UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

~DEC 1 5 2014l 

OFFICE OF 

SOLID WASTE AND EMERGENCY 

RESPONSE 

MEMORANDUM 

SUBJECT: 

FROM: 

THRU: 

Post-Signature Change to Revisions to the Definition of Solid Waste (Tier 2; SAN 

5454; RIN 2050-AG62) 

Mathy Stanislaus (5101) 

Assistant Administrator 

Joel Beauvais . ~ Office of Policy (1804t_V l 

John Michaud 

Office of General Council (236 

TO: Gina McCarthy (1101A) 

Administrator 

This memo is submitted per OGC guidance on changes to rule language after the rule has been 

signed by the Administrator but before it has been published in the Federal Register. 1 I 

recommend deletion of regulatory language in the Definition of Solid Waste final rule at 40 CFR 

261.2(e) that was inadvertently retained from the proposal, and which references the legitimacy 

definition at 40 CFR 260.43 (see attached page 33 1 of pre-publication draft of the final rule). 

This language is redundant with language at 40 CFR 261.2(g) and inconsistent with the preamble 

discussion. For example, on page 111 of the pre-publication version of the final rule: 

"However, instead of changing the language of each recycling exclusion or exemption to 

include the requirement as we proposed in the 20 11 DSW proposal, we have instead 

added language in § 261 .2(g) that specifically prohibits sham recycling to ensure that all 

recycling, including recycling under the pre-2008 exclusions is legitimate (i.e., real 

recycling)." 

As a result of this suggested change to the language of the final rule, the existing language at 40 

CFR 261.2(e) would be retained unchanged, consistent with EPA's reasoning in the preamble. 

1 Memorandum from Ann Klee, General Council, and Brian Mannix, Associate Administrator for the Office of 

Policy, Economics and Innovation, Changes 10 Rule Documents Prepared for the Administrator's Signature, July 

25,2005. 
Upon your approval as indicated by your signature below, we will make this change prior to 

transmitting the final rule to the Federal Register for publication. Please let me know if you have 

any questions about this suggested change. 

Attachment 

I agree with the deletion of the following regulatory language in the Definition of Solid Waste 

final rule at 40 CFR 261.2( e) that was inadvertently retained from the proposal, and which 

references the legitimacy definition at 40 CFR 260.43. 

(e) Materials that are not solid waste when recycled. (I) Materials are not solid wastes 

when they can be shown to be legitimately recycled as specified in § 260.43 by being: 
Page 331 of the Pre-Publication Draft of the Definition of Solid Waste Final Rule 

Text recommending to be deleted from the rule is highlighted. 

Reclamation 

(§ 261.2(c)(3)), 

Use Energy except as Speculative constituting provided in 

disposal recovery/ fuel §§ 261.4(a)(17), accumulation 

(§ 261.2(c)(l)) (§ 261.2(c)(2)) 261.4(a)(23), (§ 261.2(c)(4)) 

261.4(a)(24) or 

261.4(a)(27). 

1 2 · 3 4 

Spent Materials (*) (*) (*) (*) 

Sludges (listed in 

40 CFR Part (*) (*) (*) (*) 261.31 or 261.32) 

Sludges exhibiting 

a characteristic of (*) (*) ---- (*) hazardous waste 

By-products (listed 

in 40 CFR 261.31 (*) (*) (*) (*) 

or 261.32) 

By-products 

exhibiting a (*) (*) ---- (*) characteristic of 

hazardous waste 

Commercial 

chemical products (*) (*) ---- ---- listed in 40 CFR 

261.33 

Scrap metal that is 

not excluded under (*) (*) (*) (*) 40CFR 

261.4(a)(13) 

Note: The terms "spent materials," "sludges," "by-products," and "scrap metal" and "processed 

scrap metal" are defmed in § 261.1. 

* * * * * 

(e) Materials that are not solid -.vaste ·when recycled. (1) Materials are not solid wastes 

when they can be shown to be legitimately recycled as specified in § 260.43 by being: 

* * * * *