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Revisions to the Definition of Solid Waste Final Rule 

Response to Comments Document 

Summaries and Responses

December 10, 2014
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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. After each comment summary is a code linking the summary to the final digits of the 

RCRA Docket number for the individual comment numbers 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. 
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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..............................................................39

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 Support..........................................................................................................................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
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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-reclaimed material has 

sufficient economic value that it will be purchased for final reclamation ......................... 195

8.3.4 Comments on proposed criterion 3: Whether the partially-reclaimed material is a 

viable substitute for a product or intermediate produced from virgin or raw materials 

which feeds subsequent production steps........................................................................... 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-waste 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
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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
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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 recycling. 

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 that 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 achievable 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 consideration 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 done 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 ensure they do in fact 

legitimately recycle and not mismanage their hazardous secondary materials.

(b) COMMENTS: So 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 

actually 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 whatever 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 carefully 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 recycler exclusion, EPA is providing potentially affected 

communities tools to help engage the state agencies regarding the recycling practices that may 

affect them.
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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 community 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 that'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 anything 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 

have 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 proposal 

(a) COMMENTS: EPA received several comments in general support of the 2011 DSW 

proposal. [0022] Commenters in particular 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-PA0004, TRANS-PA-0006, TRANS-PA-0007, TRANS-PA-0009. TRANS-PA-0010, TRANS-PA0012 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, TRANS-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 the environment, including protecting the most vulnerable 
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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 opposition to 2011 DSW proposal 

(a) COMMENTS: Commenters specifically were concerned that the 2011 DSW proposal would 

discourage 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 commenters 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], fiberglass [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 proposed 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-IL0012 TRANS-PA-0003].

(a) RESPONSE: The goal of the 2014 DSW rule is to encourage safe recycling 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 protection 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 commenters opposed the 2011 DSW proposal. They 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, TRANSIL-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.)
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(c) COMMENTS: One commenter stated that the proposed definition of solid waste is 

inadequate 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 hazardous 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 outside the scope of this proposal.

2.0 EPA's Legal Authority to Regulate Recycling 

(a) COMMENTS: Many commenters argued that EPA exceeded its 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 transferred 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 agricultural 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 the 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 production 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 universe 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 
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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 asserts 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 synonyms 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.]. Commenters 

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 solid 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 the 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 not 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.
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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 Safe 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 citations 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 reasonably 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 language 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 "disposed of, abandoned or thrown away." [0104, 0111, 0113, 0115, 

0125, 0133, 0154, 0168, 0169, 0171, 0175, 0177, 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 discarded.

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, the Agency in no way equates all 

recycling with discard. EPA, in this final 2014 DSW rule, has struck a balance among the 
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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 materials 

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 

materials 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 are 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 

recycling 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 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).

(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 disposal. 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 substantial 
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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 significant 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 hazardous 

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 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. 2000)).

EPA, under RCRA, only has jurisdiction over material that can be defined as a solid waste, 

which under RCRA § 1004(27) 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 

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 definition. 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 would 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 solid 

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 needs to 

show that materials are discarded to consider them solid wastes.

Thus, most 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 

"discarded" 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 

determine 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 discarded and material that is 

recycled as part of a waste management program.

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 at 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 over 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 metals 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 because 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 of 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 reused in mineral processing operations." 907 F.2d at 1185.

They claimed 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, concluded 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 issue, 

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 

petitioners 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 rejected 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.
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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 was 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 solid 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 II, 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 otherwise, 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]

Owen 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 metal 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 material 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 Battery 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 conditions 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 recycling 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 
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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 one 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 broader 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 distinguished 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 contrast, 

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 here 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 
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definition of solid waste only when 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 had 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 wastewaters 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 been 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 discard 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-process 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 address 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 required 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 small 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 that 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-bearing wastewaters from the definition of solid waste and remanded 

that portion of the rule for more reasoned decision-making.
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The API II court next dealt with petrochemical recovered oil. 213 F.3d at 58-59. Petrochemical 

manufacturers use petroleum products 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.

EPA'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 speculatively 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 exhibit 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 this 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 the 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 reasoning 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 

Fertilizer 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 recycled 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.
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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 evaluated 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 recycled 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 determined 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 was that market participants, consistent with the EPA required conditions in the 

rule, would treat the exempted materials more like valuable products than negatively-valued 

wastes and, thus, would manage them in ways inconsistent with discard. In addition, the 

fertilizers derived from these recycled feedstocks are chemically indistinguishable from 

analogous commercial products made from raw materials (350 F.3d at 1269). The Court upheld 

the rule based on EPA's explanation that market participants manage materials in ways 

inconsistent with discard, and the fact that the levels of contaminants in the recycled fertilizers 

were "identical" to the fertilizers made with virgin raw materials. The Court held that this 

interpretation of "discard" was reasonable and consistent with the statutory purpose. The Court 

noted that the identity principle was defensible 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. 

However, 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 market 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 discarded. 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 materials 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 environmental 

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 with 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 product (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 materials 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 commenters 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 this 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 determine 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 subsequent 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 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.” Id. The 

court continued:

“[W]e have never said that RCRA compels the conclusion that material destined for 

recycling in another industry is necessarily ‘discarded.’ .... Although ordinary language 

seems inconsistent with treating immediate reuse within an industry’s ongoing industrial 

process as a ‘discard’ ... the converse is not true. As firms have ample reasons to avoid 

complete vertical integration ... firm-to-firm transfers are hardly good indicia of a ‘discard’ 

as the term is ordinarily understood.” Id. 

Commenters stated that the court simply found that transfers between 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 indicating that the 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 reasoning of Safe Food and Fertilizer.

Commenters noted that EPA states 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 states 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, provided 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 EPA’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 

RCRA jurisdiction to materials that have not been discarded and are thus not solid wastes. [0115, 

0125, 0133, 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 response 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 generally 

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 quote 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 chemically and physically indistinguishable from hazardous wastes. [40 

CFR 260.10 Hazardous secondary material means a secondary material (e.g., spent material, byproduct, 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 hazardous secondary 

materials...generators will typically pay the reclamation facility to accept these hazardous 

secondary materials or receive a salvage fee that only partially offsets the cost of transporting 

and managing them. In such situations, the generator has relinquished control of the hazardous 

secondary 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 statement 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 materials. 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 recycled 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 case 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, including 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 these 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 exclusion will not result in discarded hazardous materials posing significant risks 

to human health and the environment (e.g, fires/explosion, soil and water contamination, air 

emissions, and abandoned hazardous secondary materials).” (76 FR 44109). Given the physical 

and chemical nature of hazardous secondary materials, the economic forces that apply to thirdparty 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 to 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 be 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 secondary 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 Section 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 reflected 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 

removal overseen by a government agency and the expenditure of public funds clearly 

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

cases, 69 cases (33%) involve abandoned materials. The relatively high incidence of 

abandoned materials likely reflects the fact that bankruptcies or other types of business 

failures were associated with 138 (66%) of the cases. 

In addition, the pattern of environmental damages that resulted from the mismanagement 

of recyclable materials (including contamination of soils, groundwater, surface water and 

air) is a strong indication that the hazardous secondary materials were generally not 

managed as valuable commodities and were discarded. Of the 208 damage cases, 81 

cases (40%) primarily resulted from the mismanagement of recyclable hazardous 

secondary materials, while mismanagement of recycling residuals was the primary cause 

in 71 cases (34%). Often, in the case of mismanagement of recycling residuals, 

reclamation processes generated residuals in which the toxic components of the recycled 

materials were separated from the non-toxic components, and these portions of the 

hazardous secondary material were then mismanaged and discarded. Examples of this 

include a number of drum reconditioning facilities, where large numbers of used drums 

were cleaned out to remove small amounts of remaining product, such as solvent, and 

these wastes were then improperly stored or disposed, while the drums were reused or 

recycled.” (76 FR 44109-10)

In other words, the pattern 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 recycling 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 noted 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 Section 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 relevant 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 alone “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 confirmation 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 Disposal 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 policy 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 contained 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 flows 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 October 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 purposes 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, 208 (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]

Another commenter claimed that the 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 oils 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. In 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 provisions 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 

this 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 definition of solid waste under all situations. 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 source 

discharges, and special nuclear or byproduct 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) contamination. 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 not 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 case 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 provisions.

(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 & Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) 

("Safe Food"). 
-28-

Specifically, commenters stated that the 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 often 

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 emitted." 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 these 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 how 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 sludges 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 in 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 in 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 

qualifies for certain other exemptions from the definition of solid waste (e.g., characteristic byproducts 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 

subjecting 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., notification, 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 hazardous 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 

exclusions, 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 [40 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 regulatory status of any of the materials currently excluded or 

exempted 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 generator-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) results in unlawful regulation 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 self-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.

For those applicants who do not believe that the restrictions 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 are 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 Agency'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 legitimacy and described several indicators of sham recycling. On 

April 26, 1989, the Office of Solid Waste (OSW) issued a memorandum that consolidated 

preamble statements concerning legitimate recycling that had been articulated previously into a 

list of criteria to be considered in evaluating legitimacy [OSWER directive 9441.1989(19)]. This 

memorandum, known to many as the “Lowrance Memo,” has been a primary source of guidance 

for the regulated community and for implementing agencies in distinguishing between legitimate 

and sham recycling for many years. The October 2003 and March 2007 DSW proposals and the 

October 2008 DSW final rule also all include extensive discussions of EPA’s legitimacy policy.

In the 2008 DSW final rule, EPA promulgated a codified legitimacy requirement for the specific 

exclusions in that rulemaking. Today’s final rule simply codifies that fact that legitimacy has 

always applied to all hazardous secondary material recycling.

However, in codifying the requirement that all recycling must be 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 Congress 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 offsite, 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 

challenging the Agency in regard to its receipt of off site transfers of spent precious metalbearing materials from unrelated industries.

"As part of its precious metal operations, the Company [Engelhard] operates plants for the 

recovery, refining and recycling of 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 preserving 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 reclaimer 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 represented 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-bearing] 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 directly 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 specifically 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 firms 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 internalize. 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 affirmed 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 precious 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 secondary 

precious metal-bearing material is not mishandled 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 these). 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 of 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, "metals 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 from 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 adverse 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, but 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 not 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 materials 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 jurisdiction, 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.
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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 contracts 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 recycling materials must show that they have the necessary equipment to do so.

The commenter noted that this provision is quite different from a blanket declaration that all offsite transfer to an unrelated reclaimer is discard. Parties to secondary precious metal 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 through 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 material 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 maintained 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 finding, 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 

the 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 dealing 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 for 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 

Manufacturers 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 reasoned 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 stated 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 operate 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 promulgated 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 other 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 data 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 policy, 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 

commenter 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 reasoned 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 discard 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 discard”—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 
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reasoned approach requires a finding that HSMs transferred for legitimate reclamation or 

recycling under the 2008 conditions are part of the nation’s waste disposal 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 commenter 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 conditions 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 problems 

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 before 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 with 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 exclusion will not result in 

discarded hazardous materials posing significant risks to human health and the 

environment (e.g, fires/explosion, soil and water contamination, air emissions, and 

abandoned hazardous secondary materials). Because EPA has already evaluated these 

hazardous secondary materials (for example, during a hazardous waste listing 

determination) and determined them to be solid and hazardous wastes, a conditional 

exclusion must be reasonably expected not to result in the excluded hazardous secondary 

material being discarded. . . However, the conditions for the transfer-based exclusion in 

the 2008 DSW final rule lack several important implementation provisions that the 

Subtitle C requirements for treatment, storage, and disposal facilities provide. These 

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

increasing the likelihood of compliance and decreasing the potential for risk to human 

health and the environment from discarded hazardous secondary material. Most 

important of these is the permit requirement under RCRA section 3005, which ensures 

that EPA or the state has reviewed a facility’s planned operations before waste 

management begins and which allows public participation in the environmental decisionmaking process under RCRA section 7004. Subtitle C requirements for treatment, 

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

inspected every two years under RCRA section 3008(e). Finally, the detailed regulatory 

standards for hazardous waste management help ensure that both the regulatory authority 

and the regulated community have the specific information they need to comply in such a 

way that meets EPA’s expectations when the rule was promulgated. EPA has performed a

detailed regulatory comparison of the 2008 DSW final rule with the hazardous waste 

regulations, identifying significant differences that could lead to the potential for an 
-36-

increased likelihood of environmental and public health hazards, including 

fires/explosion, 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 describe 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 its 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 wastes. 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 Due 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. Section 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 

submit 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 impermissibly 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 from 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 conduct 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) (allowing 

"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] contemplated 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. 

733,775 (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 process 

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 and 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 current 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.

EPA 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 received 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.
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(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 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). 

Congress expressly included “resource recovery” 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 disposal 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 hazardous 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, are 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 between 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 broad 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 comments 

3.1.1 General comments in support of the analysis 

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, the 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 

studies have shown that its Subtitle C program has worked to deter creation of remedial sites

[Office of Solid Waste, Analysis of 40 Potential TSDs (January 17, 2007).]

The basic approach in EPA’s new environmental justice analysis reflects the literature cited by 

environmental justice representatives, uses a similar approach to other analysis of demographics 

around waste management facilities, and it responds to the direct requests of community 

members for information about the distribution of facilities of potential environmental concern. 

This 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 

Notification Facilities, are a noteworthy attempt to move toward a more comprehensive analysis 

of environmental justice concerns.

In the proposed rule, EPA appears to be using its environmental justice analysis to inform the 

way the Agency evaluates regulatory options. 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 participation 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). [0174, 

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 apportionment 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 facilities of concern and has retained it in the final 

analysis.

3.1.2 General comments that do 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. The analysis relies upon so many assumptions and situations that “might” 

or “could possibly” 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: While 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 

systematic 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 sent for treatment and 

disposal. The most commonly recycled hazardous secondary materials are spent solvents and 

electric arc furnace dust (which is recycled to reclaim metals). Spent solvents present particular 

management challenges associated with storage of liquids containing volatile organic chemicals 

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

range of chemicals and associated hazards. Electric arc furnace dust is usually in a solid state and 

presents a different 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 hazardous 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 DSW rule lacks measures to ensure compliance, includes 

incentives to accumulate larger volumes of hazardous secondary materials, lacks specific 

standards for waste storage and containment, and reduces access to information and the 

opportunity for public participation.

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, creates an incentive for overaccumulation, 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 populations, 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 rule 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 implication 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 significant 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 general 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 environmental 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 standards. 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. The 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: Several commenters stated that the analysis did not address baseline 

environmental justice impacts under Subtitle C, noting that Subtitle C landfills are often located 

in minority and low-income neighborhoods. Instead of spreading these materials among 

numerous recyclers and reclaimers, they could now 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 neighborhood, 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 risk in communities 

surrounding existing off-site treatment/disposal facilities” and “reduced transportation risk,”

EPA does not quantify such benefits or explain whether or not they outweigh any increased risks.

[076, 104, 175, 359]

(d) RESPONSE: The purpose 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 

regulations 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 through the appropriate 

RCRA permitting 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 be 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 materials 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, while EPA acknowledges 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 addressed 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 recognize 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 benefits 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 minority and low-income communities with economic benefits such as 

an increased tax base. Any potential monetary benefits to affected neighborhoods does not affect 

EPA’s obligation to protect human health and the environment from risks posed by discarded 

hazardous 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 analysis 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 and 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 factors 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 separate 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://www.epa.gov/environmentaljustice.

(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 excludes 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 Justice 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 facilities have not, and are not likely to, use the new generator-based or 
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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 the 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 DSW 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 document 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 

“disproportionate” 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 Appendix D to the analysis. 

(b) COMMENTS: One 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 premature 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 

odd 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. [199]
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(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 it. 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 final 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 with existing health 

conditions, and the elderly. [IL-0004, 141, 248]

Specifically, one commenter included detailed comments regarding the 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 share 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 populations 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 of 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 dust 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 

representative 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. To 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 
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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 are 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 storage 

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 RCRA 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 has 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 [196, 198, 260, 355]

(b) RESPONSE: EPA disagrees with this comment. There are several documented examples of 

damage cases involving K061 managed in uncovered waste piles, and the environmental justice 

analysis has been revised to include those examples in response 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 facilities 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 secondary 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 

Damage 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 
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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 exclusion, are prevalent 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 world 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 measure 

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 facilities 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 recovery 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. This 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 consequences 

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 one 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 evaluation 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 abandonment. 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 requirements, 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.
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The recent 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 nations. 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 

correct 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.

Additionally, 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 human 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 removing 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 technology 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 facilities. 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 unregulated 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 requirements. 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 notification descriptions of how the waste was to be 

treated or disposed. Thus, HSM accumulated for foreign reclamation (as opposed to re- use) 
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would be regulated under RCRA as amended by HSWA. Therefore, the rule is not only unjust to 

vulnerable foreign populations 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 nations 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 times, 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 affects 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 there 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 potentially 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 analysis 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 for 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 both the generator-controlled exclusion and the 

verified recycler exclusion in the 2014 DSW rule are limited to recycling in the United States.

(e) COMMENTS: Two commenters suggested adding the following exposure pathways: home 

gardens, fishing and exposure from contaminated air (dermal and oral). (004, 248)
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(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 support 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 are “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 the 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 excluding hazardous secondary materials that have already been determined to 

be hazardous wastes when discarded, the Agency needs adequate assurance that the conditional 

exclusion will not result in discarded hazardous materials posing significant risks to human 

health and the environment (e.g., fires/explosion, soil and water contamination, air emissions, 

and abandoned hazardous secondary materials). Because EPA has already evaluated these 

hazardous secondary materials (for example, during a hazardous waste listing determination) and 

determined them to be solid and hazardous wastes when discarded, the Agency must be able to 

reasonably expect that hazardous secondary materials managed under a conditional exclusion 

will not be discarded.

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 accumulate larger volumes of hazardous secondary materials, lacks specific 

standards for waste storage and containment, and reduces access to information and the 

opportunity for public participation.
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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, creates an incentive for overaccumulation, mismanagement, and abandonment 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, because all recycling under the transfer-based 

exclusion has been (to date) performed at RCRA-permitted facilities, EPA is unable to 

extrapolate what would happen at facilities without RCRA Subtitle C permits if the transferbased exclusion were fully implemented. Given the evidence of past damage cases leading to 

significant risk to human health and the environment from hazardous secondary materials 

originally intended for recycling and the underlying perverse incentives of the recycling market 

to over-accumulate such hazardous secondary materials intended for recycling, resulting in 

discard of the material, additional oversight of recycling beyond the self-implementing measures 

of the transfer-based exclusion is needed to ensure that the hazardous secondary material is 

legitimately recycled and not discarded.

EPA also disagrees that 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 deterrence and a 

general deterrence to bad behavior is well documented.2Inclusion 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 appropriate. 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 not 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 times 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-RCRA2010-0742-0014.
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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 presumption 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 

presumption.” 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 that 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 XIII.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 minority 

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 consideration 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 derivedfrom rule,” as if consistency with that 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 evaluated 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 Analysis 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-HQRCRA-2002-0031-0354 )
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Environmental Justice 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 conclusion 

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 the 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 larger 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 standards to control air 

emissions. These include standards for the design, operation, monitoring, testing, and 

recordkeeping of: (1) process vents associated with specified treatment technologies (40 CFR 

Parts 264 and 265, Subpart AA); (2) equipment leaks (40 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 hazards 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 findings 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. None of the facilities that have actually reported their intent 

to implement 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 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 alleged 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 that 

facilities managing hazardous materials under pre-existing exclusions will switch to the 2008 
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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 impacts 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 industrial 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 2008 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 used 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, and the industrial nonhazardous 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 of 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 on 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 fully 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 larger 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 permitted 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.
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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 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 facilities are likely to be similar.

However, 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 case 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 its 

“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 economical. 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 affected 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 listed 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 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.

In addition, EPA disagrees with the comments that “no examination has been made of the 

economics of reclamation versus 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 facilities 

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 inclusion 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 materials 

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 misunderstood 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 class, 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 facilities 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 demographics 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 these 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-income 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 are 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 damage case facilities, hazardous waste facilities, and 

industrial non-hazardous waste recyclers as explained above), they are also the facilities that are 
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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 mapped locations is a particular concern, because of the potential to 

affect the accuracy of the demographic analyses and conclusions with respect to disproportionate 

impacts. EPA used latitude-longitude data in its FRS database to map facility locations for 

facilities 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 and 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 would 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 have 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 for an initial list of 499 commercial hazardous waste facilities 

examined in Toxic Wastes and Race at Twenty.

While EPA tacitly recognizes “that facility addresses and location coordinate information 

sometimes are not the same as the location in which [hazardous 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 coordinates 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 thousands 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. This 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]
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(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 additional 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 address 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, particularly 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 of 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 accepted 

over 60,000 tons of the electric arc furnace dust (K061) and stored it on the ground 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 analysis.

(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 others 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 

concentration 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 pollution 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 prolonged 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 may 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 into 

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 setting 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. Prescribing 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 rulemaking 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) RESPONSE: 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 

population 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 radius, 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 the case for generator 

and transfer-based exclusion facilities, overlapping radii were extracted and the affected sub-
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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 inaccuracies 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 current (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 scenario, 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 

affected 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, fails 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 things, 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-defined 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 metropolis 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 lower of the federal poverty level. Finally, in 2007, Congress amended the 
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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 

Because 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 just 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 

determining “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 not 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 proportion 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 socioeconomic disparities 

or a valid means of assessing the potential 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 rule. 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 
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the minority percentage inside the 3.0 km areas 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 probability 

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 pr1 = 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 pr1/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 statespecific 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 documentation.
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3.2.5 Information synthesis and identification of potential preventative and mitigation 

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 demographic 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 lower 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 facilities 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 EJ 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 greater 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 

because, 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 rooted 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 partnerships...to achieve healthy and 

sustainable communities.” Plan EJ 2014 at i.

It is clear, therefore, that EPA’s community-level demographic analysis is the one more 

indicative 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) RESPONSE: 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 
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paragraph of EO 12898 Federal Actions To Address Environmental Justice in Minority 

Populations 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 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 in the United States and its 

territories and possessions, the District 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 

facing 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 authority under RCRA 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 populations because it increases the level of 

environmental protection for all affected populations without having any disproportionately high 

and adverse human health or environmental effects on any population, including any minority or 

low-income population.” [Footnote 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 communities 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 should prepare an environmental justice analysis of the Proposed Rule 

that takes into account the remaining risks of proposed exemptions, using RCRA regulation—not 

the 2008 Rule—as a baseline.
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Based on the analysis that EPA already has completed, it is clear that 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 changes 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 factors 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) require 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 clean- 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 Regions 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 EJ 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 Section 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 EPA's interpretation of the concept of “discard,” EPA does not plan to 

repeal the rule in whole or stay its implementation. Such an action could result 

in hazardous secondary materials that are not discarded being regulated as 

hazardous waste. In particular, EPA does not expect to repeal either the 

exclusion for hazardous secondary materials reclaimed under the control of 

the generator or the non-waste determination petition process. However, EPA 

believes there may be other opportunities to revise or clarify the definition of 
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solid waste rule, particularly with respect to the definition of legitimacy and 

the transfer-based exclusion, in ways that could improve implementation and 

enforcement of the provisions, thus increase environmental protection, while 

still appropriately defining when a hazardous secondary material being 

reclaimed is a solid waste and subject to hazardous waste regulation.” (74 FR 

25203).

In finalizing revision to the 2008 DSW rule to address the potential for adverse impacts to human 

health 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 significant 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 Subtitle 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, will help ensure that recyclers operating the DSW exclusions are 

capable of 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 exclusions.

4.0 Withdrawal of the Transfer-Based Exclusion 

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 authority 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. 
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Specifically, commenters stated that the Agency’s rationale for 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 that 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 secondary 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. Commenters 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 recycled 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 Materials 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 

hazardous 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 economically 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 materials 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 facilities 

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 mischaracterization 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 study 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. 
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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 in 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 that 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 transfer-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 offsite 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 facilities 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 in 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 recycling 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 exclusion. 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 well 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 third-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 the 

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 
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unnecessarily remove these benefits. Companies note 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 efforts 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 elimination 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 material, 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 RCRA 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 public 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 that 

having 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 permitted 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 purpose 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 facility. 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-based exclusion, large quantities of 

hazardous spent solvents have been diverted to reclamation and reuse rather than being burned 
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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 transportation 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 support 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 party 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 commercial 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 transferbased exclusion and New Jersey did not comment 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 generators 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 facilities in state 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 exclusion 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 conditions of the 2008 DSW Final Rule have serious gaps, particularly the 

incentives to accumulate larger volumes of hazardous secondary materials, the reduction in 

oversight resulting from eliminating the permit requirement for storage, and the reduction in the 

public’s access to information and the opportunity for public participation, that could create a 

potentially unacceptable likelihood of adverse effects to human health and the environment from 

such discarded material.” [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” 
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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 dollars.” [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 accept 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, 351-2, 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 responsible 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 that 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 that 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 cradle-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 serious 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 thus 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 rule (at the time 

of the 2011 DSW proposal) in Iowa, New Jersey, Illinois, Puerto Rico, the Virgin Islands, and 
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Pennsylvania. The commenter stated that more than 1,804,505 people live within three miles of 

one of these facilities. [Enforcement & Compliance History Online (ECHO), U.S. ENVT’L 

PROT. AGENCY, http://www.epa-echo.gov/cgibin/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 

Definition 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 remain 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.gov/waste/hazard/correctiveaction/index.htm.)]. The 

commenter also stated that the 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/cgibin/get1cReport.cgi?tool=echo&IDNumber=110002531369 (last visited Oct. 17, 2011). (Data 

not available for the INMETCO and Cherokee Pharmaceuticals, 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 miles 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 Corporation, 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/wastewater 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. [Agency for Toxic Substances 

& Disease Register, Toxicological Profiles, http://www.atsdr.cdc.gov/toxpro2.html.]
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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 with 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 immunosuppression 

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, and 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 groundwater 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 

residential 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 facilities 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, Veolia is still under investigation.

Similarly, the Safety-Kleen Systems, Inc. facility in Linden, New Jersey, an environmental 

justice community, has long 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 
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contamination of soil and groundwater has necessitated continued monitoring of a groundwater 

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 system 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 Christiansted, 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 floating 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 Indicator 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 plans 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 corrective 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 frequent and to go undetected for longer periods. The commenter notes that the 
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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 can poison 

drinking water or cause toxic gases to enter homes. [0244-7, 244-9]

Comments on Retaining the Transfer-Based Exclusion with Additional Conditions

Several commenters suggested that EPA retain the transfer-based exclusion, and address the 

regulatory 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 instead 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 to 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 environmental 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 condition 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 focused 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 

environment, 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 the 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 detailed 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 than 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 
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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 environment 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 and 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 regulating hazardous secondary material that is currently being legitimately 

recycled and not discarded as hazardous waste. Instead, EPA agrees with those commenters that 

support retaining an exclusion from the definition of solid waste for off-site recycling with 

additional conditions which will address the potential for discard happening in the future. 

EPA has identified several regulatory gaps in the 2008 transfer-based exclusion that could result 

in significant risk to human health and the environment from discarded material 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 

significant 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 recycling, 

resulting in discard of the material, demonstrates the need for such additional oversight and 

public participation. In other words, the transfer-based exclusion can exacerbate financial 

incentives for small and/or inexperienced businesses to take in more hazardous secondary 

materials than they actually can use, mishandle it, and even go out of business, as shown by the 

fact that bankruptcies or other types of business failures were associated with 66% of the 

recycling damage cases, resulting in multi-million dollar cleanups.

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 concept 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 

materials who do not reclaim these materials themselves often ship these materials to a 
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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 result 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 

reclamation facility to accept these hazardous secondary materials or receive a salvage fee that 

only partially offsets the cost of transporting and managing them. In such situations, the 

generator has relinquished control of the hazardous secondary materials and the entity receiving 

such materials may not have the same incentives to manage them as a useful product.” (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 already promulgated exclusions for such materials (e.g., scrap metal). However, in 

general, most hazardous secondary materials (i.e., spent materials and listed hazardous waste byproducts and sludges), do not fit this model. Instead, as noted above, these materials 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 the over-accumulation or mishandling of hazardous 

secondary materials, especially when compared to recycling by a well-capitalized firm that 

yields a product with high value, and these predicted outcomes are supported by the results of the 

environmental problems 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 transferbased exclusion, 32 generators appear to have either started or substantially increased their 

recycling as a result of the 2008 DSW exclusions. These include generators that had previously 

reported in their 2007, 2009, or 2011 biennial report that they sent their solvents 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 pickle 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.
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tons of hazardous secondary material were reclaimed under the 2008 DSW rule during 2011.5In 

addition, the fact that the Pennsylvania Department of Environmental Protection (PA DEP), 

which oversees 27 of the 65 facilities operating under the transfer-based exclusion, commented 

strongly in favor of keeping the transfer-based exclusion, supports the idea that an exclusion for 

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

exclusion has been achieving its intended purpose of encourage safe, legitimate recycling, 

withdrawing the transfer-based exclusion and replacing it with RCRA Subtitle C hazardous 

waste requirements is unnecessary and would result in hazardous secondary material that is 

currently being legitimately recycled and not discarded being regulated as hazardous waste. 

Because Subtitle C regulation would be more stringent 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 material as hazardous 

waste, despite the fact that it is currently being legitimately recycled and not discarded.

However, the fact that the comments from PA DEP went on to recommend that the transferbased exclusion be limited to RCRA-permitted recycling facilities 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 been (to date) performed at RCRA permitted facilities, 

EPA is unable to extrapolate what would happen at facilities without a RCRA Subtitle C permit 

if the transfer-based exclusion were fully implemented. Given the evidence of past damage cases 

leading to significant risk to human health and the environment from hazardous secondary 

materials originally intended for recycling and the underlying perverse incentives of the 

recycling market to over-accumulate such hazardous secondary materials intended for recycling, 

resulting in discard of the material, additional oversight of recycling beyond the selfimplementing measures of the transfer-based exclusion are needed to ensure that the hazardous 

secondary material is legitimately recycled and not discarded.

In response 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 include 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 Action 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.
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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 no 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 cleanup 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 that 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 CFR 261.4(a)(24). This replacement strikes an 

appropriate balance between encouraging the safe and legitimate recycling of hazardous 

secondary materials and allowing the appropriate oversight to ensure the exclusion works as 

intended. It also addresses the issue of allowing a generator flexibility to recycle on site or off 

site as circumstances require (as long as the generator notifies under both the generatorcontrolled exclusion and the verified recycler exclusion). 

The verified recycler exclusion retains 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. Specifically, 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 or intermediate 

facility who has obtained a solid waste variance from EPA or the authorized state using the 

procedures found in 40 CFR 260.33. The verified recycler exclusion uses the solid waste 

variance procedure to determine if a facility will properly manage the hazardous secondary 

materials as commodities and legitimately recycle, rather than discard, them. The variance 

addresses the same criteria currently required for the reasonable efforts environmental audit 

under the 2008 transfer-based exclusion (see discussion below). However, the variance process 

would allow EPA or the authorized state to evaluate the facility before it begins recycling 
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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 addition, as described below, the verified recycler exclusion retains those conditions from the 

2008 transfer-based exclusion that EPA determined are necessary to properly identify hazardous 

secondary material that is legitimately recycled and not discarded, and also includes the new 

conditions that apply to the generator-controlled exclusion being finalized today.

EPA expects that all 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 additional conditions of the verified recycler exclusion address the regulatory gaps EPA 

identified in the 2011 DSW proposal that could have resulted in significant risk to human health 

and the environment from discarded material, if the 2008 DSW had been fully implemented to 

include facilities without RCRA permits or other regulatory oversight prior to beginning 

recycling.

Finally, 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 the hazardous secondary materials are not managed pursuant to these 

restrictions, they are not excluded. They would then be considered solid and hazardous wastes if 

they were listed or they exhibited a hazardous waste characteristic for RCRA Subtitle C 

purposes.

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 accumulation. As a condition of the verified recycler exclusion, 

hazardous secondary materials cannot be speculatively accumulated (40 CFR 261.1(c)(8)) at the 

hazardous secondary material generator, reclamation facility, or intermediate facility. 

Restrictions on speculative accumulation have been an important element of the RCRA 

hazardous waste recycling regulations since they were first promulgated on January 4, 1985. 

According to this regulatory provision, hazardous secondary materials are accumulated 

speculatively if the person accumulating them cannot show that the material is potentially 

recyclable. Further, the person accumulating the hazardous secondary material must show that 

during a calendar year (beginning January 1) the amount of such material that is recycled or 

transferred to a different site for recycling is at least 75% by weight or volume of the amount of 
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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 the 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 

documented through an inventory log or other appropriate method. 

This provision will allow inspectors and other regulatory authorities to quickly ascertain how 

long a facility has been storing an excluded hazardous secondary material, and, therefore, 

whether that facility is in compliance with the accumulation time limits of § 261.1(c)(8).This 

provision is being retained in the verified recycler exclusion to ensure that the hazardous 

secondary materials will be recycled rather than discarded through speculative accumulation and 

abandonment. 

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 this 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 

the 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 exclusion 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. One important cause of environmental and human 

health damages identified by the environmental 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 generator’s 

intent to not only protect human health and the environment, but also to reduce potential loss of 
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valuable hazardous secondary materials. In the absence of such requirements, hazardous 

secondary materials pose a greater risk of being released and discarded to the environment. 

Therefore, EPA is requiring that generators6 must follow certain emergency preparedness and 

response regulations under the verified recycler exclusion. These regulations are found in 40 

CFR part 261 subpart M and are dependent on the amount of hazardous secondary material the 

generator accumulates on site at any time. 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 emergency preparedness and response regulations currently required for small quantity 

generators of hazardous waste. Generators that accumulate more than 6,000 kg of hazardous 

secondary material on site must meet regulations similar to the emergency preparedness and 

response regulations currently required for large quantity generators of hazardous waste. EPA 

chose to set the threshold at 6,000 kg based on the current hazardous waste generator regulations, 

which require generators that accumulate greater than 6,000 kg of hazardous waste on site to 

comply with large quantity generator regulations, including emergency preparedness and 

response regulations. EPA finds that generators that accumulate greater amounts of hazardous 

secondary material on site inherently pose greater risk to human health and the environment from 

a potential release caused by a fire or explosion and thus, it is more appropriate for these 

generators to take additional steps to prepare for such events.

EPA has determined that adding these emergency preparedness and response conditions meets 

the goals of the Chemical Safety EO and also will ensure that those facilities managing 

hazardous secondary material under the exclusion will be doing so in a manner that allows them 

to safely recycle the hazardous secondary material and 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 the 

public. Additionally, structuring the emergency preparedness and response conditions of the 

verified recycler exclusion after the existing hazardous waste requirements serves to reduce 

burden on generators, as generators are already familiar and complying with this regulations.

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.

Because hazardous secondary materials that are exported for recycling passes out of the 

regulatory control of the federal government, it is not possible to verify whether the foreign 

reclaimer will safely and legitimately recycle the hazardous secondary material and not discard 

it. 

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.
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management of the hazardous secondary materials is addressed under a RCRA Part B permit or 

interim status standards. If the hazardous secondary material will be passing through an 

intermediate facility, the intermediate facility must have been granted a variance under § 

260.31(d) or the management of the hazardous secondary materials at that facility must be

addressed under a RCRA Part B permit or interim status standards. The hazardous secondary 

material generator must also make contractual arrangements with the intermediate facility to 

ensure that the intermediate facility sends the hazardous secondary material to the verified 

reclamation facility identified by the hazardous secondary material generator. 

This condition addresses the major regulatory gap in the transfer-based exclusion of lack of 

oversight and public participation for hazardous secondary material recycling facilities that do 

not have RCRA permits. Given the evidence of past damage cases leading to significant risk to 

human health and the environment from hazardous secondary materials originally intended for 

recycling and the underlying perverse incentives of the recycling market to over-accumulate such 

hazardous secondary materials intended for recycling, resulting in discard of the material, 

additional oversight of recycling beyond the self-implementing measures of the original transferbased 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 transfer-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.7In 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 and 

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 reclamation 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 facilities must also manage the 

hazardous secondary materials in a manner that is at least as protective as that employed for the 

analogous raw material, where there is an analogous raw material. Where there is no analogous 

raw material, the hazardous secondary material must be contained. 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).
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that the materials are not discarded, but instead are treated as valuable commodities which will 

be recycled 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 commercial reclamation and 

intermediate storage facilities, and mismanagement of hazardous secondary materials was found 

to be a cause of environmental problems in approximately 40% of the incidents. Accordingly, 

EPA has determined that this condition for storage is necessary and appropriate for reclamation 

facilities and intermediate facilities that take advantage of this exclusion to show that storage of 

these materials is not just another way of disposing of them. In addition, it will establish an 

expectation for the owner/operators of such facilities that they must manage hazardous secondary 

materials in a manner at least as protective as they would an analogous raw material and in such 

a way that materials will not be released into the environment. 

8. Management of recycling residuals. Another condition of the verified recycler exclusion is 

that any residuals that are generated from the reclamation processes must be managed in a 

manner that is protective of human health and the environment. If any residuals exhibit a 

hazardous characteristic according to subpart C of 40 CFR part 261, or themselves are listed 

hazardous wastes, they are hazardous wastes (if discarded) and must be managed according to 

the applicable requirements of 40 CFR parts 260 through 273. This condition is the same as the 

parallel condition in the 2008 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 from the reclamation of hazardous secondary materials must be 

managed properly so that the reclamation operation does not become another way of avoiding 

waste management and simply 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 residuals were simply 

disposed of on-site with little regard for the environmental consequences of such 

mismanagement or possible CERCLA liabilities associated with cleanup of these releases. By 

making proper management of the recycling residuals a condition of the exclusion, EPA ensures 

that the reclamation operation is not just another way of discarding hazardous constituents. This 

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 demonstration that it will not abandon the 

hazardous secondary materials, it will properly decontaminate equipment, and it will clean up 

any unacceptable releases, even if events beyond its control make its operations uneconomical. 

Moreover, financial assurance also addresses the correlation of the financial health of a 

reclamation or intermediate facility with the absence of discard. In essence, financial assurance 

will help demonstrate that the reclamation facility or intermediate facility owner/operators who 

will operate under the terms of this exclusion are financially sound and will not discard the 
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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 will not be imposed on the U.S. 

taxpayer. 

The financial assurance requirement has been retained in 40 CFR part 261 subpart H because the 

substance of the requirement is unchanged from the financial assurance requirement for the 2008 

DSW transfer-based exclusion. However, the financial assurance condition is now one of the 

criteria that is evaluated under the verified recycler solid waste variance, allowing the state or 

EPA to verify that the financial assurance obtained by the reclamation facility or intermediate 

facility is sufficient and accessible (in contrast, the financial assurance condition in the 2008 

DSW transfer-based exclusion was self-implementing and not subject to review by EPA or the 

authorized state prior to the facility beginning operation).

A detailed discussion of the 40 CFR part 261 subpart H financial assurance provisions can be 

found in the 2008 DSW final rule at 73 FR 64692-8, October 30, 2008. 

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 standards that address the management of the hazardous secondary materials. An 

intermediate or reclamation facility may apply for a solid waste variance to accept hazardous 

secondary materials by addressing the substantive criteria of the “reasonable efforts” condition 

that had previously applied to the hazardous secondary material generator under 40 CFR 

261.4(a)(24)(B). In addition, the variance must address the potential for risk to proximate 

populations from unpermitted releases of the hazardous secondary material to the environment. 

Specifically, to qualify for the solid waste variance, the facility must address the following 

criteria:

(1) The intermediate or reclamation facility must demonstrate that the reclamation 

process for the hazardous secondary materials is legitimate pursuant to § 260.43; 

(2) The intermediate or reclamation facility must satisfy the financial assurance condition 

in § 261.4(a)(24)(vi)(F); 

(3) The intermediate or reclamation facility must not be subject to a formal enforcement 

action in the previous three years and must not be classified as a significant non-complier under 

RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous 

secondary materials properly. Credible evidence may include a demonstration that the facility 

has taken remedial steps to address the violations and prevent future violations, or that the 

violations are not relevant to the proper management of the hazardous secondary materials;
-86-

(4) The intermediate or reclamation facility must have the equipment and trained 

personnel to safely manage the hazardous secondary material and must meet emergency 

preparedness and response requirements; 

(5) If residuals are generated from the reclamation of the excluded hazardous secondary 

materials, the reclamation facility must have the permits required (if any) to manage the 

residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or 

present credible evidence that the residuals will be managed in a manner that is protective of 

human health and the environment; and 

(6) The intermediate or reclamation facility must address the potential for risk to 

proximate populations from unpermitted releases of the hazardous secondary material to the 

environment (including releases that are not covered by a permit, such as a permit to discharge to 

water or air, and may include, but are not limited to, potential releases through surface transport 

by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air 

emissions, and catastrophic unit failures), and must include consideration of potential cumulative 

risks from other nearby potential stressors.

The rationale for each of these criteria is discussed below.

Criterion (1) is based on the first reasonable efforts question in the 2008 transfer-based exclusion 

and focuses on whether the reclamation facility receiving hazardous secondary materials from a 

generator legitimately recycles such materials. Determining whether a recycling operation is 

legitimate is a fundamental basis for establishing that a generator’s hazardous secondary 

materials will not be discarded. 

Criterion (2) is based on the second reasonable efforts question in the 2008 transfer-based 

exclusion and addresses whether the facility has the necessary financial assurance to cover the 

costs of managing any hazardous secondary materials that remain if the facility closes. If a 

facility fails to meet the condition to have financial assurance, then it also would have failed to 

show a good faith effort towards demonstrating that it intends to recycle the hazardous secondary 

materials (or, in the case of the intermediate facility, properly store the hazardous secondary 

material) and not discard them. Note that the second reasonable efforts question also required the 

generator to verify that the regulatory authority had been notified by the recycler under the 2008 

transfer-based exclusion, but under the verified recycler exclusion, the state or EPA can verify 

that directly, thus, it is not included here.

Criterion (3) is based on the third reasonable efforts question in the transfer-based exclusion and 

focuses on the compliance history of the recycler or the intermediate facility (to the extent that 

the hazardous secondary material generator uses an intermediate facility). The language of this 

requirement has been simplified from the corresponding reasonable efforts question because the 

information is submitted to the regulatory agency who already has access to the pertinent 

enforcement information, rather than obtained by the generator who would need to rely on 

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-

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 

enforcement 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 enforcement actions were 

taken against the facility in the previous three years for such non-compliance and the facility was 

alleged to be a significant non-complier, the facility must adequately explain how it has resolved 

any issues or how the reclamation facility will properly manage the hazardous secondary 

materials to avoid future violations and/or enforcement actions. 

Criterion (4) is based on the fourth reasonable efforts question from the 2008 transfer-based 

exclusion and addresses the technical capability of the recycler or intermediate facility, the most 

basic requirement for ensuring proper and legitimate recycling of hazardous secondary materials. 

If a reclamation or intermediate facility was found to have no equipment or inadequate 

equipment for storing the hazardous secondary material or was found to have personnel who 

have not been trained in handling and reclaiming the hazardous secondary materials, it raises 

serious questions as to whether the facility would properly manage such materials and avoid 

discarding them to the environment. This criterion also includes the addition of verifying that the 

facility meets the new emergency preparedness and response condition discussed earlier.

Criterion (5) is based on the fifth reasonable efforts question in the 2008 transfer-based exclusion 

and addresses another major cause of environmental problems from recycling hazardous 

secondary materials: the management of residuals. This criterion relates to discard through the 

concept that a generator or reclaimer may actually be discarding hazardous secondary materials 

through the release of residuals from the recycling process. While the product made from 

recycling may be a legitimate product, the whole recycling process could be considered discard 

if hazardous constituents from the recycled hazardous secondary materials are released to the 

environment 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 federal or state standards. 

Criterion (6) is a new standard not included in the 2008 transfer-based exclusion and is a casespecific performance-based criterion that addresses the risk to proximate populations from 

unpermitted releases of the hazardous secondary material to the environment (including releases 

that are not covered by a permit, such as a permit to discharge to water or air, and may include, 

but are not limited to, potential releases through surface transport by precipitation runoff, 

releases to soil and groundwater, 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 the differences in the 

preventative measures between a RCRA-permitted facility as compared to a facility managing 

excluded hazardous secondary material, including the lack of prescriptive standards for storage 

and containment (including air emissions standards). In addition, this criterion addresses the 
-88-

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, landfills, 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 

circumstances. For example, a facility that is recycling a hazardous secondary material that is not 

particularly mobile in the environment (e.g., a non-liquid material that does not pose a risk of 

wind-blown dust) and is not located near population centers would simply need to document 

these facts in order to meet this criterion. On the other hand, a facility recycling a hazardous 

secondary material that is volatile, ignitable, or otherwise has a high potential to adversely 

impact nearby populations in case of a release would need to document the specific steps taken 

to prevent releases. EPA recommends that the petitioner engage the potentially affected 

community in developing this document to ensure that they have addressed the concerns 

expressed by the community.

(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 eliminate 

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 materials 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 

waste, 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 exports 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 this 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 

being 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 from 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 prohibiting 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 regarding 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 

arguments. 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 final 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 determine 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 advised 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 with 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 consistent 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 careful 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 other 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 efforts 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 arrangement 

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 much of the language in §261.4(a)(25) is 

similar to the provisions under Part 262 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 provision, 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 secondary material or reclamation practice that 

indicates discard is not occurring. EPA is therefore proposing to withdraw the transfer-based 

exclusion found in 40 CFR 261.4(a)(24) and (25).” (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 information 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, 

because 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 material 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 response 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 physical 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 finishing 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 consumption 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) from 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 ferrous 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 ferrous 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 treatment 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 concentration 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 hazardous 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 2007, 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 sludge 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 Arizona 

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 recycled. [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 the 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.

Commenters stated that, as proposed, the alternative standards 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. Commenters note that the extended 

accumulation period allowed under the alternative standards offers no benefit to generators who 

may have no reason to store secondary materials on site, or generators who prefer to immediately 

ship their materials. For example, any 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 commenters 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 period, 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 spent 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 generated 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 with 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 management 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 materials 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), potential 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 the 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 include 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 comments 

(a) COMMENTS: Some commenters supported retaining the generator-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 clarify 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 generatorcontrolled 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 wastes. 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 generatorcontrolled 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, including 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 generated 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 suggested 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 material 

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 generatorcontrolled 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 exclusion. The 2008 DSW final rule contained a provision (40 CFR 

261.2(c)(4)(iv)) stating that spent lead-acid batteries were not eligible for the generator-
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controlled exclusion. The omission of this provision from the July 2011 DSW proposal as related 

to spent lead-acid batteries and material-specific standards was inadvertent. 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)(ii)(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 adopting 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 responses 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 clear. 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 impose 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 condition 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 

recordkeeping 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 secondary 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 EPA 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 requiring recordkeeping for shipments sent and 

received under the exclusion. Records must contain the name of the transporter, the date of the 

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

(h) COMMENTS: One commenter 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 to 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 

261.4(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-0002, 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 discarded. 

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 “contained” is 

crucial to make sure the regulations prevent releases from storage in containers that are 
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incompatible or in poor condition. Additionally, these commenters said making notification a 

condition of the exclusion is important because if the advantages 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 exclusion 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 these changes in the final rule.

6.1.2 Do not support 

(a) COMMENTS: Some commenters opposed EPA’s proposed revisions to the generatorcontrolled 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 with 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 generator; 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 the 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-0004]

(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 hazardous 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 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 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 hazardous secondary materials 
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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 secondary material that is 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 environment 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 persuasive. 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 

identified 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 rationale 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 discarded 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 

conditions 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 from the definition of solid 

waste hazardous secondary materials used to make zinc fertilizers, and the fertilizers themselves, 

as long as the hazardous secondary materials meet certain handling, storage, and reporting 

conditions and the resulting fertilizers have concentration levels for lead, arsenic, mercury, 

cadmium, chromium, and dioxins that fall below specified thresholds (Final Rule, “Zinc 

Fertilizers Made From Recycled Hazardous Secondary Materials” (“Fertilizer Rule”), 67 FR 

48393, July 24, 2002). EPA determined that if these conditions are met, the hazardous secondary 

materials used to make such fertilizer have not been discarded. The conditions also apply to a 

number of recycled materials not produced in the fertilizer production industry, including certain 

zinc-bearing hazardous secondary materials, such as brass foundry dusts. 

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

rule, would treat the excluded materials more like valuable products than like negatively-valued 
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wastes and, thus, would manage them in ways inconsistent with discard. In addition, the 

fertilizers derived from these recycled feedstocks are chemically indistinguishable from 

analogous commercial products made from raw materials (350 F.3d at 1269). The Court held that 

EPA’s explanation that market participants manage materials in ways inconsistent with discard, 

and the fact that the levels of contaminants in the recycled fertilizers were “identical” to the 

fertilizers made with virgin raw materials (also called “the identity principle”) was 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 standards, 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 manage 

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 Environmental 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 

and 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 use 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 generatorcontrolled exclusion will add a layer of regulation that generators will find too restrictive, and 

will thus discontinue 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 always 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 materials. [0260]

(f) RESPONSE: EPA disagrees with this commenter’s belief that the changes to the generatorcontrolled exclusion are too restrictive and will discourage recycling. On the contrary, EPA has 

determined that the codified definition of “contained” provides 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 these will be unduly burdensome. 
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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 efficient 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 removing 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 approach. [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 increases 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 health 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 health 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 clarify 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 under 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 

account 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 enforceable 

and that the criteria indicate whether the material in the unit is being managed as a valuable 

commodity. [IL-0011]
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(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 material is contained. In the preamble to the 2008 DSW final rule 

(73 FR 64681), the Agency stated that a hazardous secondary material is “contained” if it is 

placed in a unit that controls the movement of the hazardous secondary materials out of the unit 

and into the environment. However, 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 the contained 

standard.

As EPA noted in the 2011 DSW proposal and as reflected in many of the public comments, of 

particular concern is the lack of preventative measures in the contained standard in the 2008 

DSW final rule. This lack of preventative measures is noted as a major regulatory gap in EPA’s 

assessment of the potential for adverse impacts from the 2008 DSW final rule, including adverse 

impacts to minority and low income communities. Given that the contained standard is one of the 

major requirements for determining that hazardous secondary materials reclaimed under the 

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 secondary material 

is not contained is to wait until it is released to the environment, then the 2008 DSW final rule 

increases the likelihood of discard for these materials. 

The Agency therefore is adding a regulatory definition of “contained” that resolves this

uncertainty without sacrificing the flexibility that would allow the implementing authority to take 

into account a wide variety of 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 operation 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 or 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 movement 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 EPA has not shown any need for additional or more specific conditions and that EPA’s 
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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 applied, 

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 appropriately used in 

legitimacy factor 3, which is that “the generator and the recycler must manage the hazardous 

secondary material as a valuable commodity. Where there is an analogous raw material, the 

hazardous secondary material must be managed, at a minimum, in a manner consistent with the 

management of the raw material or in an equally protective manner. Where there is no analogous 

raw material, the hazardous secondary material must be contained. Hazardous secondary 

materials that are released to the environment and are not recovered immediately are discarded.” 

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 wide 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, 0255, 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 discarded, 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. Hazardous 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 to 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 

criterion 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 

regulated community after promulgation of the 2008 DSW final rule, we have determined that 

merely requiring that a unit be “contained” (without providing a regulatory definition) does not 
-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 environmental damage had occurred. More detailed regulatory 

criteria, such as those proposed in our July 2011 DSW proposal, will help all affected parties 

determine whether a unit adequately controls the movement of hazardous secondary materials. 

Such determinations will be of great benefit to regulatory authorities and to facilities operating 

under the generator-controlled exclusion. We are therefore retaining the codification of the 

contained definition in this final rule.

(f) COMMENTS: 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 contained 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 contained 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 from 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 elicit 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 wastes. 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 legitimately reclaimed under the control of the generator have not been discarded, and 

such materials have value that provides generators with strong incentives to maintain safe 

management and handling. Imposing the Subtitle C requirements on these hazardous secondary 

materials could discourage legitimate reclamation, encourage disposal, and would be inconsistent 

with EPA’s goal of fostering sustainable materials management. EPA also finds that today’s 

contained standard is protective of human health and the environment 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 

maintenance 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 adopting 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 emissions, 

leaks, and fires or explosions. Therefore, for ease of implementation, EPA is establishing explicit 

tank and container standards in 40 CFR part 261 subparts I and J, which are comparable to 

product storage standards for solvents, including regulations promulgated under OSHA, DOT, 

and industry standards.8In addition to being comparable to product storage standards, technical 

standards that mirror subparts I and J of 40 CFR part 264 have the benefit of being technical 

standards that the regulated community 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, PA0012] Another commenter said that, as the EPA’s EJ analysis illustrates, EJ communities will 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, and 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 

not 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
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(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 that there is no release. [0270]

(j) RESPONSE: EPA does not agree that land-based units should be categorically prohibited 

under the generator-controlled exclusion. We have determined that hazardous secondary 

materials, if they are stored in land-based units that meet the conditions specified in today’s rule, 

have not been discarded. That is, if they are legitimately reclaimed as specified in today’s rule, if 

they are contained and not speculatively accumulated, and if they have submitted the required 

notification, they are being managed as valuable commodities, rather than wastes. Indeed, the 

ABR decision expressed criticism of EPA for prohibiting any land placement, even “for a few 

minutes” 208 F.3rd at 1051. EPA interprets the court’s discussion as a warning to the Agency to 

examine all factors, not just one (e.g., land placement), when deciding whether a material is a 

waste. 

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 

standards 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. There has been no evidence presented that these 

requirements would be needed in every case to ensure material is not discarded, although the 

contained standard is flexible enough to indicate that in particular circumstances these activities 

would be appropriate. 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 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 envision 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 discontinued, owners and operators of 
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reclamation facilities and intermediate facilities must manage any remaining hazardous 

secondary materials, including any residues that are not reclaimed, as hazardous waste and 

remove or decontaminate contaminated containment system components, equipment structures, 

and soils. These hazardous secondary materials and residues, if no longer intended for 

reclamation, would also no longer be eligible for the exclusion (which only applies to hazardous 

secondary materials that are reclaimed). Failure to remove these materials within a reasonable 

time frame after operations cease could cause the facility to become subject to the full Subtitle C 

requirements if the Agency determines that reclamation is no longer feasible. 

(l) COMMENTS: 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 were considered a valuable material (i.e., 

managed consistent with the management of the analogous to a raw material). [0239]

(l) RESPONSE: These comments 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 commodity. 

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 liquid 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 secondary 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 affirmed 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 agree 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 definition 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 
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permit (APP) program that specifically applies to industrial production land-based units, such as 

surface impoundments, waste management facilities, and land treatment facilities. [0363] 

(n) RESPONSE: EPA notes that the definition of “land-based unit” in 40 CFR 260.10 means an 

area where hazardous secondary materials are placed in or on the land before recycling, but the 

definition explicitly excludes land-based production units. 

(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 should 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 regulatory 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 regulations 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 regulation 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 this 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 does 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 

contained. 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, either for landbased 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 those 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 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 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 standards 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] Another 

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 unreasonable 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 does 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 commenter 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 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] 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 

adequacy 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 
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address land-based situations that methods of management, including tank 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 releases 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 contained 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 considered 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 commenters who argued that the proposed 

definition of “contained” imposed a strict, categorical, and impracticable “no leaks” standard, 

either for land-based units or non-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 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 materials from being released to the environment or would allow 

immediate recovery of the materials. In that case, the unit would not be subject to the RCRA 

hazardous waste regulations and the hazardous secondary materials in the unit would still be 

excluded from the definition of solid waste, even though any such materials that had been 

released and not immediately recovered would be considered discarded.

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 continuing or intermittent unpermitted releases of the 

hazardous secondary material to the environment is discarded and a solid waste.
-111-

(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: The Agency does not agree with those commenters who said that even trace 

amounts of hazardous substances (such as through stormwater runoff) should be considered 

illegal releases from storage units. Some units are inevitably subject to occasional precipitation 

runoff that consists essentially of water, with trace amounts of hazardous constituents. As long as 

the hazardous secondary material itself is not swept away by the runoff, this transport via 

precipitation runoff would not be a release of such a material and the unit could be considered 

contained. A contrary interpretation could place all such units under Subtitle C regulation and 

eliminate their eligibility for the generator-controlled exclusion, which is not the Agency’s 

intent. EPA has determined that hazardous secondary materials placed in such units that are 

destined for legitimate recycling have not been discarded if they meet the conditions of these 

exclusions. EPA also agrees with the commenter who said that the existence of stormwater 

runoff (regulated under the Clean Water Act) and fugitive air emissions and dust (regulated 

under the Clean Air Act) does not automatically mean that materials are not being managed as a 

valuable commodity.

EPA also does not agree with the commenter who suggested that the Agency should return to the 

“significance” criterion for determining whether a release has occurred (in part to distinguish 

between runoff containing hazardous constituents and runoff containing the hazardous secondary 

material itself). The Agency does not agree that using this criterion, without further definition, 

would clarify this distinction. We also do not find that it is practicable to establish a 

concentration of hazardous secondary materials that could be used to determine whether a 

release has occurred, since such appropriate concentrations would vary for different materials 

and a single concentration limit would not be flexible enough to allow an accurate determination 

of “contained” for the wide variety of hazardous secondary materials. 

(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 
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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 containment 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 response to those commenters who suggested a mechanism (such as a 

petition process or variance) to provide alternative or site-specific containment requirements for 

certain facilities, such a mechanism is unnecessary because the definition of “contained’ in 

today’s rule establishes minimum requirements that all units storing hazardous secondary 

materials should be able to meet. We have designed the “contained” criteria to be flexible 

enough to cover a wide range of units and therefore, are not including a petition 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 contents 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 that 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 

identification 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 appropriate 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.
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(t) COMMENTS: 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 batteries, 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 “release.” [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 handling 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) RESPONSE: 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 bricks which are not 

stored in tanks, containers, or containment buildings. We have also made clear in the preamble 

the circumstances under which such materials could be considered “contained.” 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 materials must be managed in units complying with part 264 or 265 

standards. [0076, 0177, 0189, 0199, 0225, 0238, 0317] One commenter supports including that 

any unit that meets part 264 or 265 standards meets the definition of contained as long as it is 

EPA’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-

containment is a requirement for containment in tanks. [0317] One commenter said that the 

reference to part 264/265 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 management 

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 secondary 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 

the 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 eligible for the generatorcontrolled 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 management 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 the 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]
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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 continuing 

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 should 

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 with applying the provision regarding leaks to only landbased 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 unpermitted 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 leaks or other continuing or 

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

designed, as appropriate for the hazardous secondary material recycling process, to prevent

releases of the hazardous secondary materials 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]

(aa) 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) COMMENTS: 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 secondary materials to the 

environment; and (2) the unit does not hold incompatible materials and addresses potential risk 

of fire or explosions.” [0204, 0214, 0225]
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(bb) RESPONSE: EPA agrees with the criteria the commenter suggested; however, EPA finds 

that additional 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 contamination 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 enforcement 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 ability 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 

materials 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 penalties, 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 
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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 unrealistic 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, 0210, 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 

why the Agency has switched their position from the 2008 DSW final rule. [0168, 0255] Other 

commenters said that EPA has provided no evidence of past abuses or situations where 

generators have skirted the regulatory requirements by failing 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 conditional exclusion. For example, if during 

an inspection of a large quantity generator of hazardous waste, EPA were to discover a 

hazardous secondary material that had been stored on-site for more than 90 days without a 

RCRA permit (an act that would typically be a violation of the hazardous waste regulations), a 

previously filed notification would be an indication that the facility was planning to reclaim the 

hazardous secondary material under the conditions of the exclusion. Absent such notification, it 

would be difficult for the facility to justify its true intentions for the hazardous secondary 

material. Failure to meet the notification provision is a strong indication that the facility either 

did not intend to comply with or was unaware of the provisions of the exclusion. In both cases, 

the lack of notification could indicate that the hazardous secondary material was being 

mismanaged. 

EPA agrees with commenters that making notification a condition of the rule would further 

discourage facilities from trying to evade enforcement by not notifying because, under the final 

rule, the costs 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. 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 the 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 secondary material under the conditions of 
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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 

conditions of the final rule exclusions, would not face enforcement consequences. EPA does not 

find this to be unduly burdensome to the regulated community. 

EPA also finds that the commenter’s example of an innocent reason for failing to notify (because 

of confusion surrounding the point when a virgin material becomes a secondary material) as 

further reason to strengthen the notification provision. In order to comply with the final rule, a 

generator must know which hazardous secondary materials are being managed according to the 

specific conditions of the exclusion. In other words, a generator has to make a choice to manage 

hazardous secondary materials under the conditions of the rule before they are considered 

“excluded.” Notification, in fact, clearly documents this choice. Therefore, 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 

commenters that argued that sufficient incentives to notify already exist. We note that there is 

likely an economic incentive for some facilities to fail to notify and simply consider the 

paperwork violation as a cost of doing business. Where an economic incentive exists, EPA 

maintains that regulation is 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 condition, 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 

rationale 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 abuses” (i.e., records of 
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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 identified in the regulations. [0058]

(b) RESPONSE: Notification under 40 CFR 260.42 is only required for facilities 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 determination 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 requirement 

codified at 40 CFR 260.42.

Additionally, EPA is not requiring any new notification requirements for other existing (pre2008) exclusions or exemptions under the final rule, as was considered in the July 2011 proposal.

(c) COMMENTS: One commenter urged EPA to add discussion in both the 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 notification 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 

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 secondary 

materials activity and to enable effective compliance monitoring. Making 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 

agency prior 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 exclusion.”

(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 
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unnecessary burden to these facilities, many of which are small businesses. [0189, 0299] Another 

commenter stated that a one-time notification 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 overly stringent and unnecessary. [0189, 0363] One of these commenters said that, in some 

instances, a facility may recycle a secondary material infrequently and may have periods over 30 

days where no management of the material occurs, but the facility intends 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 preamble 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 facilities 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 facilities who are currently managing 

hazardous secondary materials under the exclusions. With a one-time notification, we can also 

foresee problems where regulatory agencies spend time and resources monitoring compliance at 

facilities that have since stopped managing hazardous secondary materials at some point in the 

past. This inefficient use of resources would serve to lower the effectiveness of regulators to 

monitor compliance overall and could potentially increase the risk of environmental damage 

from abuse 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 notification 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 periodic 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 onetime notification. Once an initial notification is submitted, to re-notify, a facility 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 that the limitations of a one-time 

notification approach would undermine the purpose of the notification. 
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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 unnecessary. 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 facility only stopped managing materials for a 30-day period, as in the 

commenter’s example, this facility would not need 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 annual 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 critical 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 materials are subject to the exclusion’s conditions. Additionally, 

information on quantities enables states and EPA to prioritize inspections and to measure 

performance of the rule.

(g) COMMENTS: One commenter is concerned that notification as a condition is potentially 

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 hazardous waste regulations, it does not differ from how other 

paperwork requirements are applied in conditional exclusions from the definition of solid waste. 

For example, notification is a condition of the zinc fertilizer exclusion in 40 CFR 261.4(a)(20). 

Additionally, EPA confirms that the conditional exclusions at 40 CFR 261.4(a)(23) and 40 CFR 

261.4(a)(27) are self-implementing and thus, facilities do not need to wait for any response from 

the implementing agency prior to using an exclusion.

6.4 Recordkeeping for speculative accumulation

(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 

accumulated. [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 strained resources of states that do 
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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 regulatory 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 operations 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 normal business practice 

and is necessary for inventory control 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 began to be accumulated. If placing a label on the 

storage unit is not practicable, the accumulation period must be documented through an 

inventory log or other appropriate method. This provision will allow inspectors and other 

regulatory authorities to quickly ascertain how long a facility has been storing an excluded 

hazardous secondary material, and, therefore, whether that facility is in compliance with the 

accumulation time limits of § 261.1(c)(8).

(b) COMMENTS: Some commenters opposed the proposal to require 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 speculative 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 these types of records, there is no need to make this a regulatory 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 concluded 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 secondary 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 compliance with the speculative accumulation provision, and that the 

cost to facilities does not outweigh this benefit.

(c) COMMENTS: 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 
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operator to demonstrate that the hazardous secondary material was indeed recyclable according 

to the legitimacy criteria and 40 CFR 261.2(f). [0157] 

(c) RESPONSE: In response to those commenters who argued that the proposed recordkeeping 

requirement is redundant with § 261.2(f), we note that that provision applies to respondents in 

enforcement actions and does not provide specific guidance on how to determine compliance 

with the speculative accumulation provisions in the case of routine inspections. We therefore do 

not agree that the proposed recordkeeping requirement is redundant with 40 CFR 261.2(f).

(d) COMMENTS: Two commenters stated that this would not be a useful requirement because 

documenting when 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 materials, their introduction into the reclamation 

process, and outgoing materials would be much more useful than an accumulation 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, equals at least 75 percent 

by weight or volume of the amount of that material accumulated at the beginning of the period. 

Materials must be placed in a storage unit with a label indicating the first date that the material 

began to be accumulated. If placing a label on the storage unit is not practicable, the 

accumulation period must be documented through an inventory log or other appropriate method. 

EPA finds that all parts of this provision – including demonstration the material is recyclable, 

there is a feasible 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 ascertain 

whether that facility is in compliance with the accumulation 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 

speculative 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 accumulation 

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 recyclable 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 not necessary. [0210] One commenter 

said EPA’s requirement to label storage units and keep records to demonstrate that the secondary 
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material is not being accumulated speculatively exceeds EPA’s statutory authority because the 

secondary materials have not been 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 accumulation 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 evidenced 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 because recordkeeping is critical to 

determining that speculative accumulation is not occurring and thus ensures the hazardous 

secondary materials are not being discarded. 

(f) COMMENTS: Some commenters said that, in promulgating each exclusion, EPA had the 

opportunity 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 commenters 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 in 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 commenter 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 distant 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 

commenter 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]
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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 requirements, 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 varies 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 with 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 

inspectors 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 longexisting loophole that its rules allow up to two years of storage for the materials having 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 transfer-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 speculative 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 speculative 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 

systems 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) as one method to 

demonstrate compliance with speculative accumulation 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 significant undertaking. [0193] 

One commenter said that posting a start date for accumulation is also impractical for certain 

types of legitimate recycling activities. For 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 
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commenter said that EPA should provide guidance on how a facility should “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 practical, 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 does 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 recordkeeping 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 

speculative accumulation. [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 pipes are not considered to be accumulating

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 label 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 variety of 

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 allowed. [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 handlers to choose an option suitable for the 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 better fit for situations where recycling is a seasonal activity. [0299]
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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 not reopen this part of the rule.

(l) COMMENTS: 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 communities, including environmental justice 

communities.

6.5 Revisions to tolling and same-company

(a) COMMENTS: Some commenters supported eliminating the tolling exclusion. [0032, 0038, 

0058, 0165, 0167, 0173, 0177, 0178, 0179, 0197, 0215, 0244, 0251, 0268, 0270, 0272, 0290, 

0321, 0333, 0351, 0367, IL-0001, IL-0002, IL-0006, PA-0005, 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 stated 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 see 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 that 

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 

terms and conditions. [0167, 0367] 

One commenter was concerned 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 commenter 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 learning curve for regulators. [0173] 

A few commenters 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 extremely 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 
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recycling to third parties without essential protections applicable 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 

experiences 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 enough 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 the 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 unlikely 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 number 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 engages 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 discussion 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 arrangements. [0266] 

(a) RESPONSE: EPA generally agrees with the commenters who supported retention 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 
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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 

requirements for reclaimers. We have also concluded that retention or elimination of this 

exclusion should not depend on how frequently the exclusion is currently utilized, because 

determining frequency of utilization in the future is necessarily speculative. Additional states 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 encouraging the sustainable management of hazardous secondary materials. For these 

reasons, we are retaining the tolling exclusion in this final rule and finalizing the proposed 

recordkeeping requirement for this exclusion.

(b) COMMENTS: One commenter recommended a definition for “tolling agreement” which 

contains the specific 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 pursuant to a written 

contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling 

contractor, if the tolling contractor certifies the following: ‘On behalf of [insert tolling contractor 

name], I certify that [insert tolling contractor name] has a written contract with [insert toll 

manufacturer name] to manufacture [insert name of product or intermediate] which is made from 

specified unused materials, and that [insert tolling contractor name] will reclaim the hazardous 

secondary materials generated during this manufacture. On behalf of [insert tolling contractor 

name], I also certify that [insert tolling contractor name] retains ownership of, and responsibility 

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

including any releases of hazardous secondary materials that occur during the manufacturing 

process.’” Thus a tolling contractor that is managing hazardous secondary materials as specified 

by above certified statement is managing under a tolling agreement eligible for the generatorcontrolled exclusion, provided the conditions 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 contractor. In both cases, the records must contain the name of the transporter, the date of 

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

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

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

confirmations). For purposes of this paragraph, tolling contractor means a person who arranges 
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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 contract 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 secondary 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 reasonable 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 inspectors 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 recyclers. 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, 

0201] 

(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 records (e.g., financial records, 

bills of lading, copies of DOT shipping papers, or electronic confirmations) and thus, EPA has 

determined this requirement will not present an undue burden to the regulated community.

(d) COMMENTS: A few commenters said that 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 
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financial risk by signing such a certification, since there is less incentive for the toll manufacturer 

to manage the hazardous secondary materials appropriately when the liability for 

mismanagement falls to another party. [0179, 0251, 0272]

(d) RESPONSE: EPA disagrees with these commenters that argue that liability would only befall 

to the tolling 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 secondary materials are safely managed.

(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 manifest. This commenter 

also stated that EPA should require a copy of the tolling agreement be kept on-site for review 

and inspection. [0299]

(e) RESPONSE: Hazardous secondary materials managed under the control of the generator, 

including under the toll manufacturing 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, the 

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

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

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

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

contractor.

7.0 Comment on Revisions to the Definition of Legitimacy 

7.1 General comments on legitimacy 

(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 requirement 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. Instead, 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 materials 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 criteria, including having the proper equipment and trained personnel to safely 

reclaim the hazardous secondary material, and must meet the speculative accumulation standard.
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(b) COMMENTS: Several commenters expressed their general support for the revisions to the 

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 that 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 maintains 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 identified 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 term “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 ingredient 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 

legitimacy 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 
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industrial process. Criterion 2 of the partial reclamation variance 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 sufficient 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 material 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 

legitimacy factors as two discrete 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 

“contribution” to factor 2 only confuses 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 but 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 

main 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 generally 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 these 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 its 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 materials are not excluded from regulation as 

solid wastes merely because of a claim that they will be recycled. EPA has consistently 

considered hazardous secondary materials intended for “sham recycling” (i.e., disposal 

performed in the guise of recycling) to be discarded and, hence, to be solid wastes for Subtitle C 

purposes (see 45 FR 33093, May 19, 1980; 50 FR 638–639, January 4, 1985). The U.S. Court of 

Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded 
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and, consequently, 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 codifying legitimacy for all recycling

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, community 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 give 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 provision 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 sham recycling prohibition in § 261.2(g) more 

clearly defines the Agency's view on legitimate recycling and the pre-2008 recycling exclusions 

and exemptions. We also agree with those commenters who pointed out that we looked at the 

legitimacy of the recycling activity when we promulgated the material-specific or industryspecific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy 

determinations. However, by codifying a prohibition on sham recycling that applies to all 

hazardous secondary materials being recycled, we are confirming that we expect anyone 

operating under a recycling exclusion or exemption to do so legitimately.

(b) COMMENTS: Several environmental and community organizations supported codification 

of the legitimate recycling provision for all hazardous secondary materials recycling, but did not 

provide a detailed explanation of their position. In addition, while one environmental 

organization acknowledged that EPA did not solicit comment on the elimination of these 

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] 
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(b) 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 sham recycling prohibition in § 261.2(g) more 

clearly defines the Agency's view on legitimate recycling and the pre-2008 recycling exclusions 

and exemptions. We also agree with those commenters who pointed out that we looked at the 

legitimacy of the recycling activity when we promulgated the material-specific or industryspecific exclusions and, therefore, we are not requiring facilities to revisit past legitimacy 

determinations. However, by codifying a prohibition on sham recycling that applies to all 

hazardous secondary materials being recycled, we are confirming that we expect anyone 

operating under a recycling exclusion or exemption to do so legitimately. 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 support

(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 factor 3 and factor 4 

mandatory, is a drastic change in policy and likely will end much of the current recycling that is 

occurring under RCRA. Industry commenters and two state agencies argued that this would be a 

huge administrative burden with little environmental benefit and that recycling has been taking 

place under these exclusions largely without problems for many years. Some industry 

commenters expressed their opinion that the codified legitimacy factors are significantly 

different than EPA's existing legitimacy policy and therefore, the legitimacy analysis that would 

have to be undertaken is not substantively the same. Other commenters opined that applying the 

codified legitimacy standard to the pre-2008 exclusions and exemptions would function as a 

disincentive to recycling by adding 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 documentation and inspecting the 

more frequently used pre-existing exclusions, such as the use/reuse exclusion in § 261.2(e) and 

the closed loop recycling exclusion in § 261.4(a)(8), to the detriment of investigating other 

potentially more problematic recycling.[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 would 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]
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(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 reflection, 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 legitimacy of the recycling activity when we promulgated the 

material-specific or industry-specific exclusions and, therefore, we are not requiring facilities to 

revisit past legitimacy determinations. However, by codifying a prohibition on sham recycling 

that applies to all hazardous secondary materials being recycled, we are confirming that we 

expect anyone operating under a recycling exclusion or exemption to do so legitimately. 

In addition, as discussed in more detail under Section 7.6 below, we are not requiring 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, recycling 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 to 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 exclusions, 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 significant 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 justified. [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 materials 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, 
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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 apply 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 would 

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 past legitimacy determinations. If recycling was 

considered legitimate under the Lowrance Memo, its status should not change as a result of 

today’s rule. To make its intent more clear, the Agency is codifying a prohibition against sham 

recycling in § 261.2(g) instead of adding a provision in each of the pre-2008 exclusions and 

exemptions referring to the legitimacy provision in § 260.43. This codification will give 

implementing agencies a clear regulatory statement that can be used to enforce against sham 

recyclers, yet not require the vast majority of recyclers that are performing legitimate recycling 

under the pre-2008 exclusions and exemptions to revisit previously-made legitimacy 

determinations. 

Any existing legitimate recycling determination should not change due to the codification of the 

legitimacy factors. In addition, examples that were provided in the public comments helped 

inform our decision-making and led us to revise factor 4 significantly to address this issue. The 

final regulatory text is consistent with the pre-existing legitimacy 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 260.43 by 

closely examining the questions and sub-questions in the Lowrance Memo and in the Federal 

Register preambles and converting them into four more direct factors. For a detailed explanation 

of how each of the four factors is derived from the Lowrance Memo and other existing policy 

statements, see 73 FR 64708 –64710, October 30, 2008. Thus, we do not expect implementing 

agencies to revisit past legitimacy determinations. 

Regarding the existing exclusions in the regulations, EPA acknowledges that, in establishing 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 (10th Cir. 1993); U.S. v 
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Marine Shale Processors, 81 F. 3d 1361, 1366 (5th Cir. 1996); Marine Shale Processors v. EPA, 

81 F. 3d 1371, 1381-83 (5th Cir. 1996)). This is meant to prevent a company from claiming to be 

operating under an existing exclusion and simply using that as a way to avoid full RCRA Subtitle 

C regulation. 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 opposed 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 industry 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 the 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, 0048, 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 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, 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 processes 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 recycling. 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 meet Factor 4, 

both of which commonly occur in the mining and mineral processing industry when recycling 

hazardous secondary materials.
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(e) COMMENTS: Several commenters argued in their statements that the codified legitimacy 

standard should not apply to spent 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 alleviates 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 widelyrecognized commodity standards/specifications, such 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 commenters did not agree and argued the codified 

legitimacy factors are significantly different 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. These 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 legitimacy 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) COMMENTS: Some commenters argued that applying the codified legitimacy standard 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. EPA has long articulated the need to distinguish 

between “legitimate” (i.e., true) recycling and “sham” (i.e., fake) recycling, beginning with the 

preamble to the 1985 regulations that established the definition of solid waste (50 FR 638, 

January 4, 1985). The prohibition on sham recycling being finalized in this rulemaking is 

consistent with the Agency's longstanding policy and interpretation of legitimate recycling that 

has been expressed in those earlier preamble discussions and policy statements.

(h) COMMENTS: 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 study alone shows that sham 

recycling is a problem, including among the existing recycling exclusions. We are putting the 
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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 covered 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 recycling 

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) COMMENTS: Although they were generally opposed to applying legitimacy to all recycling, 

some commenters specifically argued it was impossible for generators 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 majority 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 analogous 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 that 

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 generators 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]
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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 and 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 codifying a prohibition against sham recycling in 

§ 261.2(g). We have also added language to the preamble explaining that in the 2011 DSW 

proposal, EPA explicitly did not reopen comment on any substantive provisions of the previous 

recycling exclusions or exemptions. Facilities with pre-2008 exclusions can generally follow the 

normal good business practices that were considered when the exclusions were granted and still 

be considered to be legitimate recycling. If the facility is complying with the terms of the 

exclusion and following industry best practices to engage in legitimate recycling activity, this 

would generally not raise questions as to its legitimacy. All these examples provided support 

EPA’s determination that most current recycling under existing exclusions is legitimate, and that 

companies complying with the conditions of exclusions would generally not need to take action 

to show that their recycling meets the legitimacy factors.

(k) COMMENTS: One company stated that it is not necessary for this rulemaking 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 legitimacy contaminant comparison factor is not the main reason for changing the 

wording of factor 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 mandatory

7.3.1 General comments on all legitimacy factors being mandatory

(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 not 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).
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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 the 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 factor 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 appropriate 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 went 

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 not 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 recycling 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 considerations 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 agency. 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 

cases 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 
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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 and Louisiana), 

although several states went on to say that they either opposed the petition process or are 

concerned about it for the following reasons: (1) the resources necessary for addressing incoming 

petitions, (2) the possibility of using the petition process as a potential backdoor out of 

legitimacy, and/or (3) the potential for the petition process to lead to inconsistencies among 

states on legitimacy determinations. Most states have supported making all four factors 

mandatory in past proposals and 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 

enforce 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 environment 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 material 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 the 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 though 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 to 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 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 
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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 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 that 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 support

(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 singled 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 factor 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 preamble, 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. Since 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 the 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 optional 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 
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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” standard 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 determinations. 

(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 stated 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 for 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, 

certification 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 situations 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 factor 4. As noted above, many 

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. EPA agrees 

with this viewpoint.

(c) COMMENTS: Several 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, 0260, 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 
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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 emphasized 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 factors 

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 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 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. 2000)).

Specifically, in the case of making factor 3 mandatory, this factor expresses the principle that 

hazardous secondary materials being recycled should be managed in the same manner as other 

valuable materials. This factor requires those making a legitimacy determination to look at how 

the hazardous secondary material is managed before it enters the recycling process. In EPA's 

view, a recycler will value hazardous secondary materials that provide an important contribution 

to its process or product and, therefore, will manage those hazardous secondary materials in a 

manner consistent with how it manages a valuable feedstock. 

If, on the other hand, the recycler does not manage the hazardous secondary materials as it would 

a valuable feedstock, the hazardous secondary materials might not be recycled, but rather 

released into the environment and discarded, thereby indicating sham recycling.

This factor may be particularly important in the case where a recycler has been paid by a 

generator to take its materials as a result of the economic incentives in the hazardous secondary 

materials market. By looking at the management of the hazardous secondary material before it 

enters the recycler's process, the entity making the legitimacy determination can tell that a 

material being managed like an analogous raw material is, in fact, valued by the recycler. If the 

hazardous secondary material is not being managed like a valuable raw material because it is 

uncontrolled or is being released, that indicates that the fee the recycler obtains for taking the 

hazardous secondary material may be its only value to that recycler. If the fee received were the 

only value to the recycler, it could mean that discard was taking place.
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In the case of making factor 4 mandatory, this factor requires that those making a legitimacy 

determination look at the concentrations of the hazardous constituents found in the product made 

from hazardous secondary materials and, except where otherwise specified, compare them to the 

concentrations of hazardous constituents in analogous products. A product that contains high 

levels of hazardous constituents that originate in a hazardous secondary material feedstock could 

indicate that the recycler incorporated hazardous constituents into the final product when they 

were not needed to make that product effective as a way to avoid proper disposal of that material, 

which would be sham recycling. This factor, therefore, is designed to determine when toxics that 

are “along for the ride” are discarded in a final product and the hazardous secondary material is 

not being legitimately recycled.

(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 widespread 

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 weight 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 demonstrate 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 factors, 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 not 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. 
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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 levels 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 legitimate (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 will 

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 makes 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 management 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 material “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 
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be managed 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 material 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 indicates 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, therefore, 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 requirement 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 being 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 becomes 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 regulations 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 longstanding 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 environment 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 
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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 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. 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) RESPONSE: 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 are 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 standard 

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 and 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 unit 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 that 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 
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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 expects 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 addressed 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 column, 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 commenter 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 should 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 material 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 first 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 acceptable 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 hazardous 

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 further to comply 

with this factor. 

7.3.3 Comments on making factor 4 mandatory

(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)
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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 under 

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 recyclers 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 it may be very difficult 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, 0252, 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 constituents. (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 

product 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 using 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 made 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) 
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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 this 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 stated 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 commenter 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, primary 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 constituent 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 

requirements, 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 than 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) Because of the 
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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 from 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 processing 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 same 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 stated 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 commenters’ 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 specifications, 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 

evaluation 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 assessment 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 to 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. 

With 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.
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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 considered 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 primary 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 its 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 before 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 Memo’s balancing criteria. (0159, 0252, 0255, 0266) One commenter 

stated that applying the legitimacy factors to pulping liquor is unnecessary. (0168) 

Two commenters stated that there 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 include 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 have 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 recycling 

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 hazardous secondary material is a solid and 

hazardous waste.. 
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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 

similar 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). When 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 commenter 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. It 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: One commenter argued that making 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 claims 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 commenter 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 analogous 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 between 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 

legitimate 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 to 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 commenter discussed EPA’s damage case study and stated that 
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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 legitimate 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 flexibilities 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 not 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 implementing 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 RCRA 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 cases 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 determinations. 

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 stated 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 if 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 test was developed. 
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(0193) One commenter stated that it 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 commenter 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 product 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 that 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 the 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) One 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 regulation. (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 its 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 virgin 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 products they are selling on the market to the 
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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 hazardous constituents that can be present in 

final products. A commenter stated that hazards 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 secondary 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 for EPA to take 

enforcement action when required. (0159, 0266, 0287) A commenter stated that finalizing factor 

4 would increase regulatory uncertainty because the 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: The finalized 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 

finalized 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 and 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 recycled.

(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 
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and that it didn’t take into account the variability in the constituents in 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 this 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 and 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 required 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 recycling industry and similar industries. Scrap metal recycling has always had to 

be legitimate to qualify for its exemptions in the regulations, because recycling 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 above. 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 metal 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 is 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 meets factor 4. 

This 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 commenters 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 contaminants in the hazardous 

secondary material should be examined, not just a comparison of the levels of hazardous 
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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 the manufacturing process. (0268) Another 

commenter stated that in the case of the use/reuse exemption, comparisons 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 relates 

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 materials 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 materials. 

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 looking 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 determination 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 situation 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 to 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: Two commenters stated that the term “virgin” material 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 regulatory 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)
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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 the 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 process for legitimacy

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, 0233, 

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 to 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 does 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, 

0287, 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 that 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 existence 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 that 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 wrong 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 authorized 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 stressed 

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 implement 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 disturbed 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 review 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 

generic 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 some 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 facilities. (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) 
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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 because 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 publish 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 were codified, 

which 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 health 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 

petition process and the concerns with how implementation of the petition process could impact 

recycling, EPA is not finalizing the petition process in this final rule. Instead, EPA has made two 

changes to its proposal to account for the situations that the petition process was meant to 

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 alleviate 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 

constituents that are not comparable to or lower than an analogous product or intermediate or 

that are unable to be compared, but which are not covered by the new provisions. 

Under the documentation, certification, and notice process, a recycler must determine that its 

recycling is still legitimate despite the levels of hazardous constituents in the recycled product 

not being comparable to those in an analogous product or intermediate. This determination can 

be made by taking into account exposure of toxics in the product, bioavailability of toxics in the 

product or other relevant considerations that show the recycled product does not contain levels of 

hazardous constituents that pose a risk to human health or the environment. The facility then 

must prepare documentation explaining its assessment and include a certification that the 
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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 provision 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—

 Primary 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, 0262) 

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 generated. (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 process, 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 be 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)
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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 “The 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 comments 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 determination. 

RESPONSE: 

EPA appreciates 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 the 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 be 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 

of 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 widely-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, the 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 burden 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 being 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 has 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 their recycling case 
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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 provision would be appropriate for those recycling processes to ensure there is no 

discard happening.

These revisions address the examples that were submitted in the comments where the recycling 

is legitimate but would potentially not have met the proposed factor 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 secondary 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 hazardous 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 the 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 material 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. 

Factor 3 also discusses 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 language as part of factor 3.
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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: One 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. EPA should clarify that this factor 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 does 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 would 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 process. 

(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 the management of raw 

material or in an equally protective manner. (0210)

(d) RESPONSE: Scrap metal 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

because 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 processes 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 
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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 Protective” 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 language as part of factor 3.

(g) COMMENTS: Several 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 the language that management should be done “in a 

manner consistent with the management of the raw material” provides sufficient 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 regulatory 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 the 

hazardous secondary material as well. 

(h) COMMENTS: One commenter stated that although the flexibility is useful, it doesn’t apply if 

there 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 management 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 for managing a particular material would depend on the 

specifics of the situation, the hazardous secondary material, and the recycling process.
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Factor 3: Comments on the Contained Standard

(j) COMMENTS: One commenter supported this language in factor 3. One 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, including 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 

management 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 references 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 stated 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 prevent 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 should 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 appropriate. 

(m) COMMENTS: Two commenters stated that referring to the contained standard would be 

regulating the storage of secondary materials over which EPA has no RCRA jurisdiction and 

would be in violation of the ABR decision, which strikes down EPA’s attempt to impose storage 
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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 applied by itself is arbitrary and 

capricious. The commenter argued that to 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 legitimate 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: EPA disagrees 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 waste 

(and in the case of materials subject to this rule becomes a hazardous waste). Thus, the Agency is 

regulating material over which it has jurisdiction. In fact, the conditions in this rule regarding 

containment are based on the ABR decision. The Agency is 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 environment 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 has 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 legitimacy 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 the 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 reclamation by lack of clarity, apparent stringency, and punitive consequences. The 

commenter questioned the difference between windblown dust and fugitive air emissions and 

whether the movement of materials across man-made surfaces counts as precipitation runoff.

(0264) In addition, several commenters argued that putting a reference to the proposed 

“contained” standard in the legitimacy factors would mean that a single leak or fugitive air 

emissions would transform the storage unit into a hazardous waste treatment unit. (0168, 0255) 

In addition, one commenter stated that this standard would improperly make it so that failure to 
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“immediately” recover secondary materials released to the environment makes them discarded 

and another questioned how fast a recovery 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 could 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 prevent 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 

unmanageable 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 real 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 that 

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. For 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) 
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(b) RESPONSE: EPA does not consider the meaning of the term “comparable” 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 should 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 

should 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 because 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 argued 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 under 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 comparison. (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 reduce concentrations of various constituents. 
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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 commenters 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 higher” 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 provision 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 concerns 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 that 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 “analogous 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 the 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 copper). 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 recycling 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 regulatory text as the 
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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 appropriate. 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 regulations. 

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 promulgated, 

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 this manner, 

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 cases 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 hazardous 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 inputs 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 

where 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 comparability 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 
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hazardous constituent, the product should meet LDR standards for the hazardous constituents. 

(0257)

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 question 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 contains 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 distinguishing 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 recycler 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 process 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 bioavailability of toxics in the product, or other relevant 
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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 form 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, materials 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 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). 

(h) COMMENTS: One commenter stated that these changes to factor 4 result in the 

impermissible 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 waste 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 determined 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 documentation of legitimacy

(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 long-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 and 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 for 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 pose 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, 0317, 0363). Other commenters argued that for 
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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 noncompliance due to the huge administrative burden, especially for large facilities that utilize many 

of the recycling exclusions and that the voluminous paperwork could result in inspectors missing 

more obvious sham recycling (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 argued that since EPA already believes most recycling is legitimate, requiring 

documentation for all recycling is overly burdensome, expensive, and not necessary. Some 

industry commenters argued that EPA offered no evidence in the record that documenting the 

legitimacy of a recycling practice would have any additional environmental benefit. Some 

commenters asserted that requiring documentation for all recycling might actually cause more 

non-compliance, especially for the more frequently used recycling exclusions, such as the 

use/reuse and closed-loop recycling exclusions (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 Agency proposed that the requirement would apply to the 

“persons performing the recycling.” If the generator sent his hazardous secondary materials offsite 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 

documentation (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 legitimately 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 the legitimacy of these recycling practices when it first promulgated the materialspecific 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 generally 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 requiring documentation on legitimacy determinations under two 

circumstances: (1) persons operating under the generator-controlled exclusion originally 

finalized in the 2008 DSW final rule and (2) persons legitimately recycling under any recycling 

exclusion or exemption where the 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 
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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 that 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 typically 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 determined 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 widelyrecognized 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 legitimacy 

determinations, it is important that the recycler perform the proper analysis and document how 

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 person claiming that a material is not a solid waste or is conditionally 

exempt from regulation is responsible for showing that they meet the terms of the exclusion 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, except as otherwise noted. That 

is, they would need to show how the recyclable hazardous secondary materials provide a useful 

contribution to the recycling process and are stored as valuable commodities, and how the 

product of the recycling activity is valuable and comparable to a legitimate product. 

(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 objective 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 

community fully understands the legitimate recycling requirement (0125). Furthermore, one 

commenter noted they don’t oppose recordkeeping but cautioned against overly prescriptive 

documentation guidance (0146).
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(b) RESPONSE: While we agree that documentation would 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 technical 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 promulgated 

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 routine 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 operating under the generator-controlled exclusion originally 

finalized in the 2008 DSW final rule, and (2) persons legitimately recycling under any recycling 

exclusion or exemption where the recycling does not meet the technical requirements of 

legitimacy factor 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 meets 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 Variances 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) COMMENTS: 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 that 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 
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provisions that have been used for many years is simply arbitrary and capricious. [0199] Another 

commenter 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 requests 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 determinations, 

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 Environmental Management (IDEM) concerning the tentative 

approval of a facility’s request for a partial reclamation variance, a copy of which is found in 

today’s docket. In our letter, we made clear that we did not think IDEM should grant a partial 

reclamation variance 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 states. 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 

EPA 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 commenters 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 

and, 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 non-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 
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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 implementing the solid waste 

variances and non-waste determinations ensures that the regulatory provisions operate as 

intended and will adequately protect human 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 health 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 

criteria, 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 determinations 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 prescribe 

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 commenters 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 
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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 to 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) RESPONSE: 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 recycling 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 standard, 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 the 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 other 

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 administrative 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 variance 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 the 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 standards 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).
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8.1 Requirement that applicant re-apply for a variance in the event of a change 

(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 material 

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 additional 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 commenters 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 variance. [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 continues 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, implies 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 promulgate 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 

approved 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 certain 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 

regulated community to avoid spending unnecessary resources where the change in 

circumstances is found to be of no consequence to the original variance that the regulatory 

authority has granted. EPA notes that re-applying for a variance should be less burdensome than 

the initial application because a facility would only have to update its original application.

(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]
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(c) RESPONSE: EPA acknowledges that regulatory authorities may already use discretion to 

review variances based on changes in circumstance as specified in conditions 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 Notification requirement for variances and non-waste determinations 

(a) COMMENTS: Some commenters supported EPA’s proposed biennial renotification 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 

renotification 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, IL0009] Some commenters supported this requirement since it would provide state programs with 

updated information about the facility’s activities, which enables better monitoring of 

compliance, including helping to prioritize inspections. [0179, 0225, 0244, 0251, 0272] One 

commenter stated that renotification will provide for more regular review of recycling practices 

by both regulators 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 years 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 time, which facilitates state-to-state 

consistency in determinations. Additionally, notification enables effective oversight of facilities 

receiving solid waste variances and non-waste determinations because it provides regulatory 

authorities with a mechanism for receiving regularly updated information (such as information 

regarding quantities of hazardous secondary materials managed under the determination). 

Furthermore, this information can be used to identify facilities which may have undergone 

changes to their reclamation processes 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 managing under the variance or non-waste 

determination, and biennial reporting, instead of biennial notification. [0270]
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(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. These 

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-waste 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 determination. Notification, using EPA form 8700-12, ensures that 

standard information regarding facilities receiving solid waste variances and non-waste 

determinations can be collected, stored, and used to enable compliance monitoring and to foster 

consistency in implementing the regulations.

(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 thereafter; (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 requirement 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 notification 

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’ must send a 

description of the change in circumstances to EPA or the authorized state, who then make an 

evaluation as to whether a facility should re-apply for a solid waste variance or non-waste 

determination. Under 40 CFR 260.42, facilities submit information, such as type and quantity of 

hazardous secondary material being managed, using EPA form 8700-12, which enables the 

information to be entered into EPA’s database where it can be accessed by both EPA and state 

regulatory authorities. Furthermore, EPA does not agree that notification using EPA form 8700-

12 poses an undue burden. The form is relatively simple to complete and is currently being used 

for facilities excluded from the definition of solid waste under 40 CFR 261.4(a)(23). 
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Additionally, EPA is currently 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 variance 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 facility 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 nonwaste 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 determinations because it provides regulatory authorities with a 

mechanism for receiving regularly updated information (such as information regarding quantities 

of hazardous secondary materials managed under the determination); and (3) provide 

information that 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 of 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 recycled materials meet certain handling, 

storage, and reporting conditions and the resulting fertilizers have concentration levels for certain 

hazardous constituents that fall below specified thresholds. It is therefore within EPA’s 

discretion to determine conditions under which a hazardous secondary material is not being 

discarded and thus may be excluded from hazardous waste regulation.

(g) COMMENTS: One commenter argued that the notification requirement as stated at 40 CFR 

260.42 does not clearly state that 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 will 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 notification to the states and EPA in 

order to track variances and non-waste determinations at a national level and to enable more 
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effective compliance monitoring. Although regulatory authorities may use the notification 

information to identify facilities which may have undergone changes to their reclamation 

processes 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. [0363]

(h) RESPONSE: This commenter did not specify their concerns regarding notification when a 

facility stops recycling under the variance, however, under 40 CFR 260.42, a facility must notify 

within 30 days of ceasing management of hazardous secondary materials 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 regulation(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 notifications as required under 40 CFR 260.42, the 

hazardous secondary materials may potentially lose their special status under a variance or nonwaste determination and thus may become subject to RCRA hazardous waste regulation from the 

point of generation.

8.3 Proposed revisions to partial reclamation variance 

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 clarity 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]. Some 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 finalized 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 

the agency could promulgate guidance or change the federal language in 40 CFR 260.30(c) to 

define certain terms. [0351]
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(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 partially-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 product 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 whether 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 § 260.31(c) is not 

needed and should be removed. [0097, 0107, 0133, 0199]

(c) RESPONSE: EPA agrees with those commenters who supported requiring that the partiallyreclaimed 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 finds 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 said 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-reclaimed 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 concerned that EPA’s proposed revisions restrict an 

administrative authority’s consideration of other treatment systems (i.e., both less and more 

complex treatment systems) to which the partial reclamation variance is applicable and the 
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administrative authority’s decision-making discretion during the rulemaking process. [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 contend that EPA’s proposed amendments do not provide 

additional clarification regarding the applicable point at which the variance is applied to a 

material because EPA removes the phase “if, after initial reclamation, the resulting material is 

commodity-like like (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 disagrees 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 classifying as a solid waste those hazardous secondary materials that have been 

partially reclaimed, but must be reclaimed further before recovery is completed, if the partial 

reclamation has produced a commodity-like material. A determination that a partially-reclaimed 

material for which the variance is sought is commodity-like will be based on whether the 

hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on 

whether all of the following decision criteria are satisfied.”

(g) COMMENTS: A few commenters 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 define the characteristics of a 

commodity-like material and that EPA has provided no information in the docket that supports 

its implications in the preamble that states are inconsistent in their application of the variance 

and that the granted 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 conclusory 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 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. 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 
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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 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 (January 4, 1985; 50 

FR 655), the Agency made clear that incoming materials to a partial reclamation facility were 

hazardous wastes and that the facility processing these incoming materials must obtain 

appropriate RCRA Part B storage and treatment permits. Additionally, the Agency points to the 

partial reclamation variance it issued to WRC on August 13, 2002 (67 FR 52617) as a public 

example of the how the Agency intended for the partial reclamation variance to be implemented. 

In this case, the Agency’s partial reclamation variance to WRC for the partial reclamation of 

F006 electroplating sludges required WRC to obtain RCRA Part B storage and treatment permits 

for the incoming hazardous waste.

(h) COMMENTS: One commenter stated that EPA 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 stated 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 9441.1996(05) and 9441.1995(24). This commenter disagrees with EPA’s 

argument that F006 sludges 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 commodities because 

generators 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 partialreclamation 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 for the incoming hazardous waste. Therefore, 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 reserves. 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 
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metals should be promoted. The commenter 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 mined 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 beneficiation. This concept is articulated with Criterion 3: Whether the partiallyreclaimed 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 Agency 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. If 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 material (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 secondary materials are worthless and 

to promote the recovery of nonrenewable resources. [0157]

(j) RESPONSE: Although EPA agrees that the intent of the variance for partially-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.
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(l) COMMENTS: One commenter was concerned by the significant burden imposed on the 

reclaimer to demonstrate that a material has under gone ‘substantial” reclamation,’ ‘will be 

purchased,’ and has 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: Two commenters also disagreed with EPA’s proposed revisions stating that 

the current terms and terminology within the partial reclamation variance are both concise and 

clear and that the 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 order 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 material is 

commodity-like and therefore 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: EPA 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 appropriate only for partially-reclaimed material that is 

commodity-like, as demonstrated by satisfaction of the partial reclamation criteria.

8.3.2 Comments on proposed criterion 1: Whether the degree of partial reclamation the 

material has undergone is substantial

(a) COMMENTS: Some commenter supported Criterion 1 as proposed. [0114, 0332]
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(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 of 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 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 find that this language 

clarifies (and responds to the comment regarding the term “substantial”) that the process used to 

generate the hazardous waste (such as dewatering of sludge) would not be considered 

“substantial” under this criterion. Therefore, by emphasizing that the partial reclamation process 

must be substantial in the first criterion, the Agency is reiterating that the material produced by 

the partial reclamation process must be commodity-like as supported by also meeting criteria (2)-

(5).

(c) COMMENTS: One commenter agreed with the agency's revisions if 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 

variance should be applied. Although specific definitions would be difficult to promulgate given 

the broad applicability of the terms, EPA notes that today’s preamble discussion along with 

today’s regulatory revisions to the variance criteria serve to better define how EPA is using these 

terms in the partial reclamation variance, particularly when a material becomes commodity-like. 

For example, EPA notes in its preamble that criteria 2–5 define the fundamental characteristics 

that indicate whether a 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 form 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 changes in the introductory text of the partial reclamation variance.
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8.3.3 Comments on proposed criterion 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, especially 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 we have stated previously, the 

partial reclamation variance is for those hazardous secondary materials that have been partiallyreclaimed but must be reclaimed further, as long as the partial reclamation has produced a 

commodity-like material. 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, regardless of how each party calculates the value to be paid. Evidence to 

support this criterion may include sales information; demand for the materials; and business 

contracts, such as contracts specifying quantities of material sold, details of the transaction, and 

the effective price paid for the partially reclaimed material by purchasers (i.e., after subtracting 

transportation costs and any other goods or services rendered in exchange for the material 

purchased). 

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 reclamation.”

(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 wording of criterion 2 to read, “Whether the partially-reclaimed material has 

significant economic value.” [0332]

(b) RESPONSE: EPA disagrees that the final rule changes will unnecessarily restrict recycling. 

Today’s changes clarify how the partial reclamation variance has always been intended to 

operate 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 hazardous waste must be 

managed under appropriate hazardous waste requirements in order to ensure protection of human 

health and the environment.

(c) COMMENTS: One commenter raised the issue of market forces potentially preventing 

individual generators with small 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 generators 
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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 Agency 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 in 

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 often 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 value. 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 revisions 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 removing “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 that 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 well 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 order 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, regardless of how each party calculates the value to be paid. Evidence to support this 

criterion may include sales information; demand for the materials; and business contracts, such 

as contracts specifying quantities of material sold, details of the transaction, and the effective 

price paid for the partially reclaimed material by purchasers (i.e., after subtracting transportation 
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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 criterion 3: Whether the partially-reclaimed material is a 

viable substitute for a product or intermediate produced from virgin or raw materials 

which feeds subsequent production steps

(a) COMMENTS: Some commenters supported the criterion as proposed. [0114, 0179 and 0251] 

Two commenters did not agree 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 

modifying this criterion to read “whether the partially-reclaimed material is a viable substitute 

for a product or intermediate produced from virgin or raw materials which is used in subsequent 

production steps.” With this clarification, the Agency is making clear that, while multiple steps 

may be involved in producing a commodity-like material, it is only when the partially-reclaimed 

material is a viable substitute for a product or intermediate is it considered “commodity-like.” 

(c) COMMENTS: One commenter recommended criterion 3 should state more plainly that "it is 

a substitute for ingredients, intermediates, or commercially available virgin/raw materials." The 

commenter also stated that the phrase "analogous to" is very weak and recommended that the 

word "replace" should be substituted for this phrase in all cases. [0299]

(c) RESPONSE: EPA does not agree with the suggested change to state that the partiallyreclaimed material “is a substitute for ingredients, intermediates, or commercially available 

virgin/raw materials” because EPA is concerned that this language may introduce confusion in 

distinguishing between when a partially-reclaimed material is “commodity-like” as compared to 

raw or virgin material that would need to undergo substantial processing before meeting this 

definition. Therefore, EPA is maintaining the proposed language to read “is a viable substitute 

for a product or intermediate produced from virgin or raw materials.”

(d) COMMENTS: Two commenters did not agree with the proposed criterion. [0097, 0107] 

These commenters suggest changes to the regulatory text to change the concept to being one 

where the partially-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 
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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 in 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 criterion 4: Whether there is a guaranteed end market for the 

partially-reclaimed material

(a) COMMENTS: One commenter supported the changes but also urged that, in the preamble to 

the final rule, EPA recommend its Background Document: Providing Context – The 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 may 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 commenter 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 definition of “guaranteed market” and require satisfaction of 

“whether there is a guaranteed and secure long-term market for the partially- reclaimed 

material.” [0244] One commenter agreed that having a guaranteed end market is an appropriate 

concept, but that end markets may not be predictable. This commenter said this 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 recommended 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 between 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 criterion 5: Whether the partially-reclaimed material 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 
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handled to minimize loss) should be better defined. For example, this 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 changes. [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, partially-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 contained, as 

defined in 40 CFR 260.10.

8.3.7 Comments on eliminating existing criterion 6: Other relevant factors

(a) COMMENTS: Most commenters supported 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 support the elimination of criterion 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 the partial reclamation variance by imposing restrictions on the administrative 

authority’s decision-making discretion. [0097 and 0107] Other commenters stated that 

eliminating criterion 6 would eliminate the ability to consider “good projects that do not fit 

perfectly into a box” and 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 criterion 6, 

clearly conflicts with the intent of the partial reclamation variance by imposing restrictions on 

the administrative authority’s decision-making discretion. 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. One important way to accomplish this is to 
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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 Agency 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 said that an applicant’s 

history of compliance could be considered as part of a partial reclamation variance 

determination. However, rather than requiring that compliance be considered under a sixth 

criterion, EPA notes that compliance would likely be a factor in determining how the facility is 

meeting the legitimate recycling 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 variance

(a) COMMENTS: 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 ensure protection of human 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 partially 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) or would it be regulated under proposed §266.30? Additionally, this 

commenter asked whether the facility where the material is further recycled require a Part B 

permit or 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, possibly 

causing generators to dispose of their hazardous secondary materials rather than incur the risk 

and burden of recycling. [0205] 
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(c) RESPONSE: The Agency finds that the revisions in the final rule may assist with the 

timeliness of review for variances because 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 268.40 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 13, 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 requests 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 treatment 

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) COMMENTS: 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 commenter 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 substantial 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 this 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 evaluating the 260.31(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 produced 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 

precious 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. 
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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 

because 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 sludge. 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 potentially 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 

commenter 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 materials - - would be bypassed. Further, our understanding of WRC 

operations is that contract specifications between WRC and the smelter or final reclamation 

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 smelting 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 being 

recovered.

(g) COMMENTS: One commenter suggested 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 

concentration 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 originated 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). [0312]

(g) RESPONSE: The Agency has determined that the 2% value did not 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 concentration 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, required 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 considerably less than 2%.
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8.4 Require applicant explain why they cannot meet an existing DSW exclusion 

(a) COMMENTS: Several commenters supported EPA’s proposed requirement that facilities 

seeking non-waste determinations to demonstrate why they cannot meet, 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 determination 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 review. [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 

determinations. [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 authority with the information it needs, while helping to reduce the 

number of applications because facilities will be forced to evaluate whether an existing selfimplementing exclusion may be used.

(b) COMMENTS: Some commenters opposed EPA’s proposed requirement 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 where 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-waste 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 of 

interpreting EPA’s regulations on those who are regulated before consenting to conduct a nonwaste 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 under different provisions under the regulations in different states. This commenter 

went on to say that, in some cases, the accepted provision in one state, by definition, may negate 

the applicability of an accepted provision in another state and thus a petitioner 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]
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One commenter said that EPA must understand 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. These arguments, including that a facility may 

want more comfort in a determination and that EPA shouldn’t put the burden on facilities to 

interpret regulations, are precisely why EPA and authorized states would benefit from receiving 

an explanation or demonstration from the facility why they cannot or should not have to meet an 

existing exclusion. This information would enable regulatory authorities to review and resolve 

questions regarding whether a non-waste determination may be warranted. Additionally, EPA 

does not find convincing the argument that a facility may be unwilling to provide justification at 

the risk of disqualification of an accepted exclusion in another state or EPA region. In fact, by 

finalizing this change, EPA is fostering greater consistency in state-to-state interpretations.

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 focus 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 nonwaste determination petitions that are reviewed (and thus are published for public comment) in 

order to reduce burden on states.

8.5 Regional administrator to approve variances and non-waste determinations 

(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 

inconsistencies 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 Administrator 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 

such 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 commenter 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 solid waste 

variance and non-waste determination for the sake of national consistency. [0299] 
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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 inconsistency by virtue of there being ten Regional Administrators as compared to 

the one Administrator. Because the Agency is striving for as much consistency as possible, we 

have decided not to finalize this proposed change. 

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 rule does not change in any way the delegation of authority to states authorized to 

administer the hazardous waste regulations and thus, authorized states that have adopted these 

provisions may continue to evaluate and decide whether to grant a solid waste variance or a nonwaste 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 that 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 inconsistent 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 renewals 

(a) COMMENTS: Some commenters 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, while 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 nonwaste determination. This commenter went on to say that, because these determinations 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 that 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]
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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 schedule, 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 prudent that regulatory authorities periodically review these case-specific situations 

to ensure that the hazardous secondary material continues to meet the criteria of the variance or 

non-waste determination. Therefore, EPA is adding a provision to 40 CFR 260.33(d) that solid 

waste variances and non-waste determinations shall be effective for a fixed term not to exceed 10 

years, which is the same term limit for RCRA hazardous waste permits under 40 CFR 270.50(a). 

EPA is establishing a time limit of 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 because 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 biennial 

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) simply does not make sense. 
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[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 fiveyear basis, making this a requirement may dissuade generators from seeking variance or nonwaste determinations for no other reason than to avoid the bureaucratic exercise involved. [0038] 

Another commenter was concerned that a renewal process 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 selfreporting 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 establishing 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 with 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 consistency 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] 
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(c) RESPONSE: EPA asked for comment on whether to require variances and nonwaste

determinations to be renewed periodically, and, if so, what time period would be appropriate 

(e.g., two or five years). Additionally, EPA described in the preamble to the proposed rule the 

purpose of such a renewal period which would help ensure the hazardous secondary materials 

continue to meet the criteria and remain valid over time. EPA also addressed how a renewal time 

limit would still be needed in light of notification, because notification still relies on the 

applicant to recognize when there is a need to reconsider a variance and take action, while a 

specific renewal period would mandate a reconsideration. EPA also considered, on the other 

hand, that mandating a renewal period would be an additional burden to the states, and may not 

be necessary in all situations and that regulators could always stipulate time limits in specific 

determinations, if warranted. EPA requested comment on whether to require a renewal 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 decisions 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 applications 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 that 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 

will 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 supported 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 guidance 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 
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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 final 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, encourage 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 

appropriate 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 commenters 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 objective 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 regulations 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 

comments 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 variances 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 operation 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 variances 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]
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(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 that 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 operating 

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 website. [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 the 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 

process 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 comments 

(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 
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definition [0157]. Another commenter supported the fundamental goals of the remanufacturing 

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 uses 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 

remanufacturer 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 environmental 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 materials, 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 that 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 not 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 solvents 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 being 

remanufactured into those same solvents to be used 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, EPA recognizes that not 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 remanufacturing 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” in 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.
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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 is 

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 replaced 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 remanufacturing 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. EPA determined that these 18 spent solvents are good candidates for 

remanufacturing because these 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 

similar 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 transfer-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 sustainability. 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 highervalue spent solvents.

9.1.2 Do not support

(a) COMMENTS: Several commenters 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 commenters 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 remanufacturing 

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 permissible 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 
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detailed explanation of the remanufacturing exclusion, 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 

hazardous 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 will 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 not 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 facilities 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 remanufacturing 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 exclusion 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 must 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]
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(e) RESPONSE: EPA disagrees that the remanufacturing exclusion is more burdensome than

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 highervalue 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 includes 

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 reduced RCRA regulation while promoting 

the recycling of higher-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 

manufacturing 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 remanufactured 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 solvent 

(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 residuals 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]
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(c) RESPONSE: As a condition of the exclusion, during remanufacturing and during storage of 

the hazardous secondary 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 remanufacturing 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 exclusion focuses on the functions of aiding chemical manufacturing and 

processing because the solvents performing these functions retain their original physical and 

chemical properties. In these functions, the solvents are not contaminated by substances, such as 

inks and greases, which are difficult to separate, but 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 intent of the exclusion to 

remanufacture “higher-value” solvents back into solvents that can function in similar “highvalue” ways. Therefore, these additional solvents 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 required 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. Lastly, 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 hazardous 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 instead of updated in a certain time frame. EPA also notes that the 
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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) RESPONSE: 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 used 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 emissions 

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. The 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 public 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 single 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 remanufacturing 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 remanufacturing 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 forces 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 
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hazardous secondary materials used in production, have more flexibility in waste management 

decisions than a commercial recycler does. When a commercial recycler’s primary or entire 

income is from accepting hazardous secondary materials for recycling and selling recycled 

products, there is no economic alternative if the market crashes to stay in business unless the 

company can afford the cost of a hazardous waste management permit and the cost of becoming 

a hazardous waste disposal facility. Remanufacturers, on the other hand, as a type of intraindustry 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 sectors 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 hazardous 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 

formulations 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 include 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 expand 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 requirements 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 chemicals to 

this 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.
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(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 should 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 because 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. The 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 it 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-value 

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 being 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 suspected 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 these 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 

remanufacturing exclusion can achieve.

(d) COMMENTS: 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 disagrees with the commenter that EPA does not have the authority to 

regulate hazardous waste recycling, including the solvents designated as eligible for the 
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remanufacturing exclusion. As EPA noted in the July 2011 DSW proposal, the RCRA statute and 

the legislative 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. Cir. 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 where EPA has properly regulated the recycling of solid and hazardous 

wastes.

(e) COMMENTS: The commenter supported the proposed 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 they 

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 market 

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 the commenter who did not support including many of the 

identified solvents on the list because of their toxicity. In the 2011 DSW proposal, EPA 

acknowledged that the eligible solvents have suspected or recognized hazardous health effects 

associated with their manufacture, processing, and use. Although EPA and industry have been 

working to find substitutes for the more hazardous of these solvents, or find ways to use less of 

them, this has not yet been widely achieved. 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 

these 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 remanufacturing exclusion can achieve.
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In addition, EPA does not agree 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 

remanufactured 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. [0251] 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 commercialgrade 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 wished 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 materials 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, acetone, 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 materials 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 the proposed solvents are appropriate for 

remanufacturing and supports the sustainable use of those solvents. [0351]
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(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 remanufactured to serve similar purposes to those of the original commercialgrade 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. This 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 functions 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 commercial 

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 materials 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-accumulation 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 focused. 

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]
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(b) RESPONSE: EPA appreciates the support for the remanufacturing 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 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 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 are within the scope of 

the remanufacturing exclusion. This 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 then 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 increase profits. This market structure creates a perverse market incentive to overaccumulate hazardous secondary materials, which can result in discard, which the 

remanufacturing exclusion seeks to avoid. In contrast, the market forces study shows that 

facilities engaged in industrial intra-company recycling, where companies generate hazardous 

secondary materials as by-products of their main production processes and recycle the hazardous 

secondary materials used in production, have more flexibility in waste management decisions 

than a commercial recycler does. When a commercial recycler’s primary or entire income is 

from accepting hazardous secondary materials for recycling and selling recycled products, there 

is no economic alternative if the market crashes to stay in business unless the company can 

afford the cost of a hazardous waste management permit and the cost of becoming a hazardous 

waste disposal facility. Remanufacturers, on the other hand, as a type of intra-industry recycler, 

profit primarily from the sale of their product and can switch their inputs between raw materials 

and hazardous secondary materials if market conditions shift.

It is also not clear that the suggested industry sectors will know what function their hazardous 

secondary materials will be used for after remanufacturing. As discussed previously, the 

remanufacturing exclusion encourages higher-value materials to be remanufactured and then 

used in the same high-value processes again. Furthermore, this exclusion focuses on the 

functions of aiding chemical manufacturing and processing because the solvents performing 

these functions retain their original physical and chemical properties. In these functions, the 

solvents are not contaminated by substances, such as inks and greases, which are difficult to 

separate, but only mixed with pure product ingredients, from which they can be readily separated 

in a commercially feasible manner. The suggested industry sectors provided by commenters 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 today’s remanufacturing exclusion.
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(d) COMMENTS: The commenter suggested including companies such as Safety-Kleen, with a 

Part “B” hazardous waste treatment facility permit. [0351]

(d) RESPONSE: EPA acknowledges that the industry sector that was nominated for inclusion in 

the remanufacturing exclusion participates in recycling activities; however, these sectors’ 

recycling activities do not include the types of practices or functions that were within the scope 

of the remanufacturing exclusion. The commenter suggested industries that send their hazardous 

secondary materials to a third-party recycler, 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 recycling 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 remanufacturing. As discussed previously, the 

remanufacturing exclusion encourages higher-value materials to be remanufactured and then 

used in high-value processes again. Furthermore, the 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 

separate, 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 

does not appear to coincide with the intent of remanufacturing hazardous secondary materials 

that retain their original physical and chemical properties. Therefore, this additional sector will 

not be included in the remanufacturing exclusion.

In addition, EPA notes that recycling facilities with RCRA part B permits are eligible 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 

remanufacturing 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 commenters 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]
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(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 obtain 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 only 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 notification 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 commenter 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 the 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 of shipments and confirmation of receipts for 3 years is sufficient to be 

able to track the shipments of hazardous secondary materials. 
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(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 records. 

(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 inspections. [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 should 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 confirmation 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 commenter 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 agrees 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 compliance 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 containers in 40 CFR part 261 subparts I and J.
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(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 assurance 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 differences 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, EPA 

determined financial assurance was not necessary. In addition, a closure plan is not required but 

when the use of the unit(s) managing excluded hazardous spent solvent is ultimately 

discontinued, all owners and operators must manage any remaining hazardous spent solvents that 

are not remanufactured as hazardous waste and remove or decontaminate all hazardous residues 

and contaminated containment system components, equipment structures, and soils. These 

hazardous spent solvents and residues, if no longer intended for remanufacturing, would also no 

longer be eligible for the exclusion (which only applies to materials that will be remanufactured) 

and would therefore be hazardous waste. These systems would be subject to the requirements for 

product tanks under 40 CFR 261.4(c), which allow 90 days for removal of hazardous material 

after the unit ceases to be operated for manufacturing.

9.2.8 No speculative accumulation

(a) COMMENTS: The commenter agreed that not having an accumulation time or quantity limit 

other 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 utilizing 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 being 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 

commenter 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 

remanufacturing 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 other 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.
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(b) COMMENTS: 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 participation 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 comparable 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 designed 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 solvent 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 Exclusion” 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 asked 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 hazardous 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 will need to be kept on file at the remanufacturer’s facility or 

other facility that stores or treats the hazardous secondary material that attests to the tank 

system's integrity.
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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 secondary 

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 the 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 not 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 functional 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 applications 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 

the 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 

remanufactured 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.
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(d) COMMENTS: The commenter argued that the petition process 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 

petition 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 authorized 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 process 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 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. 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 reviewing 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 become 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 adding additional hazardous 

secondary materials, industry sectors, and/or functional uses to the remanufacturing exclusion. 

Given the variety of hazardous secondary materials, manufacturing processes, and markets for 

potential remanufactured materials, 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 manufacturers (NAICS 325212). These three sectors are 

significant generators of spent solvents. The commenter also suggested adding spent 
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hydroprocessing catalysts from petroleum refineries to the remanufacturing exclusion because 

they are relatively high-value 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: EPA acknowledges that the industry sectors that were nominated for inclusion 

in the remanufacturing exclusion participate in recycling activities; however, these sectors’ 

recycling activities do not include the types of practices or functions that fit within the scope of 

the remanufacturing exclusion. Under the remanufacturing exclusion, a manufacturer must send 

their hazardous secondary material to another manufacturer, from one of the permissible industry 

sectors, provided that the remanufacturer uses the hazardous secondary material in one of the 

four permissible functions. The commenter suggested industry sectors that send their hazardous 

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 functions of aiding chemical manufacturing and processing because the solvents 

performing these functions retain their original physical and chemical properties. In these 

functions, the solvents are not contaminated by substances, such as inks and greases, which are 

difficult to separate, but only mixed with pure product ingredients, from which they can be 

separated readily in a commercially feasible manner. The 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 commenter 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 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.

(b) COMMENTS: 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 information that shows that spent 

catalysts meet the intent of the remanufacturing exclusion. 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.

(c) COMMENTS: The commenter suggested extending the remanufacturing exclusion to 

refractory recycling programs undertaken by fiber glass manufacturers. They state that these 
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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 

should 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 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.

(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 commenter 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 agree 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 

exclusion. 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 stated 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 exclusion 

limited to precious metal-bearing materials for which the generator 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 industries, and copper oxide for the pigment market as well as for the treated wood 

industry.
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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 suppliers 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 manufacturing, 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 remanufacturing 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 metalbearing hazardous 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 accept 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 necessary 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 process. [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 specific 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 exclusions 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.
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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 resources 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 typically 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 text 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 the 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 accumulation, 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 remanufacturing 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 

generator to the remanufacturer. EPA agrees that small businesses will have enough time to 

accumulate enough spent solvent to take advantage of the remanufacturing exclusion.
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9.4.2 Exports

(a) COMMENTS: Two commenters stated that EPA should not limit the use of the 

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 legitimate 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 

properties 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 highervalue 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 policy. We further note that U.S. law (e.g., 

CERCLA liability), while providing a strong incentive for not mismanaging waste domestically, 

would not apply to hazardous secondary material exported for remanufacturing. Furthermore, we 

understand the validity of arguments 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 

meeting 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 reclamation 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 subject 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 highervalue 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 requirements 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 verified 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 approval 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-controlled 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 additional 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 entities. 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 

they 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 agency 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 traffic 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 financial 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, 

there 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 required 

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 environmental 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 recycling 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 

circumstances. 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 

assumptions 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 estimating 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 required in the remanufacturing plan.

10.0 Comment on Revisions to Other Recycling Exclusions and Exemptions 

10.1 General comments 

(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 

communities 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 facility 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 because 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. 

Additionally, EPA notes that, for some self-implementing exclusions, such as the generatorcontrolled 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 recyclers, 

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 stated 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 

dismantlers, 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’ suggestions are outside the scope of this rulemaking. Moreover, EPA 

is deferring action in regards to explicitly requiring contained standard and notification 

requirement for pre-2008 exclusions until further study is conducted.

(d) COMMENTS: One commenter asked 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]
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(d) RESPONSE: EPA is not taking 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-2008 

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 finalizing 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 legitimate 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 provision 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 study is conducted.

(e) COMMENTS: One commenter said that EPA should apply such marking or recordkeeping 

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 and 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 recycled. [0351]

(e) RESPONSE: EPA agrees 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 requirements to the pre2008 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-0002, PA-0006, PA-0010, PA0012]

3. the notification requirements at 40 CFR 260.42 [0038, 0061, 0161, 0179, 0197, 

0203, 0215, 0244, 0251, 0268, 0270, 0271, 0272, 0290, 0312, 0321, 0351, 0364, 

IL-0002, IL-0005, IL-0009, PA-0006, PA-0010, PA-0012] and 
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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-0012] 

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 commenter 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 

circuit 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 requirements 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-2008 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 adding 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 legitimacy 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 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. EPA also notes that today’s final legitimacy standard includes 

modifications that address implementation concerns for certain hazardous secondary materials 

and processes, such as scrap metal and closed-loop recycling. For more information on these 

modifications, please see the other sections on legitimacy in 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 
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necessary and how best to implement these conditions in the context of the case-specific 

circumstances of the regulatory provisions.

(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 members 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 sites 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 deferring action in regards to explicitly requiring additional conditions for pre-2008 

exclusions until further study is conducted.

(h) 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 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 reopening 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, 0060, 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 requirements 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 testing and from 
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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 few 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, 0283, 

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 opportunities; 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 said 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 scrap 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 any 

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 listed 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 cost-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, commenters 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 recognized 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 developing 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 required 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 already 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” issue 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 policies 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 commenters 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 chemicals 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 from 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 recycling; 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 the 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 determinations 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 justification 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 coke byproduct 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 proposing 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. [0213]

 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 there 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 acid 

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 recycling 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 carried 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, the 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 considers 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 reporting 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 

exclusions 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 general prohibition 

against sham recycling. In the case of the contained standard and notification requirement, EPA 

is deferring any action until further study is conducted. EPA’s response to comments and burden 

implications of each of the provisions is discussed 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 

substantively the same as the existing legitimacy policy, which has been articulated in the 1989 

Lowrance Memo and in various DSW Federal Register notices. In proposing to codify 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 solid waste, or 

about case-specific determinations that have already been made by EPA or the states. As noted in 

the comments, EPA generally considered the legitimacy of the recycling process when the 

original determinations were promulgated, and the Agency did not intend to force companies to 

have to reexamine long standing legitimate recycling practices. Therefore EPA is not revising the 

pre-2008 exclusions and exemptions to include a legitimacy requirement.

However, as discussed in section VIII of the preamble, these material-specific exclusions from 

the definition of solid waste do not negate the basic requirement that the hazardous secondary 

material must be legitimately recycled. Therefore, EPA is codifying a general statement in § 

261.2(g) that makes it clear that a hazardous secondary material found to be sham recycled is 

discarded and thus, is a solid waste. By codifying a prohibition on sham recycling that applies to 

all hazardous secondary materials being recycled, we are confirming that we expect anyone 

operating under a recycling exclusion or exemption to be doing so legitimately. EPA finds that 

this will give implementing agencies a clear regulatory statement that can be used to enforce 

against sham recyclers, yet not require the vast majority of recyclers that are performing 

legitimate recycling under the pre-2008 exclusions 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 analogous product as a way of recognizing industry standards that 

ensure their products are legitimate. EPA gives the example in the regulatory text of commodity 

specification grades for common metals, which would be relevant to scrap metal recyclers, 

among other metal recyclers. EPA has also included a provision that states that when “hazardous 

secondary materials being recycled are returned to the original process or processes from which 

they were generated to be reused, the product of the recycling process is comparable to a 

legitimate product or intermediate,” and thus would meet factor 4. This revision addresses 

concerns regarding the closed loop exemption at § 261.4(a)(8) as well as mineral processing to 

produce primary metals, because these processes always include materials looping back into the 

process to ensure that all the valuable metals that can be extracted from the ore are being 

collected for use.

For more information and responses to comments on legitimacy, please see 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 environment and are not destined for recycling are 

clearly discarded. Based on the environmental problems study, the results of which showed 

mismanagement of hazardous secondary materials as one of the major causes of damage, EPA 

requested comment in the 2011 proposed rule on applying the proposed contained standard to all 

hazardous secondary materials. EPA assumes that the vast majority of recycling facilities contain 

their hazardous secondary materials and thus would already meet the contained standard. 

Therefore, EPA assumed that the contained standard would not present any additional burden to 

the regulated community, but could be used to enforce against those facilities that were 

mismanaging their materials. However, as the commenters’ noted, EPA has already promulgated 

certain management standards for some exclusions based on the case-specific characteristics of 

the hazardous secondary material or recycling process (e.g., drip pads used to manage 

wastewaters and/or spent wood preserving solutions under 40 CFR 261.4(a)(9)). Thus, EPA 

understands that simply applying the contained standard wholesale across the 32 recycling 

provisions, may not be the most efficient or effective course of action as EPA would not be 

considering how the contained standard would work within each specific exclusion and its 

existing conditions. Therefore, EPA is deferring action on applying the contained standard to the 

pre-2008 exclusions until we can more adequately address commenters’ concerns.

(3) Notification. With respect to notification, EPA’s intent was to provide basic information to 

regulatory authorities in order to enable adequate compliance monitoring of the exclusions. EPA 

had requested comment on requiring notification under 40 CFR 260.42 using the Site ID Form 

(EPA Form 8700-12), which is the same provision used for the 2008 DSW final rule exclusions. 

Given that this form is familiar to the regulated community, we had not considered this 

requirement to pose an undue burden. However, based on comments we received, we understand 

that using the same notification requirement developed for hazardous secondary materials that 

were recently excluded in 2008 presents challenges when used for hazardous secondary materials 

that have been excluded for many decades. For example, the notification provision in 40 CFR 

260.42 requires information on types of hazardous secondary materials (using hazardous waste 

codes) and quantities of these materials. However, as noted by commenters, this is difficult, for 

example, for scrap metal recyclers, because these facilities currently do not distinguish between 

non-hazardous scrap metal and scrap metal that would be hazardous waste were it not for the 

exclusion. Requiring notification in this instance may infer that scrap metal recyclers would be 

required to extensively test their hazardous secondary material in order to determine if the scrap 

metal was hazardous, and therefore excluded, and to determine which hazardous waste code to 

report on the form. Additionally, the notification presents challenges for facilities with numerous 

closed-loop recycling processes because the form would require these facilities to specifically list 

each process. We also understand commenters’ concerns regarding the burden on states who 

must review and process these forms. 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 ability to more precisely estimate the burden on states and whether such a requirement 

would be environmentally beneficial. Therefore, EPA is deferring action on applying notification 

to the pre-2008 exclusions until we can more adequately address commenters’ concerns.
-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 compliance 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 and 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 

section 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 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.

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 Exclusions, 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 

additional 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 to 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 involve 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 causing 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 stated 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 Act 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 the 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, 0226, 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 explained 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 

continuing 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. (68 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 FR 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 Federal 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 to 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 that 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 need 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 primary business was mixing electric 

arc furnace dust (K061) with agricultural lime for sale as a micronutrient lost its customers and 

could not sell its product. However, the facility continued to accept K061, and, after 

approximately seven months, the facility had accepted over 60,000 tons of this hazardous waste 

and stored it on the ground in piles up to 30 feet high, with no prospect of it being used to 

produce a product and, thus, legitimately recycled. While the initial recycling of the K061 

hazardous waste was legitimate, when the facility failed to produce a product that was actually 

sold, the K061 could no longer be considered legitimately recycled, resulting significant risk to 

human health and the environment from discarded material. Therefore EPA is codifying 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 the 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, because notification is not required for the majority of pre2008 exclusions, we can only conservatively identify damage case correlations where the type of 

hazardous secondary material very clearly matches to an exclusion (e.g., scrap metal). We lack 

information to make inferences for broadly applicable exclusions, (e.g., use/reuse) or for broadly 

defined hazardous secondary materials (e.g., metal-bearing wastes). Therefore, by virtue of some 

exclusions’ broad applicability, we were unable to correlate them to specific damage cases. 

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. In the 

case of containment 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 method, 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 standard, 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 prior 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, and 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) expanded 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 comments 

10.2.1 Contained standard

(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 have 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. Commenters 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. [0123, 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 

specific 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 applying 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 would 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 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 materials that are released to the 

environment and are not recovered immediately 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 overlap 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 [they] 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 Administrator. [0100]
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(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) COMMENTS: 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 legitimacy 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 and 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 reporting 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 contained 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, if the primary or only way to determine that 

the hazardous secondary material is not contained is to wait until it is released to the 

environment, then the 2008 DSW final rule increases the likelihood of discard for these 

materials. 

The Agency therefore is adding a regulatory definition of “contained” that resolves this 

uncertainty without sacrificing the flexibility that would allow the implementing authority to take 

into account a wide variety of 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 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 is discarded and a solid waste unless it is 

immediately recovered for the purpose of reclamation; and (2) hazardous secondary material 

managed in a unit with leaks or other continuing or intermittent unpermitted releases of the 

hazardous secondary material to the environment is discarded and a solid waste. 
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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 adequately 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: One 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 secondary material as a valuable commodity. Where there is 

an analogous raw material, the hazardous secondary material must be managed, at a minimum, in 

a manner consistent with the management of the raw material or in an equally protective manner. 

Where there is no analogous raw material, the hazardous secondary material must be contained. 

Hazardous secondary materials that are released to the environment and are not recovered 

immediately are discarded.” 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 batteries. 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 battery 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 to 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 specifically 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 Committee from Sylvia Lowrance, Office of Solid Waste 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).
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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 material in a manner consistent with the 

management of an analogous raw material can include situations where the raw material and the 

hazardous secondary material (e.g., scrap metal) are both stored on the ground.” This commenter 

stated that this is not consistent 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 

continue 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 regulation, 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. This 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 materials 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 exclusions 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 to 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 
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exclusions have resulted in detrimental impacts that would have otherwise been avoided by such 

notification 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 final 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 pre2008 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 periodically 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 processes. 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 increase 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 commenters’ 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 facilities 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 immeasurably 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 think 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, 0292, 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 facilities obtaining an EPA ID 

number. In response to this and other comments on notification, EPA is not requiring notification 
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for the pre-2008 existing exclusions in the final rule and is, instead, deferring action until we can 

more adequately address commenters’ 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 source 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 additional 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, 0257] 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 acknowledges 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 operating 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 information 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 the 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 states. [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 estimated 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 is not requiring notification for the 
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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 only 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 and 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 condition 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 commenter 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. 

[0159] 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 duplicative 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, deferring 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 available to the public via EPA’s websites. However, companies may 
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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 

attached 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 recycled 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 

the 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 question 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 necessary. 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 other 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 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 commenters’ concerns.

10.3 Correlation of recycling damage cases 

(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-containing waste recycling. [0244]
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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 the 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 that 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 because 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 correlations 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 exclusion 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 petroleum 

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 operating 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, foundries, 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. [0208] 

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 
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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 are 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 occurred 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 in 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 needed. [0133, 0199, 0204, 0269]

(a) RESPONSE: The goal of EPA’s analysis to correlate damage cases with existing exclusions 

was to assess whether certain hazardous secondary material recycling exclusions, exemptions, or 

alternate standards are adequately protecting human health and the environment. Because the 

majority of exclusions, exemptions, and alternative standards do not include notification 

requirements, EPA does not have precise data regarding which and how many facilities are 

recycling hazardous secondary materials under reduced regulation. This lack of data hinders 

EPA’s ability to collect information regarding what regulations a specific facility was operating 

under when damage occurred. Because this information is limited, the Agency had developed a 

methodology that correlates the type of hazardous secondary materials identified in the damage 

cases to regulations that likely governed the management of the hazardous secondary material. 

EPA used this methodology to identify patterns related to the types of hazardous secondary 

material involved in damage cases and whether those materials were likely to be managed under 

an exclusion, exemption, or alternate standard.

EPA understands commenters’ concerns regarding the limitations of this analysis, including that 

EPA could only correlate with confidence 7 of the 32 recycling exclusions to damage cases in its 

environmental problems study. 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 materials (e.g., metal-bearing wastes). 

Therefore, by virtue of some exclusions’ broad applicability, we were unable to correlate them to 

specific damage cases. Additionally, due to the lack of data it is difficult to analyze current 

trends in damage cases, and thus even more difficult to accurately project what the number of 

future damage cases might be under different scenarios. However, although it is difficult to 

assign specific damage cases to certain exclusions, we note that in the environmental problems 

study only 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 
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were operating outside of RCRA, inferring these facilities were either operating illegally or 

operating under an exclusion, exemption, or alternate standard.

Regarding other comments on the analysis, including comments on specific damage case-toexclusion pairings and on comparing the number of damage cases to the total number of affected 

entities, EPA agrees with commenters that more information is needed prior to taking final 

action on specific conditions of the pre-2008 recycling provisions. EPA finds it may need to 

consider each exclusion in terms of evaluating specific regulatory gaps and whether additional 

conditions are needed to ensure protection of human health and the environment. Therefore, we 

are not finalizing specific conditions for the pre-2008 recycling provisions in today’s rule and are 

instead deferring action until EPA can more adequately address commenters’ concerns, including 

comments on the record. Before the Agency would take any such action, the Agency would 

provide the regulated community, as well as other stakeholders the opportunity for notice and

comment.

(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 these 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 EPA 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 commenter 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 profiles 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 rulemaking effort. Specifically, we continue to find that 

1982 is an appropriate cut-off year for the damage case study as it best reflects the point where 
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companies became aware of their responsibilities and liabilities for safe management of their 

hazardous secondary 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 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. 

Of the damage cases that met our criteria, we agree that for certain types of damage, such as 

groundwater or soil contamination, determining when exactly the damage occurred and which 

property owner caused the damage is difficult. However, in general, the damage cases include 

multiple types of damage and certain damage, such as abandonment of materials or observed 

violations of proper storage and containment, can be easily attributed to current facility owners 

and to post-1982 activities. For example, Alco Pacific, a lead recycling facility may have started 

operations in 1954, but it was 1990 when the company abandoned 98 drums and left over 1,300 

cubic yards of lead-contaminated rubber debris and sand with no containment to prevent 

dispersal from wind or rainwater. Additionally, it was 1989 when Myers Drum, a drum 

reconditioning facility, was found to be storing 95% of their 20,000 drums on their side and that 

spillage, sump overflows, and structural failures were observed. In 1986, Continental Steel, 

which manufactured wire and rod products from scrap metal, abandoned their facility leaving 

220 drums of product material and 50 containers of lead-cadmium batteries on-site. These 

damages occurred well after RCRA and CERCLA became effective. 

11.0 Spent Petroleum Catalysts 

(a) COMMENTS: 

Summary of comments on excluding 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 one of the largest types of reclaimed 

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 issue 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. 
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Fed. Reg. 64714. The commenter stated that in the experience of their members, the catalysts 

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 refining hazardous waste listing final rule reveals that EPA has only anecdotal 

information suggesting that catalysts are pyrophoric. See Listing Background Document for the 

1992-1996 Petroleum Refining Listing Determination 76-77, 83 (Oct. 31, 1995). Also, the 

background document tends to conflate the descriptors “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 companies 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.

The 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 pre2008 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 be so, whether or not 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 were 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 Group, 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 Pyrophoricity 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 aluminum 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 the exclusions in the 2008 DSW 

rule. F003 and F005 are spent solvents that were listed 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 

relevant 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 associated with spontaneous ignition), see 76 Fed. Reg. 44141, 

and that the example of pyrophoric magnesium disproves EPA’s claim. Thus, the commenter 
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argues that materials that are pyrophoric (or otherwise ignitable), that are reactive, that may 

explode or cause 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 stated that inclusion 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 commenter stated that while 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 reactive 

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. In 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 spent catalyst through a thermal desorber simply to 

remove the oil. If the oil is collected, such as might be done "at a generator controlled 

reclamation site,” this could be construed as exempt recycling, even though the remaining 

material will have virtually 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 recovery." 

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. The 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 catalysts 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 
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specific conditions to address the unique properties of spent catalysts not shared by other 

hazardous secondary materials: It is largely 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, these 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 

commenter stated that specific 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 under 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 in the K171 /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 toxic 

metals, and other damage. The commenter stated that spent catalyst is a specialized material: 

very few companies are experienced with its properties and risks and that RCRA regulation of 

spent 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 if 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 

requirements -- makes no sense because there 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 the 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 
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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 separate rulemaking from the 2008 DSW final rule—an amendment to its 

hazardous waste regulations to conditionally exclude from the definition of solid waste spent 

hydrotreating and hydrorefining catalysts generated in the petroleum refining industry when 

these hazardous secondary materials are reclaimed.

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 addresses the risk 

of fires and explosions, which is included in the final rule. As discussed in Section XI of the 

preamble to the 2014 DSW rule, this 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 contained 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 recycled 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 commenter 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 DSW 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 materials (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 no 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 EPA 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 the 

2008 DSW rule:
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[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 assuming (without conceding) that special 

containment requirements can be relevant to defining discard (or 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 definition 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 requirements 

("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 DOT 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 hazardous 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 attempted 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 exclusion 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 material 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 material, 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 material; (3) 

short accumulation periods to avoid speculation based on fluctuating metals prices; and, (4) 
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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 speculative 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, via 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 exclusion, 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 be 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 clarification.

(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 Subtitle 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-controlled 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 requirement. These commenters said that EPA 

admits that the proposed codified legitimacy criteria in 40 CFR 260.43 generally will be a more 
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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 legitimate. If a facility is engaged in sham 

recycling, this, by definition, is not real recycling and that material is being discarded. 

Additionally, EPA considers the four legitimacy factors codified in 40 CFR 260.43 to be 

substantively the same as the existing legitimacy policy, which has been articulated in the 1989 

Lowrance Memo and in various DSW Federal Register notices. In proposing to codify 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 solid waste, or 

about case-specific determinations that have already been made by EPA or the states. As noted in 

the comments, EPA generally considered the legitimacy of the recycling process when the 

original determinations were promulgated, and the Agency did not intend to force companies to 

have to reexamine long standing legitimate recycling practices. Therefore EPA is not revising the 

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 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-recognized 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 metals, which would be relevant to scrap metal recyclers, 

among other metal recyclers. EPA has also included a provision that states that when “hazardous 

secondary materials being recycled are returned to the original process or processes from which 

they were generated to be reused,” the product of the recycling process is comparable to a 

legitimate product or intermediate and thus would meet factor 4. This revision addresses 

concerns regarding the closed loop exemption at § 261.4(a)(8), as well as mineral processing to 

produce primary metals, because these processes generally 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.
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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, EPA 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 the 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 they 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 jeopardize 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 thus 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 with 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 

secondary 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. 
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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 material 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 conditional 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 

for 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 provides 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 unintentional 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 substances.

(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 as 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 derivedfrom 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 for 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.
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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 mixture 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 materials 

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 secondary 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 fly in the face of the exclusion. 

Furthermore, EPA’s discussion also included 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 the 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 the 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 regulation 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 receiving 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 real 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 Transport 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 waste 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]
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Two commenters said it would be difficult to predict what the interstate 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-controlled exclusion, the 

remanufacturing exclusion, and the verified recycler exclusion (which replaced the transferbased exclusion in the final rule), if the originating state has adopted the exclusions, but the 

receiving (or transfer) state has not, then the hazardous 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, but 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 waste 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 state 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 federal 

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 still 

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) RESPONSE: EPA agrees with commenters who supported this clarification. Still bottoms 

from the reclamation of the solvents listed in 40 CFR 261.31(a) as F001–F005 are themselves 

listed hazardous waste and are not products of solvent reclamation. These still bottoms are a new 

point of generation, and they may be burned for energy recovery under the hazardous waste 

regulations without invalidating the exclusion.

13.0 State Authorization 

COMMENTS: One commenter recommended 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]
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Two commenters argued 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 requirements 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, 

they 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, require modification of the RCRA program to 

adopt equivalent, consistent and no less stringent requirements. Until the state promulgates 

equivalent standards and receives authorization from EPA to administer those standards, 

responsibility for administering and enforcing those 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 proposed DSW rule 

requires more information for notification, more information about hazardous 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 comments urging EPA to encourage states to adopt this final rule, and we also 

agree that uniform adoption of this rule would confer many benefits. 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 states. 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 

programs. However, when compared to the federal program that was in place when the 2008 

DSW final rule was finalized, many of today's revisions would be considered less stringent. 
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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 the revisions to the definition 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 accumulation 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 stringent than the 

current federal hazardous waste program. In these cases, all authorized states will be required to 

modify their programs to adopt equivalent, consistent and no less stringent requirements. In 

promulgating these changes, EPA has carefully considered the impact to state programs and has 

taken steps to minimize the burden to states.

It should be noted that final 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 under 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 review and Regulatory Flexibility Act (RFA) 

(a) COMMENTS: Several commenters 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 
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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 decision-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 applicable 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 final 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 standards, 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 face.

As a result of these changes, estimated cost savings increased. Based on the impact estimates 

presented in the RIA supporting these revisions, 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 

threshold 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 
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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 2008 DSW rule, there is a potential that more states 

would adopt it, thus increasing the upper bound of annual cost savings to $17.5 million to $59 

million per year.

(b) COMMENTS: Several commenters said that EPA’s regulatory impact analysis was based on 

incorrect 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 methods. 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. Much 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 development 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 DSW 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 revisions 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 elements 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 pre2008 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 net 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.
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In other words, EPA reaches the conclusion 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. Currently, 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 costs. 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 Regulatory 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 the 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 

exclusions 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 recycling 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 regulation.

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 Factor 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 site and notification to 

the regulatory agency when legitimacy documentation is prepared, only in cases where the 

recycling is legitimate 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 Territories – regulating 49 facilities, 
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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 affected 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 

necessary 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 consider 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 regulatory 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 anticipate 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) will 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 estimating 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 protectiveness 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.
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Previously in EPA’s RIA for the 2008 DSW exclusions final rule, industry implementation 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% annual 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 average annual notification rate.

See 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 estimates 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 require” 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 Bureau 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 Order 

13563. [154, 196, 350, 355]

(f) RESPONSE: EPA disagrees with the comment that ICR estimates are 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 consistent 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 proposal to facilities operating under the pre-2008 DSW exclusions. The additional 
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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 great 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 order to maintain compliance and to prepare 

for an inadvertent loss of the exclusion, which would make it a handler of hazardous waste. 

Commenters argued that many scrap metal businesses are small and family-owned and cannot 

afford these new requirements and thus, these regulations will severely affect business and jobs. 

[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 recycling 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. 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 its long-standing policy against sham recycling (See comment response (h)).

(h) COMMENTS: Many commenter disagreed with EPA’s estimates of the impacts of the 2011 

revised definition of legitimate recycling. EPA 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." [Footnote 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 methodology 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 
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frequently each facility might use particular 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 Information for Legitimacy Determination

EPA estimates that average cost of documenting and demonstrating 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 that 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 

"legitimacy 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 better 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 simplified 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 implementation 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 company 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 for 

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 conducted by the LCA member company, the 

company's estimates 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 approximately $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 
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million (annual), which is significantly 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 hundreds 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 decision 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/recycling 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 solid 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.
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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) persons legitimately recycling under any recycling exclusion or 

exemption where the hazardous constituents in the recycled products are not comparable or are 

unable to be compared to those in analogous products (unless the recycled product meets widely 

recognized commodity specifications or the hazardous secondary material is returned to the 

production process). In these cases, the persons recycling would be required to keep 

documentation of the legitimacy of their recycling. 

The Agency has determined that requiring 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 selfimplementing nature of the legitimacy 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 responds to the public comments are described below.

Estimate of facilities that will 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 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.

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 toxic 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 affected 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 
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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 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 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 

these 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 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 (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 eliminate the majority of examples of recycled products not meeting Factor 4 

and therefore has reduced the assumed rate of legitimacy documentation required.

Availability of Information 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).
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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 estimates made in the 2008 DSW ICR.

Company Survey Information

In response to the comment that provided information 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 enforcement 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. Therefore 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 casespecific 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 production 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 industry, while EPA is not able to make casespecific 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. 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" 
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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 industry, 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 that 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 compliance 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 from 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 clean-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 which 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 proposed 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 
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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 about 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, grounded 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, hundreds (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 analysis 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 those comments as 

described below.

Reduction in Future Environmental Damage

The potential future magnitude of the environmental damage reduction benefit is supported by 

the historical damage case data in EPA’s December 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 1982 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 $62.4 million in historical damages per year (2012$).
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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 skewed 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 described 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.

Improving 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 

more 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 improve 

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.

Reducing Liability and Uncertainty

Clearer, 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 VIII.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 proposal 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 
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materials. For example, 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 resulting 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 under the 2014 DSW 

final rule. EPA has significantly reduced the likelihood 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 enough 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 

the 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 remanufacturing the spent solvent back into the commercial grade solvent. 

This remanufacturing exclusion will help promote sustainable materials management by 

extending the productive use of these materials, which reduces the need for raw materials used 

and the environmental impacts associated with production of these materials. 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 proposed 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 
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requirements operating together on the regulated community. Therefore, EPA’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 imposed on scrap metal recyclers is set forth 

in detail in Attachment H to these comments. [0104, 0208]

(l) RESPONSE: The estimated impacts on small entities are presented in the RIA supporting the 

DSW revisions, which include the changes 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 

average 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 recycling 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 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. In other 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-based 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 regulation 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 eliminating 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 than 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 companies 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 with 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, expense, and 
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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 and for complying with the legitimacy 

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 

increased 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 Executive 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 the 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 mostlikely 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 onsite 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 payments, 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 disagrees 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 changes and their associated impacts.

(o) COMMENTS: One commenter objected to how the RIA characterized the wastestreams 

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 apply 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 document 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 
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typically associated 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 misunderstands 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 implies 

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 report 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 time 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 facility 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, duplicative 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 under 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 states 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 documentation 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 burden of the proposed additional requirements 

applicable to the pre-2008 recycling exclusions and exemptions. EPA did not anticipate at the 
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time of the proposal that the additional requirements, including meeting the legitimate recycling 

standard and the notification 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 the 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 has 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 is not necessary. The Agency has previously acknowledged the legitimacy of 

these recycling practices when it first promulgated the material-specific and industry-specific 

exclusions and exemptions, when at that time it took into consideration the legitimacy of the 

recycling practices. After review of the public comment, the Agency has determined that routine 

documentation of legitimacy is an unnecessary burden for persons legitimately recycling under 

the pre-2008 recycling exclusions and exemptions. In the case 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 the 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) COMMENTS: 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 actually 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 materials that are destined for recycling (see 76 

FR 44097, citing numerous sections of the statute and U.S. Brewers’ Association v. EPA, 600 F. 

2d 974 (D.C. Cir. 1979); 48 FR 14502–04, April 3, 1983; and 50 FR 616–618). The 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 hazardous 

secondary material posing significant risk to human health and the environment.
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(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 provisions. 

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 

conditions of approval. [0199, 0238]

(c) RESPONSE: EPA finds 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 facilities 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 facilities 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 under Revision 3, 

Revisions to the Definition of Legitimacy. However, as stated above, 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.

(e) COMMENTS: Some commenters said that EPA has significantly underestimated 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 all 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 the proposed rule. [0199, 0238] 

(e) RESPONSE: In the 2014 DSW final rule, 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. 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 and 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 between 
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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 under 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. 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 

these 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 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 (e.g., 

commodity grade scrap metal). Although not enough information is provided in the public 

comments 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 required.

(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 

million 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 exclusions. 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 
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some degree of managerial or legal review, preparation of transmittal documentation, and 

potentially a brief technical review to confirm the information contained in the submittal 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 in 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 existing 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 ongoing maintenance mode. [0238]

(h) RESPONSE: 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. These 

revisions serve to reduce the burden for documenting legitimacy as compared to the July 2011 

proposed rule.

(i) COMMENTS: One commenter said EPA grossly underestimates the time and cost involved 

in collecting the information necessary for the notifications. This commenter 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 managed 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 

certifications, 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 exclusions, will take orders 

of magnitude more time and money than estimated by EPA. [0238]

(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 action until further study is 

conducted.
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14.3 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 annualized 

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. Only 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 America’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 has 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 below the 

$100 million UMRA threshold, the 2014 DSW revisions is not an unfunded mandate based 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 is the state’s decision whether to adopt a deregulatory rule, 

and that states can benefit economically from the additional 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 
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consultation process for the development of Federal regulations 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 distribution 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 substantial 

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 “substantial direct 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 state/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 direct 

compliance costs” criterion.

14.5 - Executive Order 12898: Environmental justice 

[Note: comments related to technical aspects of the DSW Environmental Justice Analysis are 

found in Section 3 of this 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 recycling 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 identifying 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 pivotal question in defining solid 
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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 relevant to the discard 

inquiry.

As a matter of law, an Executive 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 

that 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 EPA 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 consider in exercising its 

discretion.

Thus, while EPA may have some discretion in very close cases to decide 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); Hazardous 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 disproportionate effects as a relevant factor.

In the specific context of hazardous secondary 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 problem.” 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 managed 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 
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unrelated to the question of whether hazardous secondary 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 authorities under the environmental statutes administered by the U.S. 

Environmental Protection Agency that may have contributive application in the effort to advance 

environmental justice notes the following: 

“The Resource Conservation and Recovery Act (RCRA) authorizes EPA to regulate the

generation, transportation, 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 hazardous 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 of 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 therefore the Agency needs adequate assurance that a 

conditional exclusion for these materials will not result in discarded material that would be 

subject to RCRA authorities to regulate hazardous waste. This may be especially important for 

hazardous secondary materials 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 decrease 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 disproportionately 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, December 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.
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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 

concerns

Two commenters said that public participation is unnecessary to determine EPA’s RCRA 

jurisdiction. One of the findings in EPA’s expanded environmental justice analysis is that there 

was insufficient public participation in the decision- making process. [76 Fed. Reg. 44,106.] To 

address 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 justice 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 this 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 discretion 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 regulate 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 has 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 applicable 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 participation in the 

development, revision, implementation, and enforcement of any regulation, guideline, 
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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 secondary materials originally intended for recycling and (2) the 

underlying perverse incentives of the recycling market to over-accumulate such hazardous 

secondary materials intended for recycling, resulting in discard of the material,. In other words, 

the transfer-based exclusion can exacerbate financial incentives for small and/or inexperienced 

businesses to take in more hazardous secondary materials than they actually can use, mishandle 

it, and even go out of business, as shown by the fact that bankruptcies or other types of business 

failures were associated with 66% of the recycling damage cases, resulting in multi-million 

dollar cleanups.

(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 potential 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 Environmental 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 RCRA 

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 entirely 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 equipment that might allow 

them at some future time to recycle hazardous secondary materials, and since other secondary 
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hazardous materials recycling activities (presumably) have a disparate impact on low income and 

minority communities, so too will scrap metal recyclers who enter into that additional line of 

business 35 See Environmental Justice Analysis of the Definition of Solid Waste (EPA-HQRCRA-2010- 0742-0004) (June 20, 2011), p. 81.] This basis is faulty for three reasons.

First, there is nothing in the record 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 

are, 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 (that 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 at 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 promulgated, 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 exclusions 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 scrap 

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 current 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 extension of 30, 59, 60 and 90 days. Commenters stated that the 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 

revisions; 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]
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(a) RESPONSE: EPA extended the comment period an additional 30 days.

(b) COMMENTS: 

Comments on Compliance with the Information Quality Act

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 access 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 correction. 

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 data 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 inaccurate 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 is “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. 300g1(b)(3)(A) & (B). 

The commenter stated that for the analyses EPA used to support the DSW rulemaking, 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 submitted14:

 A description of 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 Quality 

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.
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 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 correction. 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 the 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, including 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 promulgated in 1980, going back to 1982 unfairly and 

inappropriately stacks the deck in favor of finding a higher number of damage cases because it 

took many years for companies to figure out who was subject to the RCRA Subtitle C 

regulations. Additionally, these commenters noted that the vast majority of damage cases began 

operation prior to 1982 and thus contamination on these sites was likely the result of historic 

poor management during a period of little to no oversight. Commenters 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 greatly mischaracterized and 

 

15 See U.S. Environmental Protection Agency (epa.gov) Guidelines for Ensuring and Maximizing the Quality, 

Objectivity, Utility, and Integrity of Information Disseminated 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 (EPAHQ-RCRA-2002-0031-0355).
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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 knowledge of RCRA, blatant disregard for the law, or unavoidable accidents. 

These commenters noted that many of the damage cases involved civil or criminal violations, 

indicating that the problem was non-compliance with the regulations, not from a lack of 

regulations. [171]

Other commenters disagreed with EPA’s negative portrayal of the waste management industry 

and argued that EPA should have conducted more research to obtain an understanding of the 

necessary and positive role of the hazardous waste management industry. [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 hazardous 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, AMROX 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 because (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 of 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 1982, we agree 

that the facilities themselves may have begun operating earlier than the timeframe. However, the 

methodology for the analysis only includes facilities where the recycling operations occurred 

after 1982, and the environmental damages associated with those operations occurred after 1982. 

As a result, more than 600 damage cases were removed from consideration, leaving only those 
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cases that EPA was confident have a clear link between post-1982 recycling practices and 

environmental damage. 

Of the damage cases that met our criteria, we agree that for certain types of damage, such as 

groundwater or soil contamination, determining when exactly the damage occurred and which 

property owner caused the damage is difficult. However, in general, the damage cases include 

multiple types of damage and certain damage, such as abandonment of materials or observed 

violations of proper storage and containment, can be easily attributed to current facility owners 

and to post-1982 activities. For example, Alco Pacific, a lead recycling facility may have started 

operations in 1954, but it was 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 rainwater. Additionally, it wasin 1989 when Myers Drum, a drum 

reconditioning facility, was found to be storing 95% of their 20,000 drums on their side and that 

spillage, sump overflows, and structural failures were observed. In 1986, Continental Steel, 

which manufactured wire and rod products from scrap metal, abandoned their facility leaving 

220 drums of product material and 50 containers of lead-cadmium batteries on-site. These 

damages occurred well after RCRA and CERCLA became effective. 

Regarding the lack of information in some of its damage cases, as EPA stated in its 2007 

environmental problem study, many of the cases that were investigated were well documented. 

This was the case, for example, for many of the Superfund National Priority List (NPL) sites. 

However, in many other cases, it was not possible given the limitations of the study to document 

all facts. Often, there was considerable technical information as to the nature and extent of the 

contamination at the site, but relatively little information regarding the activities and 

circumstances that originally caused it. For some of the sites, we were able to collect only very 

basic information. However, for each site that was identified in the environmental problems 

study, we had sufficient information to determine that the damage resulted from recycling 

operations. Thus, we continue to maintain that the environmental problems study is appropriate 

to use in the development of this final rule.

EPA also disagrees with the commenter who argued that the environmental problems study only 

demonstrates non-compliance of existing regulations and therefore, does not justify the 

promulgation of tighter requirements under today’s final rule. On the contrary, the frequency of 

the damage cases, including violations of regulations demonstrates the need for greater, not less, 

oversight. 

Furthermore, as part of a separate analysis 17, EPA has considered whether recycling of 

hazardous secondary materials under the 2008 DSW final rule could result in increased risk to 

human health and the environment and determined it is a complex issue because of the 

interactions between how the regulations are written and how they are implemented. Under the 

2008 DSW final rule, EPA presumed that the conditions of the rule would prevent any increase 

in risk 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.
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take into account was whether the conditions of the rule would operate as effectively in the real 

world as the more detailed requirements of the RCRA hazardous waste regulations. 

A more detailed comparative analysis of the regulatory requirements under the 2008 DSW final 

rule with the hazardous waste regulations reveals potentially significant gaps in environmental 

protection under the 2008 DSW final rule. Examples of these gaps include the absence of 

measures to ensure compliance, incentives to accumulate larger volumes of hazardous secondary 

materials, the potential for increased releases, such as during storage and transportation of the 

hazardous secondary materials, the lack of prescriptive standards for storage and containment, 

potential issues associated with the interstate transport of hazardous secondary materials for 

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

RCRA is a preventative statute and by design seeks to prevent damage before it occurs; relying 

solely on enforcement without addressing the root causes of the damage could needlessly 

increase the frequency, severity, and cost of damage cases. Therefore, EPA has chosen to finalize 

the changes to the 2008 DSW final rule being promulgated today to address the significant gaps 

identified.

Finally, EPA disagrees with comments stating we have not considered the positive role of the 

hazardous waste management industry. In development of the DSW rulemakings, the Agency 

specifically conducted a study of successful recycling that examined how responsible generators 

and recyclers of hazardous secondary materials ensure that recycling is done in an 

environmentally safe manner. , As EPA noted in the 2008 DSW final rule, the successful 

recycling study indicates that many responsible generators examine the recycler's technical 

capabilities, business viability, environmental track record, and other relevant questions before 

sending hazardous secondary materials for recycling. Currently, these recycler audits, which 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 recycling, or lack thereof, results in the release 

of material to the environment. However, the fact that these companies are willing to incur the 

expense of auditing recyclers as a business practice is itself a marketplace affirmation that 

sending hazardous secondary materials to other companies for recycling involves some 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 commenter. 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 facility 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 from 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: 
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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 scrap metal recycling industry. The comment noted that scrap 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 sham recycling (the value of the recycled product is low, the prices 

of input materials or recycled products are volatile, recyclers have low net worth) do not apply to 

scrap metal recycling. [208-23]

(d) RESPONSE: EPA agrees with the comment that the conclusions from the market forces 

study, which are applicable to the recycling of most 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 provisions 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 effect 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 and 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 operations.

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 
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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 would 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, the 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 correlation 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 terms of this exclusion are financially sound and will not discard the hazardous secondary 

materials, or if the facility faces financial difficulties, that funds would have been set aside to 

address any issues and, therefore, these costs will not be imposed on the U.S. taxpayer 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 exclusion. However, the financial assurance condition is now one of the 

criteria that is evaluated under the verified recycler solid waste variance, allowing the state or 

EPA to verify that the financial assurance obtained by the reclamation facility or intermediate 

facility is sufficient and accessible (in contrast, the financial assurance condition in the 2008 

DSW transfer-based exclusion was self-implementing and not required to be reviewed by EPA 

or the authorized state prior to the facility beginning operation).

(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]
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(f) RESPONSE: As discussed in Section XIV of the preamble to the 2014 DSW rule, it 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)) stating that 

spent lead-acid batteries were not eligible for the generator-controlled exclusion or the transferbased 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). However, 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 

recycling 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 exhibiting a hazardous 

waste characteristic and/or meeting the hazardous waste listing 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 recycled 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 if 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 hazardous waste. The commenter 

stated that if 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 because the 

generator has no control over whether 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 
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causes a hazardous waste to become subject to regulation", and therefore, 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 produces 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 exclusion, 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 clarification as to whether the definition of "hazardous secondary material" in 

260.10, includes "commercial chemical products." The commenter noted Section 260.10 defines 

"hazardous 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 by its very nature, the term "secondary" suggests that the material has been used or is 

a byproduct of some type of operation, not a commercial chemical product, and that the definition gives 

as examples: "spent material, by-product, or sludge." The commenter encouraged EPA to clarify that the 

term "hazardous secondary material" in 260.10 does not include "commercial chemical 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 reference 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.
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4. Section 261.2(c)(3) references 261.2(a)(2)(ii), 261.4(a)(24), and 261.4(a)(25), each of which 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 practical 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, and 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 final 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 byproduct ash residue to reclaim abandoned mine 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” exempt wastes [269], correction 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 

responding to these comments in this document.
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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.
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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 Inc.

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 CoOperative, 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 Company, 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 State 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)