII.B.6.c of the preamble, the Agency has also determined that documentation is necessary for those rare cases of legitimate recycling that has significantly higher levels of hazardous constituents in the recycled product than in an analogous product, or has no analogous product, has no widely

- recognized commodity specifications for the recycled product, and is not returned to the production process. In those cases, due to the self

implementing nature of the legitim acy determinations, it is important that the recycler perform the proper analysis and document how the recycling is still legitimate.
The specifics of how the 2014 DSW RIA estimates the cost of documenting legitimacy in these rare case in a way that respon ds to the public comments are describe d below.
Estimate of facilities that w ill need to document legitimacy
In the 2014 DSW final rule, EPA has revised Factor 4 to address the majority of cases raised in the public comments where the proposed Factor 4 woul d not be met but the recycling is still legitimate. Such cases include when the hazardous secondary material is returned to the production process, when the recycled product has specification for the hazardous constituents and meets those specs, and when t he recycled product is a widely recognized commodity that has no comparable product made from raw materials.
EPA acknowledges that comprehensive data on the nationwide counts of facilities of pre

- 2008 excluded hazardous secondary materials are not readily available because RCRA

- excluded industrial recycling is not subject to reporting under the RCRA hazardous waste “ Biennial Report” (BR). EPA’s “ Toxic Release Inventory ” (TRI) requires annual reporting of industrial recycling activities involving +/

- 650 to xic chemicals in certain NAICS code industries over certain annual threshold quantities. The TRI is used to attempt to identify some of the affected population of pre

- 2008 DSW recycling exclusion facilities but it cannot be used to determine the total affe cted population. See Chapter 3 of the 2014 DSW RIA for further discussion.
The TRI data are underreporting reuse because of the definition used for “recycling” for the TRI where it is not defined as recycling and not required to be reported. However, reuse in an- 285

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industrial process will be considered legitimate recycling under EPA’s revised Factor 4 in the 2014 DSW final rule.
Because of the uncertainty in the TRI facility count, the 2014 DSW RIA assumes that between 5,000 facilities (representing the numbe r of facilities identified using TRI and BR data) and 10,000 facilities (doubling the facility count to address data limitations) conduct recycling/reuse activities under the pre

- 2008 DSW exclusions. A mid

- pint of 7,500 facilities was used in the 2014 DSW RIA cost analysis.
In addition, the count of affected wastes was increased to evaluate post

- rule legitimacy criteria documentation costs. Legitimacy documentation is applied on a per waste basis. The 2014 DSW RIA applies an assumption that small facilities will have 2 wastes and large facilities will have 20 wastes with pre

- 2008 DSW industrial recycling exclusions potentially affected by the 2014 DSW Final Rule. An average of 11 wastes per facility is used in the 2014 DSW RIA. See Chapter 3 of the 2014 DSW RIA for further discussion on estimating the number of affected wastes.
Finally, the 2014 DSW RIA assumes that 1% of wastes would incur the documentation, certification and notification costs of legitimacy Factor 4 because products from the recycling of t hese wastes contain higher levels of hazardous constituents than do products made from raw materials. In the 2011 DSW RIA, a 5% “rare” future annual frequency was assumed to represent the midpoint of a 0% to 10% range in any given future year of wastes not meeting all four legitimacy factors. However, in the 2014 DSW final rule, EPA has revised Factor 4 to address the majority of cases raised in the public comments where the proposed Factor 4 would not be met but the recycling is still legitimate. Such case s include when the hazardous secondary material is returned to the production process, when the recycled product has specification for the hazardous constituents and meets those specs, and when the recycled product is a widely recognized commodity that has no comparable product made from raw materials (e.g., commodity grade scrap metal). Although not enough information is provided in the public comments to make definitive legitimacy determinations on all the examples, the revisions to Factor 4 should elimin ate the majority of examples of recycled products not meeting Factor 4 and therefore has reduced the assumed rate of legitimacy documentation required.
Availability of Informati on for Legitimacy Determination
In response to comments stating that EPA assumed that the information necessary to demonstrate compliance with the four legitimacy criteria is readily available and that no new information needs to be generated. EPA assumed there may be three methods for preparing legitimacy documentation. Two of the estimates assume that information is not readily available:

1. In

- house employer assessment ($1,919/waste), 2. Outside vendor ($3,714/waste), or 3. Readily available information ($481/waste).- 286

-

An average of these three costs was used to derive an average unit legitimacy documentation cost per waste. Labor burden estimates were assumed to be similar to making a non

- waste determination and are based on esti mates made in the 2008 DSW ICR.
Company Survey Information
In response to the comment that provided informa tion from a large member company survey detailing the company’s use of pre

- 2008 exclusions and what it would take to develop legitimacy documentation under §260.43 for each of the company’s recycling points and to maintain that documentation for enforcemen t inspections. The commenter’s estimates reflect large chemical manufacturing facilities with an average of 83 wastes per facility (7,300 recycling points / 88 facilities = 83 wastes per facility). The commenter’s average initial cost estimate per facility is $125,000 or $1,506 per waste ($125,000 per facility / 83 wastes per facility = $1,506 per waste). The initial cost estimate for preparation of legitimacy documentation used in the 2014 DSW RIA is $2,067 per waste and is repeated every three years. Ther efore the per

- waste cost for legitimacy documentation is consistent with that of the commenter. As discussed above, EPA has made changes to the legitimacy requirement so that the number of wastestreams requiring documentation has been greatly reduced. With the modifications to Factor 4, the 2014 DSW RIA assumes that 1% of wastes would incur the documentation, certification and notification costs of legitimacy because products from the recycling of these wastes contain higher levels of hazardous constituents than do products made from raw materials.
Impacts to Specific Industries
Mining Industry
In the case of the mining and mineral processing industry, while EPA is not able to make case

specific determination based on the information in the comments, the Agency anticipates their operations will generally fall under the new legitimacy provisions and therefore would be unlikely to be subject to the documentation requirement. As part of the mineral processing, secondary materials are returned to the productio n process for further refining, in which case would meet Factor 4. In addition, the product of mining and mineral processing would be commodity grade metal, which would also meet Factor 4. In neither case is documentation required.
Scrap Recycling Industry
In the case of scrap metal and electronics recycling ind ustry, while EPA is not able to make case

specific determination based on the information in the comments, the Agency anticipates their operations will generally fall under the new legitimacy provisi ons and therefore would be unlikely to be subject to the documentation requirement. In other words, product of scrap metal and electronics recycling would be commodity grade metal, plastics, etc., which would also meet Factor 4, and therefore documentation is not required.
(i) COMMENTS : Many commenters disagreed with EPA’s discussion of potential increased recycling under the 2011 DSW proposal. EPA claims that making the four "legitimacy criteria"- 287

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positive regulatory requirements for which all recyclers will have to demonstrate compliance will increase recycling under the pre

- 2008 recycling exclusions and thus result in economic benefits to indus try, including increased employment. The notion that increasing the regulatory burdens to engage in an activity will encourage industry to engage in that activity is a novel one. Assuming that increasing regulatory burdens on an activity will encourage tha t activity is counter

- intuitive. [104, 171, 196, 238, 350]
(i) RESPONSE : In response to comments objecting to EPA’s claim that making the four "legitimacy criteria" positive regulatory requirements for which all recyclers will have to demonstrate complianc e will increase recycling under the pre

- 2008 recycling exclusions and thus result in economic benefits to industry, including increased employment, while a statement was made that the legitimacy documentation requirement may induce more states to adopt pre

- 2008 recycling exclusions, thereby making more facilities eligible for regulatory savings provided by the pre

- 2008 exclusions, EPA did not intend to imply that increased regulation directly results in increased recycling. The statement has been removed fr om the RIA.
(j) COMMENTS : Many commenters disagreed with EPA’s analysis potential benefits under the 2011 DSW proposal. The anticipated benefits in the RIA are speculative, unreliable, incorrect, and insufficient to support rulemaking.

Reduction in Future Environmental Damage
The analysis claims benefits from a reduction in future environmental damage. This is extremely misleading. An increase in the paperwork burden of recycling could have the impact of decreasing the recycling of wastes, thus leading to the potential for increased environmental damage. As the Agency duly notes, the idling of hazardous materials in poorly contained sites is a danger to the community and the environment. However, the Agency has not provided an adequate explanation as to the funding or response mechanism needed to clean up existing abandoned waste facilities. The EPA “Superfund” is tasked to clean up abandoned hazardous waste sites; the cost

- benefit analysis for the rule should take into account the probability of necessary c lean

- ups and the expenditures for those expenses. While EPA does have a mission to recover costs associated with Superfund operations, it also notes that “lack of an ability to pay is identified as one circumstance of ‘compelling public concern’ based on w hich an enforcement case may be settled for less than the economic benefit of noncompliance.” Thus, the analysis of the proposed rule must seek to estimate the costs of future waste clean

- ups as a result of abandonment of facilities affected by the propose d rule. The RIA overestimates the expected reduction in future environmental damage cases that would be attributable to this rule. The RIA's estimate of $86 million of cost avoidance per year is not correct, and we think that a cost avoidance of less than $1 million/year is more reasonable. Furthermore, the responsible party would bear the costs to be avoided, not society at large.
Improving Environmental Compliance
The second benefit category is equally illusory. In introducing the “Improved Environmental Compliance” benefit category, EPA states “[t]he potential benefits of improved environmental compliance are not improved compliance rates per se, but the positive environmental and human- 288

-

health protection and risk reduction outcomes resulting from improved compliance.” See RIA at 215. Like much of the rest of the DSW Proposal, these “benefits” are not based on actual data or tangible evidence on this record, but theory and speculation. See e.g. RIA at 215

- 218 (citing numerous academic papers and studies abo ut regulatory compliance, but never explaining how the 2008 Rule resulted in inadequate environmental compliance). EPA’s legal obligation in this rulemaking is to draft a rule based on a rigorous review of the costs and benefits of the proposed action, gro unded in substantial evidence in the record, not speculation.
Reducing liability and uncertainty

Finally, contrary to EPA’s claim, the DSW Proposal is likely to lead to higher (not lower) legal and other costs and greater uncertainty. At a minimum, hundre ds (if not thousands) of facilities will be expending great resources in the pursuit of a legitimacy determination if the final rule codifies the mandatory legitimacy criteria. Costs will include legal and technical expenses incurred in determining how the new rules affect the ability of thousands of facilities to operate under existing recycling exclusions and similar costs exploring whether the HSM exclusion even remains an option. Some or all of the notification facilities that were transferring HSMs off

- site will likely stop, and probably incur additional costs either reengineering their processes, sending HSMs to landfill, or pursuing a legitimacy determination. Facilities that had not yet even had the opportunity to take advantage of the 2008 rule will experience similar costs. And because the Proposal will result in more volume of HSM being landfilled, it is likely that future environmental cleanup costs and liability at these sites will increase.
Pulping liquor exclusion
One commenter developed an an alysis to show that the benefits of changing the existing regime of regulating hazardous secondary materials that are recycled would not apply to the pulping liquor exclusion. [168]
[104, 140, 154 , 168, 198, 199, 208, 255, 355]
(j) RESPONSE : EPA revised the benefits assessment in response to tho se comments as described below.
Reduction in Future Environmental Damage

T he potential future magnitude of the environmental damage reduction benefit is supported by the historical damage case data in EPA’s Decembe r 31, 2012 updated damage case study “An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials” prepared by ICF International Inc. This data indicate of the 250 documented damage cases spanning the 31

- year period 1 982 to 2012, clean

- up cost data available for 115 of the 250 cases ranged from $7,000 to $112.8 million per case (updated to 2012$), with an average of $7.8 million per case. Extrapolated to all 250 historical damage cases identified in the study produces an annual average estimate of $62.4 million in historical damages per year (2012$).- 289

-

The single monetized benefit presented in Chapter 8 of the 2014 DSW RIA for prevention of damage cases is a high

- end estimate for two reasons. First, the cost data is skew ed towards CERCLA cleanups which typically cost more. Secondly, the requirements of the 2014 DSW Rule may not prevent the root cause of these releases and their associated damages from occurring again in the future. To reflect this uncertainty it is descri bed as a potential benefit. Thus although the RIA includes the available clean

- up cost data, because of the uncertainty the Agency has not included a monetized benefit.
Imp roving Environmental Compliance
Input from state governments, and their unwillingness to adopt the 2008 Rule was based at least in part on their concerns regarding inadequate environmental protection brought about by the rule and the enforceability of the rule. EPA is adopting changes in the 2008 exclusions and has

m ore fully documented the expected improvement in compliance associated with the 2014 revisions in the RIA supporting the rule. Four aspects of the revised rule which will im prove environmental compliance:

 Clearer and more specific regulatory standards will improve environmental compliance;

 More stringent recordkeeping provisions;

 Self

- reporting requirements (e.g., notification requirements); and

 Increased likelihood of detection and potential penalty for non

- compliance.

Red ucing Liability and Uncertainty

C learer, more fully defined regulatory requirements results in improved compliance and lower liability for the regulated community. However numerous commenters noted the potential for very costly legitimacy determinations due to the requirements set forth in the 2011 proposed revisions. In the 2014 revisions EPA has revised the legitimacy determination requirements from the 2011 proposal. A full discussion of these changes can be found in the in section V III.C of preamble for the rule

. Pulping liquor exclusion
In regards to the applicability of the benefits analysis to the pulping liquor exemption, while EPA is not able to make case

- specific determination based on the information in the comments, the Agency anticipates their operations will generally fall under the new legitimacy provisions and therefore would be unlikely to be subject to the documentation requirement or any other new requirement under the rule. As part of the pulping liquor exclusion, the spent pulping liquor is reused in the production process, and in which case would meet Factor 4. Neither cost nor benefit estimates of the rule would apply in this case.
(k) COMMENTS : Many commenters stated that EPA should include an analysis of reduced recycling. The 2011 DSW proposa l would discourage recycling by saddling secondary materials that are sent for recycling with burdensome RCRA hazardous waste regulations.” Recycling processes consume less energy than those that make the same or similar product from raw- 290

-

materials. For exa mple, solvent reclamation is far cheaper than refining the solvent from crude oil. Solvent reclamation could be at risk under the proposal since the used solvent could meet the hazardous waste ignitability criteria. The additional energy consumption and re sulting air emissions must be considered in the impact analysis for this rule. [0076, 194, 199, 208, 216, 238, 355]
(k) RESPONSE : EPA disagrees that recycling will be negatively impacted u nder the 2014 DSW final rule. EPA has significantly reduced the like lihood of facilities incurring legitimacy documentation costs through its revisions to Factor 4 and eliminated legitimacy petition and containment standard costs for the pre

- 2008 recycling exclusions in the 2014 DSW final rule. EPA estimates that less than 1% of recycled wastes streams would incur these costs and that the cost would not be high enou gh to discourage recycling.
Moreover, EPA is replacing the transfer

- based exclusion with the verified recycler exclusion, which reduces the cost of recycling for generators, thus increasing the likelihood that they will recycle. While the verified recycler exclusion increases costs on the recycler, these are generally sunk costs for RCRA permitted facilities, so EPA anticipates that recycling will increase under t he verified recycler exclusion.
Finally, EPA is finalizing an exclusion from the definition of solid waste for certain higher

- value solvents transferred from one manufacturer to another, for the purpose of extending the useful life of the solvent by reman ufacturing the spent solvent back into the commercial grade solvent. This remanufacturing exclusion will help promote sustainable materials management by extending the productive use of these materials, which reduces the need for raw materials used and the environmental impacts associated with production of these materials. Further discussion of the remanufacturing exclusion can be found in sections VII and XVI of the preamble, and a lifecycle analysis in Chapter 4 of the “regulatory impact analysis” (RIA) for this rule.
(l) COMMENTS : Two commenters disagreed with EPA’s analysis of small business impacts. The 2011 DSW proposed rule would put pressure on the smallest businesses involved in hazardous waste recycling and could, by decreasing recycling, increase incentives for those businesses to discard or improperly recycle their hazardous materials. By eliminating the transfer

- based exception and mandating that treatment of hazardous secondary materials meet all four factors of legitimate recycling, the propose d rule will increase the regulatory burden for recycling and reclaiming HSMs. In so doing, the proposed DSW rule may have disproportionate distributional impacts on small businesses.
Small businesses, by definition, have fewer resources and employees than larger corporations. Because of their size, increased costs can have a disproportionate impact on small businesses. According to the Small Business Administration, compliance with environmental regulations costs small businesses 364% more than large firms.

EPA failed entirely to consider the potential impact of imposing these requirements on the scrap metal recycling exclusions and exemption, much less the cumulative impact of those- 291

-

requirements operating together on the regulated community. Therefore, EP A’s Regulatory Flexibility Analysis (“RFA”) certification in the proposed rule lacks a reasoned basis and is inconsistent with the requirements of the RFA. The massive inadequacy of the current RIA and RFA analysis as it relates to the new requirements imp osed on scrap metal recyclers is set forth in detail in Attachment H to these comme nts. [0104, 0208]
(l) RESPONSE : The estimated impacts on small entities are presented in the RIA supporting the DSW revisions, which include the change s to the proposal discussed above, including revising the legitimacy criteria, eliminating the legitimacy petition, and finalizing the verified recycler exclusion, which actually reduces costs to generators under the rule. As indicated in the RIA, the

aver age annual impact on small businesses of the revised requirements under the 2014 DSW rule is estimated to be significantly less than 1% of annual sales for all small entities. Based on this analysis, EPA concludes that the 2014 revisions to the DSW recycli ng exclusions are not expected to have a “significant economic impact on a substantial number of small entities” (i.e
., “No SISNOSE” determination).
In the case of scrap metal recyclers, while EPA is not able to make case

- specific determination based on th

e information in the comments, the Agency anticipates their operations will generally fall under the new legitimacy provisions and therefore would be unlikely to be subject to the documentation requirement or any other new requirement under the rule. In ot her words, product of scrap metal would be commodity grade metal, which would also meet Factor 4, and therefore no impacts are expected from the final rule.
(m) COMMENTS : Some commenters disagreed with EPA’s impact estimates for withdrawing the transfer

- ba sed exclusion. The proposed rule would withdraw the 2008 DSW exclusions at 40 CFR 261.4(a)(24) and (25) for hazardous secondary materials that are transferred offsite for the purpose of legitimate reclamation and replace them with full RCRA subtitle C regu lation as hazardous waste or alternative RCRA subtitle C regulations for hazardous recyclable materials with specific conditions attached (including a written reclamation plan and legitimacy determination). The RIA seriously underestimates the cost of elim inating the 2008 transfer based exclusions.

In 2008, EPA estimated that the transfer

- based exclusions would save $87 million per year. The RIA for this proposed rule inappropriately reduces the impact of removing the transfer based exclusions to less tha n 7% of the anticipated annual benefit, to just $5.7 million per year. The RIA uses an unrealistic straight line analysis to determine that the slow adoption rate by states and facilities will continue for the next 50 years and that a mere 21 additional co mpanies will utilize the 2008 DSW exclusion each year. [RIA page 96.] The result is the assumption that after 50 years, only 662 facilities of the 5,007 facilities "potentially eligible" for the 2008 DSW exclusions will utilize them.

One of the problems w ith the 50

- year estimating approach is that it ignores the difficulties associated with change. Institutions (states and industry) are reluctant to make changes as a result of a non

- mandatory rule like the 2008 DSW recycling exclusions because of time, exp ense, and- 292

-

uncertainty. With mandatory rules, the first few years of compliance are fraught with time pressure, expense, and uncertainty. The RIA should recognize these factors and increase the cost estimates for removing the 2008 transfer

- based exclusion a nd for complying with the le gitimacy determination process.
(m) RESPONSE : Because the 2014 DSW Rule is replacing the transfer

- based exclusion with the lower

- cost verified recycler exclusion the final rule is a net cost savings rule, i.e., will result in in creased cost savings from the 2014 DSW Rule over the baseline savings from the 2008 DSW Rule. The 2011 DSW RIA used a 13% rate of notification for the 2008 DSW exclusions, which represented a lower

- bound estimate, to present potential costs in the Executiv e Summary. Both, the results of both lower

- bound estimate of 13% and the upper

- bound estimate of 74% should have been used to present the potential costs in the tables with the ultimate result being somewhere in

- between. The 2014 DSW RIA uses a 54% rate of notification assuming a rate of 3.2% of facilities notifying per year which is based on the rate of facility notification to date for states who adopted the non

- mandatory 2008 DSW Rule. This assumption does not assume that every facility notifies under th e 2008 DSW exclusions in 2015. Notification gradually occurs at a rate of 3.2% of the facilities per year. The 54% rate of notification estimate represents a most

likely estimate and is used to estimate baseline cost savings increasing the cost of removing the transfer

- based exclusion. Most of the additional cost savings of the rule are attributed to the removal of the transfer

- based exclusion and replacing it with a Verified Recycler Exclusion.
(n) COMMENTS : One commenter stated that if the additional regulatory requirements for on

site and pre

- 2008 exclusions/exemptions regulations are added, may put an increased number of manufacturers out of business leading to the additional loss of tax revenues and increased social welfare costs (unemployment payme nts, food stamp costs, etc.) for the states. The loss of facilities and the resulting unemployment, potentially numbering in the millions, and resulting social welfare costs for the states should be included in the cost estimate. [177]
(n) RESPONSE : EPA di

sagrees that the analyses do not capture impacts to the states. The analyses of impacts on state governments focused on the most significant potential future annual added direct costs, and are primarily administrative in nature. While EPA did not estimate potential employment impacts, an assessment of employment impacts is included in the RIA supporting the 2014 revisions, although the focus of this analysis is the change in labor required to comply with the DSW revisions. EPA did not estimate the specific impacts resulting from manufacturers going out of business, but these impacts are expected to be negligible given the revised scope of the change s and their associated impacts.
(o) COMMENTS : One commenter objected to how the RIA characterized the wastestre ams impacted by the rule. The RIA assumes that the transfer

- based and generator

- based exclusions codified by the 2008 Final Rule are applicable to all waste streams reported in EPA’s RCRA Biennial Hazardous Waste Report. However, these exclusions only appl y to the reclamation of spent materials, listed sludges and listed byproducts; a sliver of the universe of waste streams addressed in the RCRA Biennial Report. We use the term “appear” in the first sentence above because there is no attempt made in the doc ument to disaggregate spent materials, listed sludges, and listed byproducts from the overall waste volumes cited, and a substantial volume of the materials cited come from industrial sectors such as “information” and “retailing”

– sectors not- 293

-

typically as sociated with these recycling of spent materials, listed sludges and listed byproducts. This erroneous assumption, along with other erroneous assumptions and predictions, throws the entire cost calculation into question. [238]
(o) RESPONSE : The commenter m isunderstands the scope of the rule EPA notes that under the 2008 DSW Rule, in part 260.10 hazardous secondary material is defined as a secondary material (e.g., spent material, by

- product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of 40 CFR. The definition includes both non

- discarded characteristic and listed hazardous wastes. The transfer

- based and generator

- controlled exclusions are applicable to all recycled/recovered hazardous secondary materials. Hazardous wastes reported managed by metal recovery, solvent recovery, or other recovery in EPA’s RCRA Biennial Hazardous Waste Report are affected by the 2008 DSW Rule. The commenter implie s otherwise which is incorrect.


### 14.2 Paperwork Reduction Act (ICR)

(a) COMMENTS : Some commenters said the information collection request (ICR) significantly underestimated the costs of complying with notification and documentation of legitimacy for existing exclusions. [0168, 0175, 0199, 0238] One commenter said that pulp and paper mills have never had to evaluate the constituents of liquors and compare them to “virgin” liquor and that because of this requirement, mills would set up compliance assurance programs and audit against them. Additionally, this commenter said any rep ort to regulatory body would require significantly more management and legal scrutiny. [0168] Another commenter says that companies are likely to involve their legal departments in such compliance matters but that the ICR assumes there would be no legal ti me involved in preparing documentation and certification under Factor 4. This commenter says that Factor 4 will potentially require extensive sampling and analysis for Appendix VIII constituents. This commenter also says that the ICR assumes that each faci lity has only one stream or process that is subject to the exclusion and that this is unrealistic in the petroleum refining industry and probably other industries as well. [0175] Two commenters stated that the paperwork burdens are not necessary, duplicati ve of information already available, and fail to reduce burdens on people providing the information and thus fail to meet the requirements of Paperwork Reduction Act. [0168, 0255] One commenter said that EPA cannot justify even its own burden estimate unde r the Paperwork Reduction Act because requiring facilities to demonstrate that recycling under pre

- 2008 regulatory provisions is legitimate is not necessary because EPA has already determined that recycling is taking place. Additionally, this commenter sta tes that requiring facilities to demonstrate that recycling is legitimate is duplicative of the information EPA has already collected in its rulemaking dockets for each exemption. Lastly, this commenter stated that requiring facilities to submit a petition for a “legitimacy variance” to prove that its overall recycling facility is legitimate would impose an unnecessary burden on persons recycling under the pre

- 2008 recycling exclusions. This commenter said that EPA’s justification for requiring documentatio n of legitimacy “to make oversight and enforcement more effective” does not satisfy these PRA requirements. [0255]
(a) RESPONSE : EPA agrees with the comments that the draft ICR in support of the 2011 DSW rule did not fully capture the potential paperwork b urden of the proposed additional requirements applicable to the pre

- 2008 recycling exclusions and exemptions. EPA did not anticipate at the- 294

-

time of the proposal th at the additional requirements, including meeting the legitimate recycling standard and the n

otification requirement (as well as contained), would present an undue burden on facilities. This is because EPA considers certain requirements, like legitimate recycling, inherent in the definition of solid waste recycling exclusions and assumes that the regulated community already meets these standards. Notification was considered to be a simple reporting requirement that would pose minimal additional burden.
However, upon reviewing the comments, EPA has determined that more study is needed before taking action on the pre

- 2008 exclusions . Therefore, EPA is not making any changes to the language of the 32 recycling exclusions and exemptions at this time and there is no longer an associated paperwork burden with these proposed requirements . In the case of t he legitimacy provision, EPA is instead codifying a general prohibition against sham recycling. The Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility ha s determined it is legitimately recycling, but does not meet Factor 4 , in which case the potential paperwork burden has been included in the final ICR . In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation i

s not necessary. The Agency has previously acknowledged the legitimacy of these recycling practices when it first promulgated the material

- specific and industry

- specific exclusions and exemptions, when at that time it took into consideration the legitimacy of the recycling practices. After review of the public comment, the Agency has determined that routine documentation of legitimacy is an unnecessary burden for persons legitimately recycling under the pre

- 2008 recycling exclusions and exemptions. In the c ase of the notification requirement, EPA is deferring any action until further study is conducted.
For the remaining paperwork and reporting requirements, the Agency has determined that the conditions in the final rule are needed in order to ensure that t he exclusion operates as intended and does not result in discarded hazardous secondary material posing significant risk to human health and the environment and has included the paperwork burden associated with those conditions in the final ICR

. (b) COMMENT S : Two commenters said that EPA admits in section 1(b) that the materials and activities under the rule do not involve discard, there is no RCRA jurisdiction over these activities and so no point in estimating the cost of doing so, as if discard were a ctua lly occurring. [0199, 0238]
(b) RESPONSE : EPA disagrees with this comment. As EPA noted in the July 2011 DSW proposal, the RCRA statute and the legislative history suggest that Congress expected EPA to regulate as solid and hazardous wastes certain materia ls that are destined for recycling ( see 76 FR 44097, citing numerous sections of the statute and U.S. Brewers’ Association v. EPA , 600 F. 2d 974 (D.C. Cir. 1979); 48 FR 14502

– 04, April 3, 1983; and 50 FR 616

– 618). T he case law discussed above clearly shows instances where EPA properly regulated the recycling of solid and hazardous wastes. The Agency has determined that the conditions in the final rule are needed in order to ensure that the exclusion operates as intended and does not result in discarded haza rdous secondary material posing significant risk to hu man health and the environment.- 295

-

(c) COMMENTS : Two commenters said that, in section 4(b), EPA has underestimated how often a facility will have to re

- apply for a solid waste variance under the existing p rovisions. These commenter said that at least one state agency believes they will have to require all facilities with a previously approved variance to re

- apply, simply because EPA is changing the condi tions of approval. [0199, 0238]
(c) RESPONSE : EPA find s its estimates for how many facilities will have to re

- apply for a solid waste variance is based on the best available information and this commenter did not submit data that proves otherwise. Under the final rule, EPA notes that it is requiring facilitie s that are granted a variance or non

- waste determination to notify the Agency biennially so that EPA can obtain up

- to

- date information regarding how many f acilities use these provisions.
(d) COMMENTS : Two commenters said that, in section 4(b), EPA does not list under option 7 revise the pre

- 2008 DSW recycling exclusions an activity to comply with the 40 CFR 260.43. [0199, 0238]
(d) RESPONSE : In the ICR, legitimacy documentation is listed separately un der Revision 3, Revisions to the Definition of Legitimacy. However, as stated above, t he Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determine d it is legitimately recycling, but does not meet Factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary.
(e) COMMENTS : Some commenters said that EPA has significantly underestimate d the number of facilities using a pre

- 2008 DSW recycling exclusion. [0199, 0238, 0255] Two commenters said that EPA has estimated 5,321 facilities using TRI data, but they anticipate the number is at least 400,000 to 500,000. Thus EPA has underestimated a ll costs associated with these changes, including sampling for Appendix VIII constituents. These commenter said the costs should be $145 million to $180 million per year. These commenters said that OMB should not approve the ICR related to t

he proposed rul

e. [0199, 0238]
(e) RESPONSE : In the 2014 DSW final rule, t he Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determined it is legitimately recyc ling, but does not meet Factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. Additionally, EPA has revised Factor 4 to address the majority of cases raised in the public comments where the proposed Factor 4 would not be met but the recycling is still legitimate. Such cases include when the hazardous secondary material is returned to the production process, when the recycled product has specification for the hazardous constituents and meets those specs, and when the recycled product is a widely recognized commodity that has no comparable product made from raw materials.
The TRI data are underreporting reuse because of the definition used for “recycling” for the TRI where it is not defined as recycling an d not required to be reported. However, reuse will be considered legitimate recycling under EPA’s revised Factor 4 in the 2014 DSW final rule. Because of the uncertainty in the TRI facility count, the 2014 DSW RIA assumes that betwee n- 296

-

5,000 facilities (representing the number of facilities identified using TRI and BR data) and 10,000 facilities (doubling the facility count to address data limitations) conduct recycling/reuse activities unde r the pre

- 2008 DSW exclusions. A mid

- pint of 7,500 facilities was used in the 2014 DSW RIA cost analysis. (The ICR uses estimates from the RIA in evaluating paperwork burden.)
In addition, the count of affected wastes was increased to evaluate post

- rule legitimacy criteria documentation costs. Legiti macy documentation is applied on a per waste basis. The 2014 DSW RIA applies an assumption that small facilities will have 2 wastes and large facilities will have 20 wastes with pre

- 2008 DSW industrial recycling exclusions potentially affected by the 2014 DSW Final Rule. An average of 11 wastes per facility is used in the 2014 DSW RIA. See Chapter 3 of the 2014 DSW RIA for further discussion on estimating the number of affected wastes.
Finally, the 2014 DSW RIA assumes that 1% of wastes would incur the doc umentation, certification and notification costs of legitimacy Factor 4 because products from the recycling of these wastes contain higher levels of hazardous constituents than do products mad e from raw materials. In the 2011 DSW RIA, a 5% “rare” future an nual frequency was assumed to represent the midpoint of a 0% to 10% range in any given future year of wastes not meetin g all four legitimacy factors. However, in the 2014 DSW final rule, EPA has revised Factor 4 to address the majority of cases raised in t he public comments where the proposed Factor 4 would not be met but the r ecycling is still legitimate. Such cases include when the hazardous secondary material is returned to the production process, when the recycled product has specification for the hazar dous constituents and meets those specs, and when the recycled product is a widely recognized commodity that has no comparable product made from raw materials (e.g., commodity grade scrap metal). Although not enough information is provided in the public

co mments to make definitive legitimacy determinations on the examples, the revisions to Factor 4 should eliminate the majority of examples of recycled products not meeting Factor 4 and therefore has reduced the assumed rate of legitimacy documentation requir ed

. (f) COMMENTS : Two commenters said that, in section 6, EPA seems only to address the ongoing annual burden and does not seem to recognize the enormous “implementation hump” for pre

- 2008 exclusions. These commenter states that the costs in the first year could be $814 mil lion to $1 billion [0199, 0238]
(f) RESPONSE : Because of revisions made in the final rule, EPA does not find that an enormous “implementation hump” will occur. Under the final rule, EPA is not finalizing notification for pre

- 2008 exclusio ns. Additionally, the Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determined it is legitimately recycling, but does not meet Factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary.
(g) COMMENTS : One commenter said that EPA’s assumption that the time required to respond to a formal agency information request for legitimacy documentation as 0.1 hour (six minutes) is incorrect. If nothing else, this commenter said that simple duplication and mailing effort would exceed the six minutes indicated. This commenter also said that such a request will also require- 297

-

some degree of man agerial or legal review, preparation of transmittal documentation, and potentially a brief technical review to confirm the information contained in the su bmittal remains current. [0238]
(g) RESPONSE : The time estimated to submit legitimacy documentation assumes that the documentation is in final form and that managerial and technical reviews have been completed. The managerial and technical reviews thus are part of the estimates i n preparing the documentation.
Additionally, The Agency has determined that , for purposes of the existing pre

- 2008 recycling exclusions and exemptions, documentation is not required, unless the facility has determined it is legitimately recycling, but does not meet Factor 4. In the vast majority of cases, recycling under the exis ting exclusions is legitimate and documentation is not necessary. These revisions serve to reduce the burden for documenting legitimacy as compared to the July 2011 proposed rule.
(h) COMMENTS : One commenter said that the burden estimates do not appear to reflect that engineering and other documentation associated with the pre

- 2008 exclusions would very likely not be in the form needed to comply with the proposed rule and thus the proposed condition to create legitimacy documentation would be more resource intensive initially than EPA estimated. This commenter stated that the requirement would require identifying all points of use, which would be particularly burdensome at facilities where many exemptions/exclusions are in use. This commenter said that EPA, rather, has assumed that this effort has already occurred and that industry would only be in an o ngoing maintenance mode. [0238]
(h) RESPONSE : The Agency has determined that, for purposes of the existing pre

- 2008 recycling exclusions and exemptions, docume ntation is not required, unless the facility has determined it is legitimately recycling, but does not meet Factor 4. In the vast majority of cases, recycling under the existing exclusions is legitimate and documentation is not necessary. These revisions s erve to reduce the burden for documenting legitimacy as compared to the July 2011 propose d rule.
(i) COMMENTS : One commenter said EPA grossly underestimates the time and cost involved in collecting the information necessary for the notifications. This comm enter states that it is wholly unrealistic to expect that it would take only 18 minutes of technical labor to identify all of the secondary materials to be managed under each applicable exclusion at a facility, the quantity of each material that will be ma naged annually, and how much will be managed in a land

- based unit. This commenter goes to say that EPA cannot seriously expect that the manager that is supposed to certify the notification, with all of the liability consequences associated with such certif ications, will devote all of 6 minutes to the entire process. This commenter says that collecting and evaluating the information necessary to complete the notification, particularly at complex facilities recycling a variety of materials under a number of e xclusions, will take orders of magnitude more time and money than estimated by EPA. [023 8]
(i) RESPONSE : Based on comments it received, EPA did not finalize a notification requirement for pre

- 2008 DSW exclusions in the final rule. EPA is deferring any acti on until further study is conducted.- 298

-



### 1 4.3 Unfunded Mandates Reform Act (UMRA)

COMMENTS : One commenter expressed concern about impacts to the states. In the case of the 2011 DSW rule, the EPA has estimated the “state government share of future average ann ualized direct costs...[is] between $8.5 million and $9.1 million per year.” [Footnote 58: p. 44147] Thus, the proposed rule does not qualify as an unfunded mandate, and is not expected to significantly affect small governments. However, uncertainties in the cost data from the regulatory impact analysis cause some concern as to whether the 2011 proposed rule might have a higher annual cost than the Agency is predicting.
The most important issue to address is the question of how the rule will affect states. O nly four states have adopted the 2008 rule; Idaho, Illinois, New Jersey and Pennsylvania. These four states combined for nearly 29% of interstate receipts of hazardous waste under RCRA regulations in 2009. However, the same four states shipped only 18.35% of waste shipments. As compared to cumulative population of the states, Idaho, New Jersey, Illinois, and Pennsylvania only make up 11.6% of the United States population. Thus, the states that adopted the 2008 rule make up an outsized proportion of Ame rica’ s hazardous waste market.
This was not anticipated by EPA. Hazardous secondary materials generators simply adapted to the change in their market by seeking out the lowest available cost for reclamation and sending their HSMs to those states for recycling. If the 2011 standards are promulgated into a final rule, EPA can expect to see similar trends to be established as HSM generators search for the lowest possible cost in recycling their material.. [104]

RESPONSE : The potential costs to state governments h as been significantly reduced in the 2014 final rule as compared to the 2011 proposal due to several changes, particularly EPA’s decision to make no changes to the pre

- 2008 exclusions and to not require documentation of legitimacy in most cases. The state government share of estimated future average annualized direct costs is $0.3 million. No impacts are expected for local or tribal governments. Because the impacts of all the regulatory options are expected to result in state government expenditures well be low the $100 million UMRA threshold, the 2014 DSW revisions is not an unfunded mandate bas ed on this UMRA cost criterion.
As far as states receiving an outsize proportion of the recycling market do to different state adoption decisions, EPA notes that it i s the state’s decision whether to adopt a deregulatory rule, and that states can benefit economically from the addition al recycling done in the state.



### 14.4 EO 13132: Federalism

COMMENTS : This proposed rule does not seem to adequately demonstrate consideration by the agency of Executive Order 13132. There is no indication that the agency made any effort to seek guidance from any state agency on the impact of this rule. [216]

RESPONSE : The 1999 Federalism Executive Order 13132 (Federal Register, Vol .64, No. 153, 10 Aug 1999) furthers the policies of the 1995 Unfunded Mandates Reform Act (UMRA) by establishing federalism principles, federalism policymaking criteria, and a state/local government- 2 99

-

consultation process for the development of Federal regul ations that have federalism implications. Federalism implications refers to regulations and other Federal policies and actions that have substantial direct effects on states, on the relationship between the Federal government and the states, or on the dist ribution of power and responsibilities among the various levels of government.
For purpose of complying with the Section 6 state consultation process of EO 13132, EPA evaluated whether the 2014 revisions to the DSW recycling exclusions may “impose substan tial direct compliance costs” on state/local governments. EPA’s 2008 guidance for compliance with EO 13132 describes two numerical methods (i.e., numerical tests) for evaluating whether an EPA rule may have federalism implications with respect to the “subs tantial dire ct compliance costs” criterion:

 $25 million test: Annualized direct compliance costs to state/local governments in aggregate of $25 million or more

 1% test: Annualized direct compliance costs to state/local governments equal or exceed 1% of st ate/local government annual revenues
The state government share of estimated future annual direct costs indicates that the maximum annual direct cost to state governments is $0.3 million per year. No added costs are expected for local or tribal governments

. Because these direct costs are well below the $25 million test threshold, the 2014 DSW final rule does not meet the Federalism implication “substantial dire ct compliance costs” criterion.



### 14.5

- Execut ive Order 12898: Environmental j ustice

[Note: commen ts related to technical aspects of the DSW Environmental Justice Analysis are found in Section 3 of thi s response to comment document]
(a) COMMENTS :
Comments on the relationship between Environmental Justice and Discard

Some commenters stated that avoidance of disproportionate impacts (environmental justice) is an important policy goal, but is not relevant to whether hazardous secondary materials are discarded. EPA invokes Executive Order 12898 to justify its proposal to increase the regulation of r ecycling of hazardous secondary materials. 76 Fed. Reg. 44103

- 08, 44148. That order directs that “To the greatest extent practicable and permitted by law . . . each Federal agency shall make achieving environmental justice part of its mission by identifyin g and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low

- income populations . . . .Exec. Order No. 12898 § 1

- 101 (Feb. 11, 1994).
However, RCRA imposes a significant limitation on EPA’s ability to consider such potentially disproportionate environmental and health effects in defining solid waste. This is because

– as the D.C. Circuit has held in AMC I, ABR, and other cases

– the pivo tal question in defining solid- 300

-

waste is whether a material has been “discarded” by being abandoned, disposed of, or thrown away. The issue of potentially disproportionate impacts is simply not r elevant to the discard inquiry.

As a matter of law, an Executi ve Order cannot override the specific terms of a statute. Moreover, the very terms of Executive Order 12898 provide that agencies are to “implement this order consistent with . . . existing law.” Exec. Order No. 12898 § 6

- 608. The order further provides th at This order is intended only to improve the internal management of the executive branch and is not intended to, nor does it create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies, its officers, or any person. Id. at § 6

- 609. Thus, EPA may not rely on the order to affect the substantive rights of any of the parties with an interest in the RCRA definition of solid waste.
EPA seems to suggest that where EP A is operating within the zone of its discretion, it may factor environmental justice considerations into its decisionmaking. See 76 Fed. Reg. 44103 (to address environmental justice concerns, “EPA uses its policy discretion under applicable authorities to pursue specific regulatory options”). But that is correct only if environmental justice considerations are among the factors Congress intended EPA to conside r in exercising its discretion.
Thus, while EPA may have some discretion in very close cases to de cide which materials that are recycled are “discarded” (and hence, solid wastes), EPA’s discretion is limited to considering factors Congress intended it to consider. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Haza rdous Waste Treatment Council v. EPA, 861 F.2d 270, 276

- 77 (D.C. Cir. 1988). And nothing in the language of RCRA or its legislative history establishes potentially disproportionat e effects as a relevant factor.
In the specific context of hazardous secondar y materials destined for recycling in another industry, the D.C. Circuit has said that “the statutory definition [of solid waste] does not preclude application of RCRA to such materials if they can reasonably be considered part of the waste disposal proble m.” Safe Food and Fertilizer v. EPA, 350 F.3d 1263, 1268 (D.C. Cir. 2003) (emphasis added). But a material is logically neither more nor less “a part of the waste disposal problem” because it is managed in a low

- income or minority area or because it is man aged in an affluent or non

- minority area.
Commenters note that EPA also expresses concern that where hazardous secondary materials destined for recycling are not subject to RCRA permitting, opportunities for public participation in the regulatory process are reduced. 76 Fed. Reg. 44106. However, commenters state that public participation requirements do not serve to define discard (or the absence of discard) but instead are regulatory requirements, and if EPA imposes such requirements in connection with materials that have not been discarded, EPA will be imposing regulatory requirements that are beyond its authority to impose under RCRA. [ 111, 115, 171
, 175, 246, 266, 350, 355
, 363]
(a) RESPONSE : EPA agrees with comments stating that Executive Order 12898 provides that agencies are to implement the order on consideration of environmental justice consistent with existing law. However, EPA disagrees that the findings of the environmental justice analysis are- 301

-

unrelated to the question of whether hazardous sec ondary materials recycled under the 2008 DSW final rule are discarded, nor does EPA agree that its consideration of environmental justice implications of the DSW rule has led it to exceed its authority to regulate solid waste.

A review of legal authoritie s under the environmental statutes administered by the U.S. Environmental P rotection Agency that may have contributive application in the effort to advance environmental justice notes the following:

“ The Resource Conservation and Recovery Act (RCRA) autho rizes EPA to regulate the generation, t

ransportation, treatment, storage, and disposal of hazardous wastes. RCRA requires EPA to promulgate regulations establishing such standards, applicable to generators, transporters, and owners and operators of hazardo us waste treatment, storage, and disposal facilities “as may be necessary to protect human health and the environment.” 11 RCRA section 7004(b) requires EPA to provide for “public participation in the development, revision, implementation, and enforcement o f any regulation, guideline, information, or program.” EPA may use these authorities to advance the fair treatment and meaningful participation of minority, low

- income, and indigenous populations in the development of regulations, standards, and guidelines for hazardous waste management. ” 12
As EPA noted in the 2011 DSW proposal, and confirmed in the 2014 DSW final rule, the hazardous secondary materials excluded under the 2008 DSW rule had already been first been determined to be hazardous wastes, and theref ore the Agency needs adequate assurance that a conditional exclusion for these materials will not result in discard ed material that would be subject to RCRA authorities to regulate hazardous waste

. This m ay be especially important for hazardous secondary m

aterials that EPA has already evaluated, for example, during a hazardous waste listing determination

. The environmental justice analysis includes a detailed regulatory comparison of the 2008 DSW final rule with the fully applicable Subtitle C hazardous waste regulations, and indicates that the 2008 DSW final rule lacks several important implementation provisions that the Subtitle C requirements for treatment, storage, and disposal facilities provide. 13 These provisions ensure a greater level of oversight , which ensures that EPA or the state has reviewed a facility’s planned operations before management begins and which allows public participation in the environmental decision

- making process. These activities increase the likelihood of compliance and decre ase the potential for discard and subsequent risk to human health and the environment from the discarded material. The DSW EJ analysis goes on to analyze the demographics of communities adjacent to these facilities, and determines that they are disproporti onately minority

11 See RCRA sections 3002( a) (standards applicable to generators), 3003(a) (standards applicable to transporters), and 3004(a) (standards applicable to owners and operators of hazardous waste treatment, storage and disposal facilities).
12 U.S. EPA Plan EJ 2014: Legal Tools , Decembe r 2011. P. 46 http://www.epa.gov/environmentaljustice/resources/policy/plan

- ej

- 2014/ej

- legal

- tools.pdf
13 See 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 rule.- 302

-

and low

- income populations. However, it is the potential for discard of hazardous secondary material that is the key legal question, not the distribution of that risk.

For further discussion about how EPA evaluated the issue of discard in developing the final rule,

see Chapter 2 of this response to comments document and Section XIII.A. of the preamble to the 2014 DSW final rule

. (b) COMMENTS : Comments on EPA’s authority to require public participation to address environmental justice

con cerns

Two commenters said that public participation is unnecessary to determine EPA’s RCRA j urisdiction

. One of the findings in EPA’s expanded environmental justice analysis is that there was insufficient public participation in the decision

- making proces s. [76 Fed. Reg. 44,106.] To addr ess these concerns, EPA proposed elimination of the transfer

- based exclusion to ensure recycling facilities obtain a RCRA permit, which includes a public participation process. Commenters did not agree that environmental ju stice analysis should be a basis for requiring public participation for several reasons. First, federal agencies must incorporate environmental justice concerns as part of their mission. However, as stated in Executive Order 12898, EPA can only achieve thi

s goal “as permitted by law.” [59 Fed. Reg. at 7,629.] EPA acknowledges this limitation in the NPRM, noting that the results of the environmental justice analysis “can affect how EPA uses its policy discretion” and that it can inform EPA’s decision

- making “within [the] scope of the Agency’s authority to regulate hazardous waste.” [76 Fed. Reg. at 44,103.]
Thus, EPA does not have “discretion” in this rulemaking to interpret discard to encompass materials that are not “disposed of, thrown away, or abandoned ”; rather EPA is constrained by the courts in defining discard. [ABR, 208 F.3d at 1051.] If certain recyclable materials are determined to be discarded and, therefore, appropriately subject to hazardous waste regulation, then EPA can exercise its discretio n to address environmental justice concerns. However, EPA has exceeded its RCRA authority in defining discard to include recyclable materials that are beneficially reused and, therefore, EPA cannot exercise any discretion to include public participation to re gulate these recycled materials. In addition, determining the scope of EPA’s hazardous waste jurisdiction over recyclable materials is a legal and technical question that is not particularly amenable to public input. The principle issue is whether EPA h as authority in the first instance over these hazardous secondary materials. If not, then the Agency is without authority to regulate them by imposing conditions on their recycling. Public participation will likely delay the process and focus on the applic able conditions and regulations, not the threshold issue of whether the material is properly subject to EPA’s hazardous waste authority. [115, 175]
(b) RESPONSE : As discussed in comment response (a) above, EPA disagrees with comments stating that EPA ’s its consideration of environmental justice implications of the DSW rule has led it to exceed its authority to regulate solid waste. In addition, in the specific case of public participation, RCRA section 7004(b) requires EPA to provide for “public participati on in the development, revision, implementation, and enforcement of any regulation, guid eline,- 303

-

information, or program” which gives EPA broad authority to require public participation where appropriate as part of implementing the RCRA program.

In addition , as discussed in Section VI.D. of the preamble of the 2014 DSW final rule, EPA has determined that hazardous secondary materials transferred off

- site to third party reclaimers for the purpose of legitimate reclamation are most appropriately covered under a system that allows for oversight and public participation prior to the start of operations to help ensure that (1) the hazardous secondary material will be legitimately reclaimed and not discarded and (2) the potential risk of releases from the facility impacting the surrounding community will be minimized. The need for such additional oversight and public participation is demonstrated by (1) evidence of past damage cases leading to significant risk to human health and the environment from hazardous secon dary materials originally intended for recycling and (2) the underlying perverse incentives of the recycling market to over

- accumulate such hazardous secondary materials intended for recycling, resulting in discard of the material,. In other words, the tra nsfer

- based exclusion can exacerbate financial incentives for small and/or inexperienced businesses to take in more hazardous secondary materials than they actually can use, mishandle it, and even go out of business, as shown by the fact that bankruptcies or other types of business failures were associated with 66% of the recycling damage cases, resulting in multi

- million dollar cleanups.

(c) COMMENTS :
Comments on the relationship between the DSW Environmental Justice Analysis and Scrap Metal Recycling
One commenter stated the DSW EJ analysis was not applicable to scrap metal recycling. The EPA “EJ Study” does not support a conclusion that ISRI recycling activities generally involve discard
EPA states that the purpose of the EJ Study is to examine the p otential for an increase in adverse impacts under the 2008 DSW Rulemaking and to analyze the extent to which any potential adverse impacts are likely to affect minority and/or low

- income communities. See 76 Fed. Reg. at 44,103. While ISRI supports EPA’s En vironmental Justice efforts generally, nothing in the EJ Study justifies applying new regulatory requirements, pursuant to Subtitle C, to ISRI recycling activities.
The EJ Study performed in conjunction with the Proposal cannot be a basis for imposing RCR A Subtitle C requirements on ISRI recycling activities because: (1) it is directed toward impacts resulting from implementation of the 2008 DSW Rulemaking, in which no changes were made to the regulation of ISRI recycling activities; and (2) it focuses ent irely on impacts caused by hazardous secondary materials, not ISRI recycling materials.
EPA’s only basis for connecting the disparate impacts discussed in the EJ Study to ISRI recycling activities is its speculation that scrap metal recyclers have equipme nt that might allow them at some future time to recycle hazardous secondary materials, and since other secondary- 304

-

hazardous materials recycling activities (presumably) have a disparate impact on low income and minority communities, so too will scrap metal r ecyclers who enter into that additional line of business 35 See Environmental Justice Analysis of the Definition of Solid Waste (EPA

- HQ

RCRA

- 2010

- 0742

- 0004) (June 20, 2011), p. 81.] This basis is faulty for three reasons.
First, there is nothing in the r ecord demonstrating that scrap metal recyclers have in fact converted their operations to handle other materials. The EJ Study, therefore, cannot serve as a basis for concluding that scrap metal recyclers that do not handle hazardous secondary materials

ar e, nonetheless, likely to discard rather than recycle the scrap metal. Second, if one of these facilities did decide to convert its operations to begin recycling hazardous secondary materials, the exclusions and exemption found in 40 C.F.R. §§ 261(a)(13)

- ( 14) and 261(a)(3)(ii), respectively, would not apply to those operations and they would have to meet the requirements for generating or managing hazardous secondary materials. Third, the EJ Study does not suggest there is now a new likelihood of discard (t hat did not exist when the exclusions/exemption were promulgated) to justify the new exercise of RCRA jurisdiction 36 It is unclear if EPA thinks that disparate impacts on minority and/or low income communities will result from EPA’s decision not to change the existing scrap metal exclusions and exemption when it promulgated the 2008 DSW Rulemaking’s new exclusion for secondary hazardous materials at 40 C.F.R. § 261(a)(23). The EJ Study does not support such a thought process. Moreover, as discussed above a t Section IV.B, none of the damage cases referred to in the EJ Study were caused by excluded or exempted scrap metal recycling activities. Consequently, the EJ Study does not support the conclusion or inference that, since the 2008 DSW Rulemaking was promu lgated, excluded or exempted scrap metal recycling activities have had a disparate impact on minority and/or low income communities as a result of improper discard of hazardous wastes.] Thus, the EJ Study cannot be used as a basis for altering the exclusio ns and exemption found in 40 C.F.R. §§ 261(a)(13)

- (14) and 261(a)(3)(ii). [208]
(c) RESPONSE : EPA agreed with the comment that the DSW EJ analysis is focused on the potential environmental justice of the 2008 DSW rule and is not related to impacts from sc rap metal recycling. The inclusion of the demographics adjacent to current non

- hazardous industrial recyclers was meant as a surrogate for the types of communities where future DSW recycling facilities might be located and was not intended to imply that cu rrent operations are resulting in discard. EPA has revised the DSW EJ analysis to make this point more clear.


## 15.0 Miscellaneous Comments

(a) COMMENTS : Several commenters requested that EPA extend the original 60

- day comment period, with requests for exte nsion of 30, 59, 60 and 90 days. Commenters stated that t he current 60

- day comment period is insufficient to fully evaluate: (1) how the current proposal addresses concerns with the 2008 DSW rule; (2) the many imbedded proposals within the proposed revisio ns; and (3) how any remaining deficiencies may be addressed, for example through additional state rules or state statutory changes, or simply not adopting either the initial DSW rule or the subsequent revisions. In particular, commenters wanted additional time to evaluate how the proposal would affect recycling under current exclusions.[021

- 1, 023

- 1, 024

- 1, 29

- 1, 214

- 2]- 305

-

(a) RESPONSE : EPA extended the comment period an additional 30 days.
(b) COMMENTS :
Comments on Compliance with the Information Quality A ct
One commenter requested that EPA demonstrate compliance with the Information Quality Act (IQA), which was enacted by Congress to ensure that government information is objective and supported by scientifically sound data, that the public has meaningful a ccess to the data and methodological information needed to test and reproduce the government’s results, and that persons affected by the dissemination of government information that does not meet IQA quality guidelines are entitled to seek and obtain corre ction.
The commenter noted that the IQA sets a primary quality test for basic information, an intermediate quality test for “influential information,” and the most rigorous quality test for influential information regarding “risks to human health, safety, and the environment.” The commenter explained that the statutory “quality” of government

- disseminated information is a function of the information’s “objectivity and reproducibility,” which in turn requires the government to fully disclose all relevant da ta and research methods. The commenter stated that by mandating good science, the IQA encourages sound government decision

- making and deters agencies from relying on flawed studies, drawing scientifically unwarranted conclusions and disseminating inaccurat e information that harms third parties.

The commenters stated that all of the statistical and scientific information used to calculate costs, to quantify benefits, to determine environmental justice outcomes and to justify the Agency’s regulatory choices i

s “influential information” and all of the Agency’s analyses regarding human health and environmental impact must meet the quality requirements of 42 U.S.C. 300g

1(b)(3)(A) & (B).
The commenter stated that for the analyses EPA used to support the DSW rule making, EPA failed to demonstrate that the information meets IQA

- quality standards, although the commenter did not include an explanation of how the IQA standards were violated.
(b) RESPONSE : EPA does not agree with the comment that the documents supporting the DSW rulemaking do not comply with the Information Quality Act. In EPA’s guidance on how to submit a request for correction under EPA’s Information Quality Guidelines, EPA requests that the following information be submitted 14 :

 A description o f the information you believe does not comply with the Office of Management and Budget Guidelines (PDF 162KB, 10pp.) or EPA Information Quality Guidelines (PDF 529KB, 61pp.) , including specific citations to the information and to the guidelines, if applicable.

 An explanation of how the information does not comply with the Information Q uality Guidelines.

14 U.S. Environmental Protection Agency (epa.gov) Frequent Questions

- Information Quality Guidelines http://www.epa.gov/quality/informationguidelines/iqg

- faqs.html#public , last accessed 11/25/14.- 306

-

 A recommendation for corrective action.

 An explanation of how the alleged error affects or how a correction would benefit you.
Because the commenter did not include this information, it is difficult to evaluate their request for correc tion. However, EPA notes that the document most likely to fit the description of “influential information” under EPA’s guidelines, 15 the DSW Environmental Justice Analysis, did undergo external peer review and those peer review comments were addressed in th e final document. See Section 3 of this response to comments document for further discussion. Other documents, such as the Regulatory Impact Analysis and the Regulatory Flexibility Analysis, follow standard EPA procedures for these types of documents, incl uding review by the Office of Management and Budget. See Section 14 of this response to comment document for further discussion. Therefore, EPA has determined that the documents supporting this rulemaking are in compliance with the Information Quality Act.
(c) COMMENTS :
Comments on the Damage Case Study
Many commenters raised issues with EPA’s use of the environmental problems study as part of the record for the 2014 DSW final rule. 16
[Note: specific comments related to the use of the damage case information in the DSW Environmental Justice Analysis can be found in Section 3 of this response to comments document, specific comments related to the use of the damage case information in the correlation study of existing exclusions can be found in Section 10.3 of this response to comments document, and specific comments on the use of the damage case information in the Regulatory Impact Analysis benefits discussion can be found in Section 14.1 of this response to comments document].
Some commenters argued that EPA should not use 1982 as the cut

- off year for investigating “relatively recent” damage cases. These commenters said that, given that the first major set of Subtitle C regulations were p romulgated in 1980, going back to 1982 unfairly and inappropriately stacks the deck in favor of finding a higher number of damage cases because it took many years for companies to figure out who was subject to the RCRA Subtitle C regulations. Additionally, these commenters noted that the vast majority of damage cases began operation prior to 1982 and thus contamination on these sites was likely the result of historic poor management during a period of little to no oversight . Commenters stated that the early 1990s would be a more appropriate cut

- off date than 1982. One of the commenters also argued that the damage cases are not reliable, either from a lack of information, because they reflect outdated and inapplicable management practices, or have been greatl y mischaracterized and

15 See U.S. Environmental Protection Agency (epa.gov) Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disse minated by the Environmental Protection Agency , page 19. http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf
16 An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary Materials (EPA

HQ

- R CRA

- 2002

- 0031

- 0355)

.- 307

-

should not be used to support any of the proposed changes to the DSW rule. [156, 157, 165, 171, 198, 199, 204, 238]

One commenter argued that the large majority of damage cases identified by EPA were caused by either a lack of knowle dge of RCRA, blatant disregard for the law, or unavoidable accidents. These commenters noted that many of the damage cases involved civil or criminal violations, indicating that the problem was non

- compliance with the regulations, not from a lack of regula tions. [171]

Other commenter s disagreed with EPA’s negative portrayal of the waste management industry and argued that EPA should have conducted more research to obtain an understanding of the necessary and positive role of the hazardous waste management i ndustry. [174, 243]
Two commenters offered specific comments on individual cases in the damage case study. One commenter, representing the American Iron Oxide Company and International Steel Services, Inc. (AMROX) located in Allenport, Pennsylvania, while not disputing the basic facts in the damage case study for their site, had concerns about how some of the information was characterized and offered a number of specific clarifications. For example, while the damage case stated that AMROX had allowed hazar dous waste to spill onto the ground and then washed the waste into an adjacent railroad bed, the commenter noted it was a contractor, not AMROX employees, who washed the spill off towards the railroad bed, and that after becoming aware of the incident, AMR OX contacted the contractor to return to the site with a vacuum truck to clean the area. [121] One commenter, representing Horsehead’s zinc smelter facility in Monaca, Pennsylvania, said that inclusion of their facility is inappropriate and misleading beca use (1) they state that it is a smelter, not a recycling facility for hazardous secondary materials, and (2) the explosion that occurred at the facility was not related to recycling. [205]

(c) RESPONSE : EPA disagrees with comments stating that 1982 is not an appropriate cut

- off year for the damage case study

. As discussed in Section XIII.B of the preamble to the 2014 DSW final rule, this date best reflects the point where companies became aware of their responsibilities and liabilities for safe management o f their hazardous secondary materials intended for recycling. While the CERCLA statute and the initial RCRA hazardous waste regulations became effective in 1980, there was an initial “phase in” period during which industry and other affected entities began to change their practices with regard to hazardous secondary material recycling, and during which federal and state agencies were developing guidelines and procedures for implementing these new authorities. Thus, we deliberately did not include a number of recycling damage cases that occurred during the early 1980s that appeared to have been caused by companies and individuals who were not cognizant of their new responsibilities and potential liabilities under RCRA and CERCLA.
As to the issue that there are facilities in the report that began operations prior to 198 2, we agree that the facilities themselves may have begun operating earlier than the timeframe. However, the methodology for the analysis only includes facilities where the recycling operations occurred after 1982, and the environmental damages associated with those operations occurred after 1982. As a result, more than 600 damage cases were removed from consideration, leaving only those- 308

-

cases that EPA was confident have a clear link between post

- 1982 recycling practices and environmental damage.

Of the da mage cases that met our criteria, we agree that for certain types of damage, such as groundwater or soil contamination, determining when exactly the damage occurred and which property owner caused the damage is difficult. However, in general, the damage ca ses include multiple types of damage and certain damage, such as abandonment of materials or observed violations of proper storage and containment, can be easily attributed to current facility owners and to post

- 1982 activities. For example, Alco Pacific, a lead recycling facility may have started operations in 1954, but it was in 1990 when the company abandoned 98 drums and left over 1,300 cubic yards of lead

- contaminated rubber debris and sand with no containment to prevent dispersal from wind or rainwate r. Additionally, it was in 1989 when Myers Drum, a drum reconditioning facility, was found to be storing 95% of their 20,000 drums on their side and that spillage, sump overflows, and structural failures were observed. In 1986, Continental Steel, which manu

factured wire and rod products from scrap metal, abandoned their facility leaving 220 drums of product material and 50 containers of lead

- cadmium batteries on

- site. These damages occurred well after RCRA and CERCLA became effective.
Regarding the lack of information in some of its damage cases, as EPA stated in its 2007 environmental problem study, many of the cases that were investigated were well documented. This was the case, for example, for many of the Superfund National Priority List (NPL) sites. How ever, in many other cases, it was not possible given the limitations of the study to document all facts. Often, there was considerable technical information as to the nature and extent of the contamination at the site, but relatively little information reg arding the activities and circumstances that originally caused it. For some of the sites, we were able to collect only very basic information. However, for each site that was identified in the environmental problems study, we had sufficient information to determine that the damage resulted from recycling operations. Thus, we continue to maintain that the environmental problems study is appropriate to use in the development of th is final rule.
EPA also disagrees with the commenter who argued that the enviro nmental problems study only demonstrates non

- compliance of existing regulations and therefore
, does not justify the promulgation of tighter requirements under today’s final rule. On the contrary, the frequency of the damage cases, including violations of r egulations demonstrates the need for greater, not less, oversight.
Furthermore, as part of a separate analysis 17 , EPA has considered whether recycling of hazardous secondary materials under the 2008 DSW final rule could result in increased risk to human h ealth and the environment and determined it is a complex issue because of the interactions between how the regulations are written and how they are implemented. Under the 2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any i ncrease in risk to human health and the environment . However, what the 2008 DSW rulemaking failed to

17 See 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 rule.- 309

-

take into account was whether the conditions of the rule would operate as effectively in the real world as the more detailed requirements of the RCRA hazar dous waste regulations.
A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final rule with the hazardous waste regulations reveals potentially significant gaps in environmental protection under the 2008 DSW final rule. Examples of these gaps include the absence of measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary materials, the potential for increased releases, such as during storage and transportation of the hazardous secondar y materials, the lack of prescriptive standards for storage and containment, potential issues associated with the interstate transport of hazardous secondary materials for recycling, and reduction in access to information and the opportunity for public par ticipation. RCRA is a preventative statute and by design seeks to prevent damage before it occurs; relying solely on enforcement without addressing the root causes of the damage could needlessly increase the frequency, severity, and cost of damage cases. T herefore, EPA has chosen to finalize the changes to the 2008 DSW final rule being promulgated today to address the significant gaps identified

. Finally, EPA disagrees with comments stating we have not considered the positive role of the hazardous waste man agement industry. In development of the DSW rulemakings, the Agency specifically conducted a study of successful recycling that examined how responsible generators and recyclers of hazardous secondary materials ensure that recycling is done in an environme ntally safe manner.
, A s EPA noted in the 2008 DSW final rule, the successful recycling study indicates that many responsible generators examine the recycler's technical capabilities, business viability, environmental track record, and other relevant quest ions before sending hazardous secondary materials for recycling. Currently, these recycler audits, which are a form of environmental “due diligence,” are in essence a precaution to minimize the prospect of incurring CERCLA liability in the event that the r ecycling, or lack thereof, results in the release of material to the environment. However, the fact that these companies are willing to incur the expense of auditing recyclers as a business practice is itself a marketplace affirmation that sending hazardou s secondary materials to other companies for recycling involves so me degree of risk.
In response to comments on the AMROX facility damage case profile, EPA has revised the profile to reflect the additional information and clarifications provided by the com menter. In response to comments on the Horsehead facility damage case profile, EPA has updated the profile to reflect information from the OSHA investigation on the explosion at the facility. However, EPA disagrees with the comment that the Horsehead facil ity should not be included in the damage case analysis because it is a smelter, not a “hazardous secondary material recycling facility.” The facility receives electric arc furnace dust, which meets the listing description for K061, and reclaims the zinc fr om the furnace dust, making it a hazardous secondary materials recycling facility for the purpose of the study. The management of this hazardous secondary material has resulted in wind dispersal and run

- off problems, making it an appropriate damage case to be used in the study.
(d) COMMENTS :- 310

-

Comments on Market Forces Study
One commenter focused on the applicability of EPA’s “Market Forces Study” to the scrap metal recycling industry. The commenter noted that the key assumption underlying the Market Force Study’s conclusion

– that recyclers get paid to accept recyclable material

– incorrectly characterizes the s crap metal recycling industry. The comment noted that s crap metal recyclers pay for virtually 100 percent of the scrap metal they acquire, and thus
, do not meaningfully differ from the “traditional” manufacturers with which they are compared in the Market Forces Study and by EPA. Therefore, the commenter stated that EPA should not rely on the Market Forces Study to justify extending its proposed rule to firms in the scrap metal recycling industry.
The commenter also noted that the three factors that EPA identified in the market forces study that support the likelihood of sh am recycling (t

he value of the recycled product is low , t he prices of input mate rials or recycled products are volatile , recyclers have low net worth) do not apply to scrap metal recycling. [20 8

- 23]
(d) RESPONSE : EPA agrees with the comment that the conclusions from the market forces study, which are applicable to the recycling of mos t types of hazardous secondary materials (i.e., secondary materials, such as a spent material, by

- product, or sludge, that, when discarded, would be identified as hazardous waste), do not apply to scrap metal recycling where the recycler pays for the scrap metal, which is eventually processed into commodity

- grade metal. The inherent value of scrap metal was, in part, the reason for EPA excluding the metal from RCRA regulation in the first place. EPA explicitly did not open the substance of the scrap metal p rovisions at 40 CFR §§ 261(a)(13) and 261(a)(3)(ii) and is not changing the language of these provisions or otherwise changing the regulatory status of scrap metal.
(e) COMMENTS :

Comments on Financial Assurance

Two commenters were concerned about the effe ct the 2011 DSW proposal would have on financial assurance for reclamation facilities per subpart H of 40 CFR part 261. Subpart H provisions require reclamation facilities to have a detailed written estimate of the cost of closing as a treatment, storage a nd disposal facility, and then have financial assurance in the form of a trust fund, surety bond, letter of credit, insurance, or corporate guarantee in the amount necessary to remove all hazardous secondary materials and fully decontaminate all structures and equipment of the facility. Subpart H also requires reclamation facilities to have insurance or other demonstrated financial responsibility for bodily injury and property damage to third parties caused by sudden and accidental occurrences arising from operations of the reclamation facility. Thus, commenters stated that financial assurance for commercial recyclers in the DSW rule was a major step forward in better protecting local communities from the risks of accidental damage and cleanup of facility op erations.
The commenters noted that in the 2008 DSW rule, EPA said that by obtaining financial assurance, the reclamation facility “is making a direct demonstration that it will not abandon the hazardous secondary materials, it will properly decontaminate equipment, and it will clean up- 311

-

any unacceptable releases, even if events beyond its control make its operations uneconomical.” Without adequate financial assurance, the cost of cleaning up the abandoned hazardous wastes and any environmental releases woul d fall on the local community and state. Commenters stated that EPA would expose vulnerable communities to unnecessary risk if financial assurance for hazardous materials recycling is repealed and requested EPA to retain the requirement currently found in § 261.4(a)(24)(vi)(F) that the reclaimer and intermediate facility have financial assurance under subpart H of 40 CFR part 261. [094, 167]
(e) RESPONSE : Because EPA is replacing the transfer

- based exclusion with the verified recycler exclusion and retaining the condition that reclamation and intermediate facilities obtain financial assurance, the financial assurance provisions under subpart H of 40 CFR part 261 are retained.
As discussed in Section VI.E. of the preamble to the 2014 DSW final rule, t he financial assurance condition in the verified recycler exclusion is parallel to the same condition in the transfer

- based exclusion. By obtaining financial assurance, the reclamation or intermediate facility is making a direct demonstration that it will not abandon the hazardous secondary materials, it will properly decontaminate equipment, and it will clean up any unacceptable releases, even if events beyond its control make its operations uneconomical. Moreover, financial assurance also addresses the c orrelation of the financial health of a reclamation or intermediate facility with the absence of discard. In essence, financial assurance will demonstrate that the reclamation facility or intermediate facility owner/operators who would operate under the te rms of this exclusion are financially sound and will not discard the hazardous secondary materials, or if the facility faces financial difficulties, that funds would have been set aside to address any issues and, therefore, these costs will not be imposed on the U.S. taxpayer or local communities

. The financial assurance requirement has been retained in 40 CFR part 261 subpart H because the substance of the requirement is unchanged from the financial assurance requirement for the 2008 DSW transfer

- based ex

clusion. However, the financial assurance condition is now one of the criteria that is evaluated under the verified recycler solid waste variance, allowing the state or EPA to verify that the financial assurance obtained by the reclamation facility or inte rmediate facility is sufficient and accessible (in contrast, the financial assurance condition in the 2008 DSW transfer

- based exclusion was self

- implementing and not required to be review ed by EPA or the authorized state prior to the facility beginning ope ration).
(f) COMMENTS :
Comments on Including Spent Lead Acid Batteries in DSW Exclusions
Two commenters noted that in the 2011 DSW proposal, language in the generator controlled exclusion 261.4(a)(23) would omit without explanation existing language under subpart “v,” excepting spent lead

- acid batteries from the exclusion. Commenters stated that this omission has the potential to conflict with and undermine the existing Subtitle C scheme by which lead

- acid batteries are regulated . [170, 196]- 312

-

(f) RESPONSE : As discussed in Section XIV of the preamble to the 2014 DSW rule, i t was not the Agency’s intent that spent lead

- acid batteries be managed under the generator

- controlled exclusion. The 2008 DSW final rule contained a provision (40 CFR 261.2(c)(4)(iv)) stat ing that spent lead

- acid batteries were not eligible for the generator

- controlled exclusion or the transfer

based exclusion (nor were materials subject to material

- specific standards under 261.4(a) or the listed hazardous wastes K171 or K172). The omission of this provision from the July 2011 DSW proposal as related to spent lead

- acid batteries and material

- specific standards was inadvertent, and EPA is therefore retaining it in this final rule (see 40 CFR 261.4(a)(23)(ii)(E) and 40 CFR 261.4(a)(24)(iii). H owever, for reasons discussed in section XI of this preamble, listed hazardous wastes K171 and K172 are eligible for the generator

- controlled exclusion and the verified recycler exclusion ; therefore, we are not including those wastes in this provision.
(g) COMMENTS :

Comments on the Derived

- From Rule

EPA received several comments on the interaction of the derived

- from rule with the definition of solid waste exclusions and EPA’s request for comment on whether the derived

- from rule should be modified. Several commenters did not anticipate the need for such a modification, because most treatment residuals would exhibit a hazardous waste characteristic and/or be a listed hazardous waste themselves. One commenter requested EPA clarify whether the materials from

r ecycling would still be considered a listed waste if the recycling markets were to collapse. [177, 179, 251, 272, 299]
(g) RESPONSE : EPA agrees with comments stating that modifications to the derived

- from rule are not necessary because treatment residuals would be evaluated for exhibit ing a hazardous waste characteristic and/or meeting the hazardous waste list ing description, and has not included any changes to the derived

- from rule in this final rule. In response to the question about the status of recycle d material if the markets were to collapse, if the materials are discarded and meet the listing description, then they would be considered listed hazardous waste.
(h) COMMENTS :
Comments on Identification of the Generator if Conditions of Exclusion are Not Met

One commenter stated that i f a recyclable material is excluded/exempt from hazardous waste regulation, but the exclusion/exemption is subsequently lost, then the person causing the loss of the exclusion/exemption should become the generator of the haz ardous waste. The commenter stated that i

f loss of the exclusion is retroactively applied all the way back to the original point of generation, this will be a disincentive to recycling. The commenter noted that b ecause the generator has no control over whe ther the exemption/exclusion is maintained by subsequent handlers, if the exclusion potentially applies retroactively, the generator may have no choice but to manage recyclable material as hazardous waste in order to ensure compliance. The commenter noted that a "generator" is defined in 40 CFR 260.10 as "any person, by site, whose act or process produces hazardous waste identified or listed in part 261 of this chapter or whose act first- 313

-

causes a hazardous waste to become subject to regulation", and therefo re, the commenter stated that the person causing loss of the exemption would meet the definition of a generator. [274]
(h) RESPONSE : EPA disagrees that the recycling facility would be considered the only “generator” of a hazardous waste that was originally intended for recycling under one of the solid waste exclusions but does not meet the conditions of the exclusion and becomes discarded. As the commenter notes, the definition of generator in 40 CFR 260.10 is "any person, by site, whose act or process prod uces hazardous waste identified or listed in part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation." (emphasis added). Therefore, either the entity that actually generates the hazardous waste or the entity who first causes it to become subject to regulation may be considered the generator for purposes of RCRA regulation. This approach provides all entities with an incentive to handle the hazardous secondary materials consistent with the conditions of the exclus ion, and also encourages each person to take appropriate steps to ensure that hazardous secondary materials are safely handled and legitimately recycled by others in the management chain.
(i) COMMENTS :
Requests for Technical Corrections or Clarifications

[Note: Requests for clarifications of regulatory language for the proposed alternative Subtitle C recycling standards are discussed in Section 5 of this response to comment document]
Definition of “hazardous secondary material”
One commenter requested clar ification as to whether the definition of "hazardous secondary material" in 260.10, includes "commercial chemical products." The commenter noted Section 260.10 defines "hazardo us secondary material" to mean: "a secondary material (e.g., spent material, by

- product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter. The comment noted that b y its very nature, the term "secondary" suggests that the material has been used or is a byproduct of some type of oper ation, no t a commercial chemical product, and that the definition gives as examples: "spent material, by

- product, or sludge." The commenter encourage d EPA to clarify that the term "hazardous secondary material" in 260.10 does not include "commercial chemic al products." [256]
Corrections to references in the proposed regulatory language
One commenter noted a number of references in the proposed regulatory language that required correction:
1. The definition of “hazardous secondary material” contains a refere nce to 261.2(a)(2)(ii), which is proposed to be deleted.
2. The definition of “intermediate facility” is no longer needed.
3. Section 261.1(c)(4) references both 261.2(a)(2)(ii) and 261.4(a)(24), both of which are proposed to be deleted.- 314

-

4. Section 261.2(c )(3) references 261.2(a)(2)(ii), 261.4(a)(24), and 261.4(a)(25), each of w hich is proposed to be deleted. [ 0257 ]
(i) RESPONSE : Definition of “hazardous secondary material”
In response to the comment requesting clarification of whether a commercial chemical product could be a hazardous secondary material, a commercial chemical product listed in 40 CFR 261.33 could be considered a hazardous secondary material if it is off

- specification or otherwise unable to be sold as a product. EPA notes that the pr actical implication of including commercial chemical products listed in 40 CFR 261.33 as hazardous secondary materials is that these materials would be eligible for the generator controlled exclusion and verified recycler exclusions at 40 CFR 261.4(a)(23) and (24). While EPA expects that most entities will continue to use the commercial chemical product exclusion for reclamation in 40 CFR 261.2(c)(3) Table 1, some facilities may prefer to use the new exclusions for all their hazardous secondary material, an

d interpreting hazardous secondary materials to include these types of commercial chemical products will allow them to do so.
Corrections to references in the proposed regulatory language
EPA has made the appropriate corrections to the references in the fi nal rule regulatory language.
(j) COMMENTS :
Comments Outside the Scope of the Proposal
Several commenters submitted comments that were outside the scope of the 2011 DSW proposal, including comments on the impacts of littering on motor vehicle accidents [27], the application of the “use constituting disposal” regulation to treated wood and to phosphoric acid used in fertilizer production [100, 115], the use of coal refuse to produce energy and the use of coal by

product ash residue to reclaim abandoned mi ne lands [135], the impacts of RCRA regulation on the retail industry [164], the need to foster multi

- stakeholder dialogues [174], the regulation of “shop towels” contaminated with solvents [219], the hazardous waste delisting program [260], “Bevill” exemp t wastes [269], correct ion to the land disposal restrictions for K171/172 [304], the European precautionary principle [352], and the impact of dredging [IL

- 0007].
Because these commenters are outside the scope of the 2011 DSW proposal, EPA is not respondin g to these comments in this document.- 315

-



## Appendix: Commenters and Submission Numbers

Submission Number Commenter Organization EPA

- HQ

- RCRA

- 2010

- 0742

- 0020 Paul Norton Cepheid
EPA

- HQ

- RCRA

- 2010

- 0742

- 0021 Scott Thompson Oklahoma Department of Environmental Quality (DEQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0022 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0023 Steven Barringer Private Citizen
EPA

- HQ

- RCRA

- 2010

- 0742

- 0024 Scott Horne Institute of Scrap Recycling Industries, Inc. (ISRI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0026 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0027 Steve Spacek American State Litter Scorecard EPA

- HQ

- RCRA

- 2010

- 0742

- 0028 Norb Dickmann Morganite Industries, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0029 Scott Nally Ohio Environmental Protection Agency (Ohio EPA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0030 Charles Urbick Skagit River Steel & Recycling, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0031 Michael Giannotto Newmont Mining Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0032 Teresa Marks Arkansas Department of Environmental Quality (ADEQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0033 M. Dwayne Roskowski St. Olaf College EPA

- HQ

- RCRA

- 2010

- 0742

- 0034 Roger Crispin Midwest Iron & Metal CO., Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0035 Matthew Kripke Kripke Entprises EPA

- HQ

- RCRA

- 2010

- 0742

- 0036 Bernard Steinberg Charleston Steel & Metal Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0037 Chip DeJean Louisiana Scrap Metal Recycling
EPA

- HQ

- RCRA

- 2010

- 0742

- 0038 Scott Thompson Oklahoma Department of Environmental Quality (DEQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0039 Steve Chafitz e

- End EPA

- HQ

- RCRA

- 2010

- 0742

- 0040 Craig Selinsky Ohio Steel Slitters Inc.- 316

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0041 Gregg Carpenter Carpenter Metal Solutions, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0042 Paravis Industries EPA

- HQ

- RCRA

- 2010

- 0742

- 0043 Jeffrey Mallin Mallin Bros. Co., Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0044 Chip DeJean Louisiana Scrap Metal Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0045 Lawrence Bass Friedland Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0046 Jim Olson Riverside Engineering, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0047 Max Fischbach Royce Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0048 Brent Richards Bryant Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0049 Ruth Mack Loeb

- Lorman Metals Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0050 Stephen Sargent Rumpke Consolidated Companies Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0051 Stephen Sargent Rumpke Consolidated Companies In c. EPA

- HQ

- RCRA

- 2010

- 0742

- 0052 Stephen Sargent Rumpke Consolidated Companies, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0053 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0054 Chuck Clark Clark Iron & Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0055 Jerry Simms Atlas Metal & Iron Corp. EPA

- HQ

- RCRA

- 2010

- 0742

- 0056 Paul Brenner Brenner Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0057 Stephen Moss Stanton A. Moss Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0058 Stephanie Flowers Illinois Environmental Protection Agency EPA

- HQ

- RCRA

- 2010

- 0742

- 0059 Richard Eicher US Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0060 Jim Picillo Mervis Industries, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0061 Erin Heaney Clean Air Coalition of Western New York EPA

- HQ

- RCRA

- 2010

- 0742

- 0062 Fred Runde Clayton County Recycling (CCR), et al.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0063 Janet Coit Rhode Island Department of Environmental Management (RIDEM)- 317

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0064 Shine Bros. Corp.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0065 Robert Bedard National Association Supply Co

Operative, Inc. (NASCO

- OP)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0066 Michael Potash Sioux City Compressed Steel Co. (SCCSCO) EPA

- HQ

- RCRA

- 2010

- 0742

- 0067 Rose Mock Allied Scrap Precessors, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0068 Eileen Sottile LKQ Corporation (LKQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0069 Michael Tiller Compressed Gas Association (CGA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0070 Steven Tuch Ideal Metal & Salvage Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0071 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0072 Samuel Sinel Berger Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0073 James Joshowitz Josh Steel Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0074 Jack Joseph Muskingum Iron & Metal Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0075 Howard Glick Tri

- State Iron & Metal Company
EPA

- HQ

- RCRA

- 2010

- 0742

- 0076 Richard Metcalf Louisiana Mid

- Continent Oil and Gas Association (LMOGA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0077 David Grossman Grossman Iron and Steel Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0078 Sean Sabel Sabel Steel Service Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0079 Jay Freedland Hutchinson Iron & Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0080 Ira Thomas Acadia Scrap & Salvage, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0081 Aaron Hill Atlantic Recycling Group, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0082 David Grossman Grossman Iron and Steel Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0083 Mike Coates Sierra Recycling and Demolition EPA

- HQ

- RCRA

- 2010

- 0742

- 0084 Robin Ingenthron American Retroworks, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0085 Tom Zelenka Schnitzer Steel Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0086 Adam Mervis Mervis Industries, Inc.- 318

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0087 Louis Mervis Mervis Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0088 Tom Falender Mervis Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0089 David Hicks Sol Tick & Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0090 Tom Haley Goodman & Wolf EPA

- HQ

- RCRA

- 2010

- 0742

- 0091 John Stewart Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0092 Milford Pepper Century Enterprises EPA

- HQ

- RCRA

- 2010

- 0742

- 0093 Ken Cohen Cohen Brothers, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0094 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0095 Allen Howard West Virginia Cashin Recyclables, INC. EPA

- HQ

- RCRA

- 2010

- 0742

- 0096 Andrew Chuckran Chuckran's Auto Parts,Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0097 Christina Wisdom Texas Chemical Council EPA

- HQ

- RCRA

- 2010

- 0742

- 0098 Douglas Kramer Kramer Metals, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0099 Gene Rosenbaum Southern Scrap Co. Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0100 Jeffrey Miller Treated Wood Council (TWC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0101 Joseph Balzano Camden Iron & Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0102 Mary Howard Nu

- Way Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0103 Nelson Mossholder ECS Refining EPA

- HQ

- RCRA

- 2010

- 0742

- 0104 Preston Cornish Public Interest EPA

- HQ

- RCRA

- 2010

- 0742

- 0105 Patricia Tuzi Aleris Rolled Products Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0106 Peter Kramer The Greenfield Recycling Company, Inc
EPA

- HQ

- RCRA

- 2010

- 0742

- 0107 Robert Phelan Environmental Issues Management, LLC (EIM) EPA

- HQ

- RCRA

- 2010

- 0742

- 0108 Ron Sahd Frank Sahd Salvage Center, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0109 Stephen Leibach Bohn and Dawson Metal Tubing Fabricators- 319

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0110 Steve Budd Integrated Recycling Technologies, Inc. (IRT) EPA

- HQ

- RCRA

- 2010

- 0742

- 0111 Tawny Bridgeford National Mining Association (NMA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0112 Thomas Andrade Everett's Auto Parts EPA

- HQ

- RCRA

- 2010

- 0742

- 0113 William Rackoff Asko, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0114 World Resources Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0115 William Herz The Fertilizer Institute (TFI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0116 Thom Davis Oscar Winski eRecycling
EPA

- HQ

- RCRA

- 2010

- 0742

- 0117 Tamra Johnson A&A Midwest Rebuilders Suppliers, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0118 Pat Kons Pacific Steel and Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0119 Nelson Mossholder ECS Refining Texas, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0120 Mike Coates Sierra Recycling and Demolition
EPA

- HQ

- RCRA

- 2010

- 0742

- 0121 Malvin Sander American Iron Oxide Company and International Steel Services, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0122 Jonathan Carpenter Lee Iron and Metal Company, Inc. (LIMCO) EPA

- HQ

- RCRA

- 2010

- 0742

- 0123 John Robinson JB's Salvage

EPA

- HQ

- RCRA

- 2010

- 0742

- 0124 Jeremy Hancher Environmental Management Assistance Program (EMAP) of the Pennsylvania Small Business Development Centers (PASBDC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0125 James Roewer Utility Solid Waste Activities Group (USWAG) EPA

- HQ

- RCRA

- 2010

- 0742

- 0126 Gary Taylor Wise Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0127 David Wagman Bridgewater Recycling Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0128 Christopher Robles Melton Sales & Service EPA

- HQ

- RCRA

- 2010

- 0742

- 0129 Charles Harris Cleveland Steel Container EPA

- HQ

- RCRA

- 2010

- 0742

- 0130 David Windsor Ecovery LLC- 320

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0131 Lawrence Bass Friedland Industries, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0132 Scott Carpenter Carpenter Metal Solutions, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0133 M. Dwayne Johnson Louisiana Chemical Association (LCA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0134 Warner Key Hobbs Iron & Metal, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0135 Jeff McNelly ARIPPA EPA

- HQ

- RCRA

- 2010

- 0742

- 0136 J. D. Binkley Artesia Metals, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0137 Solomon Miller Tennessee Valley Recycling, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0138 Jeff Staub Viking Yacht Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0139 Wayne King Charles J. King, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0140 Derek Swick American Petrolem Institute (API)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0141 Alison Burns Doctor of Jurisprudence Candidates, Loyola College of Law EPA

- HQ

- RCRA

- 2010

- 0742

- 0142 Stephen Woock Weyerhaeuser Company
EPA

- HQ

- RCRA

- 2010

- 0742

- 0143 Hal Morris Savannah River Nuclear Solutions, LLC (SRNS) EPA

- HQ

- RCRA

- 2010

- 0742

- 0144 Harry Hall Hall's Garage, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0145 Todd Fracassi Pepper Hamilton LLP EPA

- HQ

- RCRA

- 2010

- 0742

- 0146 Ram Singhal Flexible Packaging Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0147 Jeff McNelly ARIPPA
EPA

- HQ

- RCRA

- 2010

- 0742

- 0148 Bruce Steiner American Coke and Coal Chemicals Institute (ACCCI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0149 Alex Bluestein Oscar Winski Company, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0150 Wayne King Charles J. King, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0151 Susan Eckerly National Federation of Independent Business (NFIB) EPA

- HQ

- RCRA

- 2010

- 0742

- 0152 Hadley Eickhof Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0153 Russell Rinn OmniSource Corporation- 321

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0154 William Kovacs U. S. Chamber of Commerce EPA

- HQ

- RCRA

- 2010

- 0742

- 0155 Aubrey Tyler Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0156 Craig Hogarth Heritage Environmental Services, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0157 Pamela Allen Ohio Environmental Protection Agency
EPA

- HQ

- RCRA

- 2010

- 0742

- 0158 Daniel Moss Society of Chemical Manufacturers and Affiliates (SOCMA)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0159 Wayne Scharber Tennessee Chamber of Commerce & Industry (TCCI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0160 Austin Bly St. Olaf College EPA

- HQ

- RCRA

- 2010

- 0742

- 0161 Anonymous EPA

- HQ

- RCRA

- 2010

- 0742

- 0162 Kelly Payne Kennecott Utah Copper LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0163 Traylor Champion Georgia

- Pacific LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0164 Raymond Ludwiszewski Wal

- Mart Stores, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0165 Michel Benoit Cement Kiln Recycling Coalition (CKRC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0166 Dave Morelli PM Recovery, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0167 Thomas Pappas Ohio Environmental Service Industries EPA

- HQ

- RCRA

- 2010

- 0742

- 0168 Paul Noe American Forest & Paper Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0169 Dirk Krouskop MeadWestvaco Corporation (MWV) EPA

- HQ

- RCRA

- 2010

- 0742

- 0170 Robert Steinwurtzel Association of Battery Recyclers (ABR) EPA

- HQ

- RCRA

- 2010

- 0742

- 0171 Steve List NewPage Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0172 Cecilia Martaus AT&T, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0173 Jared Policicchio Environmental Law & Policy Center EPA

- HQ

- RCRA

- 2010

- 0742

- 0174 Sue Briggum Waste Management (WM) EPA

- HQ

- RCRA

- 2010

- 0742

- 0175 Derek Swick American Petroleum Institute (API) EPA

- HQ

- RCRA

- 2010

- 0742

- 0176 Jeff Staub Viking Yacht Company- 322

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0177 Robert Nakamoto Tennessee Department of Environment and Conservation (TDEC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0178 Steven DeGabriele Massachusetts Department of Environmental Protection
EPA

- HQ

- RCRA

- 2010

- 0742

- 0179 Terri Goldberg Northeast Waste Management Officials' Association (NEWMOA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0180 Jerry Green New England Scrap Metal Recyclers EPA

- HQ

- RCRA

- 2010

- 0742

- 0181 Leonard Worth Fluorecycle, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0182 James Marcrum AKJ Industries, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0183 Larry Manziek International Precious Metals Institute (IPMI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0184 Kevin Campbell Harding Metals, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0185 Lin Longshore Safety

- Kleen Systems, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0186 Caroline Choi Progress Energy EPA

- HQ

- RCRA

- 2010

- 0742

- 0187 David Wallace Huron Valley Steel Corporation (HVSC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0188 Steven DeGabriele Massachusetts Department of Environmental Protection (MassDEP) EPA

- HQ

- RCRA

- 2010

- 0742

- 0189 Joe Peterpaul DuPont EPA

- HQ

- RCRA

- 2010

- 0742

- 0190 Michael Hayes Delaware City Refining Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0191 Steve Moore Mansbach Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0192 Richard Powals Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0193 Jeff White Newmont Mining Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0194 Charles Johnson The Aluminum Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0195 Charles Johnson The Aluminum Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0196 Michael Carr Johnson Controls Battery Group, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0197 Nick Bennett Natural Resources Council of Maine (NRCM)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0198 John Wittenborn Metals Industries Recycling Coalition (MIRC)- 323

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0199 Kim Harvey The Dow Chemical Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0200 Jennifer Walling Illinois Environmental Council EPA

- HQ

- RCRA

- 2010

- 0742

- 0201 Timothy Serie American Coatings Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0202 Jeffrey Lang Rhodia Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0203 Steve Mahoney Superior Oil C ompany, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0204 Andrew Mangan United States Business Council for Sustainable Development EPA

- HQ

- RCRA

- 2010

- 0742

- 0205 Timothy Basilone Horsehead Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0206 Robin Saha Private Citizen
EPA

- HQ

- RCRA

- 2010

- 0742

- 0207 Grif Bond Environmental, Health & Safety Communications Panel (EHSCP)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0208 Scott Horne Institute of Scrap Recycling Industries, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0209 Heather Parent Maine Department of Environmental Protection EPA

- HQ

- RCRA

- 2010

- 0742

- 0210 Krishna Parameswaran ASARCO LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0211 Holly Propst Western Business Roundtable EPA

- HQ

- RCRA

- 2010

- 0742

- 0212 Tim Lafond Battery Council International (BCI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0213 Sims Recycling Solutions
EPA

- HQ

- RCRA

- 2010

- 0742

- 0214 Robert Bessette Council of Industrial Boiler Owners (CIBO) EPA

- HQ

- RCRA

- 2010

- 0742

- 0215 Abigail Dillen Earthjustice
EPA

- HQ

- RCRA

- 2010

- 0742

- 0216 Robert Winstead BAE Systems Ordnance Systems Inc. (OSI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0217 Michael Connolly Tube City IMS EPA

- HQ

- RCRA

- 2010

- 0742

- 0218 James Voyles The Mosaic Company
EPA

- HQ

- RCRA

- 2010

- 0742

- 0219 John Wittenborn Textile Rental Services Association of America (TRSA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0220 Jeff White Newmont Mining Corporation- 324

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0221 Troy Greiss East Penn Manufacturing Company, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0222 Jim Jones Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0223 Stephen Young Allan Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0224 Douglas Kramer Kramer Metals, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0225 Peggy Hatch Louisiana Department of Environmental Quality (LDEQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0226 Jay Robinovitz Alter Trading Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0227 Jared Policicchio Environmental Law & Policy Center
EPA

- HQ

- RCRA

- 2010

- 0742

- 0228 Robert Phelan Environmental Issues Management, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0229 Kenneth Willings Aleris International, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0230 Justin Klug Clearfield Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0231 William Elson HVF West, LLC
EPA

- HQ

- RCRA

- 2010

- 0742

- 0232 Scott Horne Institute of Scrap Recycling Industries, Inc. (ISRI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0233 Brian Lamb AXYS Industrial Solutions EPA

- HQ

- RCRA

- 2010

- 0742

- 0234 Jonathan Golding E

- World Recyclers, LLC. EPA

- HQ

- RCRA

- 2010

- 0742

- 0235 David Bayouth Jarvis Metals Recycling, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0236 John Cain South Carolina State Chamber of Commerce EPA

- HQ

- RCRA

- 2010

- 0742

- 0237 Steve Mahoney Superior Oil Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0238 Laurie Miller American Chemistry Council (ACC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0239 Edward Lynch Wisconsin Department of Natural Resources
EPA

- HQ

- RCRA

- 2010

- 0742

- 0240 Paul Abernathy Association of Lighting and Mercury Recyclers (ALMR)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0241 Angus Crane North American Insulation Manufacturers Association (NAIMA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0242 Frederick Harnack United States Steel Corporation- 325

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0243 Thomas Baker Veolia ES Technical Solutions, L.L.C. EPA

- HQ

- RCRA

- 2010

- 0742

- 0244 Abigail Dillen Earthjustice EPA

- HQ

- RCRA

- 2010

- 0742

- 0245 Madison Kubis Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0246 Jerry Call American Foundry Society (AFS)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0247 Jeffery Hannapel National Association for Surface Finishing (NASF)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0248 Jesse Marquez Coaliton For A Safe Environment (CFASE) EPA

- HQ

- RCRA

- 2010

- 0742

- 0249 Jeremy Foster Mansbach Metal Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0250 Carl Palmer TD*X Associates
EPA

- HQ

- RCRA

- 2010

- 0742

- 0251 Michael J. Wimsatt Bonner New Hampshire Department of Environmental Services (NHDES)

EPA

- HQ

- RCRA

- 2010

- 0742

- 0252 Glenn Hamer Arizona Chamber of Commerce & Industry and Arizona Manufacturers Council (AMC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0253 William Elson Spooner Metals, LLC
EPA

- HQ

- RCRA

- 2010

- 0742

- 0254 Henry Darwin Arizona Department of Environmental Quality (ADEQ)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0255 Susan Bodine Federal Recycling and Remediation Coalition (FRRC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0256 Dale Guariglia Bryan Cave LLP

EPA

- HQ

- RCRA

- 2010

- 0742

- 0257 Tammie Hynum Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0258 Michael Welson Automotive Recyclers Association (ARA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0259 Kim Harvey The Dow Chemical Company (Dow) EPA

- HQ

- RCRA

- 2010

- 0742

- 0260 Trevor Burggraff Nucor Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0261 William Elson Fritz Enterprises, Inc. (FEI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0262 Gregory McCartney Marathon Petroleum Company LP
EPA

- HQ

- RCRA

- 2010

- 0742

- 0263 Jerry Green New England Scrap Metal Recyclers, et al.- 326

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0264 Lawrence Szuhay Materion Brush, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0265 David Cobb Ekco Metals
EPA

- HQ

- RCRA

- 2010

- 0742

- 0266 Daniel Moss Society of Chemical Manufacturers and Affiliates (SOCMA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0267 Maria Coor Association of Battery Recyclers (ABR)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0268 Early Ray Tomblin West Virginia Department of Environmental Protection (DEP) EPA

- HQ

- RCRA

- 2010

- 0742

- 0269 Michael Harrell Ash Grove Cement Company
EPA

- HQ

- RCRA

- 2010

- 0742

- 0270 Mark Smith Georgia Environmental Protection Division (EPD)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0271 Vincent Brisini Pennsylvania Department of Environmental Protection
EPA

- HQ

- RCRA

- 2010

- 0742

- 0272 Michael Wimsatt Northeast Waste Management Officials' Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0273 Charles Plaveczky Seagrave Coatings Corp.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0274 Hershell Wolfe Department of Defense, Department of the Army EPA

- HQ

- RCRA

- 2010

- 0742

- 0275 Mark Lasky Sadoff & Rudoy Industries, LLP EPA

- HQ

- RCRA

- 2010

- 0742

- 0276 Troy Greiss East Penn Manufacturing Company, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0277 Tita LaGrimas Tradebe Environmental Services, LLC

EPA

- HQ

- RCRA

- 2010

- 0742

- 0278 Timothy Basilone Horsehead Corporation and International Metals Reclamation, Company, Inc. (INMETCO) EPA

- HQ

- RCRA

- 2010

- 0742

- 0279 Eric Albert Albert Bros., Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0280 Charles Johnson The Aluminum Association EPA

- HQ

- RCRA

- 2010

- 0742

- 0281 Sue Briggum Waste Management (WM) EPA

- HQ

- RCRA

- 2010

- 0742

- 0282 Jerry Call American Foundry Society (AFS) EPA

- HQ

- RCRA

- 2010

- 0742

- 0283 Edward Callaway Nissan North America, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0284 Sandy Rosen Great Lakes Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0285 Harold. Pertel Envirodigm, Inc.- 327

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0286 Jennifer Walling Illinois Environmental Council and Environmental Law & Policy Center (ELPC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0287 Curt Wells Alcoa Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0288 Frank Cozzi Cozzi O'Brien Recycling LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0289 Raymond Ludwiszewski Wal

- Mart Stores, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0290 Gerald Hardy Alabama Department of Environmental Management (ADEM) EPA

- HQ

- RCRA

- 2010

- 0742

- 0291 Scott Carpenter Carpenter Metal Solutions, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0292 Jeff Farano SA Recycling LLC
EPA

- HQ

- RCRA

- 2010

- 0742

- 0293 Dave LeBrun Oregon Department of Environmental Quality (DEQ) EPA

- HQ

- RCRA

- 2010

- 0742

- 0294 Steven Olgin Liberty Iron & Metal Holdings LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0295 Jack Vexler Monterrey Iron and Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0296 Mark Leder Leder Brothers Company EPA

- HQ

- RCRA

- 2010

- 0742

- 0297 Mayer Pollock Mayer Pollock Steel Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0298 William Kovacs U.S. Chamber of Commerce
EPA

- HQ

- RCRA

- 2010

- 0742

- 0299 Daphne Neel South Carolina Department of Health and Environmental Control (SCDHEC) EPA

- HQ

- RCRA

- 2010

- 0742

- 0300 Gerald Flynn Bretford Manufacturing, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0301 Michael Lewis Lewis Salvage EPA

- HQ

- RCRA

- 2010

- 0742

- 0302 Shaun Pearman Private Citizen EPA

- HQ

- RCRA

- 2010

- 0742

- 0303 Gerald Green JW Green Co., Inc EPA

- HQ

- RCRA

- 2010

- 0742

- 0304 John Hilbert Vanadium Producers and Reclaimers Association (VPRA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0305 John Sisti Sancoa International EPA

- HQ

- RCRA

- 2010

- 0742

- 0306 Jeff Gorman DeKalb Iron & Metal Co. (DIMC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0307 George Desch Department of Environmental Conservation, State of Vermont- 328

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0308 Sean Yaffe Yaffe Iron & Metal Corporation EPA

- HQ

- RCRA

- 2010

- 0742

- 0309 Jim Shapiro Recycling Council of Texas EPA

- HQ

- RCRA

- 2010

- 0742

- 0310 Patricia Martin Safe Food and Fertilizer EPA

- HQ

- RCRA

- 2010

- 0742

- 0311 Elizabeth Wolk Beveridge & Diamond, PC
EPA

- HQ

- RCRA

- 2010

- 0742

- 0312 Dale Desnoyers New York St ate Department of Environmental Conservation EPA

- HQ

- RCRA

- 2010

- 0742

- 0313 Sean Sullivan Umicore USA Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0314 Jack Vexler Monterrey Iron & Metal EPA

- HQ

- RCRA

- 2010

- 0742

- 0315 Andy Marshall US Ecology, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0316 Michael Connolly Tube City IMS EPA

- HQ

- RCRA

- 2010

- 0742

- 0317 Kay Parker Eastman Chemical Company (Eastman) EPA

- HQ

- RCRA

- 2010

- 0742

- 0318 Troy Greiss East Penn Manufacturing Company, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0319 Bill Staggs Ball Pipe & Supply, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0320 Webb Kane Midvale Environmental Technologies EPA

- HQ

- RCRA

- 2010

- 0742

- 0321 K. Milton Brown Private Citizen
EPA

- HQ

- RCRA

- 2010

- 0742

- 0322 Paul D'Adamo Auto Recyclers Association of Rhode Island (ARARI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0323 Paul D'Adamo Bill's Auto Parts EPA

- HQ

- RCRA

- 2010

- 0742

- 0324 Gerald Manley RSR Corporation (RSR) EPA

- HQ

- RCRA

- 2010

- 0742

- 0325 William Elson HVF West, LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0326 William Elson Fritz Enterprises, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0327 Jason Riley Rogers Iron & Metal Corp. EPA

- HQ

- RCRA

- 2010

- 0742

- 0328 Ronald Gostek Keywell LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0329 Richard Caldwell Glickman Metal Recycling LLC EPA

- HQ

- RCRA

- 2010

- 0742

- 0330 William Elson Spooner Metals, LLC- 329

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0331 Roman Revard Ponca Iron & Metal, Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0332 Mark Vickery Texas Commission on Environmental Quality (TCEQ)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0333 George Desch Department of Environmental Conservation, State of Vermont EPA

- HQ

- RCRA

- 2010

- 0742

- 0334 Frederick Harnack United States Steel Corporation (USS) EPA

- HQ

- RCRA

- 2010

- 0742

- 0335 Dennis Thompson Keystone Iron and Metal Co., Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0336 Don Mynear Baker Iron & Metal Co. EPA

- HQ

- RCRA

- 2010

- 0742

- 0337 Todd Fracassi Pepper Hamilton LLP (Pepper) EPA

- HQ

- RCRA

- 2010

- 0742

- 0338 George O'Brien Cozzi O'Brien Recycling EPA

- HQ

- RCRA

- 2010

- 0742

- 0339 Dave Cobb Ekco Metals EPA

- HQ

- RCRA

- 2010

- 0742

- 0340 Steven Barringer Precious Metals Producers (PMP)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0341 Jeffery Hannapel National Association for Surface Finishing (NASF) EPA

- HQ

- RCRA

- 2010

- 0742

- 0342 Johnnie Boyd Missouri Metal Recycling, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0343 Daniel Jacobson Metro Metals Northwest, Inc
EPA

- HQ

- RCRA

- 2010

- 0742

- 0344 Daphne Neel South Carolina Department of Health and Environmental Control (SCDHEC)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0345 Troy Crreiss East Penn Manufacturing Company, Inc. (East Penn) EPA

- HQ

- RCRA

- 2010

- 0742

- 0346 Michael Hayes PBF Energy EPA

- HQ

- RCRA

- 2010

- 0742

- 0347 Chuck Cale Borg Compressed Steel Corp. (BCS) EPA

- HQ

- RCRA

- 2010

- 0742

- 0348 Henry Graham Louisiana Chemical Association (LCA) EPA

- HQ

- RCRA

- 2010

- 0742

- 0349 Tom Collins QuickService Steel Co.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0350 Michael Carr Johnson Control Battery Group Inc . (JCI)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0351 Anthony Hatton Kentucky Department for Environmental Protection
EPA

- HQ

- RCRA

- 2010

- 0742

- 0352 Therese Vick Blue Ridge Environmental Defense League- 330

-

EPA

- HQ

- RCRA

- 2010

- 0742

- 0353 Wayne King Charles J. King, Inc. EPA

- HQ

- RCRA

- 2010

- 0742

- 0354 Kalco Metals Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0355 Paul Yost National Association of Manufacturers (NAM) EPA

- HQ

- RCRA

- 2010

- 0742

- 0356 Frederick Ganster Exide Technologies
EPA

- HQ

- RCRA

- 2010

- 0742

- 0357 John Cain Novesis Inc. on behalf of South Carolina Chamber of Commerce EPA

- HQ

- RCRA

- 2010

- 0742

- 0358 Kathleen Tobin Verizon EPA

- HQ

- RCRA

- 2010

- 0742

- 0359 Stephanie Castorina IPC

- Association Connecting Electronics Industries
EPA

- HQ

- RCRA

- 2010

- 0742

- 0360 John Westendorf OxyChem on behalf of Occidental Chemical Corporation and Oxy Vinyls EPA

- HQ

- RCRA

- 2010

- 0742

- 0361 Robert Quick Jr. Arizona Mining Association (AMA)
EPA

- HQ

- RCRA

- 2010

- 0742

- 0362 Melvin Keener Coalition for Responsible Waste Incineration (CRWI) EPA

- HQ

- RCRA

- 2010

- 0742

- 0363 William Cobb Freeport

- McMoRan Copper & Gold Inc.
EPA

- HQ

- RCRA

- 2010

- 0742

- 0364 Kevin Bromberg Small Business Administration Office of Advocacy
EPA

- HQ

- RCRA

- 2010

- 0742

- 0365 Abigail Dillen and Lisa Evans Earthjustice on behalf of Alaska Community Action on Toxics
EPA

- HQ

- RCRA

- 2010

- 0742

- 0366 Sims Metal Management and The David J. Joseph Company
EPA

- HQ

- RCRA

- 2010

- 0742

- 0367 David R. Case Environmental Technology Council (ETC)

TRANS

- IL

- 0001 Peter Orris Chicago Physicians for Social Responsibility TRANS

- IL

- 0002 Lisa Evans Earthjustice TRANS

- IL

- 0003 Mike Johnson Greenpeace U.S.A TRANS

- IL

- 0004 Jesse Marquez Coalition for a Safe Environment TRANS

- IL

- 0005 Jane Williams California Communities Against Toxics TRANS

- IL

- 0006 Jared Policicchio Environmental Law & Policy Center TRANS

- IL

- 0007 Jesse Marquez Coalition for a Safe Environment TRANS

- IL

- 0008 Lisa Tuck PSC TRANS

- IL

- 0009 Jane Williams California Communities Against Toxics TRANS

- IL

- 0010 Lisa Evans Earthjustice TRANS

- IL

- 0011 Tim Serie American Coatings Association- 331

-

TRANS

- IL

- 0012 John Cain Novesis Environmental Strategies, South Carolina State Chamber of Commerce TRANS

- IL

- 0013 Becky Clayborn Sierra Club's Beyond Coal Campaign TRANS

- IL

- 0014 Cheryl Johnson People for Community Recovery TRANS

- PA

- 0001 Michael Giannotto Newmont Mining Corporation

TRANS

- PA

- 0002 Dann Moss Society of Chemical Manufacturers and Affiliates (SOCMA) TRANS

- PA

- 0003 Stephanie Castorina IPC

TRANS

- PA

- 0004 Teresa Mendez

- Quigley Physicians for Social Responsibility of Philadelphia TRANS

- PA

- 0005 Jeff Tittel Sierra Club TRANS

- PA

- 0006 Adam Cutler Law Center of Philadelphia

TRANS

- PA

- 0007 John Steed Public Interest Law Center of Philadelphia

TRANS

- PA

- 0008 Ted Kopec Public Interest Law Center of Philadelphia TRANS

- PA

- 0009 Matt Walker Clean Air Council

TRANS

- PA

- 0010 Brian Krier Public Interest Law Center in Philadelphia

TRANS

- PA

- 0011 Brendan Winget Public Interest Law Center in Philadelphia

TRANS

- PA

- 0012 Vernice Miller

- Travis Maryland Commission on Environmental Justice and Sustainable Communities TRANS

- PA

- 0013 Abigail Dillen Earthjustice

TRANS

- PA

- 0014 Leslie Fields Sierra Club Environmental Justice and Community Partnerships Program TRANS

- PA

- 0015 David Masur Penn Environment

TRANS

- PA

- 0016 Bryan Collins Citizens for Pennsylvania's Future (Penn Future)