UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTO N , D

. C

. 20460



### ~DEC 1 

### 5 20 14l OFF I C E O F SOLID WASTE A N D E M ERGE N CY RESPONSE MEMORANDUM
SUBJECT:
FROM:
THRU: Post

- Signature Change to Revisions to the Definition of So lid Waste (Tier 2; SAN 5454; RIN 205 0-AG62 ) Math y Stanis laus (5101) Assistant Administrator Joel Beauvais

.



### ~ Office of Policy ( 18 04t_V 

### l John Michaud Office of Ge neral Co uncil (236 TO : Gina McCarthy ( 1101 A) Admi nistrato r
This memo is subm itted per OGC guidance on changes to rule language after the rule has been s igned by the Administrator but before it has been published in the Federal Register. 1 I recommend deletion of regulatory language in the Defin iti on of Solid Waste final rule at 40 CFR 26 1 .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 fina l ru le). T hi s languag e is redun dant with language at 40 CFR 26 1.2(g) and incon s istent with the preamble discussion. For examp le, on page 111 of the pre-publication ver sion of the final rule:

" H owever, i nstead of changin g the language of each recycling exclusion or exempti on to include the requirement as we propo sed in the 20 1 1 D SW p roposal , we have instead added language in § 261 .2 (g) that specifically prohibits sham recycling to ens ure that all rec ycl in g, inclu ding recycling under the pre-2008 exclusions is le g itimate (i.e., real recycling). " As a resu lt of this su ggeste d change to the lan guage of the final rule , the existing language at 40 CFR 26 1.2 (e) would be retained unchanged , cons i stent with EPA's reasoning in the preamble.

1 Memorandum from Ann Klee , General Council , and Brian Mannix, Associate Administrator for the Offi ce of Policy , Economics and Innovation , Changes 10 R ule Documents Prepared for the Administrator's Signature , Jul y 25,20 05.Upon yo ur 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 r eferences the legitimacy definitio n 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 le git imately 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 rul e i s 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 (li sted 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 term s "s pent materi als," " sludges ," " by-products ," and "s crap metal " and " processed scrap metal " are defmed in 

### § 26 1.1. 

### * * 

## * * * (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: 

## * * 

## * * *