SUPPORTING STATEMENT FOR 

EPA INFORMATION COLLECTION REQUEST NUMBER 2310.02

RCRA DEFINITION OF SOLID WASTE

May 10, 2012

Office of Solid Waste and Emergency Response

United States Environmental Protection Agency

Washington, D.C. 20460
i

TABLE OF CONTENTS

1. IDENTIFICATION OF THE INFORMATION COLLECTION ..................................... 1

1(a) Title and Number of the Information Collection 1

1(b) Short Characterization 1

2. NEED FOR AND USE OF THE COLLECTION............................................................. 1

2(a) Need and Authority for the Collection 1

2(b) Practical Utility and Users of the Data 9

3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

13

3(a) Nonduplication 13

3(b) Public Notice 13

3(c) Consultations 13

3(d) Effects of Less Frequent Collection 13

3(e) General Guidelines 14

3(f) Confidentiality 14

3(g) Sensitive Questions 14

4. THE RESPONDENTS AND THE INFORMATION REQUESTED ............................ 14

4(a) Respondents and NAICS Codes 14

4(b) Information Requested 15

5. THE INFORMATION COLLECTED: AGENCY ACTIVITIES, COLLECTION 

METHODOLOGY, AND INFORMATION MANAGEMENT................................... 57

5(a) Agency Activities 57

5(b) Collection Methodology and Management 64

5(c) Small Entity Flexibility 64

5(d) Collection Schedule 64

6. ESTIMATING THE HOUR AND COST BURDEN OF THE COLLECTION ............ 75

6(a) Estimating Respondent Burden Hours 75

6(b) Estimating Respondent Costs 75

6(c) Estimating Agency Hour and Cost Burden 76

6(d) Estimating the Annual Respondent Universe and Total Hour and Cost Burden

76

6(e) Bottom Line Hour and Cost Burden 85

6(f) Reasons for Change In Burden 86

6(g) Public Burden Statement 86
1

1. IDENTIFICATION OF THE INFORMATION COLLECTION

1(a) Title and Number of the Information Collection

This Information Collection Request (ICR) is entitled “ RCRA Definition of Solid 

Waste,” EPA ICR Number 2310.02, OMB Number 2050-0202. 

1(b) Short Characterization

The U.S. Environmental Protection Agency (EPA) has published final revisions to 

the definition of solid waste that excludes certain hazardous secondary materials from 

regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA), as 

amended. Specifically, EPA has amended 40 CFR Part 261 to provide that hazardous 

secondary materials reclaimed under the control of the generator are not solid wastes if 

specified conditions are met. EPA has also amended Part 261 to provide that hazardous 

secondary materials that are generated and then transferred to another person for the 

purpose of reclamation are not solid waste, provided that specified conditions are met. In 

addition, EPA has established conditions for the export of excluded materials, as 

specified. Finally, EPA has finalized other amendments to address particular issues (e.g., 

it has established standards in Part 260 to enable a person to apply to EPA for a formal 

determination that a material is not discarded and therefore not a solid waste). The 

purpose of the amendments is to codify the RCRA concept of “legitimate recycling” and 

to respond to court decisions concerning the definition of solid waste. 

In Sections 1 through 5 of this document, EPA presents a comprehensive 

description of the information collection requirements in this ICR. In Section 6, EPA 

estimates the total annual hour and cost burden to respondents associated with these new 

paperwork requirements. In addition, EPA estimates the total annual burden savings to 

generators and subsequent handlers for no longer being subject to the existing RCRA 

information collection requirements for the excluded materials.

2. NEED FOR AND USE OF THE COLLECTION

2(a) Need and Authority for the Collection

The regulations are promulgated under the authority of sections 2002, 3001, 3002, 

3003, 3004, 3007, 3010, and 3017 of RCRA, as amended by the Hazardous and Solid 

Waste Amendments of 1984 (HSWA).

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR

EPA has established the certification requirement for materials that are generated 

and reclaimed under the control of the generator because of existing complexities in 

corporate ownership and liability. The certification is needed to increase the company’s
2

awareness and accountability for ensuring that the generator and reclamation facilities are 

in fact under its ownership. The certification also may be needed by regulators (e.g., onsite inspectors) to verify compliance.

NON-WASTE DETERMINATIONS

The intent of the non-waste determination petition process is to provide 

petitioners with an administrative procedure for receiving a formal determination that 

their material is not a solid waste. This process is available in addition to the solid waste 

exclusions. Facilities may choose to continue to self-implement the waste determination 

requirements of 40 CFR Part 261 and, for the vast majority of cases, self-implementation 

will still be the most appropriate approach. However, for cases where there is ambiguity 

about whether a secondary material is a solid waste, this process may be needed to 

provide regulatory certainty for both the facility and Agency. 

NOTIFICATION

EPA has established the notification requirements for generators, toll 

manufacturers, tolling contractors, intermediate facilities and reclaimers to provide basic 

information to regulatory agencies about who will be managing hazardous secondary

materials under the exclusions and the types of materials that will be reclaimed. EPA 

believes its right to require such information is inherent in its authority to determine 

whether a material is discarded. EPA considers this to be the minimum information 

needed to enable credible evaluation of the status of a material under RCRA. 

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

EPA has established conditional exclusions from the definition of solid waste for 

hazardous secondary materials as specified. Since there is some potential for 

mismanagement of these materials in the absence of any regulatory controls, the 

exclusions specify certain conditions that must be satisfied by the generator facility and, 

if applicable, the intermediate and reclamation facilities to whom the materials are 

transferred. EPA’s assessment that conditions are needed for recycling of excluded 

material has been influenced by recycling studies that EPA conducted (e.g., analyses of 

environmental problems associated with recycling of hazardous secondary materials). 

Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

This supporting statement describes the need for the information collection 

requirements of these exclusions under “Certifications for Hazardous Secondary Material 

Generated and Reclaimed under the Control of the Generator” and “Notification.”

Exclusion at 40 CFR 261.4(a)(24)

Contractual arrangements are needed between the hazardous secondary material 

generator and intermediate facility where the management of the hazardous secondary
3

material is not addressed under a Part B permit or interim-status standards, as required 

under section 261.4(a)(24)(v)(B). This provision ensures that the hazardous secondary

material is sent to the reclamation facility identified by the hazardous secondary material 

generator. Without these contractual arrangements, a generator may not be able to ensure 

that its waste is shipped to the appropriate reclaimer that is participating under the 

exclusion. EPA believes such contracts are a standard business practice.

In order to demonstrate that the hazardous secondary materials will not be 

discarded, generators who transfer their hazardous secondary materials to a third party

must have a reasonable understanding of who will be reclaiming the materials and how 

they will be managed and reclaimed and a reasonable assurance that the recycling 

practice is safe and legitimate. To gain this understanding, the generator must make a 

reasonable effort under section 261.4(a)(24)(v)(B) to ensure that the reclaimer intends to 

legitimately recycle the material pursuant to section 260.43(a) and not discard it, and that 

the reclaimer (and any intermediate facility) will manage the material in a manner that is 

protective of human health and the environment. 

EPA finds that the reasonable efforts provision is a critical factor in determining 

when hazardous secondary materials sent to another party for reclamation are not 

discarded. According to a study of successful recycling practices, some generators of 

hazardous secondary materials routinely perform audit activities and inquiries to 

determine whether the entity to which they are sending hazardous secondary materials is 

equipped to responsibly and legitimately reclaim and manage those materials without the 

risk of releases or other environmental damage. These recycling and waste audits of other 

companies’ facilities form a backbone of many of the transactions in the hazardous 

secondary materials markets. As noted in the 2007 supplemental proposal, EPA’s study

of good practices for recycling quotes one large recycling and disposal vendor as stating 

that of its new customers, 60 percent of the large customers and 30–50 percent of the 

smaller customers now perform audits on them. Thus, although these practices are not 

universal, they do indicate that there are currently many generators who recognize the 

risk of third-party recyclers discarding their hazardous secondary materials and who take 

responsibility to ensure that this discard does not occur. EPA has developed a reasonable 

efforts provision that is objective and is based on the types of information that are 

typically gathered in environmental audits currently performed by generators. 

EPA is requiring that generators make reasonable efforts every three years, at a 

minimum, in order to ensure generators adequately manage their risk and are attuned to 

changes at reclamation facilities and intermediate facilities with which they are partners. 

EPA believes that this schedule reflects an average time frame for re-evaluating facilities. 

By specifying periodic updates for reasonable efforts every three years at a minimum, 

EPA in no way intends to limit a generator to conducting evaluations only every three 

years. In fact, EPA expects that any generator who has concerns about an intermediate or 

reclamation facility, or who gains new knowledge of significant changes or extraordinary

situations at such facilities, would conduct reasonable efforts regardless of the minimum 

required update schedule. For example, if a hazardous secondary material generator 

conducted reasonable efforts in the first year it took advantage of the exclusion, prior to 
4

transferring materials to an intermediate facility, and then again conducted reasonable 

efforts in the second year upon learning about a significant change at the intermediate 

facility (such as bankruptcy), the generator would be required to update reasonable 

efforts three years later during the generator’s fifth year of taking advantage of the 

exclusion.

Documentation and certification are both necessary requirements of the 

reasonable efforts condition. Documentation of the specified questions will support a 

hazardous secondary material generator’s assertion that it affirmatively answered the 

questions and is in compliance with the regulations. It will also facilitate any review by 

regulatory authorities investigating whether the conditions of the transfer-based exclusion 

are satisfied and help delineate liability under RCRA if the materials were discarded. 

Having an authorized representative certify reasonable efforts is critical for guaranteeing 

accountability at the generator facility for meeting the condition and for ensuring that the 

act of making reasonable efforts is in fact genuine. The certification is also necessary in 

order to allow for the “flexible” documentation requirement that does not specify a 

particular format. Since individual generators may use any form of documentation, EPA 

believes it is critical for all generators to uniformly certify that the condition is satisfied. 

Furthermore, EPA finds both reasonable efforts requirements (documentation and 

certification) to be appropriate based on its understanding that third-party auditors do not 

generally draw any conclusions based on their audits, but simply report the results to 

generators. While a generator may use any information for making reasonable efforts, 

the certification statement would affirm that a generator used information that is gathered 

and documented during the reasonable efforts inquiry, similar to how generators currently 

draw conclusions based on third-party audit documents. 

The requirement for documentation and certification of reasonable efforts is not 

unlike existing forms of RCRA documentation that incorporate certifications, such as the 

RCRA Site ID Form, RCRA financial assurance requirements, and the Uniform 

Hazardous Waste Manifest.

EPA believes that certifying reasonable efforts is a necessary and minimally

burdensome requirement for ensuring that the reasonable efforts condition is met prior to 

transferring hazardous secondary materials to a reclamation facility. EPA strongly 

believes that requiring the signature of an authorized representative of the generator 

company, who can be any appointed company representative, requires a necessary level 

of management oversight and is critical for ensuring accountability for satisfying the 

condition. In the event of an enforcement action, EPA believes that the certification will 

lend support to generators needing to prove that the reasonable efforts requirement was 

met. The certification also reflects that third parties may conduct audits on behalf of the 

generator. In such cases, the certification shows that the generator’s management has 

considered and evaluated the third-party information. Finally, EPA believes that 

requiring a generator to certify the reasonable efforts condition would provide them the 

flexibility to use audits or other information necessary in certifying that the condition of 

the exclusion was met. 
5

Records retained by the generator under section 261.4(a)(24)(v)(D) and (E) of 

each shipment are needed so that the generator can demonstrate to regulators (e.g., in an 

on-site inspection) that it is in compliance with the conditions (e.g., that its excluded 

material is being sent to, and received by, the reclamation facility). The records enable 

regulators to evaluate the generator=s compliance (e.g., a regulator can use the records to 

track shipments from generator to reclaimer). The confirmations are also needed so that 

the generator is accountable for the delivery of its excluded materials to the appropriate 

destination.

Records retained by the intermediate and reclamation facility under section 

261.4(a)(24)(vi)(A) and (C) are needed to enable the effective oversight of their 

activities. The records enable regulators (e.g., on-site inspectors) to learn about the 

shipments of the excluded materials received (e.g., quantity and types). For example, the 

records would be important in identifying the generators of the excluded materials 

received by the facility.

Export Requirements at 40 CFR 261.4(a)(25)

The export requirements provide notice-and-consent procedures for the export 

shipments. Such procedures help ensure, for example, that the materials will not be 

discarded and give the receiving country an opportunity to respond to the intended 

shipment (e.g., request additional information). 

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 

HAZARDOUS SECONDARY MATERIALS

EPA has established the financial requirements of 40 CFR Part 261 Subpart H 

because it has found that the financial health of a reclamation facility can be a crucial 

consideration in determining whether it is likely to discard a material. EPA has found 

that an examination of a company’s finances is an important part of many environmental 

audits. In addition, EPA found that bankruptcies or other types of business failures were 

associated with 66 percent of the damage cases in a study and a low net worth of a firm 

can be a strong indication of a sub-optimal outcome of recycling.

To address the issue of the correlation of financial health with the absence of 

discard, EPA is requiring owner/operators of intermediate and reclamation facilities to 

obtain financial assurance as a condition of the exclusion under section 261.4(a)(24) and 

(25). The financial assurance requirements will help ensure that the owner/operators who 

operate under the terms of this exclusion are financially sound. 

In addition, by obtaining financial assurance, the owner/operator is making a 

direct demonstration that it will not abandon the hazardous secondary material. Discard 

through abandonment was a major cause of damages identified in an environmental 

problems study reviewed by EPA. Of the 208 damage cases, 69 (33%) involved 

abandoned materials. By obtaining financial assurance, a reclaimer (or intermediate 

facility) is demonstrating that even if events beyond his control make his operations 
6

uneconomical, the hazardous secondary material will not be abandoned.

Cost Estimate

Because hazardous secondary material that loses the exclusion may have to be 

disposed of as a hazardous waste and the facility may have to be closed as a hazardous 

waste facility in accordance with the requirements of 40 CFR Part 265, the owner or 

operator must have a detailed written estimate in current dollars of performing this work. 

The requirements are designed so that if the State or EPA must close a facility because of 

an owner or operator’s failure, there will be adequate funds to do so. The requirements 

for the cost estimate therefore are based upon the point when the extent and manner of 

the facility’s operation would make these activities the most expensive. 

Financial Assurance Condition

EPA is specifying that an owner or operator of a reclamation or intermediate 

facility must establish financial assurance as a condition of the exclusion under section 

261.4(a)(24) and (25). He must choose from the options as specified: trust fund, surety 

bond guaranteeing payment into a trust fund, letter of credit, insurance, financial 

test/corporate guarantee, or a combination of instruments. If the facility violates the 

exclusion, EPA can invoke the instruments to ensure that the hazardous materials at the 

facility are removed and the facility is decontaminated/cleaned up. These instruments are 

the same types as those allowed in Part 265 and have been found to be effective for these 

purposes. 

Use of Financial Mechanisms for Multiple Facilities 

These provisions, found at section 261.143(g), are needed because a company

may own/operate multiple facilities. The company may find it beneficial to combine 

these facilities under a single instrument. For example, a company may be able to use the 

financial test to satisfy the financial assurance requirements for all of its facilities under 

the exclusion. This would relieve it of the need to establish separate financial 

instruments for each.

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

The provisions for releasing the reclamation or intermediate facility from the 

financial assurance requirements, found in 40 CFR 261.143(h) and (i), are equivalent to 

those under 40 CFR 265.143(h). Because 40 CFR 265.143(h) relies on receiving a 

certification (per 40 CFR 265.115) that the unit was closed per the approved closure plan 

in section 265.112, language from the closure plan requirement found in section 265.112 

and from the certification requirement found in section 265.115 has been included in 

section 261.143(h). However, because the units are excluded, they are not subject to the 

RCRA Subtitle C closure requirements. Thus, instead of a “closure plan,” the regulations 

require submission of a plan at least 180 days prior to the date that owner or operator 
7

expects to cease operating under the exclusion in order for the owner or operator to be 

released from the financial assurance requirements.

The plan is needed to describe the owner/operator’s approach for removing all 

hazardous secondary material residues in a manner that is protective of human health and 

the environment. The plan goes through the same administrative review process as a 40 

CFR Part 265 closure plan, because that would ensure that the reclamation or 

intermediate facility has arranged to appropriately manage the hazardous secondary

materials and residuals and not abandon them and would also provide certainty to the 

facility that EPA would agree with his plan.

The certification is needed to formally notify EPA that all hazardous materials 

have been removed from the unit and the unit has been decontaminated in accordance 

with the approved plan. A signature from a qualified Professional Engineer gives EPA 

assurance that this has been done properly.

Coverage for Sudden and Non-Sudden Accidental Occurrences

EPA is specifying that an owner/operator of a reclamation or intermediate facility

must have liability coverage for sudden and nonsudden accidental occurrences, as 

specified. The owner or operator must have and maintain liability coverage in the 

amounts specified in the regulations. This liability coverage may be demonstrated 

through the options as specified in the regulations: liability insurance, financial 

test/guarantee, letter of credit, surety bond guaranteeing payment into a trust fund, trust 

fund, or a combination of instruments. This coverage is needed to ensure that the facility 

is financially responsible and capable of addressing accidents without jeopardizing its 

ability to continue operating in compliance with the exclusion. 

Combination of Financial Mechanisms 

These provisions, found at section 261.147(a)(6) and (b)(6), are necessary

because some owner/operators may not be able to fulfill their financial obligations for 

liability coverage through a single instrument. These provisions allow owner/operators to 

combine two or more instruments in order to meet their required level of coverage.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7) 

These provisions are needed to ensure that owner/operators notify EPA when a 

claim or court order, as specified, occurs that could result in financial responsibility for 

damages or injury arising from the facility. Payment of claims could decrease the 

facility’s ability to meet the required levels of financial assurance.

Request for Variance

The variance is needed because facility-specific factors may warrant a different 

level of financial responsibility than required in the regulations for sudden and/or 
8

nonsudden accidental occurrences. The variance provisions enable an owner/operator to 

demonstrate to EPA that the levels of financial responsibility in the regulations are not 

consistent with the degree and duration of risk associated with the facility’s operations. 

If granted, the variance will take the form of an adjusted level of required liability

coverage. This level is based on the Regional Administrator's assessment of the degree 

and duration of risk associated with the ownership or operation of the facility or group of 

facilities.

Adjustment by the Regional Administrator

The adjustment procedures, found at section 261.147(d), are needed because the 

level of financial responsibility required in the regulations for liability coverage may not 

be consistent with the degree and duration of risk associated with a facility’s operation. 

These provisions enable EPA to adjust the level of financial responsibility based on its 

assessment of the degree and duration of risk associated with the facility. In addition, if 

EPA determines that there is a significant risk to human health and the environment from 

nonsudden accidental occurrences resulting from the operations of a facility that is not a 

surface impoundment, pile, or land treatment facility, he may require that an owner or 

operator of the facility comply with section 261.147(b).

Incapacity of Owners or Operators, Guarantors, or Financial Institutions 

These provisions, found at section 261.148, are needed to ensure that 

owner/operators notify EPA in case of commencement of voluntary or involuntary

bankruptcy proceedings, as specified. EPA found that bankruptcies or other types of 

business failures were associated with 66 percent of the damage cases in a study and a 

low net worth of a firm can be a strong indication of a sub-optimal outcome of recycling. 

This notification will inform EPA that the facility is having difficulty meeting its 

financial obligations.

Use of State-Required Mechanisms 

These provisions, found at section 261.149, are needed to provide for 

owner/operators to use State-required financial mechanisms to meet the requirements of 

section 261.143 or 261.147 if EPA determines that the State mechanisms are at least 

equivalent to the financial mechanisms specified in Subpart H. These procedures may be 

necessary in States in which EPA is administering the financial assurance requirements, 

but where the State has regulations that include requirements for financial assurance of 

closure or liability coverage.

State Assumption of Responsibility

These provisions, found at section 261.150, are needed in cases in which a State 

either assumes legal responsibility for an owner/operator's compliance with the closure or 

liability requirements or assures that funds will be available from State sources to cover 

those requirements. The provisions enable EPA to determine if the State's assumption of 
9

responsibility is at least equivalent to the financial mechanisms specified in Subpart H 

and to grant States the assumption of responsibility.

2(b) Practical Utility and Users of the Data

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR

EPA is requiring the certification requirement for materials that are generated and 

reclaimed under the control of the generator because of existing complexities in corporate 

ownership and liability. The certification will be used to hold the company accountable 

for knowing and complying with the definition of “hazardous secondary materials 

generated and reclaimed under the control of the generator” and to enable regulatory

authorities to determine when facilities are eligible for this exclusion.

NON-WASTE DETERMINATIONS

An applicant may apply to the Administrator for a formal determination that its 

material is not a solid waste. For cases where there is ambiguity about whether a 

secondary material is a solid waste, this process may be used to provide regulatory

certainty for both the facility and Agency. 

NOTIFICATION

The regulatory agencies will use the notifications from the generators, toll 

manufacturers, tolling contractors, intermediate facilities and reclaimers to learn basic 

information about who will be managing hazardous secondary materials under the 

exclusion and the types of materials that will be recycled. The information will help the 

agencies evaluate the status of the material under RCRA.

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

This supporting statement addresses the utility and users of the information 

collection requirements of these exclusions under “Certifications for Hazardous 

Secondary Material Generated and Reclaimed under the Control of the Generator” and 

“Notification.”

Exclusion at 40 CFR 261.4(a)(24)

Contractual arrangements are used by the hazardous secondary materials 

generator and intermediate facility under section 261.4(a)(24)(v)(B) to ensure that the 

hazardous secondary material is sent to the reclamation facility identified by the 

generator. 
10

The reasonable efforts required under section 261.4(a)(24)(v)(B) are used to 

ensure that the generator’s materials will be recycled legitimately, and otherwise 

managed in a manner that is protective of human health and the environment. The 

generator must keep documentation, including a certification, of its efforts under 

261.4(a)(24)(v)(C). EPA believes the questions laid out in the regulations are normally 

considered by responsible generators. However, the questions will reinforce the need for 

generators to ask these questions. Generators must keep records of their reasonable 

efforts, including certifications, to demonstrate their compliance with the regulations. 

The certification statement under section 261.4(a)(24)(v)(C) is used to hold the 

generator accountable for ensuring that the reasonable efforts condition is met prior to 

transferring hazardous secondary materials to a reclamation facility. Generators would 

provide a necessary level of management oversight for ensuring compliance with the 

condition. In the event of an enforcement action, generators could use the certification to 

prove that the reasonable efforts requirement was met. EPA would use the certification 

to ensure that the generators reviewed the reasonable effort documentation, including any 

information derived from audits conducted by third parties.

Records retained by the generator under section 261.4(a)(24)(v)(D) and (E) of 

each shipment are used by the generator to confirm and demonstrate that its shipments of 

excluded materials were received by the appropriate facilities. The records are used by 

regulators to confirm this.

Records retained by the intermediate and reclamation facility under section 

261.4(a)(24)(vi)(A) and (C) are used by regulators (e.g., on-site inspectors) to learn about 

the shipments of the excluded materials (e.g., to learn how much material is being 

received and reclaimed under the exclusion). 

Export Requirements at 40 CFR 261.4(a)(25)

The requirements at section 261.4(a)(25) provide notice-and-consent procedures 

for export shipments. For example, the receiving country will have the opportunity to 

review the exporter’s notification and approve or deny the export shipment. Export of 

the material is prohibited unless the receiving country consents to the intended export.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 

HAZARDOUS SECONDARY MATERIALS

Cost Estimate

The cost estimate is used to determine the level of financial assurance needed by 

the facility. The cost estimating requirements are designed so that if a State or EPA must 

close a facility because of an owner or operator’s failure, there will be adequate funds to 

do so. 
11

Financial Assurance Condition

If the conditions of the exclusion are violated (including the condition to maintain 

financial assurance), then the hazardous secondary material is a hazardous waste and 

EPA can invoke the financial instruments to manage the materials and wastes and clean 

up/decontaminate the facility as necessary. By obtaining financial assurance, a reclaimer 

(or intermediate facility) is demonstrating that even if events beyond his control make his 

operations uneconomical, the hazardous secondary material will not be abandoned.

Use of Financial Mechanisms for Multiple Facilities

These provisions, found at section 261.143(g), may be used by companies that 

own/operate multiple facilities. These companies may find it advantageous to combine 

these facilities under a single instrument. 

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

The plan submitted under section 261.143(h) is used by the owner or operator to 

remove all hazardous secondary material residues as specified. The certification from the 

owner or operator and a qualified Professional Engineer certifies that all hazardous 

secondary materials have been removed from the unit and the unit has been 

decontaminated in accordance with the approved plan. This information is used by EPA 

to ensure management of the materials in a manner that is protective of human health and 

the environment, prior to releasing the owner/operator from the financial assurance 

requirements.

Coverage for Sudden and Non-Sudden Accidental Occurrences

The requirements for liability coverage are used by facilities to prepare financially 

for accidental occurrences. This coverage is used to ensure that the facility is financially

responsible and capable of addressing accidents (e.g., paying claims) without 

jeopardizing its ability to continue operating in compliance with the exclusion. These 

instruments are the same types as those allowed in Part 265 and have been found to be 

effective for these purposes. 

Combination of Financial Mechanisms

These provisions, found at section 261.147(a)(6) and (b)(6), may be used by

owner/operators who cannot fulfill their financial obligations for liability coverage 

through a single instrument. Under these provisions, they can combine two or more 

instruments to meet their required level of coverage, as specified.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7) 

These provisions are used by owner/operators to notify EPA whenever a claim or 
12

court order, as specified, occurs that results in liability for damages or injury arising from 

the facility. EPA uses the information to monitor the financial health of the facility and 

its ability to satisfy its financial obligations under the exclusion.

Request for Variance 

The variance provisions, found at section 261.147(c), are used by owner/operators 

to demonstrate to EPA that the levels of financial responsibility in the regulations are not 

consistent with the degree and duration of risk associated with the facility’s operations. 

If granted, the variance will take the form of an adjusted level of required liability

coverage. EPA will base the adjusted level on its assessment of the degree and duration 

of risk associated with the ownership or operation of the facility or group of facilities.

Adjustment by the Regional Administrator

These procedures, found at section 261.147(d), are used by EPA to adjust a 

facility’s level of financial responsibility based on its assessment of the degree and 

duration of risk associated with the facility. EPA will base the adjusted level on its 

assessment of the degree and duration of risk associated with the ownership or operation 

of the facility or group of facilities. In addition, if EPA determines that there is a 

significant risk to human health and the environment from nonsudden accidental 

occurrences resulting from the operations of a facility that is not a surface impoundment, 

pile, or land treatment facility, he may require that an owner or operator of the facility 

comply with the financial requirements for nonsudden accidental occurrences. 

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

These provisions, found at section 261.148, are used by owner/operators to notify

EPA in case of commencement of voluntary or involuntary bankruptcy proceedings, as 

specified. EPA found that bankruptcies or other types of business failures were 

associated with 66 percent of the damage cases in a study and a low net worth of a firm 

can be a strong indication of a sub-optimal outcome of recycling. EPA uses this 

information to learn about the financial health of the facility.

Use of State-Required Mechanisms

These provisions, found at section 261.149, provide for owner/operators to use 

State-required financial mechanisms to meet the requirements of section 261.143 or 

261.147 if EPA determines that the State mechanisms are at least equivalent to the 

financial mechanisms specified in Subpart H. These procedures may be used in States in 

which EPA is administering the financial assurance requirements, but where the State has 

regulations that include requirements for financial assurance of closure or liability

coverage.
13

State Assumption of Responsibility

These provisions, found at section 261.150, are used in cases in which a State 

either assumes legal responsibility for an owner/operator's compliance with the closure or 

liability requirements or assures that funds will be available from State sources to cover 

those requirements. Under the provisions, EPA can determine if the State's assumption 

of responsibility is at least equivalent to the financial mechanisms specified in Subpart H 

and to grant States the assumption of responsibility.

3. NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION 

CRITERIA

3(a) Nonduplication

None of the information required by this ICR is duplicative with any information 

required by the existing Federal regulations.

3(b) Public Notice

In compliance with the Paperwork Reduction Act of 1995, EPA issued a public 

notice in the Federal Register on December 6, 2011 (76 FR 76159) and provided a 60 day

comment period for this ICR. No comments were received.

3(c) Consultations

The table below identifies the organizations contacted. Their feedback is 

reflected in the burden assumptions of this ICR, as appropriate.

Organizations EPA Contacted for ICR Preparation 

Name of Organization Name of Representative Phone Number

Alcoa Corporation Gary Crouth 412-553-4287

CHWMEG Jeff Sacre 412-826-3056

Ford Motor Company Susan Rokosz 313-322-3826

Giant Resource Recovery Stan Ray 803-773-1400

Intel Corporation Cherry Moyer 480-715-2495

Monsanto Company Mary Shaffer 314-694-3883

Safety Kleen Systems, Incorporated Mike Fusco and Lin Longshore 610-558-3186

Veolia ES Technical Solutions 

(formerly Onyx Environmental 

Services)

Thomas Baker 973-691-7330

3(d) Effects of Less Frequent Collection

EPA has carefully considered the information collection burden imposed by this 

ICR. EPA is confident that those activities required of respondents are necessary, and to 

the extent possible, the Agency has attempted to minimize the burden imposed. A 
14

number of the required activities, for example, will be performed once (e.g., one-time 

certifications). In addition, a number of other requirements can be satisfied by activities 

already being undertaken by respondents. For example, EPA has found that responsible 

generators currently make reasonable efforts to evaluate prospective reclaimers, as 

required by the rule. EPA believes strongly that, if the minimum information collection 

requirements of the rule are not met, EPA will not be able to ensure that the hazardous 

secondary materials are being properly managed and do not pose a threat to human health 

and the environment.

3(e) General Guidelines

This ICR adheres to the guidelines stated in the Paperwork Reduction Act of 

1995, Office of Management & Budget (OMB) implementing regulations, EPA’s ICR 

Handbook, and other applicable OMB guidance.

3(f) Confidentiality

Participation under the exclusions is voluntary. EPA does not expect to deem any

information collected under the rule to be CBI (Confidential Business Information). If 

such a claim were asserted, EPA must and will treat the information in accordance with 

the applicable regulations (e.g., 40 CFR Part 2, Subpart B). EPA also will assure that this 

information collection complies with the Privacy Act of 1974 and OMB Circular 108.

3(g) Sensitive Questions

No questions of a sensitive nature are included in the information collection 

requirements associated with the rule.

4. THE RESPONDENTS AND THE INFORMATION REQUESTED

4(a) Respondents and NAICS Codes

The following is a list of North American Industry Classification System 

(NAICS) codes associated with industries most likely affected by the information 

collection requirements covered in this ICR.

NAICS Codes of Potentially Affected Industries

Industry Sector NAICS Codes

Agriculture, Forestry, Fishing and Hunting 11

Mining 21

Utilities 22

Construction 23

Manufacturing 31
15

Industry Sector NAICS Codes

Manufacturing 32

Manufacturing 33

Wholesale Trade 42

Retail Trade 44, 45

Transportation 48, 49

Information 51

Finance and Insurance 52

Real Estate, Rental, Leasing 53

Professional, Scientific & Technical Services 54

Management of Companies and Enterprises 55

Administrative Support, Waste Management & Remediation 56

Educational Services 61

Health Care & Social Assistance 62

Arts, Entertainment, Recreation 71

Accommodation and Food Services 72

Other Services 81

Public Administration 92

4(b) Information Requested

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR

40 CFR 260.10 provides that “hazardous secondary material generated and 

reclaimed under the control of the generator” means: (1) that such material is generated 

and reclaimed at the generating facility (for purposes of this paragraph, generating 

facility means all contiguous property owned, leased, or otherwise controlled by the 

hazardous secondary material generator); or (2) that such material is generated and 

reclaimed at different facilities, if the reclaiming facility is controlled by the generator or

if both the generating facility and the reclaiming facility are controlled by a person as 

defined in section 260.10, and if the generator provides one of the certifications as 

specified. For purposes of this paragraph, “control” means the power to direct the 

policies of the facility, whether by the ownership of stock, voting rights, or otherwise, 

except that contractors who operate facilities on behalf of a different person as defined in 

section 260.10 shall not be deemed to “control” such facilities; or (3) that such 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 provides 

a certification as specified. For purposes of this paragraph, tolling contractor means a 

person who arranges for the production of a product or intermediate made from specified 

unused materials through a written contract with a toll manufacturer. Toll manufacturer 
16

means a person who produces a product or intermediate made from specified unused 

materials pursuant to a written contract with a tolling contractor.

(i) Data items

 A certification from the generator stating one of the following:

- “On behalf of [insert generator facility name], I certify that this 

facility will send the indicated hazardous secondary material to 

[insert reclaimer facility name], which is controlled by [insert 

generator facility name] and that [insert the name of either facility] 

has acknowledged full responsibility for the safe management of 

the hazardous secondary material;” or 

- “On behalf of [insert generator facility name], I certify that this 

facility will send the indicated hazardous secondary material to 

[insert reclaimer facility name], that both facilities are under 

common control, and that [insert name of either facility] has 

acknowledged full responsibility for the safe management of the 

hazardous secondary material.” 

 A certification from the tolling contractor stating 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.” 

(ii) Respondent activities

 The generator (including tolling contractor) must prepare the certification.

NON-WASTE DETERMINATIONS

Application for Non-Waste Determination

40 CFR 260.33(a) provides that an applicant must apply to the Administrator for a 

variance or non-waste determination. The application must address the relevant criteria 

contained in section 260.31, 260.32, or 260.34, as applicable.

Section 260.34(a) provides that an applicant may apply to the Administrator for a 
17

formal determination that a hazardous secondary material is not discarded and therefore 

not a solid waste. The determinations will be based on the criteria contained in section 

260.34(b) or (c), as applicable. If an application is denied, the hazardous secondary

material might still be eligible for a solid waste variance or exclusion (for example, one 

of the solid waste variances under section 260.31). Determinations may also be granted 

by the State if the State is either authorized for this provision or if the specified 

conditions are met.

Section 260.34(b) provides that the Administrator may grant a non-waste 

determination for hazardous secondary material which is reclaimed in a continuous 

industrial process if the applicant demonstrates that the hazardous secondary material is a 

part of the production process and is not discarded. The determination will be based on 

whether the hazardous secondary material is legitimately recycled as specified in section 

260.43 and on the criteria under paragraphs (b)(1)-(4).

Section 260.34(c) provides that the Administrator may grant a non-waste 

determination for hazardous secondary material which is indistinguishable in all relevant 

aspects from a product or intermediate if the applicant demonstrates that the hazardous 

secondary material is comparable to a product or intermediate and is not discarded. The 

determination will be based on whether the hazardous secondary material is legitimately 

recycled as specified in section 260.43 and on the criteria under paragraphs (c)(1)-(5).

(i) Data items

 Application under section 260.34(b) for a non-waste determination for 

hazardous secondary material which is reclaimed in a continuous 

industrial process. The application must demonstrate that the hazardous 

secondary material is a part of the production process and is not discarded 

and address the following criteria: 

- The extent that the management of the hazardous secondary

material is part of the continuous primary production process and 

is not waste treatment;

- Whether the capacity of the production process would use the 

hazardous secondary material in a reasonable time frame and 

ensure that the hazardous secondary material will not be 

abandoned (for example, based on past practices, market factors, 

the nature of the hazardous secondary material or any contractual 

arrangements); 

- Whether the hazardous constituents in the hazardous secondary

material are reclaimed rather than released to the air, water or land 

at significantly higher levels from either a statistical or from a 

health and environmental risk perspective than would otherwise be 

released by the production process; and 

- Other relevant factors that demonstrate the hazardous secondary

material is not discarded.
18

 An application under section 260.34(c) for a non-waste determination for 

hazardous secondary material which is indistinguishable in all relevant

aspects from a product or intermediate. The application must demonstrate 

that the hazardous secondary material is comparable to a product or 

intermediate and is not discarded, and address the following criteria:

- Whether market participants treat the hazardous secondary

material as a product or intermediate rather than a waste (for 

example, based on the current positive value of the hazardous 

secondary material, stability of demand, or any contractual 

arrangements);

- Whether the chemical and physical identity of the hazardous 

secondary material is comparable to commercial products or 

intermediates; 

- Whether the capacity of the market would use the hazardous 

secondary material in a reasonable time frame and ensure that the 

hazardous secondary material will not be abandoned (for example, 

based on past practices, market factors, the nature of the hazardous 

secondary material, or any contractual arrangements);

- Whether the hazardous constituents in the hazardous secondary

material are reclaimed rather than released to the air, water or land 

at significantly higher levels from either a statistical or from a 

health and environmental risk perspective than would otherwise be 

released by the production process; and

- Other relevant factors that demonstrate the hazardous secondary

material is not discarded.

(ii) Respondent activities

 The applicant prepares and submits an application to EPA under section 

260.34.

Re-Application for Non-Waste Determination

40 CFR 260.33(c) applies to non-waste determinations and provides that, in the 

event of a change in circumstances that affects how a hazardous secondary material 

meets the relevant criteria contained in section 260.34 upon which a non-waste 

determination has been based, the applicant must re-apply to the Administrator for a 

formal determination that the hazardous secondary material continues to meet the 

relevant criteria and therefore is not a solid waste.

(i) Data item

 Re-application to EPA for a formal determination that the hazardous 

secondary material continues to meet the relevant criteria and is therefore 

not a solid waste.
19

(ii) Respondent activities

 The applicant must prepare and submit a re-application to EPA for a 

formal determination.

NOTIFICATION

40 CFR 260.42(a) provides that hazardous secondary material generators, tolling 

contractors, toll manufacturers, reclaimers, and intermediate facilities managing 

hazardous secondary materials which are excluded from regulation under section 

261.2(a)(2)(ii) or section 261.4(a)(23), (24), or (25) must send a notification prior to 

operating under the exclusion(s) and by March 1 of each even numbered year thereafter 

to the Regional Administrator using EPA Form 8700-12 that includes the specified 

information at section 260.42(a)(1)-(10). 

Section 260.42(b) provides that, if a hazardous secondary material generator, 

tolling contractor, toll manufacturer, reclaimer or intermediate facility has submitted a 

notification, but then subsequently stops managing hazardous secondary materials in 

accordance with the exclusion(s), the facility must notify the Regional Administrator 

within thirty (30) days using EPA Form 8700-12. For purposes of this section, a facility 

has stopped managing hazardous secondary materials if the facility no longer generates, 

manages and/or reclaims hazardous secondary materials under the exclusion(s) and does 

not expect to manage any amount of hazardous secondary materials for at least one year

(i) Data items

 Notification using EPA Form 8700-12 that includes the following 

information:

- The name, address, and EPA ID number (if applicable) of the 

facility; 

- The name and telephone number of a contact person; 

- The NAICS code of the facility;

- The exclusion under which the hazardous secondary materials will 

be managed (e.g., section 261.2(a)(2)(ii), section 261.4(a)(23), 

(24), and/or (25));

- For reclaimers and intermediate facilities managing hazardous 

secondary materials in accordance with section 261.4(a)(24) or 

(25), whether the reclaimer or intermediate facility has financial 

assurance (not applicable for persons managing hazardous 

secondary materials generated and reclaimed under the control of 

the generator); 

- When the facility expects to begin managing the hazardous 

secondary materials in accordance with the exclusion;

- A list of hazardous secondary materials that will be managed 

according to the exclusion (reported as the EPA hazardous waste 

numbers that would apply if the hazardous secondary materials 
20

were managed as hazardous wastes); 

- For each hazardous secondary material, whether the hazardous 

secondary material, or any portion thereof, will be managed in a 

land-based unit;

- The quantity of each hazardous secondary material to be managed 

annually; and

- The certification (included in EPA Form 8700-12) signed and 

dated by an authorized representative of the facility.

(ii) Respondent activities

 Generators, intermediate facilities, and reclamation facilities must perform 

the following activities:

- Prepare and submit a notification to EPA prior to operating under 

exclusion(s).

- Update and submit a notification to EPA by March 1 of each even 

numbered year thereafter.

- Update and submit a notification that the hazardous secondary

materials are no longer managed in accordance with the exclusion, 

if applicable. 

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

Exclusion at 40 CFR 261.2(a)(2)(ii)

40 CFR 261.2(a)(2)(ii) provides that a hazardous secondary material is not 

discarded if it is generated and reclaimed under the control of the generator as defined in 

section 260.10, it is not speculatively accumulated as defined in section 261.1(c)(8), it is 

handled only in non-land-based units and is contained in such units, it is generated and 

reclaimed within the United States and its territories, it is not otherwise subject to 

material-specific management conditions under section 261.4(a) when reclaimed, it is not 

a spent lead acid battery (see sections 266.80 and 273.2), it does not meet the listing 

description for K171 or K172 in section 261.32, and the reclamation of the material is 

legitimate, as specified under section 260.43. The notification requirements of section 

260.42 also apply. For hazardous secondary materials managed in land-based units, see 

section 261.4(a)(23). [Note: This supporting statement addresses the data items and 

respondent activities associated with this exclusion under “Certifications for Hazardous 

Secondary Material Generated and Reclaimed under the Control of the Generator” and 

“Notification.”] 

Exclusion at 40 CFR 261.4(a)(23)

40 CFR 261.4(a)(23) provides that hazardous secondary material generated and 

reclaimed within the United States or its territories and managed in land-based units as 

defined in section 260.10 is not a solid waste provided that: the material is contained 
21

(261.4(a)(23)(i)); the material is a hazardous secondary material generated and reclaimed 

under the control of the generator, as defined in section 260.10 (261.4(a)(23)(ii)); the 

material is not speculatively accumulated, as defined in section 261.1(c)(8) 

(261.4(a)(23)(iii)); the material is not otherwise subject to material-specific management 

conditions under section 261.4(a) when reclaimed, it is not a spent lead acid battery (see 

sections 266.80 and 273.2), and it does not meet the listing description for K171 or K172 

in section 261.32 (261.4(a)(23)(iv)); and the reclamation of the material is legitimate, as 

specified under section 260.43 (261.4(a)(23)(v)). In addition, persons claiming the 

exclusion under section 261.4(a)(23) must provide notification as required by section 

260.42 (261.4(a)(23)(vi)). For hazardous secondary materials managed in a non-landbased unit, see section 261.2(a)(2)(ii). [Note: This supporting statement addresses the 

data items and respondent activities associated with this exclusion under “Certifications 

for Hazardous Secondary Material Generated and Reclaimed under the Control of the 

Generator” and “Notification.”] 

Exclusion at 40 CFR 261.4(a)(24)

40 CFR 261.4(a)(24) provides that hazardous secondary material that is generated 

and then transferred to another person for the purpose of reclamation is not a solid waste, 

provided that the requirements of section 261.4(a)(24)(i)-(vii) are met. Section 

261.4(a)(24)(i)-(iv) sets forth technical standards applicable to the material (e.g., 

requirements for handling the material). 

Section 261.4(a)(24)(v) provides that the hazardous secondary material generator 

must satisfy the conditions of section 261.4(a)(24)(v)(A)-(E). Section 261.4(a)(24)(v)(A) 

provides that the material must be contained. Section 261.4(a)(24)(v)(B) provides that, 

prior to arranging for transport of hazardous secondary materials to a reclamation facility

(or facilities) where the management of the hazardous secondary materials is not 

addressed under a RCRA Part B permit or interim status standards, the hazardous 

secondary material generator must make reasonable efforts to ensure that each reclaimer 

intends to properly and legitimately reclaim the hazardous secondary material and not 

discard it, and that each reclaimer will manage the hazardous secondary material in a 

manner that is protective of human health and the environment. If the hazardous 

secondary material will be passing through an intermediate facility where the 

management of the hazardous secondary materials is not addressed under a RCRA Part B 

permit or interim status standards, the hazardous secondary material generator must make 

contractual arrangements with the intermediate facility to ensure that the hazardous 

secondary material is sent to the reclamation facility identified by the hazardous 

secondary material generator, and the hazardous secondary material generator must 

perform reasonable efforts to ensure that the intermediate facility will manage the 

hazardous secondary material in a manner that is protective of human health and the 

environment. Reasonable efforts must be repeated at a minimum of every three years for 

the hazardous secondary material generator to claim the exclusion and to send the 

hazardous secondary materials to each reclaimer and any intermediate facility. In making 

these reasonable efforts, the generator may use any credible evidence available, including 

information gathered by the hazardous secondary material generator, provided by the 
22

reclaimer or intermediate facility, and/or provided by a third party. Section 

261.4(a)(24)(v)(C) provides that the hazardous secondary material generator must 

maintain for a minimum of three years documentation and certification that reasonable 

efforts were made for each reclamation facility and, if applicable, intermediate facility 

where the management of the hazardous secondary materials is not addressed under a 

RCRA Part B permit or interim status standards prior to transferring hazardous secondary

material. Documentation and certification must be made available upon request by a 

regulatory authority within 72 hours, or within a longer period of time as specified by the 

regulatory authority. Section 261.4(a)(24)(v)(D) provides that the hazardous secondary 

material generator must maintain at the generating facility for no less than three (3) years 

records of all off-site shipments of hazardous secondary materials. Section 

261.4(a)(v)(E) provides that the hazardous secondary material generator must maintain at 

the generating facility for no less than three (3) years confirmations of receipt from each 

reclaimer and, if applicable, each intermediate facility for all off-site shipments of 

hazardous secondary materials. 

Section 261.4(a)(24)(vi) provides that reclaimers of hazardous secondary material 

excluded from regulation under this exclusion and intermediate facilities as defined in 

section 260.10 must satisfy the conditions of section 261.4(a)(24)(vi)(A)-(F). Section 

261.4(a)(24)(vi)(A) provides that the reclaimer and intermediate facility must maintain at 

its facility for no less than three (3) years records of all shipments of hazardous secondary

material that were received at the facility and, if applicable, for all shipments of 

hazardous secondary materials that were received and subsequently sent off-site from the 

facility for further reclamation. Section 261.4(a)(24)(vi)(B) provides that the 

intermediate facility must send the hazardous secondary material to the reclaimer(s) 

designated by the hazardous secondary materials generator. Section 261.4(a)(24)(vi)(C) 

provides that the reclaimer and intermediate facility must send to the hazardous 

secondary material generator confirmations of receipt for all off-site shipments of 

hazardous secondary materials. Section 261.4(a)(24)(vi)(D) and (E) provides technical 

standards for the management of hazardous secondary material and residuals from 

reclamation. Section 261.4(a)(24)(vi)(F) provides that the reclaimer and intermediate 

facility must have financial assurance as required under Subpart H of 40 CFR Part 261. 

[Note: This supporting statement addresses the data items and respondent activities 

associated with the financial assurance requirements under “Financial Requirements for 

Management of Excluded Hazardous Secondary Materials.”] 

Section 261.4(a)(24)(vii) provides that all persons claiming the exclusion under 

section 261.4(a)(24) must provide notification as required under section 260.42. [Note: 

This supporting statement addresses the data items and respondent activities associated 

with this notification requirement under “Notification.”] 

(i) Data items

 Contractual arrangements between the hazardous secondary material 

generator and intermediate facility (or facilities) under section 

261.4(a)(24)(v)(B), if needed, to ensure that the hazardous secondary
23

material is sent to each reclamation facility identified by the hazardous 

secondary material generator.

 Documentation under section 261.4(a)(24)(v)(C) that reasonable efforts 

were made for each reclamation facility and any intermediate facility, if 

applicable, prior to transferring hazardous secondary material. The 

hazardous secondary material generator must affirmatively answer all of 

the following questions specified under section 261.4(a)(24)(v)(B) for 

each reclamation facility and any intermediate facility:

- Does the available information indicate that the reclamation 

process is legitimate pursuant to section 260.43? In answering this 

question, the hazardous secondary material generator can rely on 

their existing knowledge of the physical and chemical properties of 

the hazardous secondary material, as well as information from 

other sources (e.g., the reclamation facility, audit reports, etc.) 

about the reclamation process. (By responding to this question, the 

hazardous secondary material generator has also satisfied its 

requirement in section 260.43(a) to be able to demonstrate that the 

recycling is legitimate).

- Does the publicly available information indicate that the 

reclamation facility and any intermediate facility that is used by the 

hazardous secondary material generator notified the appropriate 

authorities of hazardous secondary materials reclamation activities 

pursuant to section 260.42 and have they notified the appropriate 

authorities that the financial assurance condition is satisfied per 

section 261.4(a)(24)(vi)(F)? In answering these questions, the 

hazardous secondary material generator can rely on the available 

information documenting the reclamation facility’s and any

intermediate facility’s compliance with the notification 

requirements per section 260.42, including the requirement in 

section 260.42(a)(5) to notify EPA whether the reclaimer or 

intermediate facility has financial assurance.

- Does publicly available information indicate that the reclamation 

facility or any intermediate facility that is used by the hazardous 

secondary material generator has not had any formal enforcement 

actions taken against the facility in the previous three years for 

violations of the RCRA hazardous waste regulations and has not 

been classified as a significant non-complier with RCRA Subtitle 

C? In answering this question, the hazardous secondary material 

generator can rely on the publicly available information from EPA 

or the state. If the reclamation facility or any intermediate facility

that is used by the hazardous secondary material generator has had

a formal enforcement action taken against the facility in the 

previous three years for violations of the RCRA hazardous waste 

regulations and has been classified as a significant non-complier 

with RCRA Subtitle C, does the hazardous secondary material 
24

generator have credible evidence that the facilities will manage the 

hazardous secondary materials properly? In answering this 

question, the hazardous secondary material generator can obtain 

additional information from EPA, the state, or the facility itself that 

the facility has addressed the violations, 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. 

- Does the available information indicate that the reclamation 

facility and any intermediate facility that is used by the hazardous 

secondary material generator have the equipment and trained 

personnel to safely recycle the hazardous secondary material? In 

answering this question, the generator may rely on a description by 

the reclamation facility or by an independent third party of the 

equipment and trained personnel to be used to recycle the 

generator’s hazardous secondary material.

- If residuals are generated from the reclamation of the excluded 

hazardous secondary materials, does the reclamation facility have 

the permits required (if any) to manage the residuals? If not, does 

the reclamation facility have a contract with an appropriately 

permitted facility to dispose of the residuals? If not, does the 

hazardous secondary material generator have credible evidence 

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

human health and the environment? In answering these questions, 

the hazardous secondary material generator can rely on publicly 

available information from EPA or the state, or information 

provided by the facility itself.

 A certification statement under section 261.4(a)(24)(v)(C) that must 

include the printed name and official title of an authorized representative 

of the hazardous secondary material generator company, the authorized 

representative’s signature, and the date signed. The certification must 

incorporate the following language: “I hereby certify in good faith and to 

the best of my knowledge that, prior to arranging for transport of excluded 

hazardous secondary materials to [insert name(s) of reclamation facility 

and any intermediate facility], reasonable efforts were made in accordance 

with section 261.4(a)(24)(v)(B) to ensure that the hazardous secondary

materials would be recycled legitimately, and otherwise managed in a 

manner that is protective of human health and the environment, and that 

such efforts were based on current and accurate information.” 

 Records retained by the generator under section 261.4(a)(24)(v)(D) of 

each shipment, including the following information at a minimum:

- Name of the transporter and date of the shipment; 

- Name and address of each reclaimer, and, if applicable, the name 

and address of each intermediate facility to which the hazardous 
25

secondary material was sent; and 

- The type and quantity of hazardous secondary material in the 

shipment. 

 Confirmations of receipt retained under section 261.4(a)(24)(v)(E) by the 

generator from each intermediate and reclamation facility, including the 

name and address of the reclaimer (or intermediate facility), the type and 

quantity of the hazardous secondary materials received and the date which 

the hazardous secondary materials were received. This requirement may

be satisfied by routine business records (e.g., financial records, bills of 

lading, copies of DOT shipping papers, or electronic confirmations of 

receipt).

 Records retained by an intermediate facility or reclaimer under section 

261.4(a)(24)(vi)(A) of each shipment received, including the following 

information at a minimum:

- Name of the transporter and date of the shipment;

- Name and address of the hazardous secondary material generator 

and, if applicable, the name and address of the reclaimer or 

intermediate facility which the hazardous secondary materials were 

received from; 

- The type and quantity of hazardous secondary material in the 

shipment; and

- For hazardous secondary materials that, after being received by the 

reclaimer or intermediate facility, were subsequently transferred 

off-site for further reclamation, the name and address of the 

(subsequent) reclaimer and, if applicable, the name and address of 

each intermediate facility to which the hazardous secondary

material was sent.

 Confirmations of receipt of shipment sent from the intermediate and 

reclamation facilities under section 261.4(a)(24)(vi)(C) that must include 

the name and address of the reclaimer (or intermediate facility), the type 

and quantity of the hazardous secondary materials received and the date 

which the hazardous secondary materials were received. This requirement 

may be satisfied by routine business records (e.g., financial records, bills 

of lading, copies of DOT shipping papers, or electronic confirmations of 

receipt).

(ii) Respondent activities

 The generator must perform the following activities:

- Conduct reasonable efforts for intermediate facilities and 

reclaimers as specified and prepare the certification statement.

- Repeat the reasonable efforts at least every three years.

- Make contractual arrangements with the intermediate facility, if 
26

applicable.

- Maintain for a minimum of three years documentation and 

certification that reasonable efforts were made as specified.

- Make documentation and certification available upon request by a

regulatory authority within 72 hours, or within a longer period of 

time as specified by the regulatory authority.

- Maintain for no less than three years records of all off-site 

shipments of excluded hazardous secondary materials.

- Maintain for no less than three years confirmations of receipt from 

the intermediate and reclamation facilities.

 The intermediate facility and reclaimer must perform the following 

activities:

- Maintain for no less than three years records of each shipment 

received; and

- Send confirmations of receipt of shipment to the generator.

Export Requirements at 40 CFR 261.4(a)(25)

40 CFR 261.4(a)(25) provides that hazardous secondary material that is exported 

from the United States and reclaimed at a reclamation facility located in a foreign country

is not a solid waste, provided that the hazardous secondary material generator complies 

with the applicable requirements of section 261.4(a)(24)(i)-(v) (excepting section 

261.4(a)(24)(v)(B)(2) for foreign reclaimers and foreign intermediate facilities), and that 

the hazardous secondary material generator also complies with the conditions in section 

261.4(a)(25). 

Section 261.4(a)(25)(i) provides that the hazardous secondary material generator 

must notify EPA of an intended export before the hazardous secondary material is 

scheduled to leave the United States. A complete notification must be submitted at least 

sixty (60) days before the initial shipment is intended to be shipped off-site. This 

notification may cover export activities extending over a twelve (12) month or lesser 

period. Section 261.4(a)(25)(ii) sets forth addresses for submittal of notifications and 

provides that the following shall be prominently displayed on the front of the envelope: 

“Attention: Notification of Intent to Export.” Section 261.4(a)(25)(iii) provides that, 

except for changes to the telephone number in paragraph (i)(A) of this section and 

decreases in the quantity of hazardous secondary material indicated pursuant to paragraph 

(i)(D) of this section, when the conditions specified on the original notification change 

(including any exceedance of the estimate of the quantity of hazardous secondary

material specified in the original notification), the hazardous secondary material 

generator must provide EPA with a written renotification of the change. The shipment 

cannot take place until consent of the receiving country to the changes (except for 

changes to paragraph (i)(I) of this section and in the ports of entry to and departure from 

transit countries pursuant to paragraph (i)(E) of this section) has been obtained and the 

hazardous secondary material generator receives from EPA an Acknowledgment of 

Consent reflecting the receiving country’s consent to the changes. Section 
27

261.4(a)(25)(iv) provides that, upon request by EPA, the hazardous secondary material 

generator shall furnish to EPA any additional information which a receiving country

requests in order to respond to a notification. 

Section 261.4(a)(25)(v) describes procedures for EPA to notify the receiving 

country and any transit countries. Section 261.4(a)(25)(vi) sets forth provisions for the 

consent, objection, and withdrawal of prior consent of an intended export shipment by a 

receiving country. Section 261.4(a)(25)(vii) provides that, for exports to OECD Member 

countries, the receiving country may respond to the notification using tacit consent. If no 

objection has been lodged by any receiving country or transit countries to a notification 

provided pursuant to paragraph (i) of this section within thirty (30) days after the date of 

issuance of the acknowledgement of receipt of notification by the competent authority of 

the receiving country, the transboundary movement may commence. . In such cases, EPA 

will send an Acknowledgment of Consent to inform the hazardous secondary material 

generator that the receiving country and any relevant transit countries have not objected 

to the shipment, and are thus presumed to have consented tacitly. Tacit consent expires 

one (1) calendar year after the close of the thirty (30) day period; renotification and 

renewal of all consents is required for exports after that date. 

Section 261.4(a)(25)(viii) provides that a copy of the Acknowledgment of 

Consent must accompany the shipment. The shipment must conform to the terms of the 

Acknowledgment of Consent. Section 261.4(a)(25)(ix) provides that, if a shipment 

cannot be delivered for any reason to the reclaimer, intermediate facility or the alternate 

reclaimer or alternate intermediate facility, the hazardous secondary material generator 

must re-notify EPA of a change in the conditions of the original notification to allow 

shipment to a new reclaimer in accordance with paragraph (iii) of this section and obtain 

another Acknowledgment of Consent. Section 261.4(a)(25)(x) provides that hazardous 

secondary material generators must keep a copy of each notification of intent to export 

and each Acknowledgment of Consent for a period of three years following receipt of the 

Acknowledgment of Consent. Section 261.4(a)(25)(xi) provides that hazardous 

secondary material generators must file with the Administrator no later than March 1 of 

each year, a report summarizing the types, quantities, frequency and ultimate destination 

of all hazardous secondary materials exported during the previous calendar year. Such 

reports must include the information in section 261.4(a)(25)(xi)(A)-(E).

Section 261.4(a)(25)(xii) provides that all persons claiming an exclusion under 

section 261.4(a)(25) must provide notification as required by section 260.42. [Note: 

This supporting statement addresses the data items and respondent activities associated 

with this notification requirement under “Notification.”] 

(i) Data items

 A notification under section 261.4(a)(25)(i) that is in writing, signed by 

the hazardous secondary material generator, and includes the following 

information:

- Name, mailing address, telephone number and EPA ID number (if 
28

applicable) of the hazardous secondary material generator;

- A description of the hazardous secondary material and the EPA 

hazardous waste number that would apply if the hazardous 

secondary material was managed as hazardous waste and the U.S. 

DOT proper shipping name, hazard class and ID number (UN/NA) 

for each hazardous secondary material as identified in 49 CFR 

parts 171 through 177;

- The estimated frequency or rate at which the hazardous secondary

material is to be exported and the period of time over which the 

hazardous secondary material is to be exported;

- The estimated total quantity of hazardous secondary material; 

- All points of entry to and departure from each foreign country

through which the hazardous secondary material will pass; 

- A description of the means by which each shipment of the 

hazardous secondary material will be transported (e.g., mode of 

transportation vehicle (air, highway, rail, water, etc.), type(s) of 

container (drums, boxes, tanks, etc.)); 

- A description of the manner in which the hazardous secondary

material will be reclaimed in the receiving country; 

- The name and address of the reclaimer, any intermediate facility 

and any alternate reclaimer and intermediate facilities; 

- The name of any transit countries through which the hazardous 

secondary material will be sent and a description of the 

approximate length of time it will remain in such countries and the 

nature of its handling while there (for purposes of this section, the 

terms “Acknowledgement of Consent”, “receiving country” and 

“transit country” are used as defined in 40 CFR 262.51 with the 

exception that the terms in this section refer to hazardous 

secondary materials, rather than hazardous waste); and

- The following must be prominently displayed on the front of the 

envelope: “Attention: Notification of Intent to Export.”

 When the conditions specified on the original notification change as 

applicable, a written renotification of the change, as required under section 

261.4(a)(25)(iii).

 Any additional information which a receiving country requests in order to 

respond to a notification, as required under section 261.4(a)(25)(iv).

 Copies of Acknowledgement of Consent. 

 If a shipment cannot be delivered for any reason to the reclaimer, 

intermediate facility or the alternate reclaimer or alternate intermediate 

facility, a renotification to EPA of a change in the conditions of the 

original notification, as required under section 261.4(a)(25)(ix).
29

 A report under section 261.4(a)(25)(xi) summarizing the types, quantities, 

frequency and ultimate destination of all hazardous secondary materials 

exported during the previous calendar year. Such reports must include the 

following information:

- Name, mailing and site address, and EPA ID number (if 

applicable) of the hazardous secondary material generator; 

- The calendar year covered by the report;

- The name and site address of each reclaimer and intermediate 

facility; 

- By reclaimer and intermediate facility, for each hazardous 

secondary material exported, a description of the hazardous 

secondary material and the EPA hazardous waste number that 

would apply if the hazardous secondary material was managed as 

hazardous waste, DOT hazard class, the name and US EPA ID 

number (where applicable) for each transporter used, the total 

amount of hazardous secondary material shipped and the number 

of shipments pursuant to each notification; and

- A certification signed by the hazardous secondary material 

generator which states: “I certify under penalty of law that I have 

personally examined and am familiar with the information 

submitted in this and all attached documents, and that based on my

inquiry of those individuals immediately responsible for obtaining 

the information, I believe that the submitted information is true, 

accurate, and complete. I am aware that there are significant 

penalties for submitting false information including the possibility

of fine and imprisonment.”

(ii) Respondent activities

 The generator must perform the following activities:

- Prepare and submit notification.

- Prepare and submit a written renotification of the change when the 

conditions specified on the original notification change.

- Provide any additional information which a receiving country

requests in order to respond to a notification, as requested by EPA.

- Provide Acknowledgement of Consent to transporter.

- If a shipment cannot be delivered for any reason to the reclaimer, 

intermediate facility or the alternate reclaimer or alternate 

intermediate facility, re-notify EPA of a change in the conditions 

of the original notification and obtain another Acknowledgment of 

Consent. 

- Keep copies of notifications and Acknowledgments of Consent for 

a period of three years following receipt of the Acknowledgment. 

- Prepare and submit annual report.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 
30

HAZARDOUS SECONDARY MATERIALS

40 CFR 261.140(a) provides that the requirements of 40 CFR Part 261 Subpart H, 

“Financial Requirements for Management of Excluded Hazardous Secondary Materials,” 

apply to owners or operators of reclamation and intermediate facilities managing 

hazardous secondary materials excluded under 40 CFR 261.4(a)(24), except as provided 

otherwise. Section 261.140(b) provides that States and the Federal government are 

exempt from the financial assurance requirements of the subpart.

Cost Estimate

40 CFR 261.142(a) requires owners or operators to have a detailed written 

estimate, in current dollars, of the cost of disposing of any hazardous secondary material 

as listed or characteristic hazardous waste, and the potential cost of closing the facility as 

a treatment, storage, and disposal facility. The cost estimate must satisfy the 

requirements of section 261.142(a)(1)-(4). 

Section 261.142(b) requires that, during the active life of the facility, the owner or 

operator must adjust the cost estimate for inflation within 60 days prior to the anniversary

date of the establishment of the financial instrument(s) used to comply with section 

261.143. For owners or operators using the financial test or corporate guarantee, the cost 

estimate must be updated for inflation within 30 days after the close of the firm's fiscal 

year and before submission of updated information to the Regional Administrator as 

specified in section 261.143(e)(3). 

Section 261.142(c) provides that, during the active life of the facility, the owner 

or operator must revise the cost estimate no later than 30 days after a change in a 

facility’s operating plan or design that would increase the costs of conducting the 

activities described in section 261.142(a) or no later than 60 days after an unexpected 

event which increases the cost of conducting the activities described in section 

261.142(a). The revised cost estimate must be adjusted for inflation as specified in 

section 261.142(b). 

Section 261.142(d) requires the owner or operator to keep the following at the 

facility during the operating life of the facility: The latest cost estimate prepared in 

accordance with section 261.142(a) and (c) and, when this estimate has been adjusted in 

accordance with section 261.142(b), the latest adjusted cost estimate.

(i) Data items

 A cost estimate that satisfies the requirements of section 261.142(a)(1)-

(4):

- The estimate must equal the cost of conducting the activities 

described in paragraph (a) at the point when the extent and manner 

of the facility’s operation would make these activities the most 

expensive.
31

- The cost estimate must be based on the costs to the owner or 

operator of hiring a third party to conduct these activities. A third 

party is a party who is neither a parent nor a subsidiary of the 

owner or operator. (See definition of parent corporation in section 

265.141(d).) The owner or operator may use costs for on-site 

disposal in accordance with applicable requirements if he can 

demonstrate that on-site disposal capacity will exist at all times 

over the life of the facility.

- The cost estimate may not incorporate any salvage value that may

be realized with the sale of hazardous secondary materials, or 

hazardous or non-hazardous wastes if applicable under 265.113(d), 

facility structures or equipment, land, or other assets associated 

with the facility.

- The owner or operator may not incorporate a zero cost for 

hazardous secondary materials, or hazardous or non-hazardous 

wastes if applicable under 265.113(d), that might have economic 

value.

 Adjustments to the cost estimate in accordance with section 261.142(b). 

The adjustment may be made by recalculating the cost estimate in current 

dollars, or by using an inflation factor derived from the most recent 

Implicit Price Deflator for Gross National Product published by the U.S. 

Department of Commerce in its Survey of Current Business, as specified 

in paragraphs (b)(1) and (2) of this section. The inflation factor is the 

result of dividing the latest published annual Deflator by the Deflator for 

the previous year. The first adjustment is made by multiplying the cost 

estimate by the inflation factor. The result is the adjusted cost estimate. 

Subsequent adjustments are made by multiplying the latest adjusted cost 

estimate by the latest inflation factor.

 Revisions to the cost estimate in accordance with section 261.142(c).

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare a detailed written cost estimate.

- Adjust and revise the cost estimate as specified.

- Keep records of the cost estimate as specified.

Financial Assurance Condition

Per 40 CFR 261.4(a)(24)(vi)(F), an owner or operator of a reclamation or 

intermediate facility must have financial assurance as a condition of the exclusion as 

required under section 261.4(a)(24). He must choose from the options as specified in 

section 261.143(a) through (e).
32

(1) Trust Fund

40 CFR 261.143(a)(1) provides that an owner or operator may satisfy the 

requirements of this section by establishing a trust fund which conforms to the 

requirements of this paragraph and submitting an originally signed duplicate of the trust 

agreement to the Regional Administrator. Section 261.143(a)(2) provides that the 

wording of the trust agreement must be identical to the wording specified in section 

261.151(a)(1), and the trust agreement must be accompanied by a formal certification of 

acknowledgment. Schedule A of the trust agreement must be updated within 60 days 

after a change in the amount of the current cost estimate covered by the agreement. 

Section 261.143(a)(3) provides that the trust fund must be funded for the full amount of 

the current cost estimate before it may be relied upon to satisfy the requirements of this 

section. Section 261.143(a)(4) provides that, whenever the current cost estimate changes, 

the owner or operator must compare the new estimate with the trustee's most recent 

annual valuation of the trust fund. If the value of the fund is less than the amount of the 

new estimate, the owner or operator, within 60 days after the change in the cost estimate, 

must either deposit an amount into the fund so that its value after this deposit at least 

equals the amount of the current cost estimate, or obtain other financial assurance as 

specified in this section to cover the difference. Section 261.143(a)(5) provides that, if 

the value of the trust fund is greater than the total amount of the current cost estimate, the 

owner or operator may submit a written request to the Regional Administrator for release 

of the amount in excess of the current cost estimate. Section 261.143(a)(6) provides that, 

if an owner or operator substitutes other financial assurance as specified in this section 

for all or part of the trust fund, he may submit a written request to the Regional 

Administrator for release of the amount in excess of the current cost estimate covered by 

the trust fund. Section 261.143(a)(7) provides that, within 60 days after receiving a 

request from the owner or operator for release of funds as specified, the Regional 

Administrator will instruct the trustee to release to the owner or operator such funds as 

the Regional Administrator specifies in writing. If the owner or operator begins final 

closure under Subpart G of 40 CFR Part 264 or 265, an owner or operator may request 

reimbursements for partial or final closure expenditures by submitting itemized bills to 

the Regional Administrator. The owner or operator may request reimbursements for 

partial closure only if sufficient funds are remaining in the trust fund to cover the 

maximum costs of closing the facility over its remaining operating life. Section 

261.143(a)(8) describes EPA procedures for termination of the trust.

(i) Data items

 An originally signed duplicate of a trust agreement whose wording is 

identical to the wording specified in section 261.151(a)(1).

 A formal certification of acknowledgment, as required under section 

261.143(a)(2). 

 Update of Schedule A of the trust agreement, as required under section 

261.143(a)(2). 
33

 A written request under section 261.143(a)(5) to the Regional 

Administrator for release of the amount in excess of the current cost 

estimate, if the value of the trust fund is greater than the total amount of 

the current cost estimate.

 A written request under section 261.143(a)(6) to the Regional 

Administrator for release of the amount in excess of the current cost 

estimate covered by the trust fund, if the owner or operator substitutes 

other financial assurance as specified in this section for all or part of the 

trust fund.

 A request for reimbursements under section 261.143(a)(7) for partial or 

final closure expenditures, including itemized bills, to the Regional 

Administrator. 

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit an originally signed duplicate of the trust 

agreement and formal certification of acknowledgement to EPA.

- Update Schedule A of the trust agreement, as specified.

- Whenever the current cost estimate changes:

- Compare the new estimate with the trustee's most recent 

annual valuation of the trust fund; and

- If the value of the fund is less than the amount of the new 

estimate, obtain other financial assurance to cover the 

difference, unless a deposit has been made as specified.

- If the value of the trust fund is greater than the total amount of the 

current cost estimate, submit a written request to the Regional 

Administrator for release of the amount in excess of the current 

cost estimate.

- If the owner or operator substitutes other financial assurance as 

specified in this section for all or part of the trust fund, submit a 

written request to the Regional Administrator for release of the 

amount in excess of the current cost estimate covered by the trust 

fund.

- Submit a request for reimbursements, if applicable.

 The grantor (owner/operator) and trustee must comply with the terms of 

the trust agreement.

(2) Surety Bond Guaranteeing Payment into a Trust Fund 

40 CFR 261.143(b)(1) provides that an owner or operator may satisfy the 
34

requirements of this section by obtaining a surety bond which conforms to the 

requirements of this paragraph and submitting the bond to the Regional Administrator. 

The surety company issuing the bond must, at a minimum, be among those listed as 

acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the 

Treasury. Section 261.143(b)(2) requires the wording of the surety bond to be identical 

to the wording specified in section 261.151(b). Section 261.143(b)(3) provides that the 

owner or operator who uses a surety bond to satisfy the requirements of this section must 

also establish a standby trust fund. This standby trust fund must meet the requirements 

specified in section 261.143(a), except as otherwise specified. [Note: This supporting 

statement addresses the data items and respondent activities associated with the standby

trust fund under “Trust Fund.”] Section 261.143(b)(4) provides that the bond must make 

specified guarantees. Section 261.143(b)(5) and (6) describe standards related to the 

owner or operator’s failure to perform as guaranteed and the penal sum amount. Section 

261.143(b)(7) provides that, whenever the current cost estimate increases to an amount 

greater than the penal sum, the owner or operator, within 60 days after the increase, must 

either cause the penal sum to be increased to an amount at least equal to the current cost 

estimate and submit evidence of such increase to the Regional Administrator, or obtain 

other financial assurance as specified in this section to cover the increase. Whenever the 

current cost estimate decreases, the penal sum may be reduced to the amount of the 

current cost estimate following written approval by the Regional Administrator. Section 

261.143(b)(8) provides that, under the terms of the bond, the surety may cancel the bond 

by sending notice of cancellation by certified mail to the owner or operator and to the 

Regional Administrator. Cancellation may not occur, however, during the 120 days 

beginning on the date of receipt of the notice of cancellation by both the owner or 

operator and the Regional Administrator, as evidenced by the return receipts. Section 

261.143(b)(9) provides that the owner or operator may cancel the bond if the Regional 

Administrator has given prior written consent based on his receipt of evidence of 

alternate financial assurance as specified in this section.

(i) Data items

 A surety bond whose wording is identical to the wording specified in 

section 261.151(b). 

 Evidence of an increase in the penal sum or other financial assurance as 

specified to cover the increase, whenever the current cost estimate 

increases to an amount greater than the penal sum, as provided under 

section 261.143(b)(7).

 Notice of bond cancellation, as provided under section 261.143(b)(8).

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit the surety bond to EPA.

- Whenever the current cost estimate increases to an amount greater 
35

than the penal sum, submit evidence of the increase in the penal 

sum to the Regional Administrator or obtain other financial 

assurance to cover the increase.

- Obtain alternate financial assurance and obtain EPA approval if 

required because of cancellation of the bond.

 The surety company may cancel the bond by sending notice of 

cancellation by certified mail to the owner or operator and to the Regional 

Administrator. 

 The owner or operator and surety company must comply with the terms of 

the surety bond.

(3) Letter of Credit

40 CFR 261.143(c)(1) provides that an owner or operator may satisfy the 

requirements of this section by obtaining an irrevocable standby letter of credit which 

conforms to the requirements of this paragraph and submitting the letter to the Regional 

Administrator. Section 261.143(c)(2) provides that the wording of the letter of credit 

must be identical to the wording specified in section 261.151(c). Section 261.143(c)(3) 

provides that an owner or operator who uses a letter of credit to satisfy the requirements 

of this section must also establish a standby trust fund, as specified. This standby trust 

fund must meet the requirements of the trust fund specified in section 261.143(a), except 

as otherwise specified. An originally signed duplicate of the trust agreement must be 

submitted to the Regional Administrator with the letter of credit. [Note: This supporting 

statement addresses the data items and respondent activities associated with the standby

trust fund under “Trust Fund.”] Section 261.143(c)(4) provides that the letter of credit 

must be accompanied by a letter from the owner or operator, referring to the letter of 

credit as specified. Section 261.143(c)(5) provides that the letter of credit must be 

irrevocable and issued for a period of at least 1 year. The letter of credit must provide 

that the expiration date will be automatically extended for a period of at least 1 year 

unless, at least 120 days before the current expiration date, the issuing institution notifies 

both the owner or operator and the Regional Administrator by certified mail of a decision 

not to extend the expiration date. Section 261.143(c)(6) specifies that the letter of credit 

must be issued in an amount at least equal to the current cost estimate, except as provided 

in section 261.143(f). Section 261.143(c)(7) provides that, whenever the current cost 

estimate increases to an amount greater than the amount of the credit, the owner or 

operator, within 60 days after the increase, must either cause the amount of the credit to 

be increased so that it at least equals the current cost estimate and submit evidence of 

such increase to the Regional Administrator, or obtain other financial assurance as 

specified in this section to cover the increase. Whenever the current cost estimate 

decreases, the amount of the credit may be reduced to the amount of the current cost 

estimate following written approval by the Regional Administrator. Section 

261.143(c)(8) provides that, following a determination by the Regional Administrator 

that the hazardous secondary materials do not meet the conditions of the exclusion under 

section 261.4(a)(24), the Regional Administrator may draw on the letter of credit. 
36

Section 261.143(c)(9) provides that, if the owner or operator does not establish alternate 

financial assurance as specified in this section and obtain written approval of such 

alternate assurance from the Regional Administrator within 90 days after receipt by both 

the owner or operator and the Regional Administrator of a notice from the issuing 

institution that it has decided not to extend the letter of credit beyond the current 

expiration date, the Regional Administrator will draw on the letter of credit. The 

Regional Administrator may delay the drawing if the issuing institution grants an 

extension of the term of the credit. During the last 30 days of any such extension the 

Regional Administrator will draw on the letter of credit if the owner or operator has 

failed to provide alternate financial assurance as specified in this section and obtain 

written approval of such assurance from the Regional Administrator. Section 

261.143(c)(10) addresses the return of the letter of credit by EPA to the issuing institution 

for termination.

(i) Data items

 Irrevocable standby letter of credit whose wording is identical to the 

wording specified in section 261.151(c). 

 Letter from the owner or operator under section 261.143(c)(4), referring to 

the letter of credit by number, issuing institution, and date, and providing 

the following information: The EPA Identification Number (if any issued), 

name, and address of the facility, and the amount of funds assured for the 

facility by the letter of credit. 

 A letter from the issuing institution under section 261.143(c)(5), notifying 

both the owner or operator and the Regional Administrator by certified 

mail of a decision not to extend the expiration date. 

 Evidence of an increase in the credit or other financial assurance as 

specified to cover the increase, whenever the current cost estimate 

increases to an amount greater than the amount of the credit, as provided 

under section 261.143(c)(7).

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit letter of credit and letter referring to the letter 

of credit to the Regional Administrator.

- Whenever the current cost estimate increases to an amount greater 

than the amount of the credit, submit evidence to the Regional 

Administrator of an increase in the credit or obtain other financial 

assurance as specified to cover the increase. 

- Obtain alternate financial assurance and obtain EPA approval if 

required because of termination of credit.
37

 The issuing institution may send a notice of a decision not to extend the 

expiration date of the credit by certified mail to the owner or operator and 

to the Regional Administrator. 

 The owner/operator and issuing institution must comply with the terms of 

the letter of credit.

(4) Insurance

40 CFR 261.143(d)(1) provides that an owner or operator may satisfy the 

requirements of this section by obtaining insurance which conforms to the requirements 

of this paragraph and submitting a certificate of such insurance to the Regional 

Administrator. Section 261.143(d)(2) provides that the wording of the certificate of 

insurance must be identical to the wording specified in section 261.151(d). Section 

261.143(d)(3) provides that the insurance policy must be issued for a face amount at least 

equal to the current cost estimate, except as provided in section 261.143(f). Section 

261.143(d)(4) provides that the insurance policy must make specified guarantees. 

Section 261.143(d)(5) provides that, after beginning partial or final closure under 40 CFR 

Part 264 or 265, as applicable, an owner or operator or any other authorized person may

request reimbursements for closure expenditures by submitting itemized bills to the 

Regional Administrator, in accordance with specified standards. Section 261.143(d)(6) 

provides that the owner or operator must maintain the policy in full force and effect until 

the Regional Administrator consents to termination of the policy by the owner or operator 

as specified in paragraph (i)(10) of this section. Failure to pay the premium, without 

substitution of alternate financial assurance as specified in this section, will constitute a 

significant violation of these regulations, warranting such remedy as the Regional 

Administrator deems necessary. Such violation will be deemed to begin upon receipt by

the Regional Administrator of a notice of future cancellation, termination, or failure to 

renew due to nonpayment of the premium, rather than upon the date of expiration. 

Section 261.143(d)(7) provides that each policy must contain a provision allowing 

assignment of the policy to a successor owner or operator. Such assignment may be 

conditional upon consent of the insurer, provided such consent is not unreasonably

refused. Section 261.143(d)(8) provides that the policy must provide that the insurer may

not cancel, terminate, or fail to renew the policy except for failure to pay the premium. 

The automatic renewal of the policy must, at a minimum, provide the insured with the 

option of renewal at the face amount of the expiring policy. If there is a failure to pay the 

premium, the insurer may elect to cancel, terminate, or fail to renew the policy by

sending notice by certified mail to the owner or operator and the Regional Administrator. 

Cancellation, termination, or failure to renew may not occur, however, during the 120 

days beginning with the date of receipt of the notice by both the Regional Administrator 

and the owner or operator, as evidenced by the return receipts. Cancellation, termination, 

or failure to renew may not occur and the policy will remain in full force and effect as 

specified. Section 261.143(d)(9) provides that, whenever the current cost estimate 

increases to an amount greater than the face amount of the policy, the owner or operator, 

within 60 days after the increase, must either cause the face amount to be increased to an 
38

amount at least equal to the current cost estimate and submit evidence of such increase to 

the Regional Administrator, or obtain other financial assurance as specified in this section 

to cover the increase. Whenever the current cost estimate decreases, the face amount 

may be reduced to the amount of the current cost estimate following written approval by 

the Regional Administrator. Section 261.143(d)(10) provides that the Regional 

Administrator will give written consent to the owner or operator that he may terminate 

the insurance policy as specified.

(i) Data items

 A certificate of insurance whose wording is identical to the wording 

specified in section 261.151(d). 

 A request for reimbursements for expenditures to EPA, including itemized 

bills, as specified under section 261.143(d)(5).

 A notice sent by certified mail from the insurer that it has elected to 

cancel, terminate, or fail to renew the policy, as specified under section 

261.143(d)(8). 

 Evidence of an increase in the credit or other financial assurance as 

specified to cover the increase, whenever the current cost estimate 

increases to an amount greater than the face amount of the policy, as 

specified under section 261.143(d)(9). 

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit a certificate of insurance to the Regional 

Administrator.

- Request reimbursements for expenditures by submitting itemized 

bills to the Regional Administrator, if applicable. 

- Whenever the current cost estimate increases to an amount greater 

than the face value of the policy, submit evidence to the Regional 

Administrator of an increase in the policy or obtain other financial 

assurance as specified to cover the increase. 

- Obtain alternate financial assurance and obtain EPA approval if 

required because of cancellation, termination, or failure to renew 

the insurance.

 The insurer may elect to cancel, terminate, or fail to renew the policy by

sending notice by certified mail to the owner or operator and the Regional 

Administrator. 

 The owner/operator and insurer must comply with the terms of the 
39

certificate of insurance.

(5) Financial Test and Corporate Guarantee

40 CFR 261.143(e)(1) provides that an owner or operator may satisfy the 

requirements of this section by demonstrating that he passes a financial test as specified 

in this paragraph. To pass this test the owner or operator must meet the criteria of either 

section 261.143(e)(1)(i) or (ii). Section 261.143(e)(2) defines phrases used in the 

regulations. Section 261.143(e)(3) provides that, to demonstrate that he meets this test, 

the owner or operator must submit specified items to the Regional Administrator. 

Section 261.143(e)(4) provides that the owner or operator may obtain an extension of the 

time allowed for submission of the documents specified in paragraph (e)(3) of this 

section if the fiscal year of the owner or operator ends during the 90 days prior to the 

effective date of these regulations and if the year-end financial statements for that fiscal 

year will be audited by an independent certified public accountant. The extension will 

end no later than 90 days after the end of the owner's or operator's fiscal year. To obtain 

the extension, the owner's or operator's chief financial officer must send, by the effective 

date of these regulations, a letter to the Regional Administrator of each Region in which 

the owner's or operator's facilities to be covered by the financial test are located. Section 

261.143(e)(5) provides that, after the initial submission of items specified in paragraph 

(e)(3) of this section, the owner or operator must send updated information to the 

Regional Administrator within 90 days after the close of each succeeding fiscal year. This 

information must consist of all three items specified in paragraph (e)(3) of this section. 

Section 261.143(e)(6) provides that, if the owner or operator no longer meets the 

requirements of paragraph (e)(1) of this section, he must send notice to the Regional 

Administrator of intent to establish alternate financial assurance as specified in this 

section. The notice must be sent by certified mail within 90 days after the end of the 

fiscal year for which the year-end financial data show that the owner or operator no 

longer meets the requirements. The owner or operator must provide the alternate financial 

assurance within 120 days after the end of such fiscal year. Section 261.143(e)(7) 

provides that the Regional Administrator may, based on a reasonable belief that the 

owner or operator may no longer meet the requirements of paragraph (e)(1) of this 

section, require reports of financial condition at any time from the owner or operator in 

addition to those specified in paragraph (e)(3) of this section. If the Regional 

Administrator finds, on the basis of such reports or other information, that the owner or 

operator no longer meets the requirements of paragraph (e)(1) of this section, the owner 

or operator must provide alternate financial assurance as specified in this section within 

30 days after notification of such a finding. Section 261.143(e)(8) provides that the 

Regional Administrator may disallow use of this test on the basis of qualifications in the 

opinion expressed by the independent certified public accountant in his report on 

examination of the owner's or operator's financial statements (see paragraph (e)(3)(ii) of 

this section). An adverse opinion or a disclaimer of opinion will be cause for 

disallowance. The Regional Administrator will evaluate other qualifications on an 

individual basis. The owner or operator must provide alternate financial assurance as 

specified in this section within 30 days after notification of the disallowance. Section 

261.143(e)(9) describes circumstances when the owner or operator is no longer required 
40

to submit the items specified in paragraph (e)(3) of this section. Section 261.143(e)(10) 

provides that an owner or operator may meet the requirements of this section by

obtaining a written guarantee. The guarantor must meet the requirements for owners or 

operators in paragraphs (e)(1) through (8) of this section and must comply with the terms 

of the guarantee. The wording of the guarantee must be identical to the wording 

specified in section 261.151(g)(1). A certified copy of the guarantee must accompany the 

items sent to the Regional Administrator as specified in paragraph (e)(3) of this section. 

One of these items must be the letter from the guarantor's chief financial officer, as 

described in section 261.143(e)(10). 

(i) Data items

 Information required under section 261.143(e)(3):

- A letter signed by the owner's or operator's chief financial officer 

and worded as specified in section 261.151(e).

- A copy of the independent certified public accountant's report on 

examination of the owner's or operator's financial statements for 

the latest completed fiscal year.

- A special report from the owner’s or operator’s independent 

certified public accountant to the owner or operator, if required. 

The special report shall be based upon an agreed upon procedures 

engagement in accordance with professional auditing standards 

and shall describe the procedures performed in comparing the data 

in the chief financial officer’s letter derived from the 

independently audited, year-end financial statements for the latest 

fiscal year with the amounts in such financial statements, the 

findings of the comparison, and the reasons for any differences.

 A letter as required under section 261.143(e)(4) from the owner/operator’s 

chief financial officer that:

- Requests the extension;

- Certifies that he has grounds to believe that the owner or operator 

meets the criteria of the financial test;

- Specifies for each facility to be covered by the test the EPA 

Identification Number (if any issued), name, address, and current 

cost estimates to be covered by the test;

- Specifies the date ending the owner's or operator's last complete 

fiscal year before the effective date of these regulations;

- Specifies the date, no later than 90 days after the end of such fiscal 

year, when he will submit the documents specified in paragraph 

(e)(3) of this section; and

- Certifies that the year-end financial statements of the owner or 

operator for such fiscal year will be audited by an independent 

certified public accountant.

 Annual update of information as required under section 261.143(e)(5), 
41

after the initial submission of these items. 

 Notice as required under section 261.143(e)(6) from the owner/operator to 

the Regional Administrator of intent to establish alternate financial 

assurance as specified in this section. 

 Reports as required under section 261.143(e)(7) of financial condition 

from the owner or operator in addition to those specified in paragraph 

(e)(3) of this section, if requested by the Regional Administrator.

 A guarantee whose wording is identical to the wording specified in section 

261.151(g)(1). A certified copy of the guarantee must accompany the 

items sent to the Regional Administrator. The terms of the guarantee must 

address the criteria specified in section 261.143(e)(10)(i)-(iii).

 A letter under section 261.143(e)(10) from the guarantor's chief financial 

officer. If the guarantor's parent corporation is also the parent corporation 

of the owner or operator, the letter must describe the value received in 

consideration of the guarantee. If the guarantor is a firm with a 

``substantial business relationship'' with the owner or operator, this letter 

must describe this ``substantial business relationship'' and the value 

received in consideration of the guarantee. 

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit to EPA a signed letter, copy of the independent 

certified public accountant's report on examination of the owner's 

or operator's financial statements, a special report from the owner’s 

or operator’s independent certified public accountant if applicable, 

and a guarantee if applicable.

- To obtain an extension of the time allowed for submission of the 

documents specified in section 261.143(e)(3), prepare and send a 

letter to the Regional Administrator of each Region in which the 

owner's or operator's facilities to be covered by the financial test 

are located. 

- Prepare and submit updated information to EPA under section 

261.143(e)(5), at the close of each fiscal year, as specified.

- Prepare and submit a notice to EPA by certified mail of intent to 

establish alternate financial assurance.

- Prepare and submit reports of financial condition, if requested by 

the Regional Administrator.

- Obtain alternate financial assurance and obtain EPA approval if 

required because the financial tests are no longer met or disallowed 

by EPA.
42

- Comply with the terms in the letter from the chief financial officer 

and guarantee.

Use of Financial Mechanisms for Multiple Facilities

40 CFR 261.143(g) provides for the use of a financial mechanism for multiple 

facilities. An owner or operator may use a financial assurance mechanism specified in 

this section to meet the requirements of this section for more than one facility. Evidence 

of financial assurance submitted to the Regional Administrator must include a list 

showing, for each facility, the EPA Identification Number (if any issued), name, address, 

and the amount of funds assured by the mechanism. If the facilities covered by the 

mechanism are in more than one Region, identical evidence of financial assurance must 

be submitted to and maintained with the Regional Administrators of all such Regions. 

The amount of funds available through the mechanism must be no less than the sum of 

funds that would be available if a separate mechanism had been established and 

maintained for each facility. In directing funds available through the mechanism for any 

of the facilities covered by the mechanism, the Regional Administrator may direct only

the amount of funds designated for that facility, unless the owner or operator agrees to the 

use of additional funds available under the mechanism. 

(i) Data items

 Evidence of financial assurance that must include a list showing, for each 

facility, the EPA Identification Number (if any issued), name, address, and 

the amount of funds assured by the mechanism. 

(ii) Respondent activities

 The owner/operator must submit identical evidence to each applicable 

Regional Administrator of financial assurance as specified.

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

40 CFR 261.143(h)(1) provides that an owner or operator of a reclamation facility

or an intermediate facility who wishes to be released from his financial assurance 

obligations under section 261.4(a)(24)(vi)(F) must submit a plan for removing all 

hazardous secondary material residues to the Regional Administrator at least 180 days 

prior to the date on which he expects to cease to operate under the exclusion. Section 

261.143(h)(2) spells out the contents of the plan. Section 261.143(h)(3) provides that the

Regional Administrator will provide the owner or operator and the public, through a 

newspaper notice, the opportunity to submit written comments on the plan and request 

modifications to the plan no later than 30 days from the date of the notice. He will also, in 

response to a request or at his discretion, hold a public hearing whenever such a hearing 

might clarify one or more issues concerning the plan. The Regional Administrator will 

give public notice of the hearing at least 30 days before it occurs. The Regional 
43

Administrator will approve, modify, or disapprove the plan within 90 days of its receipt. 

If the Regional Administrator does not approve the plan, he shall provide the owner or 

operator with a detailed written statement of reasons for the refusal and the owner or 

operator must modify the plan or submit a new plan for approval within 30 days after 

receiving such written statement. The Regional Administrator will approve or modify this 

plan in writing within 60 days. If the Regional Administrator modifies the plan, this 

modified plan becomes the approved plan. The Regional Administrator must assure that 

the approved plan is consistent with applicable requirements. A copy of the modified 

plan with a detailed statement of reasons for the modifications must be mailed to the 

owner or operator. Section 261.143(h)(4) provides that, within 60 days of completion of 

the activities described for each hazardous secondary materials management unit, the 

owner or operator must submit to the Regional Administrator, by registered mail, a 

certification that all hazardous secondary materials have been removed from the unit and 

the unit has been decontaminated in accordance with the specifications in the approved 

plan. The certification must be signed by the owner or operator and by a qualified 

Professional Engineer. Documentation supporting the Professional Engineer's 

certification must be furnished to the Regional Administrator, upon request, until he 

releases the owner or operator from the financial assurance requirements for section 

261.4(a)(24)(vi)(F).

Section 261.143(i) provides that, within 60 days after receiving certifications from 

the owner or operator and a qualified Professional Engineer that all hazardous secondary 

materials have been removed from the facility or a unit at the facility and the facility or a 

unit has been decontaminated in accordance with the approved plan per paragraph (h), the 

Regional Administrator will notify the owner or operator in writing that he is no longer 

required under section 261.4(a)(24)(vi)(F) to maintain financial assurance for that facility

or a unit at the facility, unless the Regional Administrator has reason to believe that that 

all hazardous secondary materials have not been removed from the facility or unit at a 

facility or that the facility or unit has not been decontaminated in accordance with the 

approved plan. The Regional Administrator will provide the owner or operator a detailed 

written statement of any such reason to believe that all hazardous secondary materials 

have not been removed from the unit or that the unit has not been decontaminated in 

accordance with the approved plan.

(i) Data items

 A plan under section 261.143(h)(1) and (2) for removing all hazardous 

secondary material residues per section 261.142(a). The plan must 

include, at least:

- For each hazardous secondary materials storage unit subject to 

financial assurance requirements under section 261.4(a)(24)(vi)(F), 

a description of how all excluded hazardous secondary materials 

will be recycled or sent for recycling, and how all residues, 

contaminated containment systems (liners, etc), contaminated 

soils, subsoils, structures, and equipment will be removed or 

decontaminated as necessary to protect human health and the 
44

environment; 

- A detailed description of the steps necessary to remove or 

decontaminate all hazardous secondary material residues and 

contaminated containment system components, equipment, 

structures, and soils including, but not limited to, procedures for 

cleaning equipment and removing contaminated soils, methods for 

sampling and testing surrounding soils, and criteria for determining 

the extent of decontamination necessary to protect human health 

and the environment; 

- A detailed description of any other activities necessary to protect 

human health and the environment during this timeframe, 

including, but not limited to, leachate collection, run-on and runoff control, etc; and

- A schedule for conducting the activities described which, at a 

minimum, includes the total time required to remove all excluded 

hazardous secondary materials for recycling and decontaminate all 

units subject to financial assurance under section 

261.4(a)(24)(vi)(F) and the time required for intervening activities 

which will allow tracking of the progress of decontamination.

 For each hazardous secondary materials management unit, a certification 

under section 261.143(h)(4) that all hazardous secondary materials have 

been removed from the unit and the unit has been decontaminated in 

accordance with the specifications in the approved plan. The certification 

must be signed by the owner or operator and by a qualified Professional 

Engineer.

 Documentation under section 261.143(h)(4) supporting the Professional 

Engineer's certification.

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit a plan to EPA for removing all hazardous 

secondary material residues.

- Modify the plan or prepare a new one and submit it to EPA if a 

detailed written statement of reasons for EPA refusal is received.

- Prepare and submit the certification to EPA by registered mail for 

each hazardous secondary materials management unit.

- Furnish other documentation to EPA if requested supporting the 

Professional Engineer's certification.

Coverage for Sudden and Non-Sudden Accidental Occurrences

40 CFR 261.147(a) provides that an owner or operator of a hazardous secondary

material reclamation facility or an intermediate facility subject to financial assurance 
45

requirements under section 261.4(a)(24)(vi)(F), or a group of such facilities, must 

demonstrate financial responsibility for bodily injury and property damage to third parties 

caused by sudden accidental occurrences arising from operations of the facility or group 

of facilities. Section 261.147(b) provides that an owner or operator of a hazardous 

secondary material reclamation facility or intermediate facility with land-based units, as 

defined in section 260.10, which are used to manage hazardous secondary materials 

excluded under section 261.4(a)(24), or a group of such facilities, must demonstrate 

financial responsibility for bodily injury and property damage to third parties caused by 

nonsudden accidental occurrences arising from operations of the facility or group of 

facilities. The owner or operator must have and maintain liability coverage for sudden 

and nonsudden accidental occurrences in the amounts specified in the regulations. This 

liability coverage may be demonstrated as specified in section 261.147(a)(1), (2), (3), (4), 

(5), or (6) for sudden accidental occurrences and section 261.147(b)(1), (2), (3), (4), (5), 

or (6) for nonsudden accidental occurrences. 

(1) Liability Insurance

40 CFR 261.147(a)(1) and (b)(1) provides that an owner or operator may

demonstrate the required liability coverage by having liability insurance for sudden and 

nonsudden accidental occurrences, as specified in section 261.147(a)(1) and (b)(1), 

respectively. Section 261.147(a)(1)(i) and (b)(1)(i) require that each insurance policy

must be amended by attachment of the Hazardous Secondary Material Facility Liability

Endorsement, or evidenced by a Certificate of Liability Insurance. The wording of the 

endorsement must be identical to the wording specified in section 261.151(h). The 

wording of the certificate of insurance must be identical to the wording specified in 

section 261.151(i). The owner or operator must submit a signed duplicate original of the 

endorsement or the certificate of insurance to the Regional Administrator, or Regional 

Administrators if the facilities are located in more than one Region. If requested by a 

Regional Administrator, the owner or operator must provide a signed duplicate original 

of the insurance policy. Section 261.147(a)(1)(ii) and (b)(1)(ii) provide that each 

insurance policy must be issued by an insurer which, at a minimum, is licensed to 

transact the business of insurance, or eligible to provide insurance as an excess or surplus 

lines insurer, in one or more States.

(i) Data items

 An insurance policy that is amended by attachment of the Hazardous 

Secondary Material Facility Liability Endorsement, or evidenced by a 

Certificate of Liability Insurance. The wording of the endorsement must 

be identical to the wording specified in section 261.151(h). The wording 

of the certificate of insurance must be identical to the wording specified in 

section 261.151(i). 

 A signed duplicate original of the insurance policy.

(ii) Respondent activities
46

 The owner/operator must perform the following activities:

- Prepare and submit an insurance policy that is attached to a signed 

duplicate original of the endorsement or the certificate of insurance 

to the Regional Administrator, or Regional Administrators if the 

facilities are located in more than one Region. 

- Provide a signed duplicate original of the insurance policy, if 

requested by a Regional Administrator.

 The owner/operator and insurer must comply with the terms of the 

endorsement or certificate, as applicable.

(2) Financial Test or Guarantee 

40 CFR 261.147(a)(2) and (b)(2) provide that an owner or operator may meet the 

requirements of this section by passing a financial test or using the guarantee for liability

coverage as specified in section 261.147(f) and (g).

Section 261.147(f)(1) provides that an owner or operator may satisfy the 

requirements of this section by demonstrating that he passes a financial test as specified 

in this paragraph. To pass this test the owner or operator must meet the criteria of 

paragraph (f)(1)(i) or (ii) of this section. Section 261.147(f)(2) defines phrases used in 

the regulations. Section 261.147(f)(3) provides that, to demonstrate that he meets this 

test, the owner or operator must submit the specified items to the Regional Administrator. 

Section 261.147(f)(4) provides that the owner or operator may obtain a one-time 

extension of the time allowed for submission of the documents specified in paragraph 

(f)(3) of this section if the fiscal year of the owner or operator ends during the 90 days 

prior to the effective date of these regulations and if the year-end financial statements for 

that fiscal year will be audited by an independent certified public accountant. The 

extension will end no later than 90 days after the end of the owner's or operator's fiscal 

year. To obtain the extension, the owner's or operator's chief financial officer must send, 

by the effective date of these regulations, a letter to the Regional Administrator of each 

Region in which the owner's or operator's facilities to be covered by the financial test are 

located. Section 261.147(f)(5) provides that, after the initial submission of items 

specified in paragraph (f)(3) of this section, the owner or operator must send updated 

information to the Regional Administrator within 90 days after the close of each

succeeding fiscal year. This information must consist of all three items specified in 

paragraph (f)(3) of this section. Section 261.147(f)(6) provides that, if the owner or 

operator no longer meets the requirements of paragraph (f)(1) of this section, he must 

obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire 

amount of required liability coverage as specified in this section. Evidence of liability

coverage must be submitted to the Regional Administrator within 90 days after the end of 

the fiscal year for which the year-end financial data show that the owner or operator no 

longer meets the test requirements. Section 261.147(f)(7) provides that the Regional 

Administrator may disallow use of this test on the basis of qualifications in the opinion 

expressed by the independent certified public accountant in his report on examination of 
47

the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An 

adverse opinion or a disclaimer of opinion will be cause for disallowance. The Regional 

Administrator will evaluate other qualifications on an individual basis. The owner or 

operator must provide evidence of insurance for the entire amount of required liability

coverage as specified in this section within 30 days after notification of disallowance.

Section 261.147(g)(1) provides that, subject to paragraph (g)(2) of this section, an 

owner or operator may meet the requirements of this section by obtaining a written 

guarantee, hereinafter referred to as “guarantee.” The guarantor must be the direct or 

higher-tier parent corporation of the owner or operator, a firm whose parent corporation 

is also the parent corporation of the owner or operator, or a firm with a “substantial 

business relationship” with the owner or operator. The guarantor must meet the 

requirements for owners or operators in paragraphs (f)(1) through (f)(6) of this section. 

The wording of the guarantee must be identical to the wording specified in section 

261.151(g)(2). A certified copy of the guarantee must accompany the items sent to the 

Regional Administrator as specified in paragraph (f)(3) of this section. One of these items 

must be the letter from the guarantor's chief financial officer. Section 261.147(g)(2)(i) 

provides that, in the case of corporations incorporated in the United States, a guarantee 

may be used to satisfy the requirements of this section only if the Attorneys General or 

Insurance Commissioners of (A) the State in which the guarantor is incorporated, and (B) 

each State in which a facility covered by the guarantee is located have submitted a 

written statement to EPA that a guarantee executed as described in this section and 

section 264.151(g)(2) is a legally valid and enforceable obligation in that State. Section 

261.147(g)(2)(ii) provides that, in the case of corporations incorporated outside the 

United States, a guarantee may be used to satisfy the requirements of this section only if 

(A) the non-U.S. corporation has identified a registered agent for service of process in 

each State in which a facility covered by the guarantee is located and in the State in 

which it has its principal place of business, and if (B) the Attorney General or Insurance 

Commissioner of each State in which a facility covered by the guarantee is located and 

the State in which the guarantor corporation has its principal place of business, has 

submitted a written statement to EPA that a guarantee executed as described in this 

section and section 261.151(h)(2) is a legally valid and enforceable obligation in that 

State.

(i) Data items

 Information required under section 261.147(f)(3):

- A letter signed by the owner's or operator's chief financial officer 

and worded as specified in section 261.151(f). If an owner or 

operator is using the financial test to demonstrate both assurance as 

specified by section 261.143(e), and liability coverage, he must 

submit the letter specified in section 261.151(f) to cover both 

forms of financial responsibility; a separate letter as specified in 

section 261.151(e) is not required.

- A copy of the independent certified public accountant's report on 

examination of the owner's or operator's financial statements for 
48

the latest completed fiscal year.

- A special report from the owner’s or operator’s independent 

certified public accountant to the owner or operator, if the chief 

financial officer’s letter providing evidence of financial assurance 

includes financial data showing that the owner or operator satisfies 

paragraph (f)(1)(i) of this section that are different from the data in 

the audited financial statements referred to in paragraph (f)(3)(ii) 

of this section or any other audited financial statement or data filed 

with the SEC. The special report shall be based upon an agreed 

upon procedures engagement in accordance with professional 

auditing standards and shall describe the procedures performed in 

comparing the data in the chief financial officer’s letter derived 

from the independently audited, year-end financial statements for 

the latest fiscal year with the amounts in such financial statements, 

the findings of the comparison, and the reasons for any difference.

 A letter under section 261.147(f)(4) from the chief financial officer that 

must:

- Request the extension;

- Certify that he has grounds to believe that the owner or operator 

meets the criteria of the financial test;

- Specify for each facility to be covered by the test the EPA 

Identification Number, name, address, the amount of liability

coverage and, when applicable, current closure and post-closure 

cost estimates to be covered by the test;

- Specify the date ending the owner's or operator's last complete 

fiscal year before the effective date of these regulations;

- Specify the date, no later than 90 days after the end of such fiscal 

year, when he will submit the documents specified in paragraph 

(f)(3) of this section; and

- Certify that the year-end financial statements of the owner or 

operator for such fiscal year will be audited by an independent 

certified public accountant.

 Annually updated information as required under section 261.147(f)(5), 

after the initial submission of these items.

 Evidence of liability coverage under section 261.147(f)(6) if alternate 

financial assurance is obtained.

 Evidence of insurance for the entire amount of required liability coverage 

as specified in this section within 30 days after notification of 

disallowance, as required under section 261.147(f)(7).

 A guarantee whose wording is identical to the wording specified in section 
49

261.151(g)(2). A certified copy of the guarantee must accompany the 

items sent to the Regional Administrator as specified in paragraph (f)(3) of 

this section. 

 A letter under section 261.147(g)(1) from the guarantor's chief financial 

officer. If the guarantor's parent corporation is also the parent corporation 

of the owner or operator, this letter must describe the value received in 

consideration of the guarantee. If the guarantor is a firm with a 

“substantial business relationship” with the owner or operator, this letter 

must describe this “substantial business relationship” and the value 

received in consideration of the guarantee.

 Identification of a registered agent for service of process in each State in 

which a facility covered by the guarantee is located and in the State in 

which it has its principal place of business, for corporations incorporated 

outside of the U.S., as required under section 261.147(g)(2)(ii).

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit to EPA a signed letter, copy of the independent 

certified public accountant's report on examination of the owner's 

or operator's financial statements, a special report from the owner’s 

or operator’s independent certified public accountant if applicable, 

and a guarantee if applicable.

- Prepare and submit the information required under section 

261.147(g)(2)(ii), if applicable.

- To obtain an extension of the time allowed for submission of the 

documents specified in section 261.147(f)(3), prepare and send a 

letter to the Regional Administrator of each Region in which the 

owner's or operator's facilities to be covered by the financial test 

are located. 

- Prepare and submit updated information to EPA under section 

261.147(f)(5), at the close of each fiscal year, as specified.

- Obtain alternate financial assurance if necessary and submit 

evidence of alternate financial assurance to EPA.

- Obtain alternate financial assurance and submit evidence of 

insurance for the entire amount of required liability coverage as 

specified in this section within 30 days after notification of 

disallowance by EPA, if applicable.

- Comply with the terms in the letter from the chief financial officer 

and, if applicable, guarantee.

(3) Letter of Credit

40 CFR 261.147(a)(3) and (b)(3) provide that an owner or operator may meet the 
50

requirements of this section by obtaining a letter of credit for liability coverage as 

specified in section 261.147(h). 

Section 261.147(h)(1) provides that an owner or operator may satisfy the 

requirements of this section by obtaining an irrevocable standby letter of credit that 

conforms to the requirements of this paragraph and submitting a copy of the letter of 

credit to the Regional Administrator. Section 261.147(h)(2) provides that the financial 

institution issuing the letter of credit must be an entity that has the authority to issue 

letters of credit and whose letter of credit operations are regulated and examined by a 

Federal or State agency. Section 261.147(h)(3) provides that the wording of the letter of 

credit must be identical to the wording specified in section 261.151(j). Section 

261.147(h)(4) provides that an owner or operator who uses a letter of credit to satisfy the 

requirements of this section may also establish a standby trust fund. Under the terms of 

such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby 

trust will be deposited by the issuing institution into the standby trust in accordance with 

instructions from the trustee. The trustee of the standby trust fund must be an entity

which has the authority to act as a trustee and whose trust operations are regulated and 

examined by a Federal or State agency. Section 261.147(h)(5) provides that the wording 

of the standby trust fund must be identical to the wording specified in section 

261.151(m). [Note: This supporting statement addresses the data items and respondent 

activities associated with the standby trust fund under “Trust Fund.”]

(i) Data items

 Irrevocable standby letter of credit whose wording is identical to the 

wording specified in section 261.151(j).

(ii) Respondent activities

 The owner/operator must prepare and submit a copy of the letter of credit 

to EPA.

 The owner/operator and issuing institution must comply with the terms of 

the letter of credit.

(4) Surety Bond for Liability Coverage 

40 CFR 261.147(a)(4) and (b)(4) provide that an owner or operator may meet the 

requirements of this section by obtaining a surety bond for liability coverage as specified 

in section 261.147(i).

Section 261.147(i)(1) provides that an owner or operator may satisfy the 

requirements of this section by obtaining a surety bond that conforms to the requirements 

of this paragraph and submitting a copy of the bond to the Regional Administrator. 

Section 261.147(i)(2) provides that the surety company issuing the bond must be among 

those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the 
51

U.S. Department of the Treasury. Section 261.147(i)(3) provides that the wording of the 

surety bond must be identical to the wording specified in section 261.151(k). Section 

261.147(i)(4) provides that a surety bond may be used to satisfy the requirements of this 

section only if the Attorneys General or Insurance Commissioners of (i) the State in 

which the surety is incorporated, and (ii) each State in which a facility covered by the 

surety bond is located have submitted a written statement to EPA that a surety bond 

executed as described in this section and section 261.151(k) is a legally valid and 

enforceable obligation in that State.

(i) Data items

 A surety bond whose wording is identical to the wording specified in 

section 261.151(k).

(ii) Respondent activities

 The owner/operator must prepare and submit a copy of the surety bond to 

EPA.

 The owner/operator and surety company must comply with the terms of 

the surety bond.

(5) Trust Fund

40 CFR 261.147(a)(5) and (b)(5) provide that an owner or operator may meet the 

requirements of this section by obtaining a trust fund for liability coverage as specified in 

section 261.147(j).

Section 261.147(j)(1) provides that an owner or operator may satisfy the 

requirements of this section by establishing a trust fund that conforms to the requirements 

of this paragraph and submitting an originally signed duplicate of the trust agreement to 

the Regional Administrator. Section 261.147(j)(2) provides that the trustee must be an 

entity which has the authority to act as a trustee and whose trust operations are regulated 

and examined by a Federal or State agency. Section 261.147(j)(3) provides that the trust 

fund for liability coverage must be funded for the full amount of the liability coverage to 

be provided by the trust fund before it may be relied upon to satisfy the requirements of 

this section. If at any time after the trust fund is created the amount of funds in the trust 

fund is reduced below the full amount of the liability coverage to be provided, the owner 

or operator, by the anniversary date of the establishment of the Fund, must either add 

sufficient funds to the trust fund to cause its value to equal the full amount of liability

coverage to be provided, or obtain other financial assurance as specified in this section to 

cover the difference. For purposes of this paragraph, “the full amount of the liability

coverage to be provided” means the amount of coverage for sudden and/or nonsudden 

occurrences required to be provided by the owner or operator by this section, less the 

amount of financial assurance for liability coverage that is being provided by other 

financial assurance mechanisms being used to demonstrate financial assurance by the 
52

owner or operator. Section 261.147(j)(4) provides that the wording of the trust fund must 

be identical to the wording specified in section 261.151(l).

(i) Data items

 An originally signed duplicate of a trust agreement whose wording is 

identical to the wording specified in section 261.151(l).

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Prepare and submit a copy of the trust agreement to EPA.

- Obtain alternate financial assurance, if necessary.

 The grantor (owner/operator) and trustee must comply with the terms of 

the trust agreement.

(6) Combination of Financial Mechanisms

40 CFR 261.147(a)(6) and (b)(6) provide that an owner or operator may

demonstrate the required liability coverage through the use of combinations of insurance, 

financial test, guarantee, letter of credit, surety bond, and trust fund, except that the 

owner or operator may not combine a financial test covering part of the liability coverage 

requirement with a guarantee unless the financial statement of the owner or operator is 

not consolidated with the financial statement of the guarantor. The amounts of coverage 

demonstrated must total at least the minimum amounts required by this section. If the 

owner or operator demonstrates the required coverage through the use of a combination 

of financial assurances under this paragraph, the owner or operator shall specify at least 

one such assurance as ``primary'' coverage and shall specify other assurance as ``excess'' 

coverage.

(i) Data items

 Specification of at least one assurance as ``primary'' coverage and 

specification of other assurance as ``excess'' coverage.

(ii) Respondent activities

 The owner/operator must specify at least one assurance as ``primary'' 

coverage and shall specify other assurance as ``excess'' coverage” if 

applicable.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

40 CFR 261.147(a)(7) and (b)(7) provide that an owner or operator shall notify
53

the Regional Administrator in writing within 30 days whenever: a claim results in a 

reduction in the amount of financial assurance for liability coverage provided by a 

financial instrument as specified (261.147(a)(7)(i) and (b)(7)(i)); or a Certification of 

Valid Claim for bodily injury or property damages caused by a sudden or non-sudden 

accidental occurrence arising from the operation of a hazardous secondary material 

reclamation facility or intermediate facility is entered between the owner or operator and 

third-party claimant for liability coverage as specified (261.147(a)(7)(ii) and (b)(7)(ii)); 

or a final court order establishing a judgment for bodily injury or property damage caused 

by a sudden or non-sudden accidental occurrence arising from the operation of a 

hazardous secondary material reclamation facility or intermediate facility is issued 

against the owner or operator or an instrument that is providing financial assurance for 

liability coverage as specified (261.147(a)(7)(iii) and (b)(7)(iii)).

(i) Data items

 A written notification to EPA in accordance with section 261.147(a)(7) 

and (b)(7).

(ii) Respondent activities

 The owner/operator must prepare and submit a written notification to EPA 

in accordance with section 261.147(a)(7) or (b)(7), if applicable.

.

Request for Variance

40 CFR 261.147(c) provides that, if an owner or operator can demonstrate to the 

satisfaction of the Regional Administrator that the levels of financial responsibility

required by paragraph (a) or (b) of this section are not consistent with the degree and 

duration of risk associated with treatment and/or storage at the facility or group of 

facilities, the owner or operator may obtain a variance from the Regional Administrator. 

The request for a variance must be submitted in writing to the Regional Administrator. If 

granted, the variance will take the form of an adjusted level of required liability coverage, 

such level to be based on the Regional Administrator's assessment of the degree and 

duration of risk associated with the ownership or operation of the facility or group of 

facilities. The Regional Administrator may require an owner or operator who requests a 

variance to provide such technical and engineering information as is deemed necessary

by the Regional Administrator to determine a level of financial responsibility other than 

that required by paragraph (a) or (b) of this section. 

(i) Data items

 A written request for a variance, including such technical and engineering 

information as is deemed necessary by the Regional Administrator to 

determine a level of financial responsibility other than that required by 

paragraph (a) or (b) of this section. 
54

(ii) Respondent activities

 The owner/operator may prepare and submit a written request for a 

variance.

Adjustments by the Regional Administrator 

40 CFR 261.147(d) provides that, if the Regional Administrator determines that 

the levels of financial responsibility required by paragraph (a) or (b) of this section are 

not consistent with the degree and duration of risk associated with treatment and/or 

storage at the facility or group of facilities, the Regional Administrator may adjust the 

level of financial responsibility required under paragraph (a) or (b) of this section as may

be necessary to protect human health and the environment. This adjusted level will be 

based on the Regional Administrator's assessment of the degree and duration of risk 

associated with the ownership or operation of the facility or group of facilities. In 

addition, if the Regional Administrator determines that there is a significant risk to 

human health and the environment from nonsudden accidental occurrences resulting from 

the operations of a facility that is not a surface impoundment, pile, or land treatment 

facility, he may require that an owner or operator of the facility comply with paragraph 

(b) of this section. An owner or operator must furnish to the Regional Administrator, 

within a reasonable time, any information which the Regional Administrator requests to 

determine whether cause exists for such adjustments of level or type of coverage. 

(i) Data items

 Any information which the Regional Administrator requests to determine 

whether cause exists for adjustments of level or type of coverage.

(ii) Respondent activities

 The owner/operator must furnish to the Regional Administrator, within a 

reasonable time, any information which the Regional Administrator 

requests to determine whether cause exists for adjustments of level or type 

of coverage.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

 

40 CFR 261.148(a) provides that an owner or operator must notify the Regional 

Administrator by certified mail of the commencement of a voluntary or involuntary

proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as 

debtor, within 10 days after commencement of the proceeding. A guarantor of a corporate 

guarantee as specified in section 261.143(e) must make such a notification if he is named 

as debtor, as required under the terms of the corporate guarantee. Section 261.148(b) 

provides that an owner or operator who fulfills the requirements of section 261.143 or 

section 261.147 by obtaining a trust fund, surety bond, letter of credit, or insurance policy

will be deemed to be without the required financial assurance or liability coverage in the 
55

event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of 

the authority of the trustee institution to act as trustee or of the institution issuing the 

surety bond, letter of credit, or insurance policy to issue such instruments. The owner or 

operator must establish other financial assurance or liability coverage within 60 days after 

such an event.

(i) Data items

 Notification to the Regional Administrator by certified mail of the 

commencement of a voluntary or involuntary proceeding under Title 11 

(Bankruptcy), U.S. Code.

(ii) Respondent activities

 The owner/operator must perform the following activities:

- Notify the Regional Administrator by certified mail of the 

commencement of a voluntary or involuntary proceeding under 

Title 11 (Bankruptcy), U.S. Code, if applicable.

- Obtain other financial assurance of liability coverage.

Use of State-Required Mechanisms 

40 CFR 261.149(a) provides that, for a reclamation or intermediate facility

located in a State where EPA is administering the requirements of Subpart H but where 

the State has regulations that include requirements for financial assurance of closure or 

liability coverage, an owner or operator may use State-required financial mechanisms to 

meet the requirements of section 261.143 or section 261.147 if the Regional 

Administrator determines that the State mechanisms are at least equivalent to the 

financial mechanisms specified in Subpart H. The Regional Administrator will evaluate 

the equivalency of the mechanisms principally in terms of (1) certainty of the availability 

of funds for the required closure activities or liability coverage and (2) the amount of 

funds that will be made available. The Regional Administrator may also consider other 

factors as he deems appropriate. The owner or operator must submit to the Regional 

Administrator evidence of the establishment of the mechanism together with a letter 

requesting that the State-required mechanism be considered acceptable for meeting the 

requirements of Subpart H. The submission must include the information specified in 

section 261.149(a). The Regional Administrator may require the owner or operator to 

submit additional information as is deemed necessary to make this determination. 

Pending this determination, the owner or operator will be deemed to be in compliance 

with the requirements of section 261.143 or section 261.147, as applicable.

Section 261.149(b) provides that, if a State-required mechanism is found 

acceptable as specified in paragraph (a) of this section except for the amount of funds 

available, the owner or operator may satisfy the requirements of Subpart H by increasing 

the funds available through the State-required mechanism or using additional financial 

mechanisms as specified in Subpart H. The amount of funds available through the State 
56

and Federal mechanisms must at least equal the amount required by Subpart H.

(i) Data items

 Evidence of the establishment of the State mechanism together with a 

letter requesting that the State-required mechanism be considered 

acceptable for meeting the requirements of Subpart H. The submission 

must include the following information: The facility's EPA Identification 

Number (if available), name, and address, and the amount of funds for 

closure or liability coverage assured by the mechanism. 

 Additional information as is deemed necessary by EPA to make this 

determination. 

(ii) Respondent activities

 The owner or operator must perform the following activities:

- Submit to the Regional Administrator evidence of the 

establishment of the mechanism together with a letter requesting 

that the State-required mechanism be considered acceptable for 

meeting the requirements of Subpart H.

- Submit additional information to EPA as is deemed necessary to 

make this determination. 

- Obtain additional financial assurance if necessary.

State Assumption of Responsibility 

40 CFR 261.150(a) provides that, if a State either assumes legal responsibility for 

an owner's or operator's compliance with the closure or liability requirements of this part 

or assures that funds will be available from State sources to cover those requirements, the 

owner or operator will be in compliance with the requirements of section 261.143 or 

section 261.147 if the Regional Administrator determines that the State's assumption of 

responsibility is at least equivalent to the financial mechanisms specified in Subpart H. 

The Regional Administrator will evaluate the equivalency of State guarantees principally 

in terms of (1) certainty of the availability of funds for the required closure activities or 

liability coverage and (2) the amount of funds that will be made available. The Regional 

Administrator may also consider other factors as he deems appropriate. The owner or 

operator must submit to the Regional Administrator a letter from the State describing the 

nature of the State's assumption of responsibility together with a letter from the owner or 

operator requesting that the State's assumption of responsibility be considered acceptable 

for meeting the requirements of Subpart H. The letter from the State must include, or 

have attached to it, the information specified at section 261.150(a). The Regional 

Administrator may require the owner or operator to submit additional information as is 

deemed necessary to make this determination. Pending this determination, the owner or 

operator will be deemed to be in compliance with the requirements of section 265.143 or 

section 265.147, as applicable. Section 261.150(b) provides that, if a State's assumption 
57

of responsibility is found acceptable as specified in paragraph (a) of this section except 

for the amount of funds available, the owner or operator may satisfy the requirements of 

Subpart H by use of both the State's assurance and additional financial mechanisms as 

specified in Subpart H. The amount of funds available through the State and Federal 

mechanisms must at least equal the amount required by Subpart H.

(i) Data items

 A letter from the State describing the nature of the State's assumption of 

responsibility together with a letter from the owner or operator requesting 

that the State's assumption of responsibility be considered acceptable for 

meeting the requirements of Subpart H. The letter from the State must 

include, or have attached to it, the following information: The facility's 

EPA Identification Number (if available), name, and address, and the 

amount of funds for closure or liability coverage that are guaranteed by the 

State.

 Additional information as is deemed necessary by EPA to make its 

determination.

(ii) Respondent activities

 The owner or operator must perform the following activities:

- Submit to the Regional Administrator a letter from the State 

describing the nature of the State's assumption of responsibility

together with a letter from the owner or operator requesting that 

the State's assumption of responsibility be considered acceptable 

for meeting the requirements of Subpart H. 

- Submit additional information as is deemed necessary by EPA to 

make its determination 

- Obtain additional financial assurance if necessary.

5. THE INFORMATION COLLECTED: AGENCY ACTIVITIES, 

COLLECTION METHODOLOGY, AND INFORMATION 

MANAGEMENT

5(a) Agency Activities

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR

 There is no Agency activity.

NON-WASTE DETERMINATIONS
58

Application for Non-Waste Determination

 Evaluate and either approve or deny the application.

Re-Application for Non-Waste Determination

 Evaluate and either approve or deny the re-application.

NOTIFICATION

 Receive, review, and file the notifications.

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

Exclusion at 40 CFR 261.2(a)(2)(ii)

 Refer to “Notification” for Agency activities. 

Exclusion at 40 CFR 261.4(a)(23)

 Refer to “Notification” for Agency activities. 

Exclusion at 40 CFR 261.4(a)(24)

 Request documentation and certification of reasonable efforts, if 

applicable.

Export Requirements at 40 CFR 261.4(a)(25)

 Receive, review, file, and transmit notifications as necessary.

 Receive, file, and transmit any additional information which a receiving 

country requests in order to respond to a notification, as requested by

EPA.

 Transmit information to the generator in connection with its notification to 

export (e.g., Acknowledgement of Consent), as applicable.

 Receive, review, and file annual report.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 

HAZARDOUS SECONDARY MATERIALS

Cost Estimate
59

 There is no Agency activity.

Financial Assurance Condition

(1) Trust Fund

 Receive and evaluate originally signed duplicate of the trust agreement 

and formal certification of acknowledgement. 

 Receive and evaluate other financial assurance, if provided.

 Receive, review, and respond to request for release of the amount in 

excess of the current cost estimate.

 Receive, review, and respond to request for release of the amount in 

excess of current cost estimate covered by trust fund.

 Instruct the trustee to release to the owner/operator such funds as EPA 

specifies in writing.

 Take other action as needed.

(2) Surety Bond Guaranteeing Payment into a Trust Fund 

 Receive and evaluate surety bond.

 Receive, review, and file evidence of the increase in the penal sum or 

other financial assurance to cover the increase.

 Receive and evaluate alternate financial assurance if required because of 

cancellation of the bond.

 Receive, review, and file notice of cancellation from surety company. 

 Take other action as needed.

(3) Letter of Credit

 Receive and evaluate letter of credit and letter referring to the letter of 

credit.

 Receive, review, and file evidence of an increase in the credit or other 

financial assurance as specified to cover the increase. 
60

 Receive and evaluate alternate financial assurance if required because of 

termination of credit.

 Receive, review, and file a notice of a decision not to extend the expiration 

date of the credit from the issuing institution. 

 Take other action as needed.

(4) Insurance

 Receive and evaluate certificate of insurance.

 Receive, review, and approve reimbursements for expenditures, if 

applicable. 

 Receive, review, and file evidence of an increase in the policy or approve 

other financial assurance as specified to cover the increase.

 Receive and evaluate alternate financial assurance if required because of 

cancellation, termination, or failure to renew the insurance.

 Receive, review, and file notice of cancellation. 

 Take other action as needed.

(5) Financial Test and Corporate Guarantee

 Receive and evaluate a signed letter and accompanying material.

 Receive, review, and approve an extension of the time allowed for 

submission of the documents specified in section 261.143(e)(3).

 Receive, review, and file updated information at the close of each fiscal 

year, as specified.

 Receive, review, and file a notice of intent to establish alternate financial 

assurance.

 Request, receive, review, and file reports of financial condition, if 

applicable.

 Receive and evaluate alternate financial assurance, if required.

 Prepare and transmit notice of disallowance. 
61

 Take other action as needed.

Use of Financial Mechanisms for Multiple Facilities

 Receive, review, and file evidence of financial assurance that must include 

specified information. 

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

 Receive plan, issue public notice and, if applicable, hold a hearing.

 Review, modify, and approve/disapprove plan.

 Issue written statement for refusal, if applicable.

 Review, modify, and approve resubmittal of plan in response to detailed 

written statement of reasons for EPA refusal.

 Receive and review certification for each hazardous secondary materials 

management unit.

 Request and review other documentation if needed to support the 

Professional Engineer's certification.

 Notify owner/operator of release from financial assurance obligations, or 

reasons why it believes hazardous secondary materials have not been 

removed from the unit.

Coverage for Sudden and Non-Sudden Accidental Occurrences

(1) Liability Insurance

 Receive and evaluate insurance policy as specified.

 Request and review signed duplicate original of the insurance policy, if 

applicable.

 Take other action as needed (e.g., notifying an owner/operator that he is 

no longer required to maintain liability coverage, if a certification of 

closure completion has been received).

(2) Financial Test or Guarantee 
62

 Receive and evaluate a signed letter and accompanying material.

 Receive, review, and approve an extension, if applicable.

 Receive, review, and file updated information at the close of each fiscal 

year, as specified.

 Receive and evaluate alternate financial assurance, if necessary.

 Issue notice of disallowance and receive and evaluate alternate financial 

assurance, if applicable.

 Take other action as needed.

(3) Letter of Credit

 Receive and evaluate a copy of the letter of credit.

 Take other action as needed.

(4) Surety Bond for Liability Coverage 

 Receive and evaluate a copy of the surety bond.

 Take other action as needed.

(5) Trust Fund

 Receive and evaluate trust agreement.

 Receive and evaluate alternate financial assurance, if necessary.

 Take other action as needed.

(6) Combination of Financial Mechanisms

 Receive, review, and file specification of at least one assurance as 

``primary'' coverage and specification of other assurance as ``excess'' 

coverage, if applicable.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)
63

 Receive, review, and file a written notification in accordance with section

261.147(a)(7) or (b)(7), if applicable.

.

Request for Variance

 Receive, process, and approve written request for a variance.

 Request and review any technical or engineering documentation necessary

to establish level of financial responsibility.

 Hold a public hearing, if necessary.

Adjustments by the Regional Administrator 

 Request information deemed necessary to assess the need for adjustments 

to an owner/operator’s level of financial responsibility as specified.

 Hold a public hearing, if necessary, and process the adjustment.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

 Receive, review, and file notification of commencement of a voluntary or 

involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, if 

applicable.

 Receive and evaluate other financial assurance of liability coverage.

Use of State-Required Mechanisms 

 Receive and evaluate evidence of the establishment of the mechanism 

together with a letter requesting that the State-required mechanism be 

considered acceptable for meeting the requirements of Subpart H.

 Request and review additional information as is deemed necessary to 

make this determination. 

 Notify owner/operator of EPA’s decision.

 Receive and evaluate additional financial assurance, if necessary.

State Assumption of Responsibility 

 Receive and evaluate a letter from the State and accompanying 

information requesting that the State's assumption of responsibility be 
64

considered acceptable for meeting the requirements of Subpart H. 

 Receive and review additional information as is deemed necessary by EPA 

to make its determination.

 Notify owner/operator of EPA’s decision.

 Receive and evaluate additional financial assurance, if necessary.

5(b) Collection Methodology and Management

In collecting and analyzing the information associated with this ICR, EPA and 

authorized States may use a telephone system, personal computers, and applicable 

database software. They will ensure the accuracy and completeness of collected 

information by reviewing the submittals. They will keep records of this information in file 

cabinets and/or computer systems.

5(c) Small Entity Flexibility

The exclusions in this ICR are voluntary and deregulatory. As such, there is no 

adverse burden impact to large or small entities.

5(d) Collection Schedule

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR

 The one-time certification under 40 CFR 260.10 must be prepared by the 

generator for the material to be excluded.

NON-WASTE DETERMINATIONS

Application for Non-Waste Determination

 There is no schedule for collecting applications.

Re-Application for Non-Waste Determination

 The applicant must re-apply for non-waste determinations, in the event of 

a change in circumstances that affects how a hazardous secondary material 

meets the relevant criteria contained in section 260.34 upon which a nonwaste determination has been based.

NOTIFICATION
65

 A claimant must prepare and submit a notification to EPA prior to 

operating under the exclusion(s).

 A claimant must update and submit notification to EPA by March 1 of 

each even numbered year thereafter.

 A claimant that submitted a notification but then subsequently stops 

managing hazardous secondary materials in accordance with the 

exclusion(s) must submit notification to EPA within 30 days. 

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

 Refer to “Certifications for Hazardous Secondary Material Generated and 

Reclaimed under the Control of the Generator” and “Notification” for 

collection schedules under these exclusions.

Exclusion at 40 CFR 261.4(a)(24)

 A generator must conduct reasonable efforts and prepare the certification 

statement for any intermediate facilities and reclaimers as specified prior 

to arranging for transport of the materials.

 A generator must repeat the reasonable efforts at least every three years.

 Generators that send their hazardous secondary material to an intermediate 

facility where the management of the hazardous secondary material is not 

addressed under a Part B permit or interim-status standards must make 

contractual arrangements to ensure the facility sends the material to the 

reclamation facility identified by the generator prior to the shipment.

 A generator must maintain for a minimum of three years documentation 

and certification that reasonable efforts were made as specified.

 A generator must make documentation and certification available upon 

request by a regulatory authority within 72 hours, or within a longer 

period of time as specified by the regulatory authority.

 A generator must maintain for no less than three years records of all offsite shipments of excluded hazardous secondary materials.

 A generator must maintain for no less than three years confirmations of 

receipt from the intermediate and reclamation facilities.
66

 An intermediate or reclamation facility must maintain for no less than 

three years records of each shipment received.

 An intermediate or reclamation facility must send confirmations of receipt 

of shipment to the generator.

Export Requirements at 40 CFR 261.4(a)(25)

 A generator must submit a complete notification at least sixty days before 

the initial shipment is intended to be shipped offsite. This notification

may cover export activities extending over a twelve month or lesser 

period.

 A generator must submit a renotification when specified conditions on the 

notification change as applicable.

 A generator must re-notify EPA if a shipment cannot be delivered for any

reason to the reclaimer, intermediate facility or the alternate reclaimer or 

alternate intermediate facility. 

 A generator must keep copies of notifications and Acknowledgments of 

Consent to Export for a period of three years following receipt of the 

Acknowledgment. 

 A generator must prepare and submit annual report no later than March 1 

of each year.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 

HAZARDOUS SECONDARY MATERIALS

Cost Estimate

 An owner/operator must adjust the cost estimate for inflation within 60 

days prior to the anniversary date of the establishment of the financial 

instrument(s) used to comply with section 261.143. For owners or 

operators using the financial test or corporate guarantee, the cost estimate 

must be updated for inflation within 30 days after the close of the firm's 

fiscal year and before submission of updated information to the Regional 

Administrator as specified in section 261.143(e)(3).

 An owner/operator must revise the cost estimate no later than 30 days after 

a change in a facility’s operating plan or design that would increase the 

costs of conducting the activities described in section 261.142(a) or no 

later that 60 days after an unexpected event which increases the cost of 
67

conducting the activities described in section 261.142(a). 

 An owner/operator must retain the cost estimate on site during the 

operating life of the facility.

Financial Assurance Condition

 An owner/operator of a hazardous secondary material reclamation facility 

or an intermediate facility must establish financial assurance as a condition 

of the exclusion under section 261.4(a)(24) and (25). 

(1) Trust Fund

 An owner/operator may establish a trust fund as a condition of the 

exclusions under section 261.4(a)(24) and (25).

 An owner/operator must update Schedule A of the trust agreement within 

60 days after a change in the amount of the current cost estimate covered 

by the agreement.

 An owner/operator must, whenever the current cost estimate changes, 

compare the new estimate with the trustee's most recent annual valuation 

of the trust fund. If the value of the fund is less than the amount of the 

new estimate, it must, within 60 days after the change in the cost estimate, 

either make a deposit or obtain other financial assurance to cover the 

difference, as specified.

(2) Surety Bond Guaranteeing Payment into a Trust Fund 

 An owner/operator may establish a surety bond as a condition of the 

exclusions under section 261.4(a)(24) and (25).

 An owner/operator must provide alternate financial assurance as specified, 

and obtain the Regional Administrator's written approval of the assurance 

provided, within 90 days after receipt by both the owner or operator and 

the Regional Administrator of a notice of cancellation of the bond from 

the surety.

 Whenever the current cost estimate increases to an amount greater than the 

penal sum, the owner or operator, within 60 days after the increase, must 

either cause the penal sum to be increased to an amount at least equal to 

the current cost estimate and submit evidence of such increase to the 

Regional Administrator, or obtain other financial assurance as specified to 

cover the increase. 
68

 Whenever the current cost estimate decreases, the penal sum may be 

reduced to the amount of the current cost estimate following written 

approval by the Regional Administrator.

 Under the terms of the bond, the surety may cancel the bond by sending 

notice of cancellation by certified mail to the owner or operator and to the 

Regional Administrator. Cancellation may not occur, however, during the 

120 days beginning on the date of receipt of the notice of cancellation by

both the owner or operator and the Regional Administrator, as evidenced 

by the return receipts. 

 An owner/operator must obtain alternate financial assurance within 90 

days of receipt of notice of cancellation of bond.

(3) Letter of Credit

 An owner/operator may establish a letter of credit as a condition of the 

exclusions under section 261.4(a)(24) and (25).

 The letter of credit must provide that the expiration date will be 

automatically extended for a period of at least 1 year unless, at least 120 

days before the current expiration date, the issuing institution notifies both 

the owner or operator and the Regional Administrator by certified mail of 

a decision not to extend the expiration date.

 Whenever the current cost estimate increases to an amount greater than the 

amount of the credit, the owner or operator, within 60 days after the 

increase, must either cause the amount of the credit to be increased so that 

it at least equals the current cost estimate and submit evidence of such 

increase to the Regional Administrator, or obtain other financial assurance 

as specified to cover the increase. 

 Whenever the current cost estimate decreases, the amount of the credit 

may be reduced to the amount of the current cost estimate following 

written approval by the Regional Administrator.

 If the owner or operator does not establish alternate financial assurance as 

specified and obtain written approval of such alternate assurance from the 

Regional Administrator within 90 days after receipt by both the owner or 

operator and the Regional Administrator of a notice from the issuing 

institution that it has decided not to extend the letter of credit beyond the 

current expiration date, the owner or operator will lose the conditional 

exclusion, and the Regional Administrator will draw on the letter of credit. 

The Regional Administrator may delay the drawing if the issuing 

institution grants an extension of the term of the credit. During the last 30 

days of any such extension the owner or operator will lose the conditional 
69

exclusion and the Regional Administrator will draw on the letter of credit 

if the owner or operator has failed to provide alternate financial assurance 

as specified and obtain written approval of such assurance from the 

Regional Administrator.

(4) Insurance

 An owner/operator may establish insurance as a condition of the 

exclusions under section 261.4(a)(24) and (25).

 After beginning partial or final closure under 40 CFR Parts 264 or 265, as 

applicable, an owner or operator or any other authorized person may

request reimbursements for closure expenditures by submitting itemized 

bills to the Regional Administrator. 

 Cancellation, termination, or failure to renew the insurance policy may not 

occur, however, during the 120 days beginning with the date of receipt of 

the notice by both the Regional Administrator and the owner or operator, 

as evidenced by the return receipts.

 Whenever the current cost estimate increases to an amount greater than the 

face amount of the policy, the owner or operator, within 60 days after the 

increase, must either cause the face amount to be increased to an amount 

at least equal to the current cost estimate and submit evidence of such 

increase to the Regional Administrator, or obtain other financial assurance 

as specified to cover the increase. 

 Whenever the current cost estimate decreases, the face amount may be 

reduced to the amount of the current cost estimate following written 

approval by the Regional Administrator.

(5) Financial Test and Corporate Guarantee

 An owner/operator may establish a financial test or guarantee as a 

condition of the exclusions under section 261.4(a)(24) and (25).

 To obtain an extension under section 261.143(e)(4), the owner's or 

operator's chief financial officer must send, by the effective date of these 

regulations, a letter to the Regional Administrator of each Region in which 

the owner's or operator's facilities to be covered by the financial test are 

located.

 After the initial submission of items specified in section 261.143(e)(3), the 

owner or operator must send updated information to the Regional 

Administrator within 90 days after the close of each succeeding fiscal 

year. 
70

 If the owner or operator no longer meets the requirements of section 

261.143(e)(1), he must send notice to the Regional Administrator of intent 

to establish alternate financial assurance. The notice must be sent by 

certified mail within 90 days after the end of the fiscal year for which the 

year-end financial data show that the owner or operator no longer meets 

the requirements. The owner or operator must provide the alternate 

financial assurance within 120 days after the end of such fiscal year. 

 The Regional Administrator may, based on a reasonable belief that the 

owner or operator may no longer meet the applicable requirements, 

require reports of financial condition at any time from the owner or 

operator in addition to those specified in section 261.143(e)(3). If the 

Regional Administrator finds, on the basis of such reports or other 

information, that the owner or operator no longer meets the requirements 

of 261.143(e)(1), the owner or operator must provide alternate financial 

assurance as specified within 30 days after notification of such a finding.

 If the Regional Administrator disallows use of the tests as specified, the 

owner or operator must provide alternate financial assurance as specified 

within 30 days after notification of the disallowance.

 If the Regional Administrator determines that the hazardous secondary

materials at the owner or operator’s facility covered by the guarantee do 

not meet the conditions of the exclusion, the guarantor must establish a 

trust fund as specified, unless it disposes of any hazardous secondary

material as hazardous waste and closes the facility as specified. 

 Cancellation of the guarantee may not occur during the 120 days 

beginning on the date of receipt of the notice of cancellation by both the 

owner or operator and the Regional Administrator, as evidenced by the 

return receipts.

 If the owner or operator fails to provide alternate financial assurance as 

specified and obtain EPA approval within 90 days after receipt by both the 

owner or operator and the Regional Administrator of a notice of 

cancellation of the corporate guarantee from the guarantor, the guarantor 

will provide such alternate financial assurance in the name of the owner or 

operator.

Use of Financial Mechanisms for Multiple Facilities

 An owner/operator may establish financial mechanisms for multiple 

facilities as a condition of the exclusions under section 261.4(a)(24) and 

(25). The owner/operator must submit the evidence of financial assurance 

for each facility as specified.
71

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

 An owner or operator of a reclamation facility or an intermediate facility 

who wishes to be released from his financial assurance obligations must 

submit a plan for removing all hazardous secondary material residues to 

the Regional Administrator at least 180 days prior to the date on which he 

expects to cease to operate under the exclusion.

 The Regional Administrator will provide the owner or operator and the 

public, through a newspaper notice, the opportunity to submit written 

comments on the plan and request modifications to the plan no later than 

30 days from the date of the notice.

 If the Regional Administrator does not approve the plan, he shall provide 

the owner or operator with a detailed written statement of reasons for the 

refusal and the owner or operator must modify the plan or submit a new 

plan for approval within 30 days after receiving such written statement.

 Within 60 days of completion of the activities as specified for each 

hazardous secondary materials management unit, the owner or operator 

must submit to the Regional Administrator, by registered mail, a 

certification that all hazardous secondary materials have been removed 

from the unit and the unit has been decontaminated in accordance with the 

specifications in the approved plan. 

 Documentation supporting the Professional Engineer's certification must 

be furnished to the Regional Administrator, upon request, until he releases 

the owner or operator from the financial assurance requirements for 

section 261.4(a)(24)(vi)(F).

Coverage for Sudden and Non-Sudden Accidental Occurrences

 An owner or operator of a hazardous secondary material reclamation 

facility or an intermediate facility must demonstrate financial assurance 

for sudden and nonsudden accidental occurrences as a condition of the 

exclusion under section 261.4(a)(24) and (25).

(1) Liability Insurance

 An owner/operator may establish liability insurance as a condition of the 

exclusions under section 261.4(a)(24) and (25) for sudden and/or 

nonsudden accidental occurrences.

 If requested by a Regional Administrator, the owner or operator must 
72

provide a signed duplicate original of the insurance policy.

(2) Financial Test or Guarantee

 An owner/operator may establish a financial test or guarantee as a 

condition of the exclusions under section 261.4(a)(24) and (25) for sudden 

and/or nonsudden accidental occurrences.

 The owner or operator may obtain a one-time extension of the time 

allowed for submission of the documents as specified if the fiscal year of 

the owner or operator ends during the 90 days prior to the effective date of 

these regulations and if the year-end financial statements for that fiscal 

year will be audited by an independent certified public accountant. To 

obtain the extension, the owner's or operator's chief financial officer must 

send, by the effective date of these regulations, a letter to the Regional 

Administrator of each Region in which the owner's or operator's facilities 

to be covered by the financial test are located.

 After the initial submission of items specified in section 261.147(f)(3), the 

owner or operator must send updated information to the Regional 

Administrator within 90 days after the close of each succeeding fiscal 

year.

 If the owner or operator no longer meets the requirements of section 

261.147(f)(1), he must obtain insurance, a letter of credit, a surety bond, a 

trust fund, or a guarantee for the entire amount of required liability

coverage as specified. Evidence of liability coverage must be submitted to 

the Regional Administrator within 90 days after the end of the fiscal year 

for which the year-end financial data show that the owner or operator no 

longer meets the test requirements.

 The owner or operator must provide evidence of insurance for the entire 

amount of required liability coverage, as specified, within 30 days after 

notification of disallowance from EPA.

(3) Letter of Credit

 An owner/operator may establish a letter of credit as a condition of the 

exclusions under section 261.4(a)(24) and (25) for sudden and/or 

nonsudden accidental occurrences.

(4) Surety Bond for Liability Coverage 

 An owner/operator may establish a surety bond as a condition of the 

exclusions under section 261.4(a)(24) and (25) for sudden and/or 

nonsudden accidental occurrences.
73

(5) Trust Fund

 An owner/operator may establish a trust fund as a condition of the 

exclusions under section 261.4(a)(24) and (25) for sudden and/or 

nonsudden accidental occurrences.

 If at any time after the trust fund is created the amount of funds in the trust 

fund is reduced below the full amount of the liability coverage to be 

provided, the owner or operator, by the anniversary date of the 

establishment of the fund, must either add sufficient funds to the trust fund 

to cause its value to equal the full amount of liability coverage to be 

provided, or obtain other financial assurance as specified to cover the 

difference.

(6) Combination of Financial Mechanisms

 An owner/operator may establish multiple financial assurance 

mechanisms, as a condition of the exclusions under section 261.4(a)(24) 

and (25) for sudden and/or nonsudden accidental occurrences. The 

owner/operator must specify at least one such assurance as “primary” 

coverage and specify other assurance as “excess” coverage.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

 An owner or operator shall notify the Regional Administrator in writing 

within 30 days whenever: (i) A claim results in a reduction in the amount 

of financial assurance for liability coverage provided by a financial 

instrument as specified; or a Certification of Valid Claim for bodily injury 

or property damages caused by a sudden or non-sudden accidental 

occurrence arising from the operation of a hazardous secondary material 

reclamation facility or intermediate facility is entered between the owner

or operator and third-party claimant for liability coverage as specified; or a 

final court order establishing a judgment for bodily injury or property 

damage caused by a sudden or non-sudden accidental occurrence arising 

from the operation of a hazardous secondary material reclamation facility 

or intermediate facility is issued against the owner or operator or an 

instrument that is providing financial assurance for liability coverage as 

specified.

Request for Variance

 There is no schedule for collecting applications for variance. An 

owner/operator may be required to submit technical and engineering 

information to EPA if deemed necessary to establish the level of financial 

responsibility.
74

Adjustments by the Regional Administrator 

 The owner/operator must furnish to the Regional Administrator, within a 

reasonable time, any information which the Regional Administrator 

requests to determine whether cause exists for adjustments of level or type 

of coverage.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

 An owner or operator must notify the Regional Administrator by certified 

mail of the commencement of a voluntary or involuntary proceeding under 

Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, 

within 10 days after commencement of the proceeding.

 An owner or operator who fulfills the requirements of section 261.143 or 

261.147 by obtaining a trust fund, surety bond, letter of credit, or 

insurance policy will be deemed to be without the required financial 

assurance or liability coverage in the event of bankruptcy of the trustee or 

issuing institution, or a suspension or revocation of the authority of the 

trustee institution to act as trustee or of the institution issuing the surety 

bond, letter of credit, or insurance policy to issue such instruments. The 

owner or operator must establish other financial assurance or liability

coverage within 60 days after such an event.

Use of State-Required Mechanisms 

 An owner/operator may establish State-required mechanisms as a 

condition of the exclusions under section 261.4(a)(24) and (25), as 

specified, provided that he submits specified information to EPA.

 The Regional Administrator may require the owner or operator to submit 

additional information as is deemed necessary to make this determination.

State Assumption of Responsibility

 A State may assume legal responsibility for an owner's or operator's 

compliance with the closure or liability requirements or assure that funds 

will be available from State sources to cover those requirements, as 

specified, so long as specified information is submitted to EPA.

 The Regional Administrator may require the owner or operator to submit 

additional information as is deemed necessary to make this determination.
75

6. ESTIMATING THE HOUR AND COST BURDEN OF THE 

COLLECTION

6(a) Estimating Respondent Burden Hours

Exhibit 1 provides estimates of the respondent hourly burden associated with the 

rule’s paperwork requirements. Exhibit 1 includes burden hours (total and by labor type) 

per respondent, as well as the overall burden hours for all respondents.

6(b) Estimating Respondent Costs

Exhibit 1 provides estimates of the annual respondent costs associated with the 

rule’s paperwork requirements. These costs are based on the cost of labor, capital, and 

operation and maintenance (O&M). 

(1) Labor Costs 

For the private sector, EPA estimates an average hourly respondent labor cost 

(including fringe and overhead) of $122.72 for legal staff, $72.54 for managerial staff, 

$54.04 for technical staff, and $32.51 for clerical staff. 

For State agencies, EPA estimates an average hourly respondent labor cost 

(including fringe and overhead) of $57.54 for legal staff, $54.02 for managerial staff, 

$32.32 for technical staff, and $20.62 for clerical staff. 

These respondent labor costs were obtained from EPA ICR Number 0976.15.

(2) Capital Costs

Capital costs usually include any produced physical good needed to provide the 

needed information, such as machinery, computers, and other equipment. EPA does not 

anticipate that respondents will incur capital costs in carrying out the information 

collection requirements covered in this ICR.

(3) Operation & Maintenance (O&M) Costs

O&M costs are those costs associated with a paperwork requirement incurred 

continually over the life of the ICR. They are defined by the Paperwork Reduction Act 

of 1995 as the recurring dollar amount of costs associated with O&M or purchasing 

services.” This ICR includes O&M costs for postage (i.e., $0.42 for regular mail, $2.81 

for certified mail, and $8.50 for registered mail). The ICR includes $22 for respondents 

in preparing their petition (e.g., copying and communications) under Part 260. The ICR 

includes $600 for a respondent to purchase a roundtrip airline ticket to send an employee 
76

to perform an audit under section 261.4(a)(24)(v)(B). It includes $3,000 for a respondent 

to purchase an audit report of a facility under section 261.4(a)(24)(v)(B).1

Total Annual O&M costs are $556,562.

6(c) Estimating Agency Hour and Cost Burden

EPA estimates the Agency hour and cost burden associated with the 

information collection requirements covered in this ICR. EPA estimates an average 

hourly labor cost of $86.56 for legal staff (GS15, Step 5), $76.38 for managerial staff 

(GS-15, Step 1), $54.94 for technical staff (GS-13, Step 1), and $23.44 for clerical staff 

(GS-06, Step 1). To derive these hourly estimates, EPA referred to the General Schedule 

(GS) Salary Table 2011. This publication summarizes the unloaded (base) hourly rate for 

various labor categories in the Federal Government. EPA then applied the standard 

government overhead factor of 1.6 to the unloaded rate to derive loaded hourly rates.

Hour and cost burden to regulators is estimated in Exhibit 2.

6(d) Estimating the Annual Respondent Universe and Total Hour and Cost 

Burden

In this section, EPA first describes the estimated respondent universe under the 

rule. EPA then estimates the annual burden to respondents under the rule’s paperwork 

requirements. Finally, EPA estimates the burden impacts to respondents under the 

existing RCRA paperwork requirements in handling excluded materials. 

(1) Respondent Universe

EPA obtained most of the respondent universe estimates for this ICR from EPA’s 

Regulatory Impact Analysis (RIA) for the final rule. Respondent universe numbers have 

not been changed for this renewal because the agency is currently revising the final rule. 

When the revisions are finalized in December, 2012, the universe numbers will be 

updated for this ICR.

Annual Number of Respondents

Type of Respondent Annual Number of 

Respondents

Petitioners under 260.34 7

Generators

Generators, tolling contractors and toll manufacturers under 

261.2(a)(2)(ii) and 261.4(a)(23)

290

Generators under 261.4(a)(24) 4,448

 Total generators 4,738

Reclamation facilities under 261.4(a)(24) 159

Intermediate facilities under 261.4(a)(24) 240

Exporters under 261.4(a)(25) 36

 

1 EPA’s research indicates that an airline fare of $600 is representative of a roundtrip flight within the U.S. 

EPA also found that respondents can purchase an audit report of a reclaimer for about $3,000.
77

(2) Annual Respondent Burden

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED 

AND RECLAIMED UNDER THE CONTROL OF THE GENERATOR (EXHIBIT 1)

EPA estimates that 184 generators and tolling contractors must prepare a 

certification under section 260.10 for hazardous secondary materials that are generated 

and reclaimed under the control of the generator. This includes 88 generators that 

reclaim offsite within the same company and 96 tolling contractors that reclaim under a 

tolling arrangement. Because each site will perform this activity once during the threeyear life of this ICR, EPA has annualized the number of sites by dividing them by three, 

to estimate that 61 will prepare the certification annually (i.e., 184 sites/3 years = 61). 

This is reflected in Exhibit 1.

NON-WASTE DETERMINATIONS (EXHIBIT 1)

Application for Non-Waste Determination

EPA estimates that seven applicants will submit a petition to EPA under section 

260.34 each year. This is reflected in Exhibit 1.

Re-Application for Non-Waste Determination

EPA estimates that no petitioners will submit a re-application to EPA under 

section 260.34 during the three-year life of this ICR. This is reflected in Exhibit 1.

NOTIFICATION (EXHIBIT 1)

EPA estimates that 5,137 entities will notify EPA under section 260.42 prior to 

operating under the exclusion and be required to complete the information laid out at 

section 260.42(a). This includes 4,738 hazardous secondary materials generators, tolling 

contractors and toll manufacturers; 240 intermediate facilities; and 159 reclaimers. 

Because each of these entities will perform this activity once during the three-year life of 

this ICR, EPA has annualized the number of entities by dividing them by three, to 

estimate that 1,712 will prepare and submit the notification annually. 

Entities must re-notify EPA by March 1 of each even numbered year thereafter. 

Note that the existing regulations already require the submittal of the notification by

March 1 of each even numbered year by large quantity generators (40 CFR Part 262) and 

treatment, storage and disposal facilities (40 CFR Part 264 and 265). Hence, this ICR 

estimates burden for small quantity generators (SQGs) only. Specifically, EPA estimates 

that 1,385 SQGs will operate under the exclusions. For purposes of this ICR, EPA 

estimates that one-third will notify EPA in the first year of this ICR (462) and another 

one-third will notify in the second year (462). EPA estimates that these 924 SQGs must 

re-notify in the third year. Because each of these entities will perform this re-notification 

activity once during the three-year life of this ICR, EPA has annualized the number of 
78

entities by dividing them by three (i.e., 308 SQGs annually).2

EPA estimates that, each year, five percent of entities (86) will re-notify because 

they stopped operating under the exclusion.

These assumptions are reflected in Exhibit 1.

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE (EXHIBIT 1)

Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

Refer to “Certifications for Hazardous Secondary Material Generated and 

Reclaimed under the Control of the Generator” and “Notification” for the respondent 

burden estimated under these exclusions.

Exclusion at 40 CFR 261.4(a)(24)

Generators

EPA estimates that 4,448 generators will ship to reclaimers under the exclusion at 

section 261.4(a)(24). Through the industry consultations described in Section 3(c), EPA 

estimates that 40 percent of generators make reasonable efforts to evaluate a prospective 

intermediate and/or reclamation facility as a customary industry practice. Industry

representatives indicated such generators may send their own employees or contract with 

a vendor to audit the facility and/or review available company information. 

The reasonable efforts condition applies when hazardous secondary materials are 

transferred to intermediate facilities and reclamation facilities where the management of 

the hazardous secondary materials is not addressed under a RCRA Part B permit or 

interim status standards. If the permit or interim status standards address the 

management of the hazardous secondary materials, the rule does not require generators to 

conduct reasonable efforts, i.e., because EPA believes that a Part B permit or interim 

status standards provide assurance to generators that the facility has a measure of 

financial stability and that the hazardous secondary materials will be managed in a 

protective manner.

Given the above, EPA estimates that 60 percent of the 4,448 generators (2,669) do 

not conduct reasonable efforts as a standard business practice (i.e., 4,448 x 60% = 2,669). 

Of these, EPA estimates that 50 percent will send their excluded materials to an 

intermediate and/or reclamation facility whose permit or interim-status standards do not 

address the management of the excluded materials. Hence, EPA estimates that 1,335 

generators will make reasonable efforts (i.e., 2,669 x 50% = 1,335). 

 

2 Even though these 924 SQGs are expected to re-notify in the third year of this ICR, EPA has annualized 

them over three years to estimate the average annual burden of the requirements. Note that this approach 

is taken with other one-time activities in this ICR as applicable.
79

Because these reasonable efforts must be conducted once during the three-year 

life of this ICR, EPA annualized the number of generators over three years, to estimate 

that 445 will make these efforts each year (i.e., 1,335/3 = 445). Further, EPA estimates 

that one-third (i.e., 148) will send an employee to conduct an audit and another one-third 

will buy an audit report from a vendor. EPA estimates that the remaining one-third will 

find alternate methods to get the information, such as from a trade association. These 

445 generators must keep records that reasonable efforts were made, including a 

certification. 

Generators that send their excluded materials to an intermediate facility where the 

management of the hazardous secondary material is not addressed under a Part B permit 

or interim-status standards must make contractual arrangements to ensure the facility 

sends the material to the reclamation facility identified by the generator. EPA believes 

this is a standard business practice already taken by generators and therefore has not 

burdened them in this ICR for this activity.

EPA estimates that 50 percent of generators will send their excluded materials to 

an intermediate and/or reclamation facility whose permit or interim-status standards do 

not address the management of the excluded materials, and will need to conduct 

reasonable efforts (i.e., 4,448 x 50% = 2,224). These generators may be asked to submit 

documentation, including a certification, of their reasonable efforts to regulatory

authorities. EPA has used its best judgment to estimate that 30 percent will be asked to 

mail documentation and certification on their reasonable efforts to regulatory authorities 

each year (i.e., 2,224 x 30% = 667). 

Generators under the exclusion must maintain records of all off-site shipments of 

excluded hazardous secondary materials as required by section 261.4(a)(24)(v)(D), and 

confirmation of receipt from the intermediate and reclamation facilities as required by

section 261.4(a)(24)(v)(E). Based on data in the RIA, EPA estimates that 50,555 

shipments of excluded materials will be made each year under the exclusion. 

Note that the recordkeeping required at section 261.4(a)(24)(v)(D) is already

required by the Department of Transportation (DOT) for hazardous materials, or 

otherwise undertaken as a customary industry practice. For example, the DOT 

regulations require shippers to prepare, transmit, and maintain shipping papers for their 

hazardous materials shipments. Therefore, EPA does not expect generators to incur 

incremental burden for this requirement.

Industry representatives indicated that, upon receipt of a shipping paper under the 

exclusion, the intermediate or reclamation facility will mail a copy to the generator as 

confirmation of receipt. Shipping papers are often multi-part forms to make this easy to 

do. EPA estimates that generators will receive and keep confirmations for 50,555 

shipments of excluded materials each year.

These assumptions are reflected in Exhibit 1.
80

Intermediate and Reclamation Facilities

EPA estimates that 50,555 shipments of excluded materials will be received by

intermediate or reclamation facilities each year under the exclusion.3Facilities must keep 

records of, and transmit confirmations of receipt for, each of these shipments. EPA 

expects that the facilities will automate the process of preparing confirmations of receipt 

(e.g., computer-generated labels, etc.) and see minimal burden for sending a confirmation 

to the generator. These assumptions are reflected in Exhibit 1.

Export Requirements at 40 CFR 261.4(a)(25)

EPA estimates that 36 generators will export excluded material under section 

261.4(a)(25) each year. This is reflected in Exhibit 1.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED 

HAZARDOUS SECONDARY MATERIALS (EXHIBIT 1)

EPA estimates that 240 intermediate facilities and 159 reclamation facilities (399 

in total) will claim an exclusion under section 261.4(a)(24) and therefore be subject to the 

financial assurance requirements.

Cost Estimate

Each facility must prepare a cost estimate under section 261.142. Because this is 

a one-time activity, EPA has annualized the number of facilities by dividing them by

three, to estimate that 133 will prepare a cost estimate annually during the three-year life 

of this ICR. In addition, each facility must update the cost estimate annually, revise it as 

required, and maintain records of the most up-to-date version (399). These assumptions 

are reflected in Exhibit 1.

Financial Assurance Condition

Each facility must establish financial assurance as required under section 261.143. 

Facilities must establish coverage by using one or more of the following: trust fund, 

surety bond guaranteeing payment into a trust fund, letter of credit, insurance, and 

financial test or guarantee.

(1) Trust Fund

EPA estimates that 20 percent of the facilities will establish a trust fund (399 x 

20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually.

 

3 Ibid.
81

Facilities must compare their trust funds to their cost estimate whenever the 

estimate changes, to ensure an appropriate level of assurance. EPA estimates that 

facilities will perform the comparison annually (i.e., after the cost estimate is updated for 

inflation). EPA estimates that 10 percent of the facilities using this instrument will 

submit other paperwork as specified each year (e.g., written request for release of the 

amount in excess of the current cost estimate).

Both the facilities and their trustees must comply with the terms of the trust 

agreement each year (e.g., transmittal of information specified in the agreement).

These assumptions are reflected in Exhibit 1.

(2) Surety Bond Guaranteeing Payment into a Trust Fund 

EPA estimates that 20 percent of the facilities will establish a surety bond (399 x 

20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually. EPA estimates that 10 percent of the facilities using this 

instrument will submit other paperwork as specified each year (e.g., evidence of increase 

in penal sum).

Both the facilities and surety companies must comply with the terms of the bond 

each year.

These assumptions are reflected in Exhibit 1.

(3) Letter of Credit

EPA estimates that 20 percent of the facilities will establish a letter of credit (399 

x 20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually. EPA estimates that 10 percent of the facilities using this 

instrument will submit other paperwork as specified each year (e.g., evidence of increase 

in credit).

Both the facilities and issuing institutions must comply with the terms of the letter 

of credit each year.

These assumptions are reflected in Exhibit 1.

(4) Insurance

EPA estimates that 20 percent of the facilities will establish insurance (399 x 20% 
82

= 80). These facilities must submit the required information to establish the instrument. 

Because this is a one-time activity, EPA has annualized the number of facilities over the 

three-year life of this ICR, to estimate that 27 will submit the information annually. EPA 

estimates that 10 percent of the facilities using this instrument will submit other 

paperwork as specified each year (e.g., evidence of increase in the policy).

Both the facilities and insurer must comply with the terms of the insurance each 

year.

These assumptions are reflected in Exhibit 1.

(5) Financial Test or Guarantee

EPA estimates that 20 percent of the facilities will establish the financial test or 

guarantee (399 x 20% = 80). These facilities must submit the required information to 

establish the instruments. Because this is a one-time activity, EPA has annualized the 

number of facilities over the three-year life of this ICR, to estimate that 27 will submit 

the information annually.

Facilities must submit annual updates of their originally submitted information. 

In addition, facilities must comply with the terms of the letter from the chief financial 

officer and, if applicable, guarantee, each year.

These assumptions are reflected in Exhibit 1.

Use of Financial Mechanisms for Multiple Facilities

EPA estimates that ten percent of facilities will submit information under section 

261.143(g) to establish financial mechanisms for multiple facilities. Because this is a 

one-time activity, EPA has annualized the number of facilities over the three-year life of 

this ICR, to estimate that 13 will submit the information annually (i.e., 399/3 = 133 x 

10% = 13). This is reflected in Exhibit 1.

Removal and Decontamination Plan and Release from Financial Assurance 

Obligations

Because the exclusions are newly established, EPA estimates that no facilities will 

seek release from their financial assurance obligations during the three-year life of this 

ICR. This is reflected in Exhibit 1.

Coverage for Sudden and Nonsudden Accidental Occurrences

Each facility must obtain liability coverage for sudden accidental occurrences 

under section 261.147(a) and, if applicable, nonsudden accidental occurrences under 

section 261.147(b). Facilities must establish coverage using one or more of the 

following: liability insurance, financial test or guarantee, letter of credit, surety bond, or 
83

trust fund.

(1) Liability Insurance

EPA estimates that 20 percent of the facilities will establish liability insurance for 

sudden accidental occurrences and, if applicable, nonsudden accidental occurrences (399 

x 20% = 80). These facilities must submit the required information to establish the 

instruments. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually. EPA estimates that 10 percent of the facilities using this 

instrument will submit a signed duplicate original of the insurance policy.

Both the facilities and insurer must comply with the terms of the insurance each 

year.

These assumptions are reflected in Exhibit 1.

(2) Financial Test or Guarantee

EPA estimates that 20 percent of the facilities will establish the financial test or 

guarantee for sudden accidental occurrences and, if applicable, nonsudden accidental 

occurrences (399 x 20% = 80). These facilities must submit the required information to 

establish the instruments. Because this is a one-time activity, EPA has annualized the 

number of facilities over the three-year life of this ICR, to estimate that 27 will submit 

the information annually.

Facilities must submit annual updates of their originally submitted information. 

In addition, facilities must comply with the terms of the letter from the chief financial 

officer and, if applicable, guarantee, each year.

These assumptions are reflected in Exhibit 1.

(3) Letter of Credit

EPA estimates that 20 percent of the facilities will establish a letter of credit for 

sudden accidental occurrences and, if applicable, nonsudden accidental occurrences (399 

x 20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually.

Both the facilities and issuing institutions must comply with the terms of the letter 

of credit each year.

These assumptions are reflected in Exhibit 1.
84

(4) Surety Bond Guaranteeing Payment into a Trust Fund 

EPA estimates that 20 percent of the facilities will establish a surety bond for 

sudden accidental occurrences and, if applicable, nonsudden accidental occurrences (399 

x 20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually.

Both the facilities and surety companies must comply with the terms of the bond 

each year.

These assumptions are reflected in Exhibit 1.

(5) Trust Fund

EPA estimates that 20 percent of the facilities will establish a trust fund for 

sudden accidental occurrences and, if applicable, nonsudden accidental occurrences (399 

x 20% = 80). These facilities must submit the required information to establish the 

instrument. Because this is a one-time activity, EPA has annualized the number of 

facilities over the three-year life of this ICR, to estimate that 27 will submit the 

information annually.

Both the facilities and their trustees must comply with the terms of the trust 

agreement each year.

These assumptions are reflected in Exhibit 1.

Combination of Financial Mechanisms

EPA estimates that ten percent of facilities will submit information under section 

261.147(a)(6) and (b)(6) to use a combination of financial mechanisms for sudden 

accidental occurrences and, if applicable, nonsudden accidental occurrences. Because 

this is a one-time activity, EPA has annualized the number of facilities over the threeyear life of this ICR, to estimate that 13 will submit the information annually (i.e., 399/3 

= 133 x 10% = 13). This is reflected in Exhibit 1.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

EPA estimates that, each year, a very small number of facilities will need to 

submit a notification. EPA estimates that 0.5 percent of facilities (2) will submit a 

notification to EPA each year (i.e., 0.5% x 399 = 2). This is reflected in Exhibit 1.

Request for Variance

EPA does not expect any facilities to submit a variance request during the three-
85

year life of this ICR. This is reflected in Exhibit 1.

Adjustments by the Regional Administrator

EPA does not expect EPA to make adjustments to the financial assurance levels 

of any facilities during the three-year life of this ICR. This is reflected in Exhibit 1.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

EPA does not expect any facilities to notify EPA of bankruptcy proceedings under 

Title 11 during the three-year life of this ICR. This is reflected in Exhibit 1.

Use of State-Required Mechanisms

EPA does not expect any facilities to use State-required mechanisms to satisfy the 

financial assurance requirements during the three-year life of this ICR. This is reflected 

in Exhibit 1.

State Assumption of Responsibility

EPA does not expect any States to assume responsibility for an owner/operator’s 

compliance or assure that funds will be available from State sources to cover the 

requirements during the three-year life of this ICR. This is reflected in Exhibit 1.

(3) Annual Respondent Hour and Cost Impacts under Existing 

Paperwork Requirements

Generators, transporters, intermediate facilities, and reclaimers of excluded 

material are not subject to existing RCRA information collection requirements in 

handling the material. As a result, these entities will see some burden impacts under the 

existing paperwork requirements.

6(e) Bottom Line Hour and Cost Burden

(1) Respondent Tally

EPA estimates the total annual burden to respondents under the new paperwork 

requirements to be 20,403 hours and $1,559,149. 

Note: The burden estimates in Exhibits 1 and 2 are based on an assumption that 

all States will adopt this rule. EPA notes, however, that authorized States are not 

required to adopt the rule. Because of this, some States may not adopt it and others may

adopt only parts of it. This could reduce the burden savings expected under the rule.

(2) Agency Tally
86

As shown in Exhibit 2, EPA estimates the total annual burden to the government 

under the new paperwork requirements to be 3,597 hours and $191,096. 

6(f) Reasons for Change In Burden

There is no change in burden for this renewal. As mentioned earlier, the final rule 

is being revised, finalization is scheduled for December, 2012, and the burden estimates 

will be revised at that time.

6(g) Public Burden Statement

The average annual public reporting burden under the petition procedures at 40 

CFR 260.34 is estimated to be 146 hours per applicant. This includes time to prepare and 

submit the petition. There is no recordkeeping burden.

The average annual public reporting burden under the exclusions at 40 CFR 

261.2(a)(2)(ii) and 261.4(a)(23) is estimated to be ten minutes for a hazardous secondary

material generator, toll manufacturer, or tolling contractor. This includes time to notify

EPA under section 260.42. The average annual recordkeeping burden is estimated to be 

less than five minutes. This includes time to prepare a certification under section 260.10.

The average annual public reporting burden under the exclusion at 40 CFR 

261.4(a)(24) is estimated to be about ten minutes for a hazardous secondary material 

generator. This includes time to notify EPA under section 260.42 and submit 

documentation of reasonable efforts, if requested. The average annual recordkeeping 

burden is estimated to be about one hour and 30 minutes. This includes time to make 

reasonable efforts to evaluate the intermediate and reclamation facilities and to keep 

records of these efforts as well as confirmations of receipt of excluded materials sent 

from the intermediate and reclamation facilities.

The average annual public reporting burden under the exclusion at 40 CFR 

261.4(a)(24) is estimated to be about nine hours and 30 minutes for a hazardous 

secondary material intermediate or reclamation facility. This includes time to notify EPA 

under section 260.42, send confirmations of receipt of shipments to the hazardous 

secondary material generator, and submit the necessary paperwork for financial assurance 

under Subpart H of Part 261. The average annual recordkeeping burden is estimated to 

be about 18 hours and 15 minutes. This includes time to keep records of offsite 

shipments of excluded materials and to prepare/update the cost estimate under Subpart H.

The average annual public reporting burden under the export conditions at 40 

CFR 261.4(a)(25) is estimated to be four hours per exporter. This includes time to 

submit to EPA a notification of intent to export, additional information if requested, and 

an annual report. The average annual recordkeeping burden is estimated to be less than 

five minutes. This includes time to keep records of notices and Acknowledgments of 

Consent. 
87

The annual public reporting and recordkeeping burden for this collection of 

information is estimated to average .13 hours per response.

Burden means the total time, effort, or financial resources expended by persons to 

generate, maintain, retain, or disclose or provide information to or for a Federal agency. 

This includes the time needed to review instructions; develop, acquire, install, and utilize 

technology and systems for the purposes of collecting, validating, and verifying

information, processing and maintaining information, and disclosing and providing 

information; adjust the existing ways to comply with any previously applicable 

instructions and requirements; train personnel to be able to respond to a collection of 

information; search data sources; complete and review the collection of information; and 

transmit or otherwise disclose the information. An agency may not conduct or sponsor, 

and a person is not required to respond to, a collection of information unless it displays a 

currently valid OMB control number. The OMB control numbers for EPA's regulations 

are listed in 40 CFR Part 9 and 48 CFR Chapter 15. 

To comment on the Agency's need for this information, the accuracy of the 

provided burden estimates, and any suggested methods for minimizing respondent 

burden, including the use of automated collection techniques, EPA has established a 

public docket for this ICR under Docket ID Number EPA-HQ-RCRA-2011-0923, which 

is available for online viewing at www.regulations.gov, or in person viewing at the 

Resource Conservation and Recovery Act (RCRA) Docket in the EPA Docket Center 

(EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue, NW, Washington, D.C. 

The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal holidays. The telephone number for the 

Reading Room is (202) 566-1744, and the telephone number for the Resource 

Conservation and Recovery Act (RCRA) Docket is 202-566-0270. An electronic version 

of the public docket is available at http://www.regulations.gov. This site can be used to 

submit or view public comments, access the index listing of the contents of the public 

docket, and to access those documents in the public docket that are available 

electronically. When in the system, select "search," then key in the Docket ID Number 

identified above. Also, you can send comments to the Office of Information and 

Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, 

Washington, D.C. 20503, Attention: Desk Officer for EPA. Please include the EPA 

Docket ID Number EPA-HQ-RCRA-2011-0923, and OMB Control Number 2050-0202 

in any correspondence.
117

Exhibit 1

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Certifications for Hazardous Secondary Material Generated and Reclaimed Under the Control of the Generator

Prepare the certification 0.00 0.02 0.00 0.08 0.10 $4.05 $0.00 $0.00 61 6 $248.40

Subtotal 0.00 0.02 0.00 0.08 0.10 $4.05 $0.00 $0.00 61 6 $248.40

Non-Waste Determinations

Application for Non-Waste Determination

Prepare and submit an application 4.00 4.00 130.00 8.00 146.00 $8,066.32 $0.00 $22.00 7 1,022 $56,618.24

Re-Application for Non-Waste Determination

Prepare and submit a re-application 2.00 2.00 65.00 4.00 73.00 $4,033.16 $0.00 $22.00 0 0 $0.00

Subtotal varies varies varies varies varies varies $0.00 $22.00 varies 1,022 $56,618.24

Notification

Prepare and submit a notification prior to 

operating under exclusion

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 1,712 856 $46,472.73

Update and submit notification by March 1 of

each even numbered year thereafter

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 308 31 $1,130.36

Update and submit notification that the 

hazardous secondary materials are no longer

managed in accordance w ith the exclusion

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 86 9 $314.21

Subtotal 0.00 varies varies varies varies varies $0.00 $0.42 varies 896 $47,917.30

Exclusions from the Definition of Solid Waste

Exclusion at 40 CFR 261.4(a)(24)

Conduct reasonable efforts for intermediate 

facilities and reclaimers and prepare the 

certification statement - using in-house employee 

audit

0.00 2.00 14.00 4.00 20.00 $1,031.68 $0.00 $600.00 148 2,965 $241,923.75

Conduct reasonable efforts for intermediate 

facilities and reclaimers and prepare the 

certification statement - using outside vendor

0.00 2.00 4.00 0.00 6.00 $361.24 $0.00 $3,000.00 148 890 $498,359.85

Conduct reasonable efforts for intermediate 

facilities and reclaimers and prepare the 

certification statement - using readily available 

information

0.00 2.00 4.00 0.00 6.00 $361.24 $0.00 $0.00 148 890 $53,559.85

Generators
118

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Repeat the reasonable efforts at least every 

three years - using in-house employee audit

0.00 2.00 14.00 4.00 20.00 $1,031.68 $0.00 $600.00 0 0 $0.00

Repeat the reasonable efforts at least every 

three years - using outside vendor 0.00 2.00 4.00 0.00 6.00 $361.24 $0.00 $3,000.00 0 0 $0.00

Repeat the reasonable efforts at least every 

three years - using readily available information 0.00 2.00 4.00 0.00 6.00 $361.24 $0.00 $0.00 0 0 $0.00

Make contractual arrangements w ith the 

intermediate facility, if applicable

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.00 0 0 $0.00

Maintain for a minimum of three years 

documentation and certification that reasonable 

efforts w ere made

0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 445 22 $725.02

Make documentation and certification available 

upon request by a regulatory authority w ithin 72 

hours, or w ithin a longer period of time as

specified by the regulatory authority

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 667 67 $2,448.62

Maintain for no less than three years records of

all off-site shipments of excluded hazardous

secondary materials

0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 0 0 $0.00

Maintain for no less than three years 

confirmations of receipt from the intermediate 

and reclamation facilities

0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 50,555 2,528 $82,404.65

Maintain for no less than three years records of

each shipment received 0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 50,555 2,528 $82,404.65

Send confirmations of receipt of shipment 0.00 0.00 0.00 0.02 0.02 $0.65 $0.00 $0.42 50,555 1,011 $54,093.85

Export Requirements at 40 CFR 261.4(a)(25)

Prepare and submit notification 0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 36 18 $977.04

Prepare and submit a w ritten renotification of the 

change w hen the conditions specified on the 

original notification change

0.00 0.10 0.50 0.50 1.10 $50.53 $0.00 $0.42 0 0 $0.00

Provide any additional information w hich a 

receiving country requests in order to respond 

to a notification

0.00 0.00 0.50 0.50 1.00 $43.28 $0.00 $0.42 0 0 $0.00

Intermediate and Reclamation Facilities
119

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Provide Acknow ledgement of Consent to 

transporter

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.00 36 4 $117.00

Re-notify of a change in the conditions of the 

original notification and obtain another

Acknow ledgment of Consent

0.00 0.10 0.50 0.50 1.10 $50.53 $0.00 $0.42 0 0 $0.00

Keep copies of notifications and 

Acknow ledgments of Consent to Export for a 

period of three years 

0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 36 2 $58.68

Prepare and submit annual report 0.00 0.10 2.00 1.30 3.40 $157.60 $0.00 $0.42 36 122 $5,688.72

Subtotal varies varies varies varies varies varies $0.00 varies varies 11,046 $1,022,761.69

Financial Requirements for Management of Excluded Hazardous Secondary Materials

Cost Estimate

Prepare a detailed w ritten cost estimate 2.00 4.00 24.00 4.00 34.00 $1,962.60 $0.00 $0.00 133 4,522 $261,025.80

Adjust and revise the cost estimate 0.00 0.00 0.50 0.00 0.50 $27.02 $0.00 $0.00 399 200 $10,780.98

Keep records of the cost estimate 0.00 0.00 0.00 0.05 0.05 $1.63 $0.00 $0.00 399 20 $650.37

Financial Assurance Condition

Trust Fund

Prepare and submit an originally signed duplicate 

of the trust agreement and formal certification of

acknow ledgement 

0.50 1.00 2.00 0.50 4.00 $258.24 $0.00 $0.42 27 106 $6,880.36

Update Schedule A of the trust agreement 0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.00 8 4 $213.23

Whenever the current cost estimate changes, 

compare new cost estimates w ith the trustee's

most recent annual valuation of the trust fund

0.00 0.00 0.08 0.00 0.08 $4.32 $0.00 $0.00 80 6 $344.74

Obtain other financial assurance to cover the 

difference betw een the current value and new

estimate, unless a deposit has been made as

specified, if applicable

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Intermediate and Reclamation Facilities
120

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Based on comparison, submit a w ritten request 

for release of the amount in excess of the 

current cost estimate

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 8 1 $68.79

Submit a w ritten request for release of the 

amount in excess of the current cost estimate 

covered by the trust fund, if applicable

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 8 1 $68.79

Submit requests for reimbursements, if 

applicable

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.00 0 0 $0.00

Comply w ith the terms of the trust agreement 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Surety Bond Guaranteeing Payment into a Trust Fund

Intermediate and Reclamation Facilities

Prepare and submit the surety bond 1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Submit evidence of the increase in the penal sum

or obtain other financial assurance to cover the 

increase, if applicable

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 8 1 $29.29

Obtain alternate financial assurance and obtain 

EPA approval if required because of cancellation 

of the bond

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Surety Company

Cancel the bond by sending notice of

cancellation by certified mail

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $2.81 0 0 $0.00

Comply w ith the terms of the surety bond 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Letter of Credit

Intermediate and Reclamation Facilities

Prepare and submit letter of credit 1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Submit evidence of an increase in the credit or

obtain other financial assurance as specified to 

cover the increase, if applicable

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 8 1 $29.29

Facility and Surety Company

Facility and Trustee
121

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Obtain alternate financial assurance, if 

applicable 

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Send a notice of a decision not to extend the 

expiration date of the credit by certified mail 0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $2.81 0 0 $0.00

Comply w ith the terms of the letter of credit 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Insurance

Intermediate and Reclamation Facilities

Prepare and submit a certificate of insurance 1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Request reimbursements for expenditures 0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 8 1 $29.29

Submit evidence to the Regional Administrator of

an increase in the policy or obtain other financial 

assurance to cover the increase, if applicable

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 8 1 $29.29

Obtain alternate financial assurance and obtain 

EPA approval if required because of

cancellation, termination, or failure to renew the 

insurance

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Cancel, terminate, or fail to renew the policy by

sending notice by certified mail 0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $2.81 0 0 $0.00

Comply w ith the terms of the certificate of

insurance

0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Financial Test and Corporate Guarantee

Prepare and submit a signed letter, copy of the 

independent certified public accountant's report 

on examination of financial statements, a special 

report from the independent certified public 

accountant if applicable, and a guarantee

2.00 4.00 12.00 6.00 24.00 $1,379.14 $0.00 $0.42 27 638 $36,696.30

Issuing Institution

Insurer

Facility and Insurer

Facility and Issuing Institution
122

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Prepare and send a letter to the Regional

Administrator of each Region in w hich the 

ow ner's or operator's facilities to be covered by

the financial test are located, if applicable

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 3 0.45 $22.93

Prepare and submit updated information at the 

close of each fiscal year

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 80 40 $2,165.77

Prepare and submit a notice by certified mail of

intent to establish alternate financial assurance

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $2.81 0 0 $0.00

Prepare and submit reports of financial condition 

if requested

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 0 0 $0.00

Obtain alternate financial assurance and obtain 

EPA approval if required because the financial 

tests are no longer met or disallow ed by EPA

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Comply w ith the terms in the letter from the chief

financial officer and guarantee

0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 80 8 $430.92

Use of Financial Mechanisms for Multiple Facilities

Submit identical evidence of financial assurance

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 13 1 $48.81

Removal and Decontamination Plan and Release from Financial Assurance Obligations

Prepare and submit a plan for removing all 

hazardous secondary material residues

2.00 4.00 24.00 4.00 34.00 $1,962.60 $0.00 $2.81 0 0 $0.00

Modify the plan or prepare a new one if a 

detailed w ritten statement of reasons for EPA

refusal is received

0.00 2.00 4.00 2.00 8.00 $426.26 $0.00 $2.81 0 0 $0.00

Prepare and submit the certification by

registered mail for each hazardous secondary 

materials management unit

0.00 0.00 2.00 0.50 2.50 $124.34 $0.00 $8.50 0 0 $0.00

Furnish other documentation if requested 0.00 0.00 0.00 0.17 0.17 $5.53 $0.00 $8.50 0 0 $0.00
123

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Coverage for Sudden and Non-Sudden Accidental Occurrences

Liability Insurance

Intermediate and Reclamation Facilities

Prepare and submit an insurance policy that is

attached to a signed duplicate original of the 

endorsement or the certificate of insurance 

1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Provide a signed duplicate original of the 

insurance policy

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 3 0.27 $9.76

Comply w ith the terms of the endorsement or

certificate

0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Financial Test or Guarantee

Prepare and submit a signed letter, copy of the 

independent certified public accountant's report 

on examination of the financial statements, a 

special report from the independent certified 

public accountant if applicable, and a guarantee 

2.00 4.00 12.00 6.00 24.00 $1,379.14 $0.00 $0.42 27 638 $36,696.30

Prepare and submit the information required 

under section 261.147(g)(2)(ii), if applicable

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 3 0.45 $22.93

Prepare and send a letter to the Regional

Administrator of each Region in w hich the 

ow ner's or operator's facilities to be covered by

the financial test are located, if applicable

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 3 0.45 $22.93

Prepare and submit updated information at the 

close of each fiscal year

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 80 40 $2,165.77

Obtain alternate financial assurance if 

necessary and submit evidence of alternate 

financial assurance 

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Facility and Insurer
124

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Obtain alternate financial assurance and submit 

evidence of insurance for the entire amount of

required liability coverage as specified in this 

section w ithin 30 days after notification of

disallow ance by EPA

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Comply w ith the terms in the letter from the chief

financial officer

0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 80 8 $430.92

Letter of Credit

Intermediate and Reclamation Facilities

Prepare and submit a copy of the letter of credit

1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Comply w ith the terms of the letter of credit 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Surety Bond for Liability Coverage

Intermediate and Reclamation Facilities

Prepare and submit a copy of the surety bond 1.00 1.00 2.00 2.00 6.00 $368.36 $0.00 $0.42 27 160 $9,809.55

Comply w ith the terms of the surety bond 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Trust Fund

Intermediate and Reclamation Facilities

Prepare and submit a copy of the trust 

agreement

0.50 1.00 2.00 0.50 4.00 $258.24 $0.00 $0.42 27 106 $6,880.36

Obtain alternate financial assurance, if 

applicable 

1.00 2.00 4.00 2.00 9.00 $548.98 $0.00 $0.42 0 0 $0.00

Comply w ith the terms of the trust agreement 0.00 0.00 0.10 0.00 0.10 $5.40 $0.00 $0.00 160 16 $861.84

Combination of Financial Mechanisms

Specify at least one assurance as ``primary'' 

coverage and other assurance as ``excess'' 

coverage” if applicable

0.00 0.00 0.00 0.10 0.10 $3.25 $0.00 $0.42 13 1 $48.81

Facility and Surety Company

Facility and Issuing Institution

Facility and Trustee
125

Exhibit 1 con't.

Legal Managerial Technical Clerical

Information Collection Activity $122.72 $72.54 $54.04 $32.51

No. of

Respond./ 

Activities

Total 

Hours/Year

Total Cost/Year

 Hours/ 

Activity

Estimated Annual Respondent Hour and Cost Burden - New Paperwork Requirements

Revisions to the Definition of Solid Waste*

Hours and Costs Per Respondent Total Hours and Costs

Labor

Costs/

Activity

Capital 

Costs

 O&M Costs

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

Prepare and submit a w ritten notification in 

accordance w ith section 261.147(a)(7) or (b)(7)

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $2.81 2 1 $58.91

Request for Variance

Prepare and submit a w ritten request for a 

variance

1.00 2.00 5.00 2.00 10.00 $603.02 $0.00 $0.42 0 0 $0.00

Adjustments by the Regional Administrator

Furnish any information requested to determine 

w hether cause exists for adjustments of level or

type of coverage

0.00 0.10 0.30 0.10 0.50 $26.72 $0.00 $0.42 0 0 $0.00

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

Notify EPA by certified mail of the 

commencement of a voluntary or involuntary 

proceeding under Title 11 

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $2.81 0 0 $0.00

Obtain other financial assurance of liability

coverage

0.10 0.10 0.10 0.20 0.50 $31.43 $0.00 $0.42 0 0 $0.00

Use of State-Required Mechanisms

Submit evidence and letter 0.10 0.10 0.35 0.20 0.75 $44.94 $0.00 $0.42 0 0 $0.00

Submit additional information as is deemed 

necessary 

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 0 0 $0.00

Obtain additional financial assurance, if

applicable

0.10 0.10 0.10 0.20 0.50 $31.43 $0.00 $0.42 0 0 $0.00

State Assumption of Responsibility

Submit a letter from the State 0.10 0.10 0.35 0.20 0.75 $44.94 $0.00 $0.42 0 0 $0.00

Submit additional information as is deemed 

necessary 

0.00 0.04 0.05 0.08 0.17 $8.20 $0.00 $0.42 0 0 $0.00

Obtain additional financial assurance, if

applicable

0.10 0.10 0.10 0.20 0.50 $31.43 $0.00 $0.42 0 0 $0.00

Subtotal varies varies varies varies varies varies $0.00 varies varies 7,434 $431,603.61

Total varies varies varies varies varies varies $0.00 varies varies 20,403 $1,559,149.25
126
127
128
129
130
131
132
133