1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
260
and
261
[
RCRA­
2002­
0031;
FRL
­
]

RIN
2050­
AE98
Revisions
to
the
Definition
of
Solid
Waste
AGENCY:
Environmental
Protection
Agency.

ACTION:
Proposed
rule.

SUMMARY:
The
Environmental
Protection
Agency
(
EPA)
is
today
proposing
revisions
to
the
definition
of
solid
waste
that
identify
certain
recyclable
hazardous
secondary
materials
as
not
discarded,
and
thus
not
subject
to
regulation
as
wastes
under
Subtitle
C
of
the
Resource
Conservation
and
Recovery
Act
(
RCRA).
The
proposed
rule
would
also
establish
specific
regulatory
criteria
for
determining
whether
or
not
hazardous
secondary
materials
are
recycled
legitimately.

DATES:
To
make
sure
we
consider
your
comments
on
this
proposed
rule,
they
must
be
postmarked
by
[
INSERT
90
DAYS
FROM
DATE
OF
FEDERAL
REGISTER
PUBLICATION]

ADDRESSES:
Comments
may
be
submitted
by
mail
to:
OSWER
Docket,
Environmental
Protection
Agency,
Mailcode:
5305T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC,
20460,

Attention
Docket
ID
No.
RCRA­
2002­
0031.
Comments
may
also
be
submitted
electronically,
or
through
hand
delivery/
courier.
Follow
the
detailed
instructions
as
provided
in
Section
C
of
the
SUPPLEMENTARY
INFORMATION
section.

FOR
FURTHER
INFORMATION
CONTACT:
For
general
information,
contact
the
RCRA
2
Call
Center
at
800­
424­
9346
or
TDD
800­
553­
7672
(
hearing
impaired).
In
the
Washington,
DC,

metropolitan
area,
call
703­
412­
9810
or
TDD
703­
412­
3323.
For
more
detailed
information
on
specific
aspects
of
this
rulemaking,
contact
Dave
Fagan
at
(
703)
308­
0603
(
fagan.
david@
epa.
gov),
or
Ingrid
Rosencrantz
at
(
703)
605­
0709
(
rosencrantz.
ingrid@
epa.
gov).

SUPPLEMENTARY
INFORMATION:

A.
Regulated
Entities.
Entities
potentially
affected
by
this
action
are
expected
to
include
more
than
1300
facilities
that
generate
and/
or
recycle
hazardous
secondary
materials.
Most
of
these
facilities
are
in
manufacturing
industries,
and
the
most
common
types
of
recyclable
materials
that
would
be
affected
by
the
rule
are
metal­
bearing
secondary
materials
and
solvents.
The
rule
is
expected
to
result
in
a
net
savings
to
industry
of
approximately
$
178
million
per
year.
More
detailed
information
on
the
entities,
industries
and
materials
potentially
affected
by
this
rule
is
presented
in
section
VII.
A.
of
this
preamble.

B.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?

Docket.
EPA
has
established
an
official
docket
for
this
action
under
Docket
ID
No.
RCRA­
2002­

0031.
The
official
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
OSWER
Docket
at
the
EPA
Docket
Center
(
EPA/
DC),
Room
B102,
EPA
West
Building,
1301
Constitution
Avenue,
NW,
Washington,
DC.

The
EPA/
DC
Reading
Room
is
open
from
8:
30
AM
to
4:
30
PM,
Monday
through
Friday,

excluding
legal
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566­
1744,
and
3
the
OSWER
Docket
telephone
number
is
(
202)
566­
0270.
Copies
are
$
0.15
per
page.

Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
"
Federal
Register"
listings
at
http://
www.
epa.
gov/
fedrgstr.
Comments
on
the
proposed
rule
can
be
submitted
through
the
federal
e­
rulemaking
portal,

http://
www.
regulations.
gov.

An
electronic
version
of
the
public
docket
is
also
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
public
docket,
and
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
"
search,"
then
key
in
the
appropriate
docket
identification
number.

Certain
types
of
information
will
not
be
placed
in
the
EPA
Docket.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility.
EPA
intends
to
work
toward
providing
electronic
access
to
all
of
the
publicly
available
docket
materials
through
EPA's
electronic
public
docket.

For
public
commenters,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,

whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
4
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
the
copyrighted
material,
will
be
available
in
the
public
docket.

Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
Docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.

For
additional
information
about
EPA's
electronic
public
docket
visit
EPA
Dockets
online
or
see
67
FR
38102,
May
31,
2002.

C.
How
and
To
Whom
Do
I
Submit
Comments?

You
may
submit
comments
electronically,
by
mail,
or
through
hand
delivery/
courier.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
"
late."
EPA
is
not
required
to
consider
these
late
comments.

Electronically.
If
you
submit
an
electronic
comment
as
prescribed
below,
EPA
recommends
that
you
include
your
name,
mailing
address,
and
an
e­
mail
address
or
other
contact
information
in
the
body
of
your
comment.
Also
include
this
contact
information
on
the
outside
of
any
disk
or
CD
ROM
you
submit,
and
in
any
cover
letter
accompanying
the
disk
or
CD
ROM.
This
ensures
that
5
you
can
be
identified
as
the
submitter
of
the
comment
and
allows
EPA
to
contact
you
in
case
EPA
cannot
read
your
comment
due
to
technical
difficulties
or
needs
further
information
on
the
substance
of
your
comment.
EPA's
policy
is
that
EPA
will
not
edit
your
comment,
and
any
identifying
or
contact
information
provided
in
the
body
of
a
comment
will
be
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
EPA
may
not
be
able
to
consider
your
comment.

Your
use
of
EPA's
electronic
public
docket
to
submit
comments
to
EPA
electronically
is
EPA's
preferred
method
for
receiving
comments.
Go
directly
to
EPA
Dockets
at
http://
www.
epa.
gov/
edocket,
and
follow
the
online
instructions
for
submitting
comments.
To
access
EPA's
electronic
public
docket
from
the
EPA
Internet
Home
Page,
select
"
Information
Sources,"
"
Dockets,"
and
"
EPA
Dockets."
Once
in
the
system,
select
"
search,"
and
then
key
in
Docket
ID
No.
RCRA­
2002­
0031.
The
system
is
an
"
anonymous
access"
system,
which
means
EPA
will
not
know
your
identity,
e­
mail
address,
or
other
contact
information
unless
you
provide
it
in
the
body
of
your
comment.

Comments
may
be
sent
by
electronic
mail
(
e­
mail)
to
rcra­
docket@
epamail.
epa.
gov,

Attention
Docket
ID
No.
RCRA­
2002­
0031.
In
contrast
to
EPA's
electronic
public
docket,

EPA's
e­
mail
system
is
not
an
"
anonymous
access"
system.
If
you
send
an
e­
mail
comment
directly
to
the
Docket
without
going
through
EPA's
electronic
public
docket,
EPA's
e­
mail
system
automatically
captures
your
e­
mail
address.
E­
mail
addresses
that
are
automatically
captured
by
EPA's
e­
mail
system
are
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
6
You
may
submit
comments
on
a
disk
or
CD
ROM
that
you
mail
to
the
mailing
address
identified
in
the
following
paragraph.
These
electronic
submissions
will
be
accepted
in
WordPerfect
or
ASCII
file
format.
Avoid
the
use
of
special
characters
and
any
form
of
encryption.

By
Mail.
Send
comments
to:
OSWER
Docket,
Environmental
Protection
Agency,
Mailcode:

5305T,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC,
20460,
Attention
Docket
ID
No.
RCRA­

2002­
0031.

By
Hand
Delivery
or
Courier.
Deliver
your
comments
to:
OSWER
Docket,
EPA
West
Building,

Room
B102,
1301
Constitution
Avenue,
NW,
Washington,
D.
C.,
Attention
Docket
ID
No.

RCRA­
2002­
0031.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation
as
identified
in
the
"
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?"
section.

How
Should
I
Submit
CBI
To
the
Agency?

Do
not
submit
information
that
you
consider
to
be
confidential
business
information
(
CBI)

electronically
through
EPA's
electronic
public
docket
or
by
e­
mail.
Send
or
deliver
information
identified
as
CBI
only
to
the
following
address:
RCRA
CBI
Document
Control
Officer,
Office
of
Solid
Waste
(
5305W),
U.
S.
EPA,
1200
Pennsylvania
Avenue,
NW.,
Washington,
D.
C.
20460,

Attention
Docket
ID
No.
RCRA­
2002­
0031.
You
may
claim
information
that
you
submit
to
EPA
as
CBI
by
marking
any
part
or
all
of
that
information
as
CBI
(
if
you
submit
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
CBI).
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR,
Part
2.
7
In
addition
to
one
complete
version
of
the
comment
that
includes
any
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket
and
EPA's
electronic
public
docket.
If
you
submit
the
copy
that
does
not
contain
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
clearly
that
it
does
not
contain
CBI.
Information
not
marked
as
CBI
will
be
included
in
the
public
docket
and
EPA's
electronic
public
docket
without
prior
notice.
If
you
have
any
questions
about
CBI
or
the
procedures
for
claiming
CBI,
please
consult
the
person
identified
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

D.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:

1.
Explain
your
views
as
clearly
as
possible.

2.
Describe
any
assumptions
that
you
used.

3.
Provide
any
technical
information
and/
or
data
you
used
that
support
your
views.

4.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.

5.
Provide
specific
examples
to
illustrate
your
concerns.

6.
Offer
alternatives.

7.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

8.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
name,

date,
and
Federal
Register
citation
related
to
your
comments.

Preamble
Outline
I.
Statutory
Authority
8
II.
Background
A.
What
is
the
intent
of
today's
proposed
rule?

B.
Who
would
be
affected
by
today's
rule?

C.
How
is
hazardous
waste
recycling
currently
regulated?

D.
What
are
the
legal
issues
surrounding
the
definition
of
solid
waste?

1.
Background
2.
A
series
of
D.
C.
Circuit
Court
decisions
3.
Today's
action
E.
What
suggestions
have
stakeholders
offered
for
future
efforts
to
revise
the
current
recycling
regulations?

F.
What
is
the
scope
of
today's
proposed
rule?

III.
Detailed
description
of
the
proposed
rule.

A.
Exclusion
for
hazardous
secondary
materials
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry
1.
What
is
the
intent
of
the
proposed
exclusion?

2.
What
is
reclamation?

3.
What
types
of
materials
would
be
eligible
for
the
proposed
exclusion?

4.
What
is
meant
by
a
"
continuous
process
within
the
same
industry?"

5.
What
other
options
were
considered
for
defining
"
continuous
process
within
the
same
industry?"

6.
How
is
EPA
proposing
to
define
"
industry?"

7.
How
is
EPA
proposing
to
define
"
continuous
process?"
9
8.
What
type
of
notification
will
be
required?

9.
What
conforming
changes
to
existing
regulations
are
proposed?

10.
How
would
the
proposal
be
implemented
and
enforced?

B.
Legitimate
Recycling
1.
What
is
legitimate
recycling?

2.
What
is
the
current
guidance
for
legitimate
recycling?

3.
Today's
proposed
criteria
for
legitimate
recycling
IV.
Request
for
Comment
on
a
Broader
Exclusion
for
Legitimate
Recycling
V.
Effect
of
today's
proposal
on
other
programs
A.
Exports
and
Imports
B.
Superfund
VI.
State
Authority
A.
Applicability
of
rules
in
authorized
states
B.
Effect
on
state
authorization
C.
Interstate
transport
VII.
Statutory
and
Executive
Order
reviews.

A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
10
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
&
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,

or
Use
I.
National
Technology
Transfer
Advancement
Act
of
1995
I.
Statutory
Authority
These
regulations
are
proposed
under
the
authority
of
sections
2002,
3001,
3002,
3003,

and
3004
of
the
Solid
Waste
Disposal
Act
of
1970,
as
amended
by
the
Resource
Conservation
and
Recovery
Act
of
1976
(
RCRA),
as
amended
by
the
Hazardous
and
Solid
Waste
Amendments
of
1984
(
HSWA),
42
U.
S.
C.
6921,
6922,
6923,
and
6924.

II.
Background
A.
What
is
the
intent
of
today's
proposed
rule?

Today's
proposed
rule
is
intended
to
revise
and
clarify
the
RCRA
definition
of
solid
waste
as
it
pertains
to
certain
types
of
hazardous
secondary
materials
that
are
not
considered
to
be
discarded,
and
thus
are
not
considered
wastes
subject
to
regulation
under
RCRA
Subtitle
C.
This
regulatory
action
was
initiated
primarily
in
response
to
decisions
by
the
United
States
Court
of
Appeals
for
the
D.
C.
Circuit,
which,
taken
together,
have
provided
the
Agency
with
additional
direction
in
this
area.
Specifically,
this
proposal
would
define
those
circumstances
under
which
materials
would
be
excluded
from
RCRA's
hazardous
waste
regulations
because
they
are
11
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.

This
proposal
represents
an
important
restructuring
of
the
RCRA
regulations
that
distinguish
wastes
from
non­
waste
materials
for
Subtitle
C
purposes,
and
that
ensure
environmental
protections
over
hazardous
waste
recycling
practices.
As
such,
it
is
also
an
opportunity
for
the
Agency
to
clarify
in
a
regulatory
context
the
concept
of
"
legitimate
recycling,"

which
has
been
and
is
a
key
component
of
RCRA's
regulatory
program
for
hazardous
material
recycling,
but
which
to
date
has
been
implemented
without
specific
regulatory
criteria.
Today's
proposal
thus
includes
specific
regulatory
provisions
for
determining
when
hazardous
wastes
and
other
hazardous
secondary
materials
are
recycled
legitimately.

Today's
proposal
is
de­
regulatory
in
nature,
in
that
certain
recyclable
materials
that
have
heretofore
been
subject
to
hazardous
waste
regulations
would
no
longer
be
regulated
under
the
hazardous
waste
regulatory
system.
The
proposed
criteria
for
legitimate
recycling
codify
existing
principles,
without
increasing
regulation.
This
proposal
is
not
intended
to
bring
new
wastes
into
the
RCRA
Subtitle
C
regulatory
system.

By
removing
hazardous
waste
regulatory
controls
over
certain
recycling
practices,
and
by
providing
more
explicit
criteria
for
determining
the
legitimacy
of
recycling
practices
in
general,

EPA
expects
that
this
proposed
rule
will
encourage
safe,
beneficial
recycling
of
hazardous
secondary
materials
by
industry.
This
regulatory
initiative
is
thus
consistent
with
the
Agency's
longstanding
policy
of
encouraging
the
recovery
and
reuse
of
valuable
resources
as
an
alternative
to
land
disposal.
It
is
also
consistent
with
one
of
the
primary
goals
of
the
Congress
in
enacting
the
RCRA
statute
(
as
evidenced
by
its
name),
and
with
the
Agency's
vision
of
how
the
RCRA
program
could
evolve
over
the
longer
term
to
promote
sustainability
and
more
efficient
use
of
1The
Agency's
long­
term
"
vision"
of
the
future
of
the
RCRA
program
is
discussed
in
the
document
"
Beyond
RCRA:
Prospects
for
Waste
and
Materials
Management
in
the
Year
2020,"
which
is
available
on
the
Agency's
website
at
http://
www.
epa.
gov/
epaoswer/
osw/
vision.
htm
12
resources1.
Finally,
this
regulatory
proposal
is
an
important
component
of
EPA's
recently
announced
"
Resource
Conservation
Challenge,"
which
is
designed
to
encourage
and
provide
new
incentives
for
increased
reuse
and
recycling
of
materials,
including
hazardous
wastes
and
hazardous
secondary
materials
(
for
further
information
on
this
initiative
see
www.
epa.
gov/
epaoswer/
osw/
conserve/
index.
htm).

It
should
be
understood
that
today's
proposal
does
not
attempt
to
resolve
all
issues
surrounding
the
current
RCRA
Subtitle
C
recycling
regulations.
Since
the
current
regulations
were
put
in
place
in
1985
(
see
50
FR
614­
668,
January
4,
1985),
many
of
the
program's
stakeholders
have
expressed
the
view
that
the
current
system
is
unnecessarily
restrictive,
and
imposes
regulatory
controls
that
often
discourage
legitimate
recycling
opportunities
by
industry.

These
stakeholders
have
often
argued
that
the
Agency
should
commit
itself
to
fundamentally
restructuring
the
current
rules,
to
ease
controls
over
a
wide
range
of
recycling
practices.
On
the
other
hand,
other
stakeholders
have
argued
that
the
current
regulations
are
in
some
ways
too
lenient,
and
that
greater
accountability
and
tighter
controls
should
be
built
into
the
system.

EPA
has
participated
with
a
variety
of
stakeholder
groups
in
several
initiatives
aimed
at
exploring
and
developing
comprehensive
new
approaches
to
regulating
hazardous
material
recycling.
Unfortunately,
these
initiatives
have
been
largely
unsuccessful.
In
EPA's
view,
these
unsuccessful
efforts
to
comprehensively
revise
the
RCRA
recycling
system
are
in
large
part
attributable
to
the
fundamental
difficulty
of
trying
to
distinguish
wastes
from
non­
waste
materials
in
a
national
regulatory
framework
that
applies
to
an
exceptionally
broad
array
of
industries,
13
materials
and
recycling
practices.

Today's
proposal,
which
addresses
a
particular
set
of
recycling
activities,
is
prompted
by
concerns
articulated
in
the
D.
C.
Circuit
Court's
opinions.
Together
with
the
legitimacy
criteria
also
discussed
today,
the
proposed
exclusion
is
crafted
to
cover
those
cases
where
discard
most
likely
does
not
occur
because
materials
are
being
truly
reused
or
recycled
in
a
continuous
process
within
the
generating
industry.
EPA
intends
to
continue
exploring
whether
further
initiatives
aimed
at
encouraging
legitimate
recycling
of
hazardous
secondary
materials
are
warranted.
We
invite
comment
on
this
issue.
Specifically,
we
are
interested
in
stakeholder
views
as
to
whether
EPA
should
undertake
additional
actions
to
encourage
recycling
of
materials
that
would
remain
regulated
as
wastes
under
today's
proposal.
In
this
regard,
most
helpful
would
be
comments
describing
what
specific
actions
might
be
appropriate
for
this
purpose,
and
the
potential
environmental
and
economic
impacts
that
might
be
associated
with
such
actions.

B.
Who
would
be
affected
by
today's
proposed
rule?

Today's
proposal
would
most
directly
affect
those
who
generate,
reclaim
and
reuse
hazardous
secondary
materials
in
a
continuous
process
within
the
generating
industry,
in
accordance
with
the
provisions
of
today's
proposal.
These
materials
would
not
be
considered
to
be
discarded
under
the
proposal
(
and
thus
would
not
be
wastes),
so
those
who
manage
them
would
no
longer
be
subject
to
hazardous
waste
regulatory
requirements.
EPA
estimates
that
approximately
70%
of
the
materials
potentially
affected
by
today's
proposed
regulatory
exclusion
are
generated
in
the
following
industries:

 
Inorganic
chemicals
 
Plastic
Materials
and
Resins
14
 
Pharmaceutical
Preparations
 
Cyclic
Crudes
and
Intermediates
 
Industrial
Organic
Chemicals
 
Secondary
Smelting
of
Nonferrous
Metals
 
Plating
and
Polishing
 
Printed
Circuit
Boards
More
detailed
discussion
of
the
potential
impacts
of
this
rule
on
the
regulated
community
is
presented
in
section
VII.
A.
of
this
preamble.

In
addition
to
the
industries
that
may
potentially
benefit
from
the
regulatory
exclusion
in
today's
proposal,
the
proposed
provisions
relating
to
legitimacy
of
recycling
activities
should
provide
a
more
general
benefit
to
those
who
are
engaged
in
hazardous
material
recycling,
by
providing
clearer,
more
explicit
rules
for
distinguishing
between
recycling
practices
that
are
legitimate,
and
those
that
EPA
considers
to
be
"
sham"
recycling.

C.
How
is
hazardous
waste
recycling
currently
regulated?

The
basic
regulatory
provisions
for
defining
"
solid
wastes"
and
"
hazardous
wastes"
under
RCRA
are
found
in
Part
261
of
Title
40
of
the
Code
of
Federal
Regulations
(
CFR).
To
be
subject
to
RCRA's
hazardous
waste
regulatory
program,
a
material
must
be
a
solid
waste
that
is
also
a
hazardous
waste.
A
solid
waste
is
a
hazardous
waste
if
it
is
explicitly
listed
as
such
(
in
Subpart
D
of
Part
261),
or
if
it
exhibits
a
hazardous
characteristic
(
as
specified
in
Subpart
C
of
Part
261).

In
general,
hazardous
wastes
are
subject
to
RCRA's
full
"
cradle
to
grave"
regulatory
system,
from
the
time
they
are
generated
to
when
they
ultimately
are
disposed
of.
However,

hazardous
secondary
materials
can
often
be
recycled
instead
of
being
disposed,
which
can
change
15
how
those
wastes
are
regulated.
The
"
definition
of
solid
waste"
regulations
in
Part
261
in
effect
separate
recyclable
hazardous
secondary
materials
into
two
broad
categories
 
those
that
are
classified
as
solid
wastes
when
recycled,
and
are
therefore
subject
to
regulation
under
RCRA,
and
those
that
are
not
considered
solid
wastes
when
they
are
recycled,
and
thus
are
not
regulated.
It
should
be
understood
that
the
term
"
hazardous
secondary
material"
as
it
is
used
in
today's
proposed
rule
and
preamble
therefore
refers
to
both
categories
of
recyclable
materials;
that
is,

materials
that
are
regulated
as
hazardous
wastes
when
recycled,
and
materials
that
are
not
considered
wastes
when
recycled.

Hazardous
secondary
materials
that
are
not
regulated
as
wastes
when
they
are
recycled
include,
for
example,
those
which
are
used
or
reused
directly
as
effective
substitutes
for
commercial
products,
and
those
which
can
be
used
as
ingredients
in
an
industrial
process,

provided
the
materials
are
not
being
reclaimed.
See
40
CFR
261.2(
e).
In
essence,
EPA
considers
these
types
of
recycling
practices
to
be
more
akin
to
normal
industrial
production
than
waste
management.
EPA
does
not
consider
them
to
involve
management
of
discarded
materials
for
purposes
of
RCRA
Subtitle
C.

In
contrast,
some
recycling
practices
bear
more
resemblance
to
waste
management,
and
the
hazardous
secondary
materials
therefore
remain
regulated
as
wastes.
One
type
of
recycling
that
falls
within
this
category
and
that
is
especially
relevant
to
this
proposed
rule
is
reclamation
of
certain
types
of
hazardous
secondary
materials.
Reclamation
involves
processing
of
secondary
materials
in
some
way
so
that
the
materials
can
be
used
or
reused.
See
40
CFR
261.1(
c)(
4)
and
40
CFR
261.2(
c)(
3).
An
example
of
reclamation
is
processing
of
a
spent
solvent
to
restore
its
solvent
properties
before
it
is
suitable
for
reuse
as
a
solvent.
As
explained
elsewhere
in
this
16
preamble,
today's
proposal
would
de­
regulate
a
specific
subset
of
these
materials
that
are
recycled
by
being
reclaimed.

The
existing
Part
261
regulations
identify
other
types
of
recycling
practices
that
are
fully
regulated
because
they
generally
are
more
likely
to
involve
discard
of
materials
(
see
40
CFR
261.2(
c)).
These
practices
include
recycling
of
"
inherently
waste­
like"
materials,
recycling
of
materials
that
are
"
used
in
a
manner
constituting
disposal,"
and
"
burning
of
materials
for
energy
recovery."
Today's
proposal
is
not
intended
to
affect
how
these
recycling
practices
are
regulated.

The
current
regulations
also
provide
certain
specific
exemptions
and
exclusions
from
the
definition
of
solid
waste
for
particular
recycling
practices.
For
example,
pulping
liquors
from
paper
manufacturing
that
are
reclaimed
in
a
pulping
liquor
recovery
furnace
and
then
reused
in
the
pulping
process
are
excluded
from
regulation
under
40
CFR
261.4(
a)(
6).
In
some
cases,
these
exclusions
specify
certain
conditions
that
must
be
met
in
order
to
qualify
for
and
maintain
the
excluded
status
of
the
recycled
material.
An
example
of
such
a
"
conditional
exclusion"
is
the
one
provided
in
40
CFR
261.4(
a)(
9)
for
spent
wood
preserving
solutions
that
are
reclaimed
and
reused.
Today's
proposal
would
impact
some
of
these
existing
exclusions,
as
discussed
in
Section
III.
A.
below.

D.
What
are
the
legal
issues
surrounding
the
definition
of
solid
waste?

1.
Background
RCRA
gives
EPA
authority
to
regulate
the
management
of
"
solid
wastes"
under
its
nonhazardous
waste
program.
See,
e.
g,
RCRA
sections
1008(
a),
4001
and
4004(
a).
RCRA
also
gives
EPA
authority
to
regulate
hazardous
wastes.
See,
e.
g.,
RCRA
sections
3001­
3004.

"
Hazardous
wastes"
are
the
subset
of
solid
wastes
that
present
threats
to
human
health
and
the
17
environment.
See
section
1004(
5).
EPA
may
also
address
solid
and
hazardous
wastes
under
its
endangerment
authorities
in
section
7003.
(
Similar
authorities
are
available
for
citizen
suits
under
section
7002.)
Materials
that
are
not
wastes
are
generally
not
subject
to
regulation
under
RCRA
Subtitle
C.
Thus,
the
definition
of
"
solid
waste"
plays
a
key
role
in
defining
the
scope
of
EPA's
RCRA's
authorities.

The
statute
defines
"
solid
waste"
as
"...
any
garbage,
refuse,
sludge
from
a
waste
treatment
plant,
water
supply
treatment
plant,
or
air
pollution
control
facility
and
other
discarded
material
...

resulting
from
industrial,
commercial,
mining,
and
agricultural
operations,
and
from
community
activities...."
RCRA
Section
1004
(
27)
(
emphasis
added).
In
its
RCRA
regulations,
EPA
has
historically
defined
some
materials
destined
for
recycling
as
"
waste,"
while
excluding
others.

Since
1980,
EPA
has
interpreted
"
solid
waste"
under
its
Subtitle
C
regulations
to
encompass
both
materials
that
are
destined
for
final,
permanent
placement
in
disposal
units,
as
well
as
some
materials
that
are
destined
for
recycling.
45
FR
33090­
95
(
May
19,
1980);
50
FR
604
­
656
(
Jan.
4,
1985)
(
see
especially
pages
616­
618).
EPA
has
offered
three
arguments
in
support
of
this
approach:

°
The
statute
and
the
legislative
history
suggest
that
Congress
expected
EPA
to
regulate
as
wastes
some
materials
that
are
destined
for
recycling
(
see
45
FR
33091,
citing
numerous
sections
of
the
statute
and
U.
S.
Brewers'
Association
v.
EPA,
600
F.
2d
974
(
D.
C.
Cir.

1979);
48
FR
14502­
04
(
April
3,
1983);
and
50
FR
616­
618).

°
Many
materials
stored
or
transported
prior
to
recycling
present
the
same
types
of
threats
to
human
health
and
the
environment
as
materials
stored
or
transported
prior
to
disposal.

In
fact,
EPA
found
that
recycling
operations
have
accounted
for
a
number
of
notorious
18
damage
incidents.
For
example,
materials
destined
for
recycling
were
involved
in
onethird
of
the
first
60
filings
under
RCRA's
imminent
and
substantial
endangerment
authority,
and
20
of
the
first
sites
listed
under
CERCLA.
(
48
FR
14474,
April
4,
1983)

(
The
Agency
has
not,
however,
compiled
definitive
data
on
more
recent
damage
cases
associated
with
recycling
operations.)
Congress
also
cited
some
damage
cases
which
can
be
interpreted
to
involve
recycling.
H.
R.
Rep.
94­
1491,
94th
Cong.,
2d
Sess.,
at
17,
18,

22.

°
Excluding
all
materials
destined
for
recycling
would
allow
materials
to
move
in
and
out
of
the
hazardous
waste
management
system
depending
on
what
any
person
handling
the
material
intended
to
do
with
it.
This
seems
inconsistent
with
the
mandate
to
track
hazardous
wastes
and
control
them
from
"
cradle
to
grave."

Interpreting
the
statute
to
confer
jurisdiction
over
at
least
some
materials
destined
for
recycling,
EPA
has
developed
in
Part
261
of
40
CFR
a
definition
of
"
solid
waste"
for
Subtitle
C
regulatory
purposes.
(
Note
that
this
definition
is
narrower
than
the
definition
of
"
solid
waste"
for
RCRA
endangerment
and
information
gathering
authorities.
See
40
CFR
261.1(
b)
and
Connecticut
Coastal
Fishermen's
Association
v.
Remington
Arms
Co.,
989
F.
2d
1305,
1315
(
2d
Cir.
1993),
holding
that
EPA's
use
of
a
broader
and
more
specific
definition
of
solid
waste
for
Subtitle
C
purposes
is
a
reasonable
interpretation
of
the
statute.)

Under
its
Subtitle
C
regulations,
EPA
classifies
as
solid
wastes
some
 
but
not
all
 
secondary
materials
that
are
recycled
by
"
reclamation."
The
regulations
define
"
spent
materials"

as
being
"
discarded"
if
they
are
destined
for
reclamation.
However,
"
commercial
chemical
products"
are
not
defined
as
"
discarded"
when
reclaimed.
Byproducts
and
sludges
are
defined
as
19
"
discarded"
on
a
case­
by­
case
basis.
EPA
regulates
these
materials
when
they
are
reclaimed,

when
it
has
listed
them
in
the
context
of
a
hazardous
waste
listing
determination.
However,
EPA
does
not
regulate
by­
products
and
sludges
being
reclaimed
that
are
not
listed
hazardous
wastes.

See
Table
1
to
40
CFR
261.2.
Finally,
EPA
has
promulgated
three
exceptions
from
the
Subtitle
C
definition
for
materials
destined
for
reclamation.
See
260.31(
b)
and
(
c);
40
CFR
261.4(
a)(
8).

In
a
reclamation
operation,
some
components
of
a
material
are
recovered
and
reused,

while
others
are
separated
and
in
some
cases
are
discarded.
The
variety
of
regulatory
approaches
to
reclamation
reflects
the
fact
that
EPA
has
found
that
some
reclamation
processes
involve
discard
(
because
they
more
closely
resemble
waste
management),
while
other
such
processes
do
not
(
because
they
more
closely
resemble
normal
manufacturing).

Finally,
EPA
has
always
asserted
that
materials
are
not
excluded
from
its
jurisdiction
simply
because
someone
claims
that
they
will
be
recycled.
EPA
has
consistently
considered
materials
destined
for
"
sham
recycling"
to
be
discarded
and,
hence,
to
be
solid
wastes
for
Subtitle
C
purposes.
See
45
FR
33093
(
May
19,
1980),
50
FR
638­
39
(
Jan.
4,
1985).
The
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit
has
agreed
that
materials
undergoing
sham
recycling
are
discarded
and,
consequently,
are
solid
wastes
under
RCRA.
See
American
Petroleum
Institute
v.
EPA,
216
F.
3d
50,
58­
59
(
D.
C.
Cir.
2000);

2.
A
Series
of
D.
C.
Circuit
Court
Decisions
Trade
associations
representing
mining
and
oil
refining
interests
challenged
EPA's
1985
regulatory
definition
of
solid
waste.
In
1987,
the
D.
C.
Circuit
held
that
EPA
exceeded
its
authority
"
in
seeking
to
bring
materials
that
are
not
discarded
or
otherwise
disposed
of
within
the
compass
of
`
waste.'"
American
Mining
Congress
v.
EPA
("
AMC
I"),
824
F.
2d
1177,
1178
(
D.
C.
20
Cir.
1987).
Although
the
Court
clearly
articulated
this
concept,
it
did
not
specify
which
portions
of
the
rules
exceeded
EPA's
authority.
It
more
generally
"
granted
the
petition
for
review."

The
Court
held
that
some
of
the
materials
EPA
was
seeking
to
regulate
were
not
"
discarded
materials"
under
section
1004(
27).
After
reviewing
numerous
statutory
provisions
and
portions
of
the
legislative
history,
the
Court
held
that
Congress
used
the
term
"
discarded"
in
its
ordinary
sense,
to
mean
"
disposed
of"
or
"
abandoned."
824
F.
2d
at
1188­
89.
The
Court
further
held
that
the
term
"
discarded
materials"
could
not
include
materials
...
destined
for
beneficial
reuse
or
recycling
in
a
continuous
process
by
the
generating
industry
itself
(
because
they)
are
not
yet
part
of
the
waste
disposal
problem."
824
F.
2d
at
1190
(
italics
in
original).
The
Court
held
that
Congress
had
directly
spoken
to
this
issue,
so
that
EPA's
use
of
a
conflicting
definition
was
not
entitled
to
deference
under
Chevron
U.
S.
A.,
Inc.
v.
NRDC,
467
U.
S.
837
(
1984).
824
F.
2d
at
1183,
1189­
90,
1193.

At
the
same
time,
the
Court
did
not
hold
that
no
recycled
materials
could
be
discarded.

The
Court
mentioned
at
least
two
examples
of
recycled
materials
that
EPA
properly
considered
within
its
statutory
jurisdiction,
noting
that
used
oil
to
be
reused
as
fuel
and
metal­
bearing
secondary
materials
stored
in
open
piles
which
leached
into
the
environment
while
stored
for
reuse
in
metals
recovery
can
be
considered
to
be
solid
wastes.
824
F.
3d
at
1187
(
fn
14)
and
1191
(
fn
20).
Also,
the
Court
suggested
that
materials
disposed
of
and
recycled
as
part
of
a
waste
management
program
are
within
EPA's
jurisdiction.
824
F.
2d
at
1179.
Subsequent
decisions
by
the
D.
C.
Circuit
also
indicate
that
some
materials
destined
for
recycling
are
"
discarded"
and
therefore
within
EPA's
jurisdiction.
The
Court
held
that
emission
control
dust
from
steelmaking
operations
listed
as
hazardous
waste
"
K061"
is
a
solid
waste,
even
where
sent
to
a
metals
21
reclamation
facility,
at
least
where
that
is
the
treatment
method
required
under
EPA's
land
disposal
restrictions
program.
American
Petroleum
Institute
v.
EPA
("
API
I"),
906
F.
2d
729
(
D.
C.
Cir.
1990).
The
Court
held
that
listed
wastes
managed
in
units
that
are
part
of
wastewater
treatment
units
are
discarded
materials
(
and
solid
wastes),
especially
where
it
is
not
clear
that
the
industry
actually
reuses
the
materials.
("
AMC
II"),
907
F.
2d
1179
(
D.
C.
Cir.
1990).
Also,
the
Court
found
that
EPA
potentially
had
jurisdiction
over
oil­
bearing
wastewaters
recycled
at
petroleum
refineries,
although
in
the
rule
under
review
EPA
failed
to
provide
a
rational
basis
for
asserting
jurisdiction.
American
Petroleum
Institute
v.
EPA
("
API
II"),
216
F.
3d
50,
57­
58
(
D.
C.
Cir.
2000).

It
is
also
worth
noting
that
two
other
Circuits
also
have
held
that
EPA
has
authority
over
at
least
some
materials
destined
for
reuse
rather
than
final
discard.
The
U.
S.
Court
of
Appeals
for
the
11th
Circuit
found
that
"[
i]
t
is
unnecessary
to
read
into
the
term
`
discarded'
a
congressional
intent
that
the
waste
in
question
must
finally
and
forever
be
discarded."
U.
S.
v.
ILCO,
996
F.
2d
1126
,
1132
(
11th
Cir.
1993)
(
finding
that
used
lead
batteries
sent
to
a
reclaimer
have
been
"
discarded
once"
by
the
entity
that
sent
the
battery
to
the
reclaimer).
The
Fourth
Circuit
found
that
slag
held
on
the
ground
untouched
for
six
months
before
sale
for
use
as
road
bed
could
be
a
solid
waste.
Owen
Electric
Steel
Co.
v.
EPA,
37
F.
3d
146,
150
(
4th
Cir.
1994).

Considering
all
of
these
decisions
(
except
the
API
case
decided
in
2000),
in
1998
EPA
promulgated
a
rule
adjusting
its
Subtitle
C
jurisdiction
over
materials
recycled
by
reclamation
within
the
mineral
processing
industry
(
the
"
LDR
Phase
IV
rule").
63
FR
28556
(
May
26,
1998).

In
that
rule,
EPA
promulgated
a
conditional
exclusion
for
all
types
of
mineral
processing
materials
destined
for
reclamation.
EPA
imposed
a
condition
prohibiting
land­
based
storage
prior
to
22
reclamation
because
it
considered
secondary
materials
from
the
mineral
processing
industry
that
were
stored
on
the
land
to
be
part
of
the
waste
disposal
problem.
63
FR
at
28581.
The
conditional
exclusion
decreased
regulation
over
spent
materials
stored
prior
to
reclamation,
but
increased
regulation
over
by­
products
and
sludges
that
exhibit
a
hazardous
characteristic,
and
that
are
stored
prior
to
reclamation.
EPA
noted
that
the
statute
does
not
authorize
it
to
regulate
"
materials
that
are
destined
for
immediate
reuse
in
another
phase
of
the
industry's
ongoing
production
process."
EPA,
however,
took
the
position
that
materials
that
are
removed
from
a
production
process
for
storage
are
not
"
immediately
reused,
"
and
therefore,
are
"
discarded."
63
FR
at
28580.

The
mining
industry
challenged
the
rule,
and
the
D.
C.
Circuit
vacated
the
provisions
that
expanded
jurisdiction
over
characteristic
by­
products
and
sludges
destined
for
reclamation.

Association
of
Battery
Recyclers
v.
EPA
("
ABR"),
208
F.
3d
1047
(
D.
C.
Cir.
2000).
The
Court
held
that
it
had
already
resolved
the
issue
presented
here
in
its
opinion
in
AMC
I,
where
it
found
that
"...
Congress
unambiguously
expressed
its
intent
that
`
solid
waste'
(
and
therefore
EPA's
regulatory
authority)
be
limited
to
materials
that
are
`
discarded'
by
virtue
of
being
disposed
of,

abandoned,
or
thrown
away."
208
F.
2d
at
1051.
It
repeated
that
materials
reused
within
an
ongoing
industrial
process
are
neither
disposed
of
or
abandoned.
208
F.
3d
at
1051­
52.
It
explained
that
the
intervening
API
I
and
AMC
II
decisions
had
not
narrowed
the
holding
in
AMC
I.
208
F.
3d
at
1054­
1056.

At
the
same
time,
the
Court
did
not
hold
that
storage
before
reclamation
automatically
makes
materials
"
discarded."
Rather,
it
held
that
"...
at
least
some
of
the
secondary
material
EPA
seeks
to
regulate
as
solid
waste
(
in
the
mineral
processing
rule)
is
destined
for
reuse
as
part
of
a
23
continuous
industrial
process
and
thus
is
not
abandoned
or
thrown
away."
208
F.
3d
at
1056.

3.
Today's
Action
EPA
has
promulgated
a
final
rule
removing
from
the
Code
of
Federal
Regulations
the
byproduct
and
sludge
provisions
of
the
1998
mineral
processing
exclusion
that
the
Court
vacated
in
ABR.
67
FR
11251
(
Mar.
13,
2002).
Nonetheless,
EPA
views
ABR
as
creating
an
opportunity
to
re­
examine
its
rules
and
interpretations
and
clarify
whether
they
regulate
certain
materials
that
are
not
"
discarded."
In
today's
proposed
rule,
therefore,
EPA
is
attempting
to
identify
a
certain
class
or
category
of
materials
that
EPA
has
determined
are
not
discarded
for
purposes
of
Subtitle
C.
As
explained
in
more
detail
elsewhere
in
this
notice,
EPA
generally
believes
that
such
materials
may
include
those
that
are
recycled
by
being
reclaimed
within
the
same
industry
in
which
they
were
generated.
EPA
thinks
that
other
classes
of
recycling
activities,

such
as
"
burning
for
energy
recovery,"
"
use
constituting
disposal,"
and
recycling
of
materials
classified
as
"
inherently
waste­
like"
clearly
involve
elements
of
discard.

EPA
is
today
proposing
that
any
material
which
is
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry
(
as
defined
in
today's
proposal)
is
not
"
discarded"

for
purposes
of
Subtitle
C,
provided
that
the
recycling
process
is
"
legitimate."
Guided
by
the
AMC
I
and
ABR
opinions,
EPA
is
proposing
to
exclude
these
materials
from
the
definition
of
solid
waste
for
purposes
of
Subtitle
C.
Under
this
approach,
EPA
is
proposing
that
when
generation
and
reclamation
occur
on
a
continuous
basis
within
a
single
industry
(
as
the
terms
are
defined
in
this
proposal),
secondary
materials
would
not
be
regulated
as
solid
wastes.

Looking
to
the
D.
C.
Circuit
decisions
for
guidance,
EPA
is
proposing
today
to
exercise
its
discretion
to
interpret
the
statutory
term
"
discard"
for
Subtitle
C
purposes.
EPA
is
proposing
24
that
materials
recycled
in
a
continuous
process
within
the
generating
industry
would
not
be
considered
solid
wastes
for
Subtitle
C
purposes.
For
reasons
articulated
later
in
this
preamble,

EPA
believes
that
it
must
draw
lines
to
provide
a
measure
of
regulatory
certainty.
EPA
believes
that
the
lines
it
is
proposing
today
reflect
reasonable
judgments.

EPA
notes
that
the
term
"
solid
waste"
is
used
in
several
places
in
the
statute
in
addition
to
Subtitle
C.
EPA,
however,
is
limiting
the
specific
definitions
in
today's
proposal
to
its
Subtitle
C
regulations.
While
the
general
concepts
that
the
Court
articulated
may
also
play
a
role
in
other
RCRA
provisions,
EPA
does
not
think
the
detailed
scheme
involving
"
industry"
classifications
and
time
limits
on
processing
which
it
has
developed
for
this
rule
are
necessarily
appropriate
for
other
RCRA
provisions.
For
example,
RCRA
section
7003
gives
EPA
authority
to
compel
actions
to
abate
conditions
that
may
present
an
"
imminent
and
substantial
endangerment"
involving
solid
wastes.
EPA
uses
this
authority
on
a
case­
by­
case
basis.
The
Agency
can
determine
in
a
specific
factual
context
whether
a
material
which
causes
an
endangerment
is
discarded.
Finally,
EPA
notes
that
it
continues
to
regard
any
material
intended
for
recycling
that
escapes
into
the
environment
as
"
discarded"
and,
therefore,
within
its
statutory
jurisdiction
E.
What
suggestions
have
stakeholders
offered
for
future
efforts
to
revise
the
current
recycling
regulations?

In
the
final
rule
responding
directly
to
the
vacaturs
ordered
by
the
United
States
Court
of
Appeals
for
the
District
of
Columbia
Circuit
in
Association
of
Battery
Recyclers,
v.
EPA
208
F.
3d
1047
(
2000)
(
67
FR
11251­
4,
March
13,
2002),
EPA
asked
stakeholders
to
submit
suggestions
for
possible
future
revisions
to
the
current
recycling
regulations.

The
Agency
received
responses
from
both
States
and
industry
stakeholders.
Some
25
comments
pertained
to
specific
waste
streams
or
industrial
processes,
but
others
were
broader
in
nature.
Although
many
of
the
broader
suggestions
are
outside
the
scope
of
the
current
proposal,

EPA
would
like
to
briefly
summarize
the
comments
here
in
order
to
continue
the
public
dialogue
on
possible
future
efforts.
In
addition,
the
full
set
of
these
suggestions
are
included
in
the
docket
to
today's
proposed
rulemaking.
EPA
requests
comment
on
both
these
and
any
other
possible
revisions
to
the
definition
of
solid
waste
that
might
be
included
in
future
proposals.

Most
of
the
comments
from
industry
stakeholders
focused
on
the
regulatory
definition
of
"
discarded
material"
found
in
40
CFR
261.2
(
a)(
2).
Many
of
these
stakeholders
encouraged
the
Agency
to
address
broadly
the
issue
of
when
"
discard"
of
recyclable
materials
occurs.
Several
commenters,
including
the
American
Chemistry
Council
(
ACC),
American
Petroleum
Institute
(
API),
Chevron­
Texaco
and
the
International
Precious
Metals
Institute
(
IPMI)
suggested
removing
"
recycled"
from
the
definition
of
discarded
materials.
Commenters
offered
different
regulatory
alternatives
to
ensuring
that
"
sham
recycling"
does
not
occur
as
a
result
of
removing
recycling
from
the
definition
of
discard,
including
suggesting
that
EPA
specify
"
legitimacy
criteria"
(
ACC),
suggesting
EPA
delineate
material
management
factors
that
would
indicate
discard
(
IPMI),
or
including
specific
"
sham"
practices
in
the
definition
of
solid
waste
(
API
and
Chevron­
Texaco).

The
Synthetic
Organic
Chemical
Manufacturers
Association
(
SOCMA)
raised
issues
on
clarifying
the
terms
"
continuous
industrial
process,"
"
generating
industry"
and
"
off­
site/
on­
site."

SOCMA
provided
examples
of
how
the
different
terms
could
be
applied
to
the
Association's
members.
SOCMA
also
provided
specific
comments
and
regulatory
language
for
an
expanded
variance
procedure
to
exempt
materials
from
the
definition
of
solid
waste.
26
API
and
Chevron­
Texaco
offered
the
most
specific
comments,
attaching
regulatory
language
for
discussion.
Chevron­
Texaco
suggested
adding
a
requirement
that
material
with
hazardous
constituents
above
Universal
Treatment
Standard
(
UTS)
levels
that
is
managed
such
that
the
material
is
released
to
the
environment
would
be
considered
discarded.
API
offered
several
possible
new
additions
to
the
definition
of
discarded
material,
which
closely
follow
examples
that
EPA
has
used
in
past
rulemaking
and
guidance.
(
see
October
3,
2002
letter
from
API
to
EPA).

Several
commenters
(
e.
g.
API,
SOCMA)
focused
on
the
decision's
discussion
of
a
waste
being
recycled
in
a
"
continuous
industrial
process."
They
stated
that
a
"
continuous"
process
encompasses
all
of
the
steps
between
original
production
of
a
raw
material
and
eventual
disposal,

including
any
reclamation
that
might
occur.
These
commenters
believed
that
"
continuous
industrial
process"
did
not
necessarily
imply
only
a
single
industry.
Commenters
cited
examples
of
generators
sending
material
off­
site
to
recyclers
who
reclaim
the
material
for
reuse
in
other
industries.

Other
industry­
suggested
revisions
include
creating
a
variance
process
for
waste
going
to
environmentally
protective
recycling
(
ACC),
adding
specific
language
that
co­
products
are
not
solid
waste
(
Hogan
and
Hartson,
LLP),
extending
the
storage
accumulation
times
(
SOCMA),

revising
the
definition
of
"
accumulated
speculatively"
in
40
CFR
261.1(
b)(
8)
for
the
mining
and
mineral
processing
industry
(
National
Mining
Association),
and
a
recycling
exclusion
for
spent
pickle
liquor
recycling
efforts
(
American
Iron
and
Steel
Institute).

The
Association
of
State
and
Territorial
Solid
Waste
Management
Officials
(
ASTSWMO)

expressed
general
support
for
simplifying
the
current
regulations
and
encouraging
recycling.
27
However,
they
also
expressed
the
strong
opinion
that
codified
legitimacy
criteria
should
be
included
in
any
changes,
and
that
a
notification
or
certification
provision
be
added
to
allow
state
regulatory
agencies
to
determine
whether
recycling
practices
are
legitimate.

F.
What
is
the
scope
of
today's
proposed
rule?

As
discussed
previously
in
this
section
of
today's
preamble,
spent
materials,
listed
sludges
and
listed
byproducts
that
are
recycled
by
being
reclaimed
are
currently
considered
wastes
for
RCRA
regulatory
purposes.
Today's
proposal
would
affect
a
particular
subset
of
these
waste
materials.
Specifically,
materials
that
are
"
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry"
(
as
defined
in
this
proposal)
would
no
longer
be
regulated
under
RCRA's
Subtitle
C
hazardous
waste
management
system.

Today's
proposed
40
CFR
261.2(
g)(
2)
also
requires
that
reclamation
of
excluded
materials
within
the
generating
industry
must
produce
a
product
or
ingredient
that
can
be
used
or
reused
without
any
further
reclamation.
This
requirement
is
intended
to
prevent
situations
where
excluded
materials
might
be
only
partially
reclaimed
within
the
generating
industry,
and
then
sent
to
a
different
industry
for
one
or
more
"
final"
reclamation
steps.
We
do
not
believe
that
such
partial
reclamation
practices
would
be
consistent
with
the
concept
of
"
continuous
process
within
the
same
industry"
as
it
is
articulated
in
today's
proposal.

Today's
proposal
would
not
affect
materials
that
are
reclaimed
in
other
ways.
Thus,
spent
materials,
listed
by­
products
and
listed
sludges
that
are
generated
and
reclaimed
in
different
industries
would
generally
remain
subject
to
regulation
as
wastes.
This
proposal
would
also
not
affect
materials
that
are
currently
considered
wastes
because
they
are
recycled
in
a
certain
way.

This
category
of
wastes
includes
materials
that
are
"
inherently
waste­
like,"
materials
that
are
28
"
speculatively
accumulated,"
materials
that
are
recycled
and
"
used
in
a
manner
constituting
disposal,"
and
materials
that
are
"
burned
for
energy
recovery."
The
regulatory
provisions
for
these
categories
of
wastes
are
found
in
40
CFR
261.2.

Today's
proposal
would
also
codify
in
regulations
criteria
for
assessing
"
legitimate
recycling"
of
hazardous
secondary
materials.
These
criteria
would
apply
not
only
to
the
materials
that
would
be
excluded
under
today's
proposal,
but
more
broadly
to
recycling
of
hazardous
wastes,
as
well
as
recycling
of
hazardous
secondary
materials
that
are
not
considered
wastes
when
they
are
recycled.
These
criteria
for
legitimate
recycling
would
not,
however,
apply
to
materials
that
are
not
hazardous
wastes,
or
materials
that
do
not
exhibit
a
hazardous
characteristic.

III.
Detailed
Description
of
Today's
Proposed
Rule
A.
Exclusion
for
hazardous
secondary
materials
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.

1.
What
is
the
intent
of
the
proposed
exclusion?

Today's
proposal
would
exclude
from
the
RCRA
regulatory
definition
of
solid
waste
hazardous
secondary
materials
that
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.
As
discussed
in
the
previous
section
of
this
preamble,
the
D.
C.
Circuit
Court's
decisions
have
provided
general
direction
to
the
Agency
as
to
the
meaning
of
"
discarded
materials"
in
section
1004(
27)
and
the
extent
of
the
Agency's
Subtitle
C
jurisdiction
over
recycling.
Today's
proposed
rule
is
intended
to
define
"
solid
waste"
for
Subtitle
C
purposes
in
a
way
that
we
believe
is
consistent
with
the
Court's
general
direction,
to
establish
specific
rules
for
how
the
exclusion
will
be
implemented,
and
explain
how
the
exclusion
fits
into
RCRA's
general
29
regulatory
framework.

Today's
proposal
would
modify
the
current
regulatory
provision
at
40
CFR
261.2(
c)(
3),

which
specifies
that
some
types
of
hazardous
secondary
materials
are
wastes
if
their
recycling
involves
reclamation.
In
effect,
we
are
proposing
to
relinquish
regulatory
controls
over
such
materials,
provided
that
they
are
generated
and
reclaimed
in
accordance
with
today's
proposal.

This
proposal,
which
we
believe
is
consistent
with
the
Court's
opinions,
would
generally
exclude
materials
that
are
recycled
in
a
manner
more
akin
to
normal
industrial
production
than
waste
management.

2.
What
is
"
Reclamation?"

"
Reclamation"
of
materials
can
involve
a
number
of
different
types
of
activities
and
end
results.
As
defined
in
40
CFR
261.1(
c),
a
material
is
reclaimed
"...
if
it
is
processed
to
recover
a
usable
product,
or
if
it
is
regenerated."
From
a
technical
standpoint,
some
reclamation
processes
are
relatively
simple,
such
as
magnetic
separation
of
ferrous
metals
from
a
pollution
control
sludge.
Other
types
of
reclamation
may
be
much
more
complex,
and
may
involve
a
series
of
processing
steps
to
obtain
the
desired
end­
product.
An
example
could
be
where
a
solid­
form
secondary
material
is
separated
into
different
fractions
and
then
smelted
to
recover
metal
constituents.

In
some
cases,
reclamation
essentially
involves
extraction
of
a
valuable
component
from
a
waste
or
other
material.
An
example
of
this
type
of
reclamation
occurs
in
the
mineral
processing
industry,
such
as
when
smelter
by­
products
are
processed
in
a
series
of
steps
to
successively
extract
several
different
precious
metals.
Another
type
of
reclamation
involves
"
regenerating"

used
products
or
materials
so
that
they
can
be
reused
for
their
original
purpose,
or
some
other
30
purpose.
A
common
example
of
this
type
of
reclamation
is
found
in
the
steel
making
industry,

where
"
pickling"
acids
are
used
to
remove
scale
and
other
impurities
from
steel,
eventually
lose
their
acidic
properties,
and
must
be
reclaimed
before
they
can
be
used
again
as
pickling
agents.
In
this
case,
the
reclamation
process
may
yield
both
regenerated
pickling
acid,
as
well
as
a
marketable
iron
oxide
product.

3.
What
types
of
materials
would
be
eligible
for
the
proposed
exclusion?

Under
the
current
regulations,
certain
hazardous
secondary
materials
that
are
recycled
by
being
reclaimed
are
considered
wastes
(
see
40
CFR
261.2(
c)(
3)).
These
materials
include
sludges
and
by­
products
that
are
listed
hazardous
wastes
(
see
listings
in
40
CFR
261.31
and
40
CFR
261.32),
scrap
metal,
and
listed
or
characteristic
"
spent
materials."
As
defined
in
40
CFR
261.1(
c),
materials
are
"
spent"
when
they
are
used
and
as
a
result
of
contamination
can
no
longer
serve
the
purpose
for
which
they
were
produced
without
processing.
Additional
guidance
on
the
definition
of
"
spent
material"
may
be
found
on
the
Agency's
"
RCRA
Online"
internet
data
base,
at
http://
yosemite.
epa.
gov/
OSW\
rcra.
nsf/
Documents/
8D46F076812A58D0852565DA006F0565.

An
example
of
a
spent
material
would
be
a
solvent
that
is
used
for
degreasing
metal
parts,

and
which
eventually
becomes
too
contaminated
for
further
use
in
degreasing.
Similarly,
under
the
current
regulations
some
types
of
scrap
metal
are
wastes
prior
to
reclamation
(
although
they
are
subject
to
less
stringent
Subtitle
C
regulations
under
40
CFR
261.6).

Some
materials
that
are
"
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry"
(
as
proposed
today)
would
not
be
eligible
for
the
exclusion.
As
specified
in
proposed
40
CFR
261.(
g)(
1),
the
exclusion
would
not
apply
to
recycling
of
materials
that
are
"
inherently
waste­
like"
(
see
40
CFR
261.2(
d)),
materials
used
in
"
a
manner
constituting
disposal"
(
see
40
31
CFR
261.2(
c)(
1)
and
Part
266,
subpart
C),
or
materials
that
are
"
burned
for
energy
recovery"
(
see
40
CFR
261.2(
c)(
2)).
Any
of
these
recycling
practices
could
potentially
be
conducted
intraindustry
Nevertheless,
these
particular
recycling
practices
have
been
identified
by
the
Agency
as
being
akin
to
discard,
and
therefore
materials
that
are
recycled
in
these
specific
ways
are
explicitly
identified
as
wastes
under
the
current
regulations.
The
Agency
does
not
intend
to
change
the
way
these
waste
materials
are
regulated
in
today's
proposal.
We
believe
that
the
original
logic
for
maintaining
regulatory
jurisdiction
over
these
materials
remains
valid.

The
basic
premise
of
today's
proposed
exclusion
is
that
materials
that
are
"
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry"
(
as
defined
in
this
proposal)
would
not
be
considered
wastes
for
Subtitle
C
purposes.
Generally,
when
a
material
is
reclaimed
within
the
same
industry
that
generated
it,
the
material
can
remain
useful
to
that
industry,
and
thus
is
not
discarded.
In
effect,
the
industry
has
not
"
finished"
with
the
material;
rather,
it
is
to
the
advantage
of
the
industry
to
continue
using
it
as
a
substitute
for
other
types
of
materials.

While
the
Agency
believes
that
the
types
of
material
that
would
be
eligible
for
the
exclusion
in
today's
proposal
would
generally
not
be
discarded,
we
believe
there
may
also
be
more
technical
reasons
for
excluding
such
materials.
For
one,
processes
and
facilities
that
operate
within
the
same
industry
are
likely
to
use
similar
raw
materials
and
process
them
in
a
similar
manner.
They
are
also
likely
to
have
expertise
as
to
the
types
of
secondary
materials
produced
by
their
industry,
their
potential
for
recycling,
and
appropriate
practices
for
managing
such
materials.
For
these
practical
reasons,
EPA
believes
that
the
potential
for
environmental
harm
from
de­
regulating
this
type
of
recycling
practice
is
likely
to
be
relatively
small
compared
to
other
types
of
recycling
practices.
32
While
we
are
proposing
to
define
materials
generated
and
reclaimed
within
the
same
industry
as
in­
process
materials
that
are
not
solid
wastes
for
purposes
of
Subtitle
C,
this
is
not
to
say
that
all
materials
legitimately
recycled
between
different
industries
are
always
solid
wastes.
In
fact,
the
Agency
has
promulgated
several
specific
exclusions
to
the
definition
of
solid
waste
for
materials
that
are
generated
in
one
industry
and
reclaimed
in
another.
We
are
not
proposing
to
revisit
those
exclusions.

4.
What
is
meant
by
a
"
continuous
process
within
the
same
industry?"

Proposed
40
CFR
261.2(
g)(
2)
would
establish
the
general
regulatory
framework
for
defining
"
continuous
process
within
the
same
industry,"
and
thus,
how
recycling
must
be
conducted
in
order
to
qualify
for
the
exclusion.
As
explained
below,
we
are
co­
proposing
today
two
different
options
for
defining
"
continuous
process
within
the
same
industry."
The
two
options
differ
only
in
that
one
option
(
Option
#
2)
would
treat
differently
reclamation
facilities
that
also
accept
hazardous
wastes
generated
from
different
industries.
We
are
co­
proposing
these
two
options
today
because
the
Agency
believes
both
are
viable
and
appropriate
approaches
and
deserve
equal
consideration
by
commenters.

Co­
Proposal
Option
1:
Under
this
option,
hazardous
secondary
materials
would
have
to
be
generated
and
reclaimed
within
a
single
industry
in
order
to
qualify
for
the
exclusion
(
the
definition
of
"
industry"
for
the
purpose
of
this
proposal
is
discussed
in
section
III.
A.
6
of
this
preamble,
below).
Thus,
for
example,
if
a
hazardous
secondary
material
was
generated
in
the
motor
vehicle
manufacturing
industry
and
then
shipped
for
reclamation
to
a
facility
in
the
ship
and
boat
building
industry,
the
exclusion
would
not
apply,
and
the
materials
would
be
regulated
as
hazardous
wastes.
33
Under
proposed
40
CFR
261.2(
g)(
2),
reclamation
of
excluded
material
could
take
place
in
multiple
processing
steps,
provided
that
each
processing
step
takes
place
in
the
same
industry
that
generated
the
material.
To
illustrate,
if
a
copper­
bearing
sludge
required
three
separate
reclamation
steps
in
order
to
produce
a
marketable
product
such
as
copper
sulfate,
each
of
those
reclamation
steps
would
have
to
take
place
within
the
same
industry
in
order
to
qualify
for
the
exclusion.

Proposed
40
CFR
261.2(
g)(
2)
would
also
allow
reclamation
of
excluded
material
to
take
place
at
one
or
more
different
locations
or
facilities,
as
long
as
each
reclamation
step
occurs
within
the
generating
industry.
In
fact,
we
anticipate
that,
in
many
situations,
reclamation
of
materials
will
take
place
at
a
different
facility
from
where
the
materials
were
generated,
but
would
remain
within
in
the
same
industry.
In
some
cases,
excluded
materials
might
be
reclaimed
in
several
steps,
each
time
at
a
different
location
or
facility,
but
within
the
same
industry.
As
proposed,
therefore,
the
exclusion
would
not
place
any
geographical
limits
on
movements
of
excluded
materials,
provided
that
each
facility
where
the
material
is
reclaimed
is
in
the
same
industry
that
originally
generated
the
material.

It
is
likely
that
there
will
be
many
situations
in
which
reclamation
of
an
excluded
material
results
in
a
finished
end­
product
that
needs
no
further
reclamation,
as
well
as
a
residual
secondary
material
that
has
no
further
use
and
must
be
disposed
of.
Such
residuals
would
be
wastes,
and
thus
not
eligible
for
the
exclusion.
If
the
wastes
were
hazardous,
they
would
need
to
be
managed
according
to
applicable
hazardous
waste
regulations.

Today's
proposal
also
anticipates
situations
where
residuals
from
reclamation
of
excluded
materials
are
sent
to
a
different
industry
for
further
reclamation.
As
proposed
in
40
34
CFR
261.2(
g)(
2)(
ii),
such
residual
materials
would
not
be
eligible
for
today's
exclusion,
since
they
would
no
longer
be
managed
within
the
same
industry.
The
fact
that
such
materials
are
sent
to
another
industry
and
are
thus
ineligible
for
the
exclusion
would
not,
however,
affect
the
exclusion
for
materials
that
remained
within
the
generating
industry.
To
illustrate,
if
intra­
industry
reclamation
of
an
excluded
metal­
bearing
sludge
generated
a
residual
material
that
was
then
sent
to
a
different
industry
for
further
reclamation,
that
residual
would
be
considered
a
waste,
but
the
exclusion
for
the
original
metal­
bearing
sludge
would
not
be
affected.
Similarly,
a
reclamation
process
might
generate
two
types
of
residual
materials­­
one
which
could
be
further
reclaimed
in
the
same
industry,
and
another
that
is
amenable
to
reclamation
in
a
different
industry.
In
such
cases,
the
material
that
continues
to
move
in
the
same
industry
would
continue
to
be
excluded,

while
the
residual
material
sent
to
a
different
industry
would
not
be
excluded.

Co­
Proposal
Option
#
2:
Today's
co­
proposed
Option
#
2
is
identical
to
the
first
option
described
above,
with
one
exception.
Under
Option
#
2,
hazardous
secondary
materials
that
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry
would
not
be
eligible
for
the
exclusion
if
the
reclamation
takes
place
at
a
facility
that
also
recycles
regulated
hazardous
wastes
generated
in
a
different
industry.
This
option
would,
however,
allow
the
exclusion
for
materials
recycled
within
the
same
industry
if
the
reclamation
facility
is
also
recycling
nonhazardous
wastes,
or
hazardous
materials
that
are
excluded
from
regulation
under
other
provisions
(
such
materials
could
include,
for
example,
characteristic
by­
products
and
sludges
that
are
not
solid
wastes
when
reclaimed
according
to
40
CFR
261.2(
c),
or
materials
being
used
as
effective
substitutes
for
commercial
products
under
40
CFR
261.2(
e)).
This
regulatory
option
would,
in
effect,
establish
a
bright
line
to
distinguish
facilities
that
are
engaged
in
recycling
that
is
35
eligible
for
today's
proposed
exclusion,
and
facilities
which
could
be
considered
to
be
engaged
in
commercial
recycling,
and
which
should
thus
be
ineligible
for
the
exclusion.

To
illustrate
this
co­
proposed
option,
if
a
paint
manufacturer
who
reclaims
spent
solvents
were
to
accept
spent
solvents
from
other
paint
manufacturers,
as
well
as
spent
solvents
from
a
generator
in
a
different
industry
(
e.
g.,
an
automobile
repair
shop),
none
of
the
spent
solvents
managed
by
the
paint
manufacturer
would
be
eligible
for
the
exclusion
proposed
today.
If,

however,
in
this
example
the
solvents
from
the
automobile
repair
shop
were
excluded
under
a
different
regulatory
provision
(
e.
g.,
because
they
are
reused
without
reclamation
­
see
40
CFR
261.2(
e)),
the
solvents
generated
and
reclaimed
within
the
paint
manufacturing
industry
would
be
eligible
for
the
exclusion.

Advantages
and
disadvantages
of
Options
#
1
and
#
2.
The
Agency
believes
that
Option
#
1
described
above
would
likely
encourage
more
beneficial
recycling,
since
it
would
allow
the
exclusion
for
a
somewhat
broader
set
of
recycling
practices.
Another
argument
for
this
option
might
be
that
the
exclusion
for
a
material
managed
at
a
reclamation
facility
should
not
be
affected
by
the
fact
that
more
stringently
regulated
materials
(
i.
e.,
hazardous
wastes)
are
also
being
managed
at
the
facility.
Such
facilities
would
typically
have
RCRA
permits,
and
thus
would
be
subject
to
stringent
design,
operating
and
corrective
action
requirements.
Some
might
argue,

therefore,
that
such
regulated
facilities
are
well­
suited
to
manage
materials
that
would
not
be
regulated
under
the
terms
of
today's
proposed
exclusion.

With
regard
to
Option
#
2,
an
advantage
to
this
approach
would
be
greater
certainty
to
the
regulated
community
as
to
when
they
would
be
ineligible
for
the
exclusion
we
propose
today.

Otherwise,
it
could
be
difficult
for
a
generator
to
determine
if
facilities
engaged
in
intra­
industry
36
recycling
that
also
recycle
hazardous
wastes
from
one
or
more
different
industries
are
engaged
in
a
continuous
process
within
the
generating
industry.
Option
#
2
clearly
defines
whether
the
recycling
is
taking
place
within
the
generating
industry
by
drawing
a
bright
line
between
excluded
recycling
and
commercial
recycling.
As
explained
below,
commercial
recycling
presents
different
legal
and
policy
issues
compared
with
recycling
within
other
industries.
For
some
facilities,
this
regulatory
option
would
also
address
potential
concerns
regarding
the
mixing
of
excluded
secondary
materials
with
regulated
hazardous
wastes.
Another
concern
is
that
if
excluded
secondary
materials
were
allowed
to
be
mingled
with
regulated
hazardous
wastes,
it
could
be
much
more
difficult
for
overseeing
agencies
to
determine
whether
the
generator
and/
or
reclaimer
were
in
compliance
with
the
terms
of
the
exclusion.

EPA
requests
comment
on
the
two
co­
proposed
regulatory
options
described
above,

particularly
with
regard
to
the
advantages
and
disadvantages
of
the
different
approaches,
their
potential
associated
benefits,
and
whether
such
approaches
would
be
consistent
with
the
general
direction
given
in
this
area
by
the
D.
C.
Circuit
Court
of
Appeals.

5.
What
other
options
were
considered
for
defining
"
continuous
process
within
the
same
industry?"

In
developing
the
exclusion
in
today's
proposal,
the
Agency
considered
several
alternative
approaches
to
defining
the
concept
of
"
continuous
process
within
the
generating
industry."
One
option
that
was
considered
would
define
the
scope
of
the
exclusion
depending
on
who
uses
the
products
of
the
recycling
process
after
the
secondary
materials
are
reclaimed.
Under
this
approach,
to
be
eligible
for
the
exclusion,
the
products
from
reclamation
of
secondary
materials
could
be:
(
a)
sold
to
the
general
public
if
such
products
were
considered
typical
products
of
the
37
generating
industry;
or
(
b)
reused
as
a
product
or
ingredient
within
the
generating
industry,
if
the
reclaimed
material
was
not
a
typical
product
of
the
generating
industry.

To
illustrate
this
option,
if
a
paint
manufacturer
received
spent
solvent
from
another
paint
manufacturer
that
s/
he
then
reclaimed,
the
reclaimed
solvent
could
not
be
sold
to
the
general
public
and
maintain
the
exclusion,
under
the
assumption
that
solvent
is
not
a
typical
product
of
the
paint
manufacturing
industry.
In
this
example,
the
reclaimed
solvent
would
have
to
be
reused
within
the
paint
manufacturing
industry
in
order
to
maintain
the
exclusion.
The
paint
manufacturer
would
thus
have
the
option
of
reusing
the
solvent
(
e.
g.,
as
an
ingredient
in
making
paint),
or
selling
it
to
another
party
within
the
paint
manufacturing
industry.
Under
this
alternative
approach,
if
the
reclaimed
solvent
were
sold
to,
for
example,
a
semi­
conductor
manufacturer,
the
incoming
spent
solvent
would
not
be
covered
by
the
exclusion.
This
approach
would,
however,
allow
metal
manufacturers
to
reclaim
metals
from
excluded
metal­
bearing
secondary
materials
and
sell
it
to
the
general
public,
since
metals
would
be
a
typical
product
of
the
metals
industry.

EPA
believes
that
promulgating
the
exclusion
in
this
way
could
be
a
reasonable
interpretation
of
the
concept
of
"
continuous
process
within
the
generating
industry."
One
important
issue
that
such
an
approach
would
raise,
however,
would
be
defining
what
would
be
considered
a
"
typical
product"
of
the
generating
industry
(
i.
e.,
what
is
a
typical
product
of
an
industry
as
identified
by
a
particular
4­
digit
NAICS
code?).
We
request
comment
on
this
alternative
generally,
and
on
how
to
define
"
typical
product
of
the
generating
industry."

EPA
requests
comment
on
the
regulatory
alternatives
described
above,
particularly
with
regard
to
the
need
for
such
additional
restrictions,
their
potential
associated
benefits,
and
whether
38
such
approaches
would
be
consistent
with
the
general
direction
given
in
this
area
by
the
D.
C.

Circuit
Court
of
Appeals.

6.
How
is
EPA
proposing
to
define
"
industry?"

Considerations
for
Defining
"
Same
Generating
Industry"

Consistent
with
the
court's
language,
we
are
proposing
to
limit
EPA's
regulatory
jurisdiction
in
cases
where
hazardous
secondary
materials
are
being
generated
and
legitimately
reclaimed
in
a
continuous
process
within
the
same
industry,
because
the
activity
is
essentially
ongoing
manufacturing.
In
order
to
draft
a
regulation
that
sets
out
this
principle,
however,
we
needed
to
develop
a
useful
definition
of
"
industry"
so
that
today's
proposed
exclusion
could
be
implemented
across
a
variety
of
materials,
activities,
and
industries.
In
developing
a
definition
of
industry
for
this
proposal,
we
considered
1)
whether
the
definition
could
be
easily
identified
and
readily
implemented;
2)
whether
it
was
simple
(
versus
unnecessarily
complicated);
and
3)
the
degree
to
which
the
definition,
when
used
as
part
of
an
`
intra­
industry'
exclusion,
resulted
in
outcomes
consistent
with
the
principle
described
above
(
i.
e.,
that
the
materials
were
being
continuously
used
rather
than
discarded).
After
consideration
of
these
criteria
against
several
approaches
described
in
more
detail
below,
we
decided
to
propose
using
the
North
American
Industry
Classification
System
(
NAICS)
developed
by
the
Office
of
Management
and
Budget
(
OMB)
as
the
foundation
for
industry
definitions
in
today's
proposed
rule.

We
considered
proposing
a
narrative
definition
of
industry,
using
an
engineering­
oriented
approach
based
on
similarity
of
inputs,
processes,
and/
or
outputs
(
products).
Under
this
comparative
approach,
industry
would
first
be
defined
as
a
set
of
manufacturing
or
service
activities.
Conceptually,
two
or
more
industries
would
be
considered
the
same
industry
where
39
this
set
of
manufacturing
or
service
activities
applies
similar
processes
to
input
materials
(
e.
g.,

feedstocks,
reagents,
catalysts,
etc.)
having
similar
composition
and/
or
value,
to
produce
products
or
services
with
similar
composition
and/
or
value.
We
would
then
set
out
specific
criteria,
in
a
regulation,
for
measuring
these
similarities
and
determining
when
they
were
similar
enough
to
be
considered
the
same
industry.

For
example,
this
regulation
could
establish
that
processes
are
similar
if
they
utilize
comparable
equipment
and/
or
engineering
principles;
compositions
(
of
either
input
materials,
or
products
produced)
are
similar
if
concentrations
of
specific
constituents
(
e.
g.,
hazardous
constituents,
valuable
constituents)
are
within
an
order
of
magnitude;
and
values
(
again,
of
either
input
materials,
or
products
produced)
are
similar
if
they
are
within
some
specified
amount
(
e.
g.,

+/­
30%)
on
a
per
unit
basis.
We
would
also
have
to
consider
what
the
relative
importance
should
be
amongst
the
three
elements
described
(
inputs,
processes,
and
outputs).
For
example,

we
would
need
to
decide
whether
we
consider
similar
inputs
to
be
more
important
than
similar
outputs,
in
determining
whether
two
industries
would
be
considered
the
same.

This
approach
was
initially
attractive
because
it
would
not
require
us
to
evaluate
or
compile
industry
categories
or
lists,
it
could
possibly
be
tailored
to
reflect
certain
principles
to
help
distinguish
discard
from
ongoing
production,
or
it
might
have
been
more
flexible
than
a
prescriptive
industry
list.
However,
we
found
this
approach
unworkable
for
a
number
of
reasons.

Primarily,
it
would
leave
too
much
uncertainty
about
the
boundaries
of
the
Agency's
jurisdiction.

Specifically,
it
would
provide
little
certainty
to
the
regulated
community,
and
would
require
regulatory
agencies
to
consider
individual
reclamation
scenarios
on
a
case­
by­
case
basis.

Therefore,
we
decided
not
to
pursue
this
approach.
2EPA
does
not
assert
that
all
processes
classified
as
the
same
industry
within
a
single
NAICS
code
are,
in
fact,
so
similar
that
spent
materials,
by­
products
and
sludges
from
one
process
can
easily
be
used
by
all
other
processes
in
the
classification.
However,
given
the
structure
and
the
purposes
of
the
NAICS,
EPA
believes
that
it
is
reasonable
to
assume
that
they
are
substantially
similar.
EPA
needs
to
classify
broad
categories
of
materials
in
this
rule;
it
is
40
We
also
considered
creating
our
own
list
of
specific
industries
or
industry
categories.
We
found,
however,
that
while
there
might
be
some
advantages
to
drafting
our
own
list
based
on
our
own
institutional
knowledge
and
experience
across
Agency
programs,
a
large
amount
of
time
and
resources
would
be
needed
to
classify
many
of
the
diverse
types
of
industrial,
service
and
government
operations
that
produce
waste
and/
or
engage
in
recycling.
While
we
have
studied
wastes
and
recycling
for
some
industries
in
great
detail
(
usually
when
making
hazardous
waste
listing
determinations),
we
have
not
studied
many
others.
Another
disadvantage
to
developing
our
own
list
would
be
that
such
a
list
would
not
necessarily
reflect
standardized,
commonly
accepted
definitions
of
industry.
The
most
widely­
recognized
existing
industry
classification
system
in
the
United
States
is
the
NAICS.
In
the
past,
we
have
used
the
Standard
Industrial
Classification
(
SIC)
system
(
predecessor
to
the
NAICS)
to
implement
parts
of
RCRA
Subtitle
C.

EPA
has
also
commonly
used
the
SIC
system
to
implement
portions
of
regulatory
programs
under
other
statutes.

We
are
therefore
proposing
to
use
the
NAICS
as
the
foundation
for
the
industry
definitions
in
today's
proposed
rule.
We
believe
that
the
developers
of
the
NAICS
are
more
familiar
with
many
of
these
diverse
operations,
and
the
NAICS
list
is
also
well
known
and
widely
accepted
by
industry.
Consequently,
we
find
it
to
be
a
reasonable
starting
point
for
defining
"
industry"
with
regard
to
identifying
materials
that
are
not
"
discarded"
for
purposes
of
RCRA
Subtitle
C.
2
impracticable
to
study
every
factual
variation
on
a
case­
by­
case
basis.

41
Background
of
NAICS
NAICS
is
a
new
industry
classification
system
that
has
replaced
the
Standard
Industrial
Classification
(
SIC)
system
(
most
recently
updated
in
1987)
that
has
traditionally
been
used
by
government
agencies
for
collecting
statistical
data
and
for
other
administrative
and
regulatory
purposes.
Beginning
in
1992,
NAICS
was
developed
on
behalf
of
the
OMB
by
the
Economic
Classification
Policy
Committee
(
ECPC),
which
was
comprised
of
representatives
of
the
Bureau
of
Economic
Analysis,
the
Bureau
of
the
Census,
and
the
Bureau
of
Labor
Statistics.
On
April
9,

1997,
OMB
published
a
Federal
Register
Notice
of
final
decision
(
62
FR
17288)
to
adopt
the
NAICS
for
the
United
States.

Table
1
below
provides
an
overview
of
the
NAICS
hierarchy,
including
identification
of
the
20
NAICS
sectors
and
the
number
of
entities
contained
within
the
hierarchy
at
each
of
the
various
levels
of
detail.
Under
the
NAICS
classification
hierarchy,
the
first
two
digits
(
of
the
6­

digit
code)
designate
the
Sector,
the
third
digit
designates
the
Sub­
sector,
the
fourth
digit
designates
the
Industry
Group,
the
fifth
digit
represents
the
NAICS
Industry
(
the
most
detailed
level
for
making
data
comparisons
across
the
U.
S.,
Mexico,
and
Canada),
and
the
sixth
digit
designates
individual
country­
level
national
industries.
42
Table
1.
NAICS
United
States
Structure
(
from
NAICS,
2002)

Sector
Name
Subsectors
(
3­
digit)
Industry
Groups
(
4­
digit)
NAICS
Industries
(
5­
digit)
6­
digit
Industries
U.
S.
Detail
Same
as
5­
digit
Total
11
Agriculture,
Forestry,
Fishing
and
Hunting
5
19
42
32
32
64
21
Mining
3
5
10
28
1
29
22
Utilities
1
3
3
6
4
10
23
Construction
3
10
28
4
27
31
31­
33
Manufacturing
21
86
184
408
65
473
42
Wholesale
Trade
3
19
71
0
71
71
44­
45
Retail
Trade
12
27
61
24
51
75
48­
49
Transportation
and
Warehousing
11
29
42
25
32
57
51
Information
7
16
30
12
24
36
52
Finance
and
Insurance
5
11
32
15
27
42
53
Real
Estate
and
Rental
and
Leasing
3
8
19
9
15
24
54
Professional,
Scientific,
and
Technical
Services
1
9
35
17
30
47
55
Management
of
Companies
and
Enterprises
1
1
1
3
0
3
56
Administrative
and
Support
and
Waste
Management
and
Remediation
Services
2
11
29
23
20
43
61
Educational
Services
1
7
12
7
10
17
62
Health
Care
and
Social
Assistance
4
18
30
16
23
39
71
Arts,
Entertainment,
and
Recreation
3
9
23
3
22
25
72
Accommodation
and
Food
Services
2
7
11
7
8
15
81
Other
Services
(
except
Public
Administration)
4
14
30
30
19
49
92
Public
Administration
8
8
29
0
29
29
Total
100
317
725
669
510
1179
While
the
NAICS
uses
a
6­
digit
coding
system
as
just
described,
the
1987
SIC
system
it
3"
Sectors"
are
at
the
top
of
the
classification
hierarchy,
the
most
fundamental
category,
such
as
agriculture,
mining,
manufacturing,
education,
retail,
etc.

43
replaced
employed
a
4­
digit
coding
system,
where
the
fourth
digit
designates
the
industry.

According
to
OMB,
the
two
extra
digits
in
the
NAICS
system
1)
allow
for
more
sectors3
to
be
used
(
compared
with
the
SIC
system
which
was
limited
to
ten
sectors),
and
2)
allow
for
a
category
at
the
six­
digit
level
to
be
available
for
national
industry
detail
(
that
is,
industries
that
would
not
appear
on
the
Canadian
or
Mexican
version
of
the
NAICS).
The
additional
two
digits
in
the
NAICS
add
flexibility
to
the
hierarchy,
but
do
not
necessarily
reflect
a
greater
level
of
detail
in
the
classification
compared
with
the
SIC.
62
FR
at
17291.

There
are
several
important
points
we
wish
to
emphasize
regarding
the
NAICS
system.

First,
this
system
was
developed
using
a
"
production­
oriented"
concept,
whereby
producing
units
that
use
identical
or
similar
production
processes
are
grouped
together
in
NAICS.
62
FR
at
17289.
We
believe
this
is
relevant
for
our
purposes,
because
it
makes
sense
that
materials
being
generated
from,
and
returned
to,
"
identical
or
similar
production
processes"
can
be
likewise
viewed
as
being
beneficially
recycled
"
within
the
same
industry."
Second,
the
NAICS,
and
its
SIC
predecessor,
were
designed
solely
for
statistical
purposes.
The
OMB
emphasizes
that
while
the
NAICS
will
also
be
used
for
non­
statistical
purposes,
such
as
regulatory
purposes,
the
"
requirements
of
government
agencies
that
use
it
for
non­
statistical
purposes
have
played
no
role
in
its
development."
62
FR
at
17294.
Thus,
we
want
to
be
clear
that
our
proposal
to
rely
on
the
NAICS
system
is,
above
all
else,
based
upon
its
functionality
as
an
existing,
recognized
system
for
classifying
industries,
which
serves
our
purpose
well.
Finally,
under
the
NAICS
system,
the
owner/
operator
of
a
facility
(
or
more
appropriately,
of
an
establishment)
is
tasked
with
44
determining
his/
her
own
industry
classification,
largely
using
the
NAICS
Manual
for
help
in
determining
how
to
categorize
his/
her
own
establishment.
In
today's
proposal,
we
will
not
be
"
assigning"
NAICS
categories
to
particular
facilities
or
establishments.
Rather,
we
are
designing
a
system
under
which
owners
of
facilities
handling
secondary
materials
will
identify
which
NAICS
code
applies
to
them
for
RCRA
recycling
purposes.
It
simply
is
not
practicable
for
EPA
to
review
and
make
determinations
for
all
of
the
individual
facilities
involved.

This
aspect
of
NAICS
(
and
its
predecessor
SIC)
is
not
new.
There
are
already
EPA
regulations
where
certain
facility
owner/
operators
need
to
identify
their
SIC
category
(
e.
g.,
for
determining
the
applicability
of
the
Toxic
Chemical
Release
Reporting/
Community
Right­
To­

Know
requirements;
see
40
CFR
372.22);
or
that
refer
to
the
SIC
categories
(
e.
g.,
RCRA
regulations
that
rely
in
part
on
SIC
codes
to
delineate
the
scope
of
certain
existing
industryspecific
hazardous
waste
listings
and
exclusions);
or
that
require
SIC
classification
information
as
part
of
required
reporting
for
large
quantity
hazardous
waste
generators
and
RCRA
permit
applicants).
There
is
a
relatively
long
history
of
the
use
of
an
accepted
industrial
classification
system
for
both
regulatory
and
non­
regulatory
purposes.
We
believe
that
the
regulated
community's
familiarity
with
the
NAICS
system
and
its
implementation
is
an
important
justification
for
our
proposing
this
approach.
We
also
believe
this
is
particularly
the
case
for
those
industries
that
generate
hazardous
secondary
materials.
We
request
comment
on
whether
the
regulated
community
will
be
unfamiliar
with
the
existing
NAICS
system,
or
its
implementation,

particularly
for
those
industries
that
would
most
directly
be
affected
(
i.
e.,
those
that
generate
hazardous
secondary
materials).

Finally,
we
are
proposing
to
identify
industry
for
purposes
of
today's
rule
at
the
Industry
45
Group
level,
or
the
4­
digit
NAICS
level
of
classification.
Two
establishments
will
be
considered
within
the
"
same
industry"
if
they
share
the
same
4­
digit
NAICS
code.
In
arriving
at
this
approach,
we
considered
using
the
3­
digit,
4­
digit,
and
5­
digit
level
(
NAICS
Sub­
sector,
Industry
Group,
and
Industry,
respectively).
We
selected
the
4­
digit
level
because
we
believe
that
this
level
struck
the
appropriate
balance
between
being
overly
broad
(
i.
e.,
undermining
any
meaningful
distinctions
of
industry)
and
too
narrow.
We
think
operations
that
are
similar,
but
not
identical,

can
generate
and
reclaim
secondary
materials
without
discarding
them.
Moreover,
we
think
the
narrower
5­
and
6­
digit
NAICS
classifications
would
potentially
be
more
complicated
(
i.
e.,
more
categories
to
consider),
and
this
could
be
considerably
more
difficult
to
implement.
In
addition,

narrower
industry
categories
could
unrealistically
and
inappropriately
restrict
beneficial
resource
recovery
and
recycling
opportunities.

Specifically,
we
first
looked
at
the
overall
distribution
of
industry
classifications
within
the
NAICS
hierarchy,
as
shown
in
Table
1,
focusing
in
particular
on
the
Manufacturing
Sectors
(
31­

33).
We
would
estimate
that
the
Manufacturing
Sector
in
general,
and
the
Chemical
Manufacturing
Sub­
sector
in
particular,
have
the
potential
to
generate
the
widest
array
of
listed
hazardous
secondary
materials,
based
on
the
industries
found
in
these
sectors
and
the
listing
descriptions
in
40
CFR
Part
261,
Subpart
D.
Under
the
NAICS
Manufacturing
Sectors,
there
are
184
Industries
(
5­
digit),
86
Industry
Groups
(
4­
digit),
and
21
Sub­
sectors
(
3­
digit).
While
it
is
evident
simply
from
the
number
of
categories
that
industry
classification
under
NAICS
is
broader
at
the
3­
digit
level
compared
with
the
5­
digit
level,
it
is
difficult
to
make
any
further
conclusions
as
to
the
effect
of
this
broadening
or
narrowing
without
looking
at
specific
examples.

Looking
more
closely
within
the
Chemical
Manufacturing
Sub­
sector,
there
are
seven
46
Industry
Groups
at
the
4­
digit
level,
and
17
Industries
at
the
5­
digit
level.
According
to
the
NAICS
2002
Manual,
the
seven
Industry
Groups
within
the
Chemical
Manufacturing
Sub­
sector
were
defined
with
a
particular
relationship
in
mind.
That
is,

"
The
Chemical
Manufacturing
subsector
is
based
on
the
transformation
of
organic
and
inorganic
raw
materials
by
a
chemical
process
and
the
formulation
of
products.

This
subsector
distinguishes
the
production
of
basic
chemicals
that
comprise
the
first
industry
group
from
the
production
of
intermediate
and
end
products
produced
by
further
processing
of
basic
chemicals
that
make
up
the
remaining
industry
groups."
(
emphasis
added).

In
other
words,
the
"
first
industry
group"
under
the
Chemical
Manufacturing
Sub­
sector
is
NAICS
3251,
Basic
Chemical
Manufacturing,
which
includes
basic
chemical
industries
such
as
Petrochemical
and
Industrial
Gas
manufacturing.
Looking
at
the
remaining
4­
digit
Industry
Groups,
this
relationship
is
evident
 
away
from
the
production
of
basic
chemicals,
towards
the
production
of
more
refined
chemical
intermediates
and
end
products.
For
example,
the
next
several
Industry
Groups:
3252
(
industries
that
manufacture
Resin,
Synthetic
Rubber,
and
Artificial
Synthetic
Fibers
and
Filaments),
3253
(
Pesticide,
Fertilizer,
and
Other
Agricultural
Chemical
Manufacturing),
3254
(
Pharmaceutical
and
Medicine
Manufacturing),
and
3255
(
Paint,
Coating,

and
Adhesive
Manufacturing)
all
represent
the
"
further
processing
of
basic
chemicals."

We
think
that
these
distinctions
made
at
the
4­
digit
level
in
the
Chemical
Manufacturing
industry
present
a
reasonable
and
logical
categorization
of
the
different
parts
of
the
Chemical
Manufacturing
industry.
In
our
view,
these
distinctions
are
important,
and
should
be
preserved
by
using
the
4­
digit
level
in
this
proposed
approach.
In
general,
we
found
that
the
use
of
the
3­
digit
codes
grouped
together
processes
that
are
too
dissimilar
to
be
considered
the
same
"
industry"
47
under
a
basic,
"
common
sense"
approach.
Use
of
the
3­
digit
NAICS
would
have
the
effect
of
collapsing
these
distinct
categories
into
the
NAICS
325
Sub­
sector.
A
3­
digit
NAICS
classification
might,
however,
have
certain
advantages,
such
as
possibly
providing
more
opportunities
for
recycling,
or
fewer
disputes
over
the
classification
of
establishments
(
because
it
is
a
broader
categorization).
Alternatively,
use
of
the
5­
digit
level
increases
the
number
of
industry
categories
within
the
NAICS
325
Sub­
sector
to
17.
Within
the
Chemical
Manufacturing
Industry
Groups,
this
results
largely
in
a
breakout
of
the
industries
that
are
described
in
the
Industry
Group
title.
For
example,
the
4­
digit
Industry
Group
"
Paint,
Coating,
and
Adhesive
Manufacturing"
splits
into
"
Paint
and
Coating"
and
"
Adhesive"
manufacturing
at
the
5­
digit
level;

or,
"
Resin,
Synthetic
Rubber,
and
Artificial
Synthetic
Fibers
and
Filaments"
breaks
out
to
"
Resin
and
Synthetic
Rubber"
and
"
Artificial
and
Synthetic
Fibers
and
Filaments"
at
the
5­
digit
level.

Because
we
are
using
the
NAICS
principally
because
it
is
a
widely
recognized,
familiar
system
that
can
be
consistently
applied,
we
do
not
necessarily
see
an
advantage
in
further
dividing
(
in
the
Chemical
Manufacturing
example)
the
4­
digit
Industry
Groups
into
5­
digit
Industries.
In
fact,
the
more
finely
divided
one
makes
the
NAICS
hierarchy,
the
more
complex
the
overall
approach
can
become.
We
believe
that
using
4­
digit
NAICS
industry
groups
strikes
the
appropriate
balance
for
this
rule,
given
the
options
available
using
the
NAICS
hierarchy.

Therefore,
we
do
not
find
that
the
possible
advantages
of
a
3­
digit
approach
outweigh
the
reasons
articulated
for
proposing
the
4­
digit
NAICS
classification;
nor
do
we
see
the
advantage
for
using
the
5­
digit
approach,
and
have
identified
possible
disadvantages
compared
with
the
4­

digit
approach.
Although
this
review
involved
only
the
chemical
industry
hierarchy,
we
would
point
out
that
the
chemical
manufacturing
industry
is
an
important
component
of
the
universe
of
4For
example:
NAICS
2379
­
Other
Heavy
and
Civil
Engineering
Construction;
2389
­
Other
Specialty
Trade
Contractors;
3259
­
Other
Chemical
Product
and
Preparation
Manufacturing;
3279­
Other
Nonmetallic
Mineral
Product
Manufacturing;
Other
Electrical
Equipment
and
Component
Manufacturing;
3379
­
Other
Furniture
Related
Product
Manufacturing;
3399
­
Other
Miscellaneous
Manufacturing.

48
RCRA
generators,
and
therefore
how
it
is
defined
under
today's
proposal
is
important.
(
As
will
be
discussed
further
below,
two
other
important
industry
categories
in
terms
of
waste
generation
 
petroleum
and
mineral
processing
 
are
being
handled
in
a
manner
different
from
the
NAICS
approach
described
here,
for
reasons
explained
in
the
next
section
of
this
preamble.)

Nevertheless,
we
request
comment
on
whether
or
not
the
4­
digit
NAICS
classification
is
the
most
appropriate,
given
the
goals
we
have
articulated,
or
whether
the
3­
digit
or
5­
digit
approach
would
be
more
appropriate,
and
why.

Finally,
we
note
that
there
are
a
number
of
4­
digit
NAICS
industry
codes
that
are
designated
as
"
Other"
activities
within
an
industry
sub­
sector.
4
Generally,
these
categories
seem
to
represent
a
more
diverse
set
of
process
activities
than
occurs
under
other
4­
digit
NAICS
codes.

For
example,
NAICS
3259
(
Other
Chemical
Product
and
Preparation
Manufacturing)
includes
Printing
Ink
Manufacturing;
Explosives
Manufacturing;
Custom
Compounding
of
Purchased
Resins;
Photographic
Film,
Paper,
Plate,
and
Chemical
Manufacturing;
and
All
Other
Miscellaneous
Chemical
Product
and
Preparation
Manufacturing.
Moreover,
as
illustrated
by
the
example
3259
industry
group,
even
within
the
"
Other"
4
digit
designation
there
are
classifications
(
usually
ending
with
an
"
8"
or
"
9")
that
are
often
labeled
as
"
All
Other."
Using
the
proposed
4­

digit
NAICS
approach,
all
of
these
categories,
and
activities
under
these
categories,
would
fall
under
the
same
Industry
Group
(
3259).

The
"
All
Other"
classifications
also
occur
in
industry
groups
that
are
not
designated
as
49
"
Other"
in
and
of
themselves.
Using
the
Chemical
Manufacturing
example,
there
is
NAICS
325188
(
All
Other
Basic
Inorganic
Chemical
Manufacturing)
and
325199
(
All
Other
Basic
Organic
Chemical
Manufacturing).
Within
each
of
these
categories,
the
NAICS
provides
eight
examples
of
chemical
manufacturing
that
fall
under
these
categories
(
e.
g.,
Enzyme
Proteins,

Plasticizers,
and
Silicone
manufacturing
under
Organic;
Hydrochloric
acid,
Sulfuric
acid,

Carbides,
and
Fluorine
manufacturing
under
Inorganic).
Using
the
proposed
4­
digit
NAICS
approach,
these
categories
would
fall
under
the
same
Industry
Group
(
3251).

Although
EPA
rejected
an
approach
that
would
mix
and
match
industry
definitions
using
differing
levels
of
the
NAICS
hierarchy,
due
to
concerns
that
this
would
result
in
a
NAICS
list
that
would
be
too
complicated
while
not
achieving
a
clear
benefit,
EPA
is
soliciting
comment
on
whether
those
Industry
Groups
or
Industry
designations
that
involve
"
Other"
or
"
All
Other"

categorizations
should
be
handled
differently
given
the
potential
diversity
within
those
categories.

Existing
Definitions
of
"
Industry"
In
RCRA
Regulations
In
some
cases,
EPA
has
promulgated
definitions
of
certain
"
industries"
in
the
RCRA
regulations,
to
clarify
the
scope
of
a
particular
hazardous
waste
listing,
hazardous
waste
exemption,
or
exclusion
from
the
definition
of
solid
waste.
For
example,
the
hazardous
waste
listing
for
"
spent
pickle
liquor
from
the
iron
and
steel
industry"
(
K062)
references
SIC
codes
331
and
332
to
describe
the
scope
of
the
listing.
40
CFR
261.32.
Other
examples
are
found
at
40
CFR
261.32,
a
list
of
hazardous
wastes
from
"
specific
sources."
These
wastes
are
grouped
by
"
industry"
category
(
e.
g,
inorganic
pigments,
organic
chemicals,
inorganic
chemicals,
pesticides,

etc.),
and
each
waste
has
a
detailed
listing
description
to
help
identify
the
waste.

The
definition
of
industry
being
proposed
today
is
only
applicable
to
the
changes
we
are
5Additional
guidance
was
provided
in
the
Phase
IV
Land
Disposal
Restrictions
(
LDR)
preamble
(
63
FR
28556;
May
26,
1998).
EPA
stated
that
it
views
"
mineral
processing"
to
include
but
not
be
limited
to
41
primary
mineral
processing
sectors
described
in
the
Agency's
1996
Identification
of
Mineral
Processing
Sectors
and
Waste
Streams.

50
proposing
to
make
to
the
definition
of
solid
waste
for
purposes
of
Subtitle
C.
For
example,
we
are
not
proposing
to
change
how
the
"
source
specific"
hazardous
wastes
listed
in
40
CFR
261.32
are
defined.
We
also
do
not
intend
today's
proposed
redefinition
of
solid
waste
to
change
existing
exclusions
in
a
manner
that
regulates
hazardous
secondary
materials
as
solid
wastes,

where
prior
rulemakings
have
established
that
these
materials
are
excluded.

Finally,
EPA
has
previously
defined
the
scope
of
the
petroleum
and
mineral
processing
industries
in
earlier
rules
establishing
exclusions
from
the
definition
of
solid
waste
for
Subtitle
C
regulatory
purposes.
We
are
proposing
to
retain
these
definitions
for
these
industries
in
lieu
of
using
the
NAICS
approach
under
today's
rule.
As
discussed
below,
we
have
already
looked
closely
at
the
recycling
of
hazardous
secondary
materials
within
these
industries,
and
have
already
described
in
various
rulemaking
documents
the
types
of
activities
and
operations
that
comprise
these
industries,
for
purposes
of
existing
exclusions.
To
implement
these
existing
definitions
under
today's
proposal,
we
have
added
clarifying
provisions
to
proposed
Appendix
X
(
Industries
for
the
Purpose
of
40
CFR
261.2(
g)).

Primary
Mineral
Processing.
EPA
has
described
the
scope
of
the
primary
mineral
processing
industry
in
several
previous
rulemakings,
beginning
with
the
1986
Regulatory
Determination
on
extraction
and
beneficiation
wastes
(
51
FR
24496),
and
the
September
1,
1989
Mining
Waste
Exclusion
(
54
FR
36592).
In
the
September
1,
1989
rule,
we
articulated
the
factors
we
would
use
to
determine
the
scope
of
the
mineral
processing
industry.
5
We
are
51
proposing
to
require
the
use
of
these
same
factors
for
determining
whether
a
generating
or
reclamation
process
falls
within
the
mineral
processing
industry.
Specifically:

°
Operation
must
follow
the
beneficiation
of
an
ore
or
mineral
and
does
not
include
beneficiation
as
defined
in
40
CR
261.4(
b)(
7)(
i).

°
Operation
must
serve
to
remove
the
desired
product
from
or
enhance
the
characteristics
of
an
ore
or
mineral
or
a
beneficiated
ore
or
mineral.

°
Operation
uses
feedstock
that
is
comprised
of
less
than
50
percent
scrap
materials.

°
Operation
produces
either
a
final
or
an
intermediate
to
the
final
mineral
product.

°
Operation
does
not
combine
the
mineral
product
with
another
material
that
is
not
an
ore
or
mineral,
or
beneficiated
ore
or
mineral
(
e.
g.,
alloying)
and
does
not
involve
fabrication
or
other
manufacturing
activities.

EPA
is
proposing
to
retain
this
industry
classification,
rather
than
deferring
to
the
various
NAICS
categories,
for
purposes
of
implementing
the
exclusion
for
primary
mineral
processing
secondary
materials
recycled
within
the
industry,
because
it
has
examined
this
sector
in
detail
and
believes
that
its
current
system
reflects
the
boundaries
of
this
industry
better
than
the
4­
digit
NAICS
approach.

For
secondary
materials
that
would
not
be
excluded
under
today's
proposed
rule,
mineral
processing
facilities
may
continue
to
determine
whether
those
materials
are
exempt
from
Subtitle
C
regulation
under
the
Bevill
exclusion,
section
3001(
b)(
3)(
A)(
iii)
of
RCRA
and
40
CFR
261.4(
b)(
7).
They
must
use
currently
applicable
regulatory
provisions,
as
clarified
by
the
criteria
articulated
in
preamble
to
the
September
1,
1989
Federal
Register
(
54
FR
36592).
Note
that
to
be
excluded
under
the
Bevill
Amendment,
solid
wastes
must
be
uniquely
associated
with
the
6We
note
that
the
exclusion
for
oil­
bearing
hazardous
secondary
materials
in
40
CFR
261.4(
a)(
12)(
i)
is
limited
only
to
refinery­
generated
materials,
returned
to
a
refinery;
and
the
exclusion
for
recovered
oil
in
40
CFR
261.4(
a)(
12)(
ii)
involves
the
broader
definition
of
petroleum
industry.
We
are
not
proposing
to
change
the
scope
of
either
exclusion
in
today's
rule.

52
mineral
processing
industry.
For
purposes
of
today's
rule,
non­
uniquely
associated
wastes,

although
not
Bevill
exempt,
are
still
eligible
for
today's
proposed
exclusion
if
they
are
generated
and
reclaimed
within
the
mineral
processing
industry.

Petroleum
Industry.
EPA
has
previously
promulgated
exclusions
related
to
the
recycling
of
oil
and
oil­
bearing
hazardous
secondary
materials.
See
July
28,
1994
Federal
Register
(
59
FR
38536);
see
also
August
6,
1998
Federal
Register
(
63
FR
42110).
In
those
rules,
EPA
identified
the
various
industry
sectors
related
to
petroleum
(
e.
g.,
exploration
and
production,
transportation
and
storage,
refining
and
marketing,
etc.)
that
collectively
were
defined
as
the
petroleum
industry
for
purposes
of
excluding
recovered
oil,
when
such
oil
is
returned
to
the
petroleum
refinery
for
insertion.
(
We
note
that
this
particular
"
intra­
industry"
exclusion
is
uni­
directional,
that
is,
it
is
conditioned
on
the
recovered
oil
being
sent
from
facilities
at
any
point
within
the
industry,
back
to
a
petroleum
refinery.)
In
order
to
avoid
any
confusion
between
this
existing
definition,
and
the
approach
being
proposed
in
today's
rule
for
defining
"
industry,"
we
would
like
to
make
several
clarifications,
and
request
comment
on
specific
questions.

First,
we
reiterate
that
in
today's
notice
we
are
not
proposing
to
change
the
definition
of
petroleum
industry
as
it
is
used
in
the
exclusions
already
mentioned,
specifically,
40
CFR
261.4(
a)(
12)
6.
See
Section
A.
III.
7.
of
today's
preamble
for
additional
discussion
of
conforming
changes
to
the
regulatory
framework.
Second,
because
the
reuse
of
secondary
materials
by
burning
for
energy
recovery
or
the
manufacture
of
fuels
is
not
within
the
scope
of
today's
53
proposal
(
as
mentioned
elsewhere
in
today's
preamble
and
reiterated
in
the
proposed
regulatory
text)
there
may
not
be
any
overlap
between
today's
proposed
exclusion,
and
the
existing
exclusion
that
utilizes
the
broad
definition
of
petroleum
industry.
However,
because
there
may
be
some
hazardous
secondary
materials
that
could
be
generated
and
legitimately
reclaimed
in
a
continuous
process
within
the
petroleum
industry,
in
a
manner
that
does
not
produce
a
fuel,
to
avoid
confusion
we
have
proposed
to
define
petroleum
industry
in
today's
rule
the
same
way
as
described
in
40
CFR
261.4(
a)(
12).
Therefore,
we
have
added
a
clarifying
provision
in
proposed
Appendix
X
to
effect
this
departure
from
using
the
NAICS.

We
request
comment
on
using
the
definition
of
petroleum
industry
from
existing
40
CFR
261.4(
a)(
12)
for
hazardous
secondary
materials
that
are
not
already
excluded
under
that
same
provision,
or
are
reclaimed
within
the
petroleum
industry
for
reasons
other
than
making
fuels,
in
lieu
of
using
the
4­
digit
NAICS
approach.
We
believe
that
retaining
the
existing
definition
of
petroleum
industry
makes
the
most
sense,
because
we
have
already
looked
closely
at
the
recycling
of
hazardous
secondary
materials
within
the
petroleum
industry,
and
have
already
described
in
various
rulemaking
documents
the
types
of
activities
and
operations
that
comprise
these
industries.
We
also
request
comment
on
whether
or
not
the
definition
of
industry
using
the
4­
digit
NAICS
Industry
Group
3241
(
Petroleum
and
Coal
Products
Manufacturing)
should
instead
be
used
for
hazardous
secondary
materials
reclaimed
within
the
petroleum
industry
for
reasons
other
than
making
fuels.

Waste
Management
and
Remediation
Services.
We
are
not
including
"
Waste
Management
and
Remediation
Services"
(
NAICS
562)
on
the
list
of
industries
in
Appendix
X
of
today's
proposed
rule.
We
think
that
this
industry
is
in
business
to
manage
waste,
and
presents
54
different
legal
and
policy
issues
than
do
traditional
manufacturing
industries.
Put
another
way,

this
type
of
activity
is
essentially
waste
management,
as
opposed
to
ongoing
manufacturing.
We
do
not
think
that
most
materials
reclaimed
by
waste
management
industries
are
generated
within
those
industries.
On
the
contrary,
we
believe
that
most
if
not
all
materials
reclaimed
in
waste
management
operations
are
first
discarded
by
another
entity
that
has
no
further
use
for
them,
such
as
used
solvents
generated
at
an
automobile
repair
shop
sent
to
a
third­
party
solvent
reclaimer,
or
lead
from
spent
batteries
being
reclaimed
in
a
secondary
smelter
(
see
U.
S.
v.
Ilco,
996
F.
2d
1126
(
11th
Cir.
1993)).

Therefore,
we
have
expressly
excluded
"
Waste
Management
and
Remediation
Services"

from
the
scope
of
today's
proposal.
NAICS
codes
corresponding
to
these
operations
do
not
appear
on
the
list
of
industries
in
Appendix
X
of
today's
proposed
rule.
The
NAICS
562
Subsector
includes
the
Industry
Groups
"
Waste
Collection"
(
NAICS
5621),
"
Waste
Treatment
and
Disposal"
(
NAICS
5622),
and
"
Remediation
and
Other
Waste
Management
Services"
(
NAICS
5629).

In
addition,
we
have
identified
specific
activities
described
within
certain
NAICS
industry
categories
that
should
remain
within
our
Subtitle
C
jurisdiction
under
the
same
logic
(
that
is,
they
manage
materials
that
have
been
discarded
by
another
entity
that
has
no
further
use
for
them).

These
are
activities
that
fall
within
two
separate
Industry
Groups
within
the
Chemical
Manufacturing
Sector
(
325).
Based
upon
the
NAICS
description
for
these
activities,
they
appear
to
reclaim
secondary
materials
from
facilities
that
generate
them,
and
unlike
the
other
operations
in
the
same
NAICS
codes,
they
do
not
produce
any
products
made
from
non­
secondary
materials,

nor
do
they
provide
the
kinds
of
services
that
the
other
operations
provide.
Moreover,
they
are
55
often
owned
and
operated
by
independent
third
parties.
We
are
proposing
to
exclude
these
activities
from
the
industry
classifications
as
follows:

3256
Soap,
Cleaning
Compound,
and
Toilet
Preparation
Manufacturing
(
except
for
third­
party
operations
that
reclaim
drycleaning
fluids
at
sites
that
do
not
conduct
drycleaning).

3259
Other
Chemical
Product
and
Preparation
Manufacturing
(
except
for
third­
party
operations
that
reclaim
degreasing
solvents
at
sites
that
do
not
conduct
degreasing
operations).

Finally,
we
assume
that
identifying
facilities
properly
classified
under
the
Waste
Management
Services
NAICS
Industry
Group
should
be
relatively
straightforward,
and
that
such
facilities
would
not
be
readily
confused
with
facilities
that
are
recycling
secondary
materials
in
a
continuous
process
within
the
generating
industry.
Generally
speaking,
where
such
waste
service
facilities
are
stand­
alone
operations
(
i.
e.,
are
not
physically
on­
site
with
respect
to
industrial
or
manufacturing
operations),
and
it
is
clear
that
virtually
all
materials
reclaimed
at
such
facilities
are
secondary
materials
received
from
off­
site
generators
(
in
one
or
more
industry
categories),
then
reclamation
services
are
quite
obviously
the
principal
activity
undertaken
at
the
site,
and
the
secondary
materials
have
been
discarded
by
the
generators,
as
discussed
above.
In
addition
to
excluding
facilities
with
NAICS
Codes
5621,
5622,
and
5629
from
the
list
of
industries
in
Appendix
X
as
described
above,
proposed
40
CFR
261.2(
g)(
2)(
iv)
makes
clear
that
materials
sent
to
these
waste
service
industries
are
not
excluded
from
the
definition
of
solid
waste
under
today's
rule.

Manufacturing
Versus
Other
NAICS
Sectors
Today's
proposed
rule
is
incorporating
all
of
the
NAICS
categories
into
Appendix
X,
with
the
exception
of
the
categories
described
above
for
mineral
processing,
petroleum,
and
waste
56
management
services.

However,
because
we
are
relying
on
the
NAICS
list,
which
is
designed
to
capture
the
entire
breadth
and
scope
of
the
U.
S.
economy,
there
may
be
categories
on
the
list
that
do
not
generally
generate
or
recycle
hazardous
secondary
materials.
Including
such
industries
on
the
list
used
in
this
regulation
makes
the
list
rather
large
and
unwieldy.
In
addition,
for
some
industries,

inclusion
on
the
list
in
Appendix
X
may
create
some
confusion
and
concern
as
to
whether
we
are
implying
that
a
particular
industry
generates
hazardous
secondary
material
by
virtue
of
it
appearing
on
this
list
in
the
RCRA
regulations
(
which
we
are
not).
We
believe
that
the
majority
of
hazardous
secondary
materials
presently
being
recycled
are
generated
within
traditional
manufacturing
industry
sectors
(
e.
g.,
NAICS
Sectors
31­
33).
For
example,
it
may
be
more
straightforward
to
limit
the
list
of
industries
in
Appendix
X
to
mining
and
manufacturing
sectors.

We
are
requesting
comment
on
whether
the
list
of
industries
in
Appendix
X
should
be
modified,

beyond
what
is
being
proposed
today,
based
on
the
knowledge
that
certain
industry
categories
do
not
generate
hazardous
secondary
materials
or
will
not
engage
in
reclamation
of
hazardous
secondary
materials.

How
Will
the
Regulated
Community
Identify
Which
NAICS
Code
Applies
for
Purposes
of
this
Rule?

The
2002
NAICS
Manual
contains
guidelines
for
using
the
system,
along
with
fairly
detailed
descriptions
of
the
industry
categories.
Individual
NAICS
categories
contain
information,

such
as
examples,
to
help
identify
an
establishment's
industry
classification.
We
are
proposing
today
to
require
the
regulated
community
to
use
the
existing
NAICS
guidance
(
NAICS
2002
Edition)
to
identify
what
industry
their
operations
fall
within
for
purposes
of
today's
exclusion
7NAICS
Manual,
2002,
p.
21.

57
from
the
RCRA
definition
of
solid
waste.
See
paragraph
(
d)
in
proposed
Appendix
X.

The
NAICS
is
a
"
classification
system
for
establishments."
As
discussed
in
more
detail
below,
an
establishment
is
a
collection
of
one
or
more
activities,
and
under
NAICS
the
establishment
is
what
is
classified
as
a
particular
industry.
The
introductory
text
to
the
2002
NAICS
Manual
states
that
"
The
establishment
as
a
statistical
unit
is
defined
as
the
smallest
operating
entity
for
which
records
provide
information
on
the
cost
of
resources,
materials,
labor,

and
capital
employed
to
produce
the
units
of
output."
Establishment
is
further
clarified
in
the
same
text
as
"
generally
a
single
physical
location,
where
business
is
conducted
or
where
services
or
industrial
operations
are
performed
(
for
example,
a
factory,
a
mill,
store,
hotel,
movie
theater,

mine,
farm,
airline
terminal,
sales
office,
warehouse,
or
central
administrative
office)."
7
In
cases
where
distinctly
different
and
potentially
significant
activities
occur
at
one
location,
in
determining
whether
these
activities
should
be
classified
as
a
separate
establishment,
the
2002
NAICS
Manual
states
that
an
"
activity
is
treated
as
a
separate
establishment
provided:
1)
no
one
industry
description
in
the
classification
includes
such
combined
activities;
2)
separate
reports
can
be
prepared
on
the
number
of
employees,
their
wages
and
salaries,
sales
or
receipts,
and
expenses;

and
3)
employment
and
output
are
significant
for
both
activities.

Thus,
the
NAICS
system
first
defines
what
is
an
establishment.
An
establishment
is
then
classified
to
an
industry
when
its
primary
activity
meets
the
definition
of
that
industry.
In
the
simplest
case,
where
an
establishment
consists
of
one
activity,
the
industry
classification
for
that
establishment
is
that
which
best
describes
that
single
activity.
When
there
are
two
or
more
activities,
the
NAICS
Manual
describes
procedures
for
identifying
the
primary
activity.
The
8NAICS
Manual,
2002,
p.
22.

58
NAICS
Manual
states:

"
In
most
cases,
if
an
establishment
is
engaged
in
more
than
one
activity,
the
industry
code
is
assigned
based
on
the
establishment's
principal
product
or
group
of
products
produced
or
distributed,
or
services
rendered.
Ideally,
the
principal
good
or
service
should
be
determined
by
its
relative
share
of
current
production
costs
and
capital
investment
at
the
establishment.
In
practice,
however,
it
is
often
necessary
to
use
other
variables
such
as
revenue,
shipments,
or
employment
as
proxies
for
measuring
significance."
8
Thus,
establishments
are
classified
under
NAICS
based
on
the
primary
activity
within
that
establishment.
It
should
also
be
pointed
out,
however,
that
for
certain
types
of
combined
activities,
the
NAICS
guidance
provides
exceptions
to
this
"
primary
activity"
rule
approach.
For
example,
vertically­
integrated
facilities
can
be
described
as
consecutive
stages
of
production
in
which
the
output
of
one
step
is
the
input
to
the
next.
Rather
than
determining
which
of
these
stages
of
production
are
the
largest
(
or
primary),
NAICS
would
classify
this
series
of
activities
based
on
the
final
process.
One
example
of
this
is
where
the
NAICS
Manual
specifies
that
a
physical
location
with
both
a
Pulp
Mill
activity
and
Paper
Mill
activity,
should
be
classified
as
a
Paper
Mill
because
that
is
the
final
stage
of
production.
But
there
are
even
exceptions
to
this,

such
as
where
the
NAICS
Manual
specifies
that
a
particular
set
of
vertically­
integrated
activities
should
be
classified
based
upon
the
first
stage
of
the
manufacturing
process
(
e.
g.,
a
Steel
Mill
where
other
activities
such
as
producing
Steel
Castings
occurs,
should
be
classified
as
a
Steel
Mill
nonetheless).
An
important
point
here,
other
than
illustrating
how
the
"
primary
activity
rule"
may
be
superseded
by
the
way
in
which
the
NAICS
manual
defines
particular
vertically­
integrated
establishments,
is
that
the
NAICS
Manual
will
specify
how
such
an
establishment
is
classified,
59
rather
than
the
owner/
operator
having
to
in
every
case
make
a
judgement
(
such
as
determining
the
primary
activity,
for
example).

Another
example
of
how
NAICS
may
classify
certain
combined
activities,
other
than
via
the
primary
activity
rule,
is
in
certain
examples
of
joint
production
of
goods
and
services.
Some
establishments
may
have
two
activities
(
e.
g.,
a
gasoline
station
with
a
convenience
store)
where
the
combined
activities
have
been
identified
in
the
NAICS
as
a
third,
separate
industry.
Thus,

rather
than
making
a
determination
of
which
activity
(
gasoline
retail
versus
convenience
store)
is
primary
using
receipts/
sales
and
revenue
data
as
a
proxy,
NAICS
provides
a
category
Gasoline
Stations
with
Convenience
Stores
(
NAICS
code
44711).
In
this
case,
this
third
category
should
be
used
in
lieu
of
determining
the
"
primary
activity"
for
these
establishments.

Because
today's
rule
proposes
to
use
the
NAICS
for
classifying
establishments
(
at
the
4­

digit,
or
Industry
Group
level)
for
determining
whether
or
not
the
generating
industry
and
the
reclaiming
industry
are
the
same,
the
concept
of
the
establishment
is
important.
We
are
proposing
to
add
a
definition
of
establishment
to
the
RCRA
regulations,
where
establishment
means
"
an
economic
unit,
generally
at
a
single
physical
location,
where
business
is
conducted
or
where
services
or
industrial
operations
are
performed.
An
establishment
is
the
smallest
such
unit
for
which
records
provide
information
on
the
cost
of
resources,
materials,
labor
and
capital
employed
to
produce
the
units
of
output."
The
language
in
this
definition
follows
closely
the
language
in
the
2002
NAICS
Manual,
and
is
also
consistent
with
the
same
language
EPA
used
in
a
separate
rulemaking
under
EPA's
Toxic
Chemical
Release
Reporting
program
(
see
40
CFR
372.3).
We
request
comment
on
our
use
of
this
definition
for
today's
proposed
rule.
(
An
additional
point,
the
phrase
"
generally
at
a
single
physical
location"
in
the
proposed
definition
of
60
establishment
does
not
mean
that
under
today's
proposal,
"
same
industry"
is
somehow
limited
only
to
materials
generated
and
reclaimed
on
site.
As
discussed
throughout
this
preamble,
today's
proposed
exclusion
can
apply
to
materials
sent
off
site
from
the
generator
facility.)

Multiple
Establishments.
Thus
far,
we
have
discussed
how
the
NAICS
system
defines
an
establishment,
and
how
that
establishment
is
classified
to
an
industry
from
the
2002
NAICS
Manual
of
industry
classifications.
We
are
proposing
that
hazardous
secondary
materials,

generated
at
an
establishment,
are
excluded
if
reclaimed
at
the
same
or
another
establishment,

whether
on­
site
or
off­
site,
where
the
establishment
reclaiming
the
material
is
classified
under
the
same
NAICS
(
at
the
4­
digit
level)
classification
as
the
generating
establishment
(
industry).
This
approach
is
relatively
straightforward
when
it
involves
transactions
within
and
between
sites
where
each
site
has
a
single
establishment,
classified
to
a
particular
NAICS
industry
group.
All
one
needs
to
know
is
the
correct
industry
classifications,
and
then
determining
whether
or
not
the
secondary
material
is
being
reclaimed
within
the
generating
industry
in
accordance
with
today's
proposed
exclusion
should
be
a
straightforward
task.

However,
some
locations
will
have
two
or
more
establishments
operating,
where
these
establishments
are
classified
differently
from
one
another
under
the
NAICS.
Where
there
are
two
or
more
different
industries
(
establishments)
operating
at
the
location
where
the
secondary
material
is
generated,
or
at
the
location
where
the
secondary
material
is
reclaimed,
the
individual
establishments
that
generate
and
reclaim
the
secondary
materials,
respectively,
must
be
classified
the
same
under
NAICS,
in
order
to
be
excluded
under
today's
proposed
rule.
In
other
words,

where
there
are
multi­
industry
sites,
we
look
to
whether
NAICS
classifications
of
the
specific
establishments
generating
and
reclaiming
the
secondary
material
are
the
same.
We
are
not
9Whereas
the
NAICS
attaches
an
industry
classification
to
an
individual
establishment
based
upon
the
most
significant
activity
within
that
establishment
(
determined
using
either
the
`
primary'
activity
rule,
or
in
some
other
way
as
discussed
for
certain
establishments
with
combined
activities),
the
NAICS
Manual
does
not
appear
to
have
any
type
of
`
primary
rule'
for
identifying
the
primary
industry
at
multi­
industry
facilities.
However,
there
is
at
least
one
example
of
where
determining
the
primary
industry
is
required
in
a
different
program;
the
EPA
Toxic
Release
Inventory
(
TRI)
regulations
require
that
a
primary
establishment,
or
industry,
be
identified
at
multi­
establishment
complexes.
This
is
in
order
to
determine
applicability
of
the
TRI
rules,
because
the
TRI
program
applies
to
some
industries
and
not
others.
40
CFR
372.22(
b).

61
suggesting
that
a
particular
multi­
industry
site
be
classified
as
a
single
industry,
based
for
example
on
some
type
of
determination
of
the
"
dominant"
or
"
primary"
industry
or
establishment
at
that
site.
9
In
fact,
one
scenario
under
today's
proposal
would
be
that
secondary
materials
are
not
considered
to
be
reclaimed
in
a
continuous
process
within
the
same
industry
when
sent
from
one
industry
to
a
different
industry
on
the
same
site.
While
there
may
be
opportunities
for
legitimate
recycling
between
two
different
industries
at
the
same
site,
for
reasons
already
discussed,
we
are
limiting
today's
exclusion
to
a
`
same
industry'
approach.
Although
`
inter­
industry'
recycling
is
outside
the
scope
of
today's
proposal,
we
would
be
interested
in
obtaining
additional
information
on
specific
examples
of
situations
where
two
different
industries
(
based
upon
the
NAICS
definition
proposed
today)
are
located
at
the
same
site,
and
where
hazardous
secondary
materials
are
generated
in
one
industry
and
could
be
reclaimed
in
a
different,
on­
site
industry.
Again,
this
type
of
recycling
is
outside
the
scope
of
today's
proposal,
but
we
solicit
comment
and
would
be
interested
in
obtaining
examples
of
where
this
type
of
recycling
might
occur.

Specialty
Batch
Chemical
Manufacturers.
EPA
is
also
aware
of
certain
practices
within
the
chemical
manufacturing
industry
that
might
present
unique
situations
regarding
defining
"
intra­
industry"
reclamation
using
the
NAICS
approach.
Specifically,
within
the
chemical
manufacturing
industry,
larger
manufacturers
will
contract
out
production
of
certain
chemicals
to
62
smaller
manufacturers
(
referred
to
as
batch
or
tolling
operations).
These
smaller
manufacturers
produce
chemicals
in
batches,
where
the
product
slates
may
change
several
times
over
the
course
of
a
year,
for
example.
These
smaller
manufacturers
(
often
referred
to
collectively
as
Specialty
Batch
Chemical
Manufacturers)
may
generate
hazardous
secondary
materials
that
could
be
returned
to
the
larger
chemical
manufacturer
for
reclamation
along
with
similar
secondary
materials
(
generated
by
the
larger
facility
from
producing
the
same
chemical).
To
the
extent
that
the
NAICS
approach
proposed
today
classifies
both
establishments
(
the
specialty
batch
establishment,
and
the
larger
chemical
manufacturing
establishment)
the
same
at
the
4­
digit
level,

this
reclamation
would
be
excluded
under
today's
proposal.
As
stated
above,
we
would
look
to
whether
the
NAICS
classifications
of
the
specific
establishments
generating
and
reclaiming
the
secondary
material
are
the
same.
However,
we
solicit
comment
on
this
particular
situation,
and
are
interested
to
know
if
there
are
specific
examples
of
where
`
same
industry'
reclamation,
as
outlined
under
today's
proposed
rule,
would
be
precluded
as
a
result
of
uncertain
application
of
the
NAICS
classification
approach
at
specialty
batch
chemical
facilities
(
e.
g.,
due
to
frequently
changing
product
slates,
or
different
products
being
produced
from
the
same
equipment
at
different
times,
etc.).

Under
today's
definition
of
industry,
we
are
proposing
that
owners
and
operators,
as
well
as
implementing
agencies,
rely
on
the
NAICS
system
to
identify
establishments
and
define
the
bounds
of
an
industry.
As
our
lead
approach,
we
are
not
proposing
to
overlay
additional
criteria
to
determine
whether
or
not
particular
reclamation
units,
processes,
or
activities
are
"
adequately"

associated
with
an
industry
so
as
to
be
included
within
the
scope
of
that
industry
definition.
In
fact,
we
believe
the
NAICS
approach
simplifies
this
determination
because
it
generally
views
63
establishments
as
a
collection
of
activities,
and
provides
a
consistent
system
for
classifying
the
collection
of
activities
as
an
industry.
Generally,
where
reclamation
units,
processes
or
activities
are
located
at
a
particular
site,
and
are
supporting
the
principal
activities
of
that
industry
in
a
legitimate
fashion,
they
should
be
considered
part
of
that
establishment
(
industry)
unless
the
NAICS
approach
(
e.
g.,
industry
descriptions
or
other
guidance
in
the
2002
NAICS
Manual)

yields
a
different
answer.

For
instance,
in
the
example
provided
in
Section
III.
A.
4.
above,
if
a
paint
manufacturer
reclaims
used
solvents
from
within
the
paint
manufacturing
industry,
the
used
solvents
would
not
be
wastes
under
today's
proposed
exclusion.
If,
based
upon
the
NAICS,
this
solvent
reclamation
activity
is
part
of
the
paint
manufacturing
process,
and
thus
merely
one
of
several
activities
comprising
an
establishment
best
classified
as
paint
manufacturing
under
NAICS,
then
the
reclamation
activity
would
be
part
of
the
paint
manufacturing
industry.
Alternatively,
if
the
solvent
reclamation
activity
became
a
centralized
solvent
reclamation
facility
for
paint
manufacturers,
then
under
the
NAICS
approach
the
reclamation
could
ultimately
become
so
significant
(
e.
g.,
due
to
the
number
of
employees,
or
receipts
from
its
activities,
etc.)
as
to
be
a
separate
establishment.
In
that
case,
the
reclamation
activity
would
likely
be
classified
in
an
industry
other
than
paint
manufacturing,
and
the
used
solvents
would
no
longer
be
excluded
because
they
are
not
being
reclaimed
in
a
continuous
process
within
the
same
industry.

The
key
point
here
is
that
in
one
instance,
the
reclamation
activity
clearly
supports
paint
manufacturing,
and
is
one
of
several
activities
in
an
establishment
called
paint
manufacturing.
In
the
other
instance,
the
reclamation
activity
has
become
significant
enough
to
be
a
separate
establishment,
and
is
thus
classified
based
on
its
own
activity,
which
would
be
different
from
the
10Under
the
SIC,
establishments
that
primarily
provided
services
to
manufacturing
establishments
were
classified
based
on
the
establishment
being
served;
NAICS
changed
this
to
emphasize
that
each
establishment
should
be
classified
based
upon
what
the
establishment
does.
(
See
NAICS
Clarification
Memorandum
No.
3
in
docket
to
today's
proposed
rulemaking.)

11These
are:
1)
no
one
industry
description
in
the
classification
includes
such
combined
activities;
2)
separate
reports
can
be
prepared
on
the
number
of
employees,
their
wages
and
salaries,
sales
or
receipts,
and
expenses;
and
3)
employment
and
output
are
significant
for
both
activities.
NAICS
Manual,
2002,
pp.
21­
22.

64
activity
of
the
establishment
(
paint
manufacture)
it
serves
in
this
example.
Classifying
establishments
based
on
their
own
activity,
rather
than
the
activity
of
the
establishment
being
served,
is
consistent
with
the
way
in
which
the
NAICS
is
intended
to
operate
in
situations
involving
"
auxiliary"
establishments.
10
While
we
believe
the
NAICS
appears
to
offer
a
clear,
consistent,
and
familiar
way
to
classify
establishments
for
purposes
of
today's
rule,
we
acknowledge
that
there
may
be
some
situations
where
this
system
might
not
provide
definitive,
"
bright
line"
answers.
As
discussed
above,
a
reclamation
process
could
expand
to
a
point
where
such
a
"
sideline"
reclamation
process
would
rightly
be
considered
significant
enough
to
be
a
separate
establishment,
and
a
different
industry,
for
the
purpose
of
this
rule.
The
reclamation
establishment
likely
would
then
be
classified
as
a
waste
management
industry.

As
stated
above,
the
2002
NAICS
Manual
contains
guidance
to
help
identify
whether
a
particular
activity
can
be
defined
as
a
separate
establishment,
in
situations
where
there
are
other
activities
occurring
at
the
same
location.
11
However,
our
concern
is
whether
this
guidance
is
sufficient
for
determining
more
precisely
when
"
sideline"
reclamation
systems
would
become
"
significant"
enough
to
be
considered
separate
establishments.
Today's
proposal
would
help
resolve
such
issues
for
certain
types
of
on­
site
reclamation
processes.
First,
under
proposed
40
65
CFR
261.2(
g)(
2)(
v),
if
there
is
still
some
question
(
after
consulting
the
2002
NAICS
Manual)
as
to
the
correct
classification
of
a
particular
reclamation
unit,
process,
or
activity,
we
are
proposing
that
with
respect
to
hazardous
secondary
materials
generated
and
reclaimed
on
site
(
as
defined
in
40
CFR
260.10),
the
on­
site
reclamation
unit,
process,
or
activity
be
considered
part
of
the
generating
industry
with
which
it
is
associated.
This
proposed
provision
reflects
the
idea
that
the
scale
or
"
significance"
of
on­
site
reclamation
processes
should
be
less
relevant
for
the
purpose
of
this
rule
when
only
materials
that
are
generated
on­
site
are
involved.

The
issue
of
when
an
on­
site
reclamation
process
would
be
significant
enough
to
be
considered
a
separate
establishment
under
NAICS
is
more
complex
when
the
process
also
reclaims
hazardous
secondary
materials
generated
off­
site.
Facilities
that
decide
to
accept
such
secondary
materials
from
off­
site
for
reclamation
need
to
know
at
what
point
such
reclamation
processes
would
be
considered
separate
establishments.
In
the
paint
manufacturer
example
discussed
above,
a
risk­
averse
facility
manager
might
unnecessarily
restrict
his
or
her
reclamation
activity.
We
believe
that
it
may
be
advisable
in
the
final
rule
to
provide
some
more
specific
means
of
determining
when
such
sideline
reclamation
processes
would
be
significant
enough
to
be
considered
separate
establishments
and,
therefore,
separate
(
and
different)
industries.

In
order
to
clarify
when
a
sideline
operation
becomes
a
waste
management
operation,

EPA
could
identify
several
relevant
criteria
for
facilities
and
regulators
to
evaluate.
One
of
the
criteria
could
be
how
much
secondary
material
from
off­
site
is
being
reclaimed
in
the
process.

For
example,
the
regulation
could
specify
that
an
on­
site
reclamation
process
should
be
a
separate
establishment
if
more
than
50%
of
the
material
reclaimed
originates
from
off­
site.
Some
different
percentage
(
e.
g.,
25%
or
75%)
could
also
be
appropriate
for
this
purpose.
Another
criterion
66
could
be
based
on
how
much
of
the
facility's
revenue
(
e.
g.,
more
than
50%)
is
generated
from
reclaiming
material
from
off­
site.
Another
criterion
might
be
based
on
the
number
of
off­
site
generators
(
e.
g.,
more
than
five)
that
supply
secondary
material
to
the
reclamation
process.
The
Agency
requests
comment
on
the
need
for
additional
regulatory
clarification
to
determine
when
such
sideline
reclamation
processes
would
be
significant
enough
to
be
considered
separate
establishments,
particularly
where
reclamation
processes
take
materials
from
off­
site
generators.

We
also
request
comment
on
the
specific
options
outlined
above
for
addressing
this
issue.

We
point
out
that
elsewhere
in
today's
preamble,
we
discuss
co­
proposing
two
options
as
part
of
defining
what
is
a
"
continuous
process
within
the
generating
industry."
(
See
Section
III.
A.
4.
above,
where
under
one
option
we
propose
that
hazardous
secondary
materials
that
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry
would
not
be
eligible
for
today's
exclusion,
if
the
reclamation
takes
place
at
a
facility
that
also
recycles
regulated
hazardous
wastes
generated
in
a
different
industry.)
However,
here
in
this
section
we
are
requesting
comment
on
possible
ways
to
more
clearly
define
industry,
or
more
specifically,

establishment,
particularly
where
there
are
materials
being
received
and
reclaimed
from
off­
site
sources.
While
these
two
aspects
of
today's
proposal
address
similar
issues
(
e.
g.,
improving
clarity,
and
identifying
reclamation
outside
the
scope
of
today's
proposal),
we
emphasize
that
here
we
are
asking
for
comment
on
possible
criteria
for
further
defining
establishment,
which
would
conceivably
apply
under
either
of
the
co­
proposed
options
described
in
section
III.
A.
4.

EPA
also
requests
comment
on
using
the
existing
2002
NAICS
Manual
for
implementing
the
definition
of
industry
under
today's
rule,
and
specifically
as
it
is
incorporated
into
the
industry
categories
and
definitions
in
the
newly
proposed
Appendix
X.
We
anticipate
that
for
most
67
locations,
in
most
cases,
the
NAICS
classification
system
described
in
the
2002
NAICS
Manual,

summarized
above,
will
serve
the
purpose
of
a
clear
and
consistent
definition
of
industry.

Regulatory
option
for
on­
site
recycling
As
explained
in
the
preceding
discussion,
today's
proposed
exclusion
would
only
be
available
for
materials
recycled
within
the
same
industry
in
which
they
are
generated,
and
we
are
proposing
to
use
the
NAICS
system
as
the
primary
means
of
identifying
and
classifying
the
industries
associated
with
generation
and
reclamation
of
recyclable
materials.
However,
as
discussed
above,
we
acknowledge
that
our
proposed
approach
may
have
certain
drawbacks,

particularly
with
regard
to
situations
where
the
recycling
activities
all
occur
on­
site.
For
example,

we
expect
there
will
be
numerous
facilities
that
will
have
two
or
more
establishments
that
would
be
classified
as
separate
industries
according
to
the
NAICS
system
(
e.
g.,
a
facility
that
produces
petrochemicals
as
well
as
pharmaceuticals).
As
proposed
today,
materials
would
not
be
excluded
if
the
generating
and
reclaiming
establishments
were
in
different
industries
according
to
NAICS,

even
if
both
establishments
were
situated
at
the
same
site
and
operated
by
the
same
company.
In
a
somewhat
different
example,
a
large
manufacturer
such
as
an
integrated
steel
production
plant
may
find
it
advantageous
to
have
a
separate,
specialized
company
operate
a
dedicated
reclamation
process
at
the
plant
site.
Under
the
NAICS
system,
that
reclamation
process
would
likely
not
be
classified
as
part
of
the
steel
making
industry,
since
it
could
be
viewed
as
a
distinct,
separate
economic
unit.
We
also
acknowledge
that
for
large,
integrated
facilities
it
could
be
difficult
using
the
NAICS
guidance
to
easily
classify
processes
that
may
produce
different
types
of
outputs,
but
are
physically
or
operationally
linked.
Finally,
as
discussed
previously,
a
specific
unit
or
process
at
a
facility
may
be
flexibly
designed
to
produce
a
variety
of
outputs,
and
its
NAICS
classification
12"
On­
site"
is
defined
for
RCRA
Subtitle
C
purposes
in
40
CFR
260.10.

68
might
thus
change
relatively
often,
depending
on
which
products
are
being
produced
at
any
given
time.

In
developing
today's
proposal,
several
stakeholders
suggested
that
an
exclusion
for
onsite
recycling
could
be
a
more
practical
and
simpler
approach
to
encouraging
legitimate
recycling
while
maintaining
environmental
protections.
The
Agency
believes
that
such
an
option
may
have
merit,
and
in
light
of
the
potential
difficulties
in
making
clear,
definitive
NAICS
classifications
at
more
complex
facilities,
we
are
considering
a
regulatory
option
that
could
simplify
implementation
of
today's
proposed
exclusion
in
situations
where
materials
are
all
generated
and
reclaimed
in
a
continuous
process
on­
site.
12
Under
this
option,
the
NAICS
system
would
be
used
to
classify
generating
and
reclaiming
industries
that
are
located
at
different
sites,
consistent
with
today's
proposal.
However,
materials
that
are
generated
and
reclaimed
in
a
continuous
process
at
the
same
site
would
be
excluded,
regardless
of
whether
different
industries
were
involved.
This
option
would
also
involve
the
same
notification
requirements
that
would
apply
to
off­
site,

intraindustry
recycling
excluded
under
today's
proposal.

It
should
be
noted
that
such
an
on­
site
recycling
exclusion
would
not
be
based
on
the
direction
of
the
D.
C.
Circuit
Court
(
in
the
opinions
discussed
in
section
II.
D
of
this
preamble),
but
rather
would
rest
on
the
premise
that
materials
recycled
on­
site
in
a
continuous
process
are
unlikely
to
be
discarded
because
they
would
be
closely
managed
and
monitored
by
a
single
entity
who
is
intimately
familiar
with
both
the
generation
and
reclamation
of
the
material,
no
off­
site
transport
of
the
material
(
with
its
attendant
risks)
would
occur,
and
there
would
be
few
questions
as
to
potential
liability
in
the
event
of
mismanagement
or
mishap.
69
We
believe
that
this
regulatory
option
would
have
the
advantage
of
being
somewhat
more
straightforward
to
implement,
both
for
industry
and
regulators,
by
avoiding
many
of
the
uncertainties
and
complexities
of
using
the
NAICS
system,
particularly
at
larger
facilities.
We
also
believe
that
it
would
likely
encourage
more
legitimate
recycling
than
would
occur
under
today's
proposed
regulatory
framework
for
intra­
industry
recycling.
We
request
comment
on
this
regulatory
option.

7.
How
is
EPA
proposing
to
define
"
continuous
process?"

What
is
a
"
continuous
process?"

As
explained
above,
we
are
proposing
today
to
define
"
discard"
for
Subtitle
C
purposes
in
the
context
of
the
opinions
of
the
D.
C.
Circuit
pertaining
to
the
definition
of
solid
waste.
EPA
is
proposing
to
exclude
from
the
Subtitle
C
definition
of
"
solid
waste"
materials
recycled
in
a
continuous
process
within
the
generating
industry.
In
this
section
of
the
preamble,
we
propose
that
generation
and
reclamation
of
materials
would
take
place
in
a
"
continuous
process"
only
if
the
materials
are
handled
exclusively
by
facilities
or
entities
(
except
for
transporters)
that
are
within
the
generating
industry,
and
the
materials
are
not
"
speculatively
accumulated"
as
defined
in
40
CFR
261.1(
c)(
8).

Today's
proposed
definition
for
continuous
process
would
not
allow
a
generator
to
ship
excluded
materials
to
a
broker
or
other
middleman
before
it
is
received
at
a
reclamation
facility.

While
middlemen
such
as
brokers
are
often
better
able
to
find
markets
for
recyclable
secondary
materials,
and
thus
can
facilitate
their
beneficial
reuse,
we
do
not
believe
that
such
arrangements
are
consistent
with
the
idea
of
recycling
in
a
"
continuous
process."
Brokers
do
not
manufacture
the
same
goods
or
provide
the
same
type
of
services
as
the
entities
which
generate
the
secondary
70
materials.
We
do
not
regard
them
as
falling
within
the
same
industry
as
the
generators.

Moreover,
often
a
generator
who
consigns
materials
to
a
broker
does
not
know
where
or
how
the
material
will
be
reclaimed.
This
suggests
that
these
generators
are
more
likely
to
be
"
finished"

with
a
material
and
to
be
willing
to
let
the
material
go
to
a
different
industry
for
reclamation.
We
also
note
that
brokers
have
been
associated
with
releases
requiring
cleanups,
though
we
have
not
compiled
definitive
data
on
any
such
recent
damage
cases.
In
sum,
we
regard
the
use
of
brokers
as
a
significant
discontinuity
in
the
use
of
a
secondary
material,
although
we
request
comment
on
this
issue.
Today's
proposal
would,
however,
allow
the
use
of
independent
transporters
(
who
typically
would
not
be
in
the
same
industry
that
generated
the
secondary
material)
to
ship
excluded
materials
from
one
facility
to
another,
as
long
as
each
facility
is
within
the
generating
industry.

In
addition
to
requiring
materials
to
be
shipped
directly
between
generator
and
reclaimer,

we
believe
that
a
continuous
process
requires
some
limitations
on
the
timing
of
the
activities
in
question;
i.
e.,
how
soon
a
material
is
reclaimed
and
reused
after
being
generated.
Obviously,
if
a
secondary
material
is
generated
but
never
reclaimed
and
reused
it
must
be
considered
a
waste.
On
the
other
hand,
if
a
material
is
generated
and
subsequently
reclaimed
and
reused
more
or
less
immediately
(
e.
g.,
within
a
few
hours
or
days),
it
might
easily
be
concluded
that
such
recycling
takes
place
in
a
"
continuous
process."

To
address
this
timing
aspect
in
defining
continuous
process,
we
are
proposing
to
use
RCRA's
existing
"
speculative
accumulation"
provisions
(
see
40
CFR
261.1(
c)(
8))
to
distinguish
between
processes
that
are
continuous
and
those
that
are
not.
Under
this
existing
rule,
a
material
is
accumulated
speculatively
if
the
person
accumulating
it
cannot
show
that
the
material
is
71
potentially
recyclable
and
has
a
feasible
means
of
being
recycled.
More
importantly
for
the
purpose
of
this
proposal,
the
person
accumulating
the
material
must
show
that
during
a
calendar
year
(
beginning
January
1)
the
amount
of
material
that
is
recycled,
or
transferred
to
a
different
site
for
recycling,
must
equal
at
least
75
percent
by
weight
or
volume
of
the
amount
of
that
material
at
the
beginning
of
the
period.
This
provision
already
applies
to
secondary
materials
not
otherwise
considered
to
be
wastes
when
recycled,
such
as
materials
used
as
ingredients
or
commercial
product
substitutes,
materials
that
are
recycled
in
a
closed­
loop
production
process,
or
unlisted
sludges
and
byproducts
being
reclaimed.
These
restrictions
on
speculative
accumulation
have
been
an
important
element
of
the
RCRA
recycling
regulations
since
they
were
promulgated
on
January
4,
1985.

EPA
believes
that
using
the
existing
regulatory
provisions
for
speculative
accumulation
as
the
time
limit
for
defining
"
continuous
process"
in
this
rule
is
consistent
with
the
D.
C.
Circuit
Court's
direction,
and
fits
well
within
the
existing
regulatory
structure
for
hazardous
waste
recycling.
In
the
ABR
decision,
the
Court
suggested
that
temporary
storage
of
secondary
materials
prior
to
reclamation
may
be
a
necessary
phase
in
the
overall
reclamation
process.

However,
in
that
decision
the
court
did
not
suggest
a
particular
time
limit
beyond
which
accumulation
of
materials
could
no
longer
be
considered
part
of
a
continuous
process.

For
most
types
of
recycling
that
are
excluded
from
regulation
under
RCRA,
the
existing
speculative
accumulation
provisions
serve
to
define
the
point
at
which
potentially
recyclable
secondary
materials
nevertheless
become
solid
and
hazardous
wastes.
As
an
example,
secondary
materials
that
can
be
directly
used
or
reused
without
reclamation
are
not
considered
wastes,
as
long
as
they
are
not
speculatively
accumulated.
Today's
rule
is
consistent
with
this
regulatory
72
approach,
in
that
it
applies
the
same
logic
and
limitations
to
storage
of
materials
prior
to
recycling.
We
see
no
compelling
reason
why
the
speculative
accumulation
provisions
should
not
serve
the
same
purpose
for
recycling
that
would
be
excluded
under
today's
proposal,
and
recycling
that
is
excluded
under
other,
existing
regulatory
provisions.

With
regard
to
implementing
the
existing
restrictions
on
speculative
accumulation,

persons
accumulating
secondary
materials
are
required
to
demonstrate
that
they
are
recycling
materials
in
the
amounts
specified
in
40
CFR
261.1(
c)(
8).
Making
such
demonstrations
will
generally
require
such
persons
to
provide
appropriate
documentation
to
substantiate
their
claims,

as
specified
in
existing
40
CFR
261.2(
f).
In
the
preamble
to
the
final
speculative
accumulation
rule
(
50
FR
636,
January
4,
1985),
the
Agency
discussed
certain
types
of
documentation
that
would
be
appropriate
in
making
satisfactory
demonstrations,
such
as
customarily
maintained
data
on
industrial
process
throughputs,
and
bills
of
lading
for
shipments
sent
off­
site
to
a
recycler.

Other
such
documentation
could
include
records
identifying
the
recyclers
receiving
the
secondary
materials,
or
contracts
and
correspondence
with
a
recycler.

The
Agency
believes
that
today's
proposed
definition
of
"
continuous
process"
is
consistent
with
the
direction
in
the
D.
C.
Circuit
Court's
opinions.
Thus,
this
definition,
as
it
fits
within
the
broader
context
of
today's
proposed
exclusion,
should
help
to
ensure
that
materials
that
would
be
excluded
from
regulation
under
today's
proposal
will
not
be
discarded,
and
therefore
do
not
need
to
be
regulated
as
wastes
under
Subtitle
C.

What
alternatives
did
EPA
consider
for
defining
"
continuous
process?"

EPA
considered
several
alternative
approaches
to
placing
time
limits
on
"
continuous
process"
in
this
proposed
rule.
One
such
alternative
was
to
establish
a
limit
of
90
days
for
73
accumulation
of
recyclable
materials
as
the
maximum
time
limit
for
a
"
continuous
process."
This
would
in
some
ways
be
consistent
with
the
current
time
limit
for
accumulation
of
hazardous
wastes
by
large
quantity
generators
that
do
not
have
RCRA
permits.
Another
alternative
could
be
to
establish
a
somewhat
longer
limit,
such
as
180
days
(
this
alternative
has
some
support
in
the
decision
of
the
U.
S.
Court
of
Appeals
for
the
Fourth
Circuit
in
Owen
Electric
Steel
Co.
v.

Browner,
37
F.
3d
146
(
4th
Cir.
1994)).
This
is
also
the
allowable
accumulation
time
for
small
quantity
generators
that
do
not
have
RCRA
permits.

Establishing
a
specific
time
limit
in
this
rule
(
such
as
90
or
180
days)
to
define
"
continuous
process"
could
be
coupled
with
a
provision
that
would
allow
generators
to
exceed
such
time
limits
(
for
example,
up
to
one­
year)
in
cases
where
they
could
demonstrate
that
recycling
of
the
materials
would
be
done
within
the
extended
time
frame.

EPA
chose
not
to
set
such
stricter
time
limits
to
define
"
continuous
process,"
largely
because
we
believe
that
using
the
speculative
accumulation
provisions
is
more
consistent
with
the
current
regulatory
framework
for
recycling,
and
is
familiar
to
the
regulated
community.
It
represents
EPA's
longstanding
judgment
that
materials
recycled
within
the
one
calendar
year
timeframe
are
in
continuous
use,
and
therefore
are
not
discarded.
Moreover,
EPA
is
concerned
that
it
might
be
difficult
to
select
a
shorter
time
limit
that
would
be
appropriate
to
the
wide
variety
of
materials
and
industries
covered
by
this
rule.
This
approach
also
offers
greater
flexibility
for
generators
and
reclaimers
to
optimize
recycling
opportunities.
Shorter
time
limits
could
discourage
some
promising
recycling
opportunities,
particularly
in
industries
that
tend
to
generate
recyclable
secondary
materials
episodically,
as
is
often
the
case
with
(
for
example)
specialty
batch
chemical
manufacturers.
74
The
Agency
is
aware,
however,
that
there
may
be
some
potential
complications
with
using
the
speculative
accumulation
time
limit
to
define
"
continuous
process."
For
one
thing,

establishing
how
long
specific
secondary
materials
have
been
stored
at
a
generator's
facility
can
be
difficult
for
regulatory
agencies,
particularly
since
there
are
no
explicit
record
keeping
requirements
in
the
regulations
for
speculative
accumulation.
Although
we
are
not
proposing
today
to
modify
the
current
regulations
for
speculative
accumulation,
we
solicit
comment
as
to
whether
those
regulations
should
be
strengthened
as
they
would
apply
specifically
to
today's
proposed
exclusion,
or
perhaps
more
generally.
Specifically,
we
request
comment
on
the
idea
of
requiring
generators
and
off­
site
recyclers
to
maintain
records
that
would
serve
to
establish
when
specific
volumes
of
materials
were
generated,
and
when
they
were
recycled.
EPA
believes
that
such
record
keeping
requirements
might
assist
inspectors
from
regulatory
agencies
to
verify
that
secondary
materials
stored
for
recycling
are
actually
being
reclaimed
on
a
regular
basis,
rather
than
accumulating
in
increasing
volumes
over
months
and
years.
We
also
believe
that
such
record
keeping
would
likely
impose
a
minimal
burden
on
generators,
since
we
understand
that
maintaining
such
records
of
inputs
and
outputs,
and
bills
of
lading
for
off­
site
shipments,
is
a
standard
business
practice.

In
addition
to
requiring
direct
transfer
of
excluded
materials
from
generators
to
reclaimers,

and
using
the
speculative
accumulation
concept
to
establish
a
time
limit
on
storage
of
such
materials,
we
considered
whether
there
are
other
aspects
of
"
continuous
process"
that
we
should
attempt
to
capture
in
defining
the
term.
For
example,
it
could
be
argued
that
inherent
in
the
concept
of
"
continuous
process"
is
the
idea
of
regularity
or
predictability;
i.
e.,
that
the
generation
and
subsequent
reclamation
of
materials
should
take
place
in
a
more
or
less
routine,
ongoing
75
manner.
It
might
be
further
argued
that
the
term
"
continuous
process"
implies
some
kind
of
physical
linkage
between
the
processes
that
generate
specific
secondary
materials
and
the
processes
that
reclaim
them.
Similarly,
some
might
say
that
some
type
of
geographic
limit
should
also
be
imposed,
such
that
(
for
example)
materials
shipped
from
New
Jersey
to
California
might
not
be
considered
within
a
continuous
process,
even
if
they
remained
within
the
same
industry.

EPA
chose
not
to
impose
further
tests
or
requirements
in
defining
continuous
process,

beyond
the
limits
established
for
speculative
accumulation.
For
one
thing,
we
believe
that
placing
additional
restrictions
on
what
we
would
consider
to
be
a
continuous
process
for
the
purpose
of
this
rule
could
create
additional
complexity
in
its
implementation.
Such
additional
restrictions
might
also
be
somewhat
arbitrary,
since
it
would
be
difficult
to
develop
restrictions
appropriate
to
the
wide
range
of
materials
and
processes
potentially
covered
by
this
rule.
Such
an
approach
could
also
discourage
beneficial
recycling
in
some
industries
where
generation
and
reclamation
of
secondary
materials
happen
in
a
less
than
routine,
predictable
manner.
We
are
interested,

however,
in
receiving
comments
on
this
issue,
particularly
any
specific
suggestions
as
to
how
today's
proposed
definition
of
continuous
process
could
be
refined
or
enhanced,
and
the
benefits
that
such
changes
would
bring.

8.
What
type
of
notification
would
be
required?

Today's
proposal
would
require
generators
who
wish
to
use
the
40
CFR
261.2(
g)

exclusion
to
submit
a
one­
time
notice
to
EPA
or
the
authorized
state.
As
specified
in
40
CFR
261.2(
g)(
3),
the
notice
would
need
to
identify
the
name,
address
and
EPA
ID
number
(
if
applicable)
of
the
generating
facility,
the
name
and
telephone
number
of
a
contact
person
for
that
facility,
the
type
of
material(
s)
that
would
be
subject
to
the
exclusion,
and
the
industry
that
76
generated
the
material,
as
classified
according
to
Appendix
X
of
Part
261.

This
notice
requirement
would
only
apply
to
generators
of
secondary
materials
that
have
previously
been
regulated
under
RCRA
Subtitle
C,
and
that
would
become
excluded
under
today's
proposal.
Thus,
generators
of
materials
that
have
been
previously
exempted
or
excluded
from
regulation
under
other
provisions
because
they
are
recycled
would
not
need
to
submit
a
onetime
notice.
If
a
generator
were
to
generate
both
types
of
materials
(
i.
e.,
materials
that
were
previously
regulated,
as
well
as
materials
that
were
previously
excluded
or
exempted
under
different
provisions),
the
generator
would
have
to
submit
a
one­
time
notice
only
for
the
materials
that
were
previously
regulated.

As
discussed
in
the
following
section
of
this
preamble,
we
are
proposing
today
to
modify
or
eliminate
existing
exemptions
and
exclusions
that
"
overlap"
with
the
proposed
40
CFR
261.2(
g)
exclusion.
Thus,
materials
that
heretofore
have
not
been
subject
to
regulation
under
existing
provisions
would
remain
unregulated,
but
would
be
subject
to
the
new
exclusion.
It
should
be
noted
that,
with
few
exceptions,
the
current
regulations
do
not
require
generators
of
excluded
materials
to
notify
EPA
or
authorized
state
agencies.
Requiring
these
generators
to
submit
one­
time
notices
once
they
become
subject
to
the
new
40
CFR
261.2(
g)
exclusion
would
in
effect
be
a
more
stringent
requirement.
Since
today's
proposal
is
intended
to
be
generally
deregulatory
we
do
not
believe
it
appropriate
to
impose
such
a
new
notice
requirement
on
generators
who
have
not
been
required
to
submit
such
notices
under
the
current
regulations.

To
illustrate,
generators
of
secondary
materials
that
(
for
example)
are
recycled
in
a
"
closed
loop"
system
have
been
excluded
from
regulation
under
40
CFR
261.2(
e)(
iii),
and
have
not
heretofore
been
required
to
notify
the
Agency
of
their
recycling
activities.
Since
we
assume
77
that
closed
loop
recycling
is
intra­
industry,
today's
proposal
would
subsume
and
eliminate
the
existing
closed
loop
exclusion,
and
the
materials
would
become
subject
to
today's
proposed
exclusion.
These
generators
would
not
need
to
submit
the
one­
time
notice
required
under
proposed
40
CFR
261.2(
g)(
4).
However,
if
a
generator
has
been
recycling
regulated
hazardous
wastes
that
would
become
newly
excluded
under
today's
proposal,
he/
she
would
need
to
submit
the
notice.

The
Agency
is
not
proposing
any
specific
format
or
form
for
these
one­
time
notices.

However,
to
provide
one
idea
of
how
such
a
notice
might
be
formatted,
we
have
included
a
sample
form
in
the
docket
for
today's
rule
(
see
Sample
Notification
Form
for
Materials
that
are
Excluded
from
the
Definition
of
Solid
Waste
Under
40
CFR
261.2(
g)).
This
sample
form
is
also
available
on
the
web
site
that
EPA
has
established
for
this
rulemaking.

The
intent
of
today's
proposed
notification
requirement
is
to
provide
basic
information
to
regulatory
agencies
as
to
who
would
be
managing
hazardous
secondary
materials
under
the
terms
of
today's
exclusion,
and
the
types
of
materials
being
recycled.
We
believe
our
right
to
require
such
basic
notification
is
inherent
in
our
authority
to
regulate
discarded
materials,
and
we
consider
this
to
be
the
minimum
information
needed
to
enable
credible
oversight
of
such
activities,
and
ensure
that
the
terms
of
the
exclusion
are
being
met
by
generators
and
recyclers.
As
such,
we
believe
that
this
minimal
notification
is
a
reasonable
requirement
for
those
who
will
find
advantage
in
the
regulatory
exclusion
proposed
today.
We
estimate
that
this
requirement
will
impose
an
incremental
reporting
"
burden"
of
approximately
one
hour
per
affected
facility.

It
should
be
understood
that
as
proposed,
providing
this
notification
would
not
be
required
more
than
once.
We
are
also
requesting
comment,
however,
on
an
alternative
option
for
78
such
notification.
Under
this
alternative,
generators
would
be
required
to
submit
revised
notices
if
certain
information
on
the
original
notice
were
to
change.
Requiring
submission
of
revised
notices
might
particularly
be
appropriate,
for
example,
if
the
location
or
ownership
of
the
generating
facility
changes
or
if
the
type
of
excluded
material
were
to
change.

Another
option
being
considered
with
regard
to
reporting
would
be
a
requirement
that
notifications
be
signed
by
a
responsible
corporate
official.
In
addition,
we
are
considering
the
option
of
requiring
persons
using
the
40
CFR
261.2(
g)
exclusion
to
submit
periodic
(
e.
g.,
annual)

reports
detailing
their
recycling
activities,
to
provide
information
on
the
types
and
volumes
of
materials
recycled,
where
off­
site
shipments
were
sent,
the
types
of
reclamation
processes
used,

the
types
of
products
produced
from
the
reclamation
processes,
how
residuals
from
reclamation
processes
were
managed,
and
other
relevant
information.
Requiring
such
additional
information
could
give
regulators
and
the
public
a
much
clearer
picture
of
the
types
of
recycling
being
conducted
under
this
exclusion,
where
it
is
being
done,
and
by
whom.
We
are
also
considering
(
and
solicit
comment
on)
the
option
of
requiring
the
information
in
the
proposed
notice
to
be
submitted
in
a
particular
format
(
such
as
in
the
sample
form
cited
above),
or
submitted
electronically.

Recordkeeping.
Section
261.2(
f)
requires
persons
managing
materials
under
exclusions
from
the
Subtitle
C
definition
of
solid
waste
to
be
able
to
provide
"
appropriate
documentation"

that
they
meet
the
terms
of
the
exclusion
they
are
claiming.
Nevertheless,
in
addition
to
the
notification
requirements
discussed
above,
we
are
considering
the
option
of
requiring
generators
and
reclaimers
to
keep
on­
site
records
relating
to
types
and
volumes
of
materials
they
handle.
For
example,
we
are
considering
requiring
generators
of
materials
subject
to
this
exclusion
to
keep
79
records
of
volumes
generated,
volumes
reclaimed
onsite,
and
volumes
sent
offsite,
while
requiring
offsite
reclaimers
to
keep
records
of
shipments
received
and
volumes
actually
recycled.

The
Agency
chose
not
to
include
more
frequent
or
more
detailed
reporting
requirements
in
today's
proposal
such
as
those
discussed
above,
primarily
because
we
are
committed
to
minimizing
recordkeeping
and
reporting
requirements.
In
fact,
the
Agency
recently
proposed
a
"
burden
reduction"
rule
that
would
eliminate
a
number
of
existing
RCRA
reporting
and
record
keeping
requirements
that
the
Agency
believes
are
unnecessary
or
duplicative
(
67
FR
2517,

January
17,
2002).

We
invite
comment
on
whether
or
not
any
(
or
all)
of
the
regulatory
options
discussed
above
for
increased
reporting
and
recordkeeping
by
generators
and
other
parties
may
be
necessary
and
appropriate
in
providing
sufficient
data
for
regulatory
oversight,
and
should
therefore
be
included
in
the
final
rule.

9.
What
conforming
changes
to
existing
regulations
are
proposed?

As
discussed
above,
today's
proposed
exclusion
for
intra­
industry
recycling
would
affect
a
number
of
existing
regulatory
provisions
that
also
provide
regulatory
relief
for
hazardous
secondary
materials
that
are
recycled.
We
are
therefore
proposing
a
number
of
specific
"
conforming
changes"
to
the
existing
regulations
to
address
these
situations
where
today's
proposed
regulatory
exclusion
"
overlaps"
with
existing
regulatory
provisions.
Since
we
are
coproposing
two
different
options
for
defining
"
continuous
process
within
the
same
industry"
(
see
section
III.
A.
3
of
this
preamble),
the
conforming
changes
that
would
be
necessary
would
differ
depending
on
which
option
is
adopted
in
the
final
rule.
The
following
is
an
explanation
of
our
proposed
conforming
changes
for
each
regulatory
option.
80
a.
Proposed
conforming
changes
for
co­
proposed
regulatory
Option
#
1
 
Provisions
that
would
be
deleted.
Under
regulatory
Option
#
1,
several
existing
regulatory
provisions
that
provide
waivers
or
exclusions
for
recycled
hazardous
secondary
materials
would
be
rendered
entirely
moot,
since
all
of
the
materials
that
are
potentially
subject
to
these
provisions
would
be
excluded
under
today's
proposal
for
intra­
industry
recycling.
To
illustrate,
40
CFR
261.4(
a)(
6)

currently
provides
an
exclusion
from
the
definition
of
solid
waste
for
"
pulping
liquors...
that
are
reclaimed
in
a
pulping
liquor
recovery
furnace
and
then
reused
in
the
pulping
process,
unless
it
is
accumulated
speculatively."
Under
proposed
Option
#
1
this
existing
exclusion
would
no
longer
be
needed,
since
we
believe
that
the
exclusion
for
intra­
industry
recycling
would
cover
all
of
the
pulping
liquors
that
are
currently
excluded
under
40
CFR
261.4(
a)(
6).

The
following
is
a
list
of
existing
provisions
that
would
be
eliminated
entirely
under
today's
co­
proposed
Option
#
1.
We
believe
that
each
of
these
provisions
would
completely
overlap
with
the
Option
#
1
exclusion,
and
we
are
thus
proposing
to
delete
them
entirely
if
the
Agency
decides
to
finalize
this
option.

A.
Section
261.2(
e)(
1)(
iii).
Under
this
existing
provision,
materials
are
not
solid
wastes
when
they
are
recycled
by
being
"
returned
to
the
original
process
from
which
they
are
generated,

without
first
being
reclaimed
or
land
disposed."
We
are
proposing
to
eliminate
this
provision,

since
we
believe
that
all
of
the
materials
that
it
potentially
applies
to
would
be
addressed
by
today's
proposed
exclusion
(
Option
#
1)
for
intra­
industry
recycling.

B.
Section
261.4(
a)(
6).
This
existing
provision
excludes
from
the
definition
of
solid
waste
"
pulping
liquors
(
i.
e.,
black
liquors)
that
are
reclaimed
in
a
pulping
liquor
recovery
furnace
and
then
reused
in
the
pulping
process,
unless
it
is
accumulated
speculatively."
We
believe
that
all
81
of
the
materials
excluded
under
this
current
provision
would
be
excluded
under
40
CFR
261.2(
g)

(
Option
#
1),
and
are
therefore
proposing
to
eliminate
this
provision.

C.
Section
261.4(
a)(
8).
This
existing
"
conditional
exclusion"
is
for
"
secondary
materials
that
are
reclaimed
and
returned
to
the
original
process
or
processes
in
which
they
were
generated
where
they
are
reused
in
the
production
process."
This
is
often
referred
to
as
the
"
closed
loop
reclamation"
exclusion.
The
following
conditions
apply
to
this
exclusion:

°
Only
tank
storage
may
be
involved,
and
the
entire
process
through
completion
of
reclamation
must
be
closed
by
being
entirely
connected
with
pipes
or
other
comparable
closed
means
of
conveyance;

°
Reclamation
must
not
involve
controlled
flame
combustion;

°
The
secondary
materials
must
not
be
accumulated
in
tanks
for
over
twelve
months
without
being
reclaimed;
and
°
The
reclaimed
material
must
not
used
to
produce
a
fuel,
or
used
to
produce
products
that
are
used
in
a
manner
constituting
disposal.

This
conditional
exclusion
would
no
longer
be
necessary
if
the
exclusion
in
today's
proposed
Option
#
1
were
promulgated,
and
we
are
thus
proposing
to
eliminate
it.
In
fact,
such
closed
loop
recycling
processes
may
be
particularly
clear
examples
of
intra­
industry
recycling
that
does
not
involve
discard,
and
that
would
therefore
be
covered
under
the
proposal.

2.
Exclusions
and
variances
that
would
be
partially
affected
by
today's
co­
proposed
Option
#
1.

In
addition
to
the
existing
regulatory
provisions
that
could
be
eliminated
completely
under
today's
proposed
Option
#
1,
we
are
proposing
conforming
changes
to
several
other
provisions
82
that
would
only
partially
"
overlap"
with
the
40
CFR
261.2(
g)
exclusion.
Most
of
these
existing
exclusions
and
exemptions
are
not
contingent
on
intra­
industry
recycling,
and
allow
secondary
materials
to
be
generated
and
reclaimed
in
different
industries.
Thus,
in
cases
where
materials
are
generated
and
reclaimed
in
different
industries,
the
existing
exclusions
would
still
be
needed
to
provide
regulatory
relief
for
such
materials.
Accordingly,
EPA
is
proposing
to
retain
existing
exclusions
and
waivers
that
allow
for
recycling
across
different
industries,
while
clarifying
that
the
proposed
40
CFR
261.2(
g)
exclusion
will
apply
to
materials
that
are
recycled
in
a
continuous
process
within
the
same
industry.
These
existing
provisions
are
in
some
cases
conditioned
on
compliance
with
certain
management
practices
and/
or
notification
or
record
keeping
requirements;
we
are
not
proposing
to
modify
the
substance
of
these
provisions.
Rather,
in
each
case
we
are
simply
proposing
to
add
regulatory
language
to
clarify
that
the
existing
exemptions
and
exclusions
will
be
somewhat
narrower
in
scope,
and
the
exclusion
for
intra­
industry
recycling
may
instead
apply
to
some
materials
previously
subject
to
the
existing
provisions.

The
following
is
a
brief
description
of
existing
exclusions
and
variances
that
would
likely
apply
to
a
smaller
universe
of
materials
if
today's
proposed
Option
#
1
exclusion
were
promulgated,
and
for
which
we
are
proposing
clarifying
conforming
changes:

A.
Conforming
change
to
40
CFR
261.4(
a)(
9).
This
existing
conditional
exclusion
is
for
"
spent
wood
preserving
solutions
that
have
been
reclaimed
and
are
reused
for
their
original
intended
purpose,"
and
"
wastewaters
from
the
wood
preserving
process
that
have
been
reclaimed
and
are
reused
to
treat
wood."
The
conditions
for
this
exclusion,
which
are
prescribed
in
more
detail
in
40
CFR
261.4(
a)(
9)(
iii)(
A)
 
(
E),
are
as
follows:

°
The
excluded
materials
must
be
reused
on­
site
for
their
original
intended
purpose;
83
°
Prior
to
reuse,
the
excluded
materials
must
be
managed
to
prevent
releases
to
land
or
groundwater;

°
Units
managing
excluded
materials
must
be
readily
determined
to
be
preventing
such
releases;

°
Drip
pads
used
to
manage
excluded
materials
must
comply
with
the
standards
for
drip
pads
in
Subpart
W
of
40
CFR
Part
265;
and
°
A
one­
time
notice
must
be
submitted
by
the
facility
owner/
operator
to
the
appropriate
regulatory
agency.

Some
of
these
wood
preserving
solutions
would
actually
be
eligible
for
today's
proposed
exclusion,
and
some
would
not.
Thus,
the
existing
exclusion
would
need
to
be
maintained
in
order
for
some
of
these
materials
to
continue
to
be
managed
outside
the
Subtitle
C
regulatory
system.

The
reason
these
materials
would
not
be
eligible
for
today's
proposed
40
CFR
261.2(
g)
exclusion
is
because
the
product
of
the
recycling
process
(
treated
lumber)
is
often
used
in
"
a
manner
constituting
disposal"
(
i.
e.,
the
treated
lumber
is
used
in
or
on
the
land,
such
as
for
landscaping
timbers,
fenceposts,
railroad
ties,
etc.).
As
explained
in
previous
sections
of
this
preamble,
this
is
one
of
the
specific
types
of
recycling
that
the
Agency
believes
should
remain
regulated,
even
if
the
recycling
is
conducted
intra­
industry.

It
is
possible,
of
course,
that
in
some
cases
lumber
treated
with
recycled
spent
wood
preserving
solutions
would
not
be
used
in
a
manner
constituting
disposal.
In
these
cases
the
new
exclusion
for
intra­
industry
recycling
would
apply.
Thus,
both
exclusions
are
needed
for
this
particular
recycling
practice.
For
the
purpose
of
clarity,
we
are
proposing
today
to
add
a
new
paragraph
(
F)
to
the
current
40
CFR
261.4(
a)(
9)
exclusion,
which
would
read
as
follows:
"
If
the
84
products
of
this
recycling
practice
are
not
used
in
a
manner
constituting
disposal,
the
spent
wood
preserving
solutions
are
subject
to
the
exclusion
in
40
CFR
261.2(
g),
rather
than
this
paragraph,

provided
the
wood
preserving
solutions
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry."

B.
Conforming
change
to
40
CFR
261.4(
a)(
17).
EPA
is
proposing
to
revise
the
existing
conditional
exclusion
at
40
CFR
261.4(
a)(
17)
to
conform
with
today's
proposal.
Currently,
40
CFR
261.4(
a)(
17)
excludes
from
the
definition
of
solid
waste
"
spent
materials....
generated
within
the
primary
mineral
processing
industry
from
which
minerals,
acids,
cyanide,
water
or
other
values
are
recovered
by
mineral
processing
or
by
beneficiation."
Under
today's
proposal,
spent
materials
from
mineral
processing
that
are
subsequently
reclaimed
within
the
mineral
processing
industry
would
not
be
solid
wastes
for
purposes
of
Subtitle
C.
We
are
therefore
proposing
to
delete
the
reference
to
mineral
processing
in
the
existing
exclusion,
since
it
would
no
longer
be
needed
for
those
materials.
However,
"
beneficiation"
is
not
included
within
the
"
mineral
processing
industry"
and,
therefore,
the
existing
exclusion
as
it
pertains
specifically
to
beneficiation
would
still
be
necessary
and
would
remain
in
effect.

C.
Conforming
change
to
40
CFR
260.30(
b),
and
the
associated
criteria
in
260.31(
b)).

Current
40
CFR
260.30(
b)
allows
variances
to
be
granted
on
a
case­
by­
case
basis
for
materials
that
are
"
reclaimed
and
then
reused
within
the
original
production
process
in
which
they
were
generated."
This
provision
is
sometimes
known
as
the
"
closed
loop
reclamation"
variance.
The
standards
and
criteria
for
granting
such
variances
are
specified
in
40
CFR
260.31(
b).
This
provision
is
not,
however,
limited
to
intra­
industry
recycling
 
there
may
be
situations
in
which
a
generator
of
a
secondary
material
could
arrange
for
reclamation
of
the
material
by
a
reclaimer
in
a
85
different
industry
(
e.
g.,
the
waste
management
industry).
We
therefore
intend
to
maintain
this
existing
variance
to
address
such
situations.
We
are
proposing,
however,
to
clarify
its
applicability
by
adding
the
following
language:
"
If
the
materials
are
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry,
they
are
subject
to
the
exclusion
in
40
CFR
261.2(
g)
rather
than
the
standards
and
criteria
listed
in
40
CFR
260.31(
b)."

D.
40
CFR
260.30(
c),
and
the
associated
criteria
in
40
CFR
260.31(
c).
Under
this
existing
provision,
a
variance
from
being
classified
as
a
solid
waste
can
be
obtained
on
a
case­

bycase
basis
for
materials
that
"
have
been
reclaimed
but
must
be
reclaimed
further
before
the
materials
are
completely
recovered."
This
is
commonly
referred
to
as
the
"
partially
reclaimed"

variance.
Since
this
type
of
recycling
may
occur
within
the
same
industry
or
between
two
or
more
different
industries
(
similar
to
40
CFR
260.30(
b),
discussed
above),
we
are
proposing
to
add
the
following
language
as
a
conforming
change:
"
If
the
materials
are
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry,
they
are
subject
to
the
exclusion
in
40
CFR
261.2(
g)
rather
than
the
standards
and
criteria
listed
in
40
CFR
261.31(
c)."

E.
Section
261.4(
a)(
7).
This
provision
excludes
from
the
definition
of
solid
waste
"
spent
sulfuric
acid
used
to
produce
virgin
sulfuric
acid,"
unless
it
is
accumulated
speculatively.
To
address
situations
where
this
type
of
recycling
occurs
in
a
continuous
process
within
the
same
industry,
we
are
proposing
to
add
the
following
language
as
a
conforming
change
to
40
CFR
261.4(
a)(
7):
"
Spent
sulfuric
acid
that
is
reclaimed
to
produce
virgin
sulfuric
acid
in
a
continuous
process
within
the
generating
industry
is
subject
to
the
exclusion
in
40
CFR
261.2(
g),
rather
than
this
paragraph."
Similar
language
is
proposed
to
be
added
as
a
conforming
change
to
each
of
the
following
provisions
(
F
through
J,
below)
that
would
be
partially
affected
by
today's
proposed
86
rule:

F.
Section
261.4(
a)(
10).
This
is
a
conditional
exclusion
for
certain
types
of
hazardous
wastes
that
are
recycled
to
coke
ovens
or
to
produce
coal
tar.

G.
Section
261.4(
a)(
11).
This
conditional
exclusion
applies
to
non­
wastewater
splash
condenser
dross
residue
from
treatment
of
K061
in
high­
temperature
metals
recovery
(
HTMR)

units.

H.
Section
261.4(
a)(
13).
This
exclusion
is
for
certain
scrap
metal
being
recycled.

I.
Section
261.4(
a)(
14).
This
provides
a
conditional
exclusion
for
shredded
circuit
boards
being
recycled.

J.
Section
261.4(
a)(
19).
This
is
a
conditional
exclusion
for
"
spent
caustic
solutions
from
petroleum
refining
liquid
treating
processes
used
as
a
feedstock
to
produce
cresylic
or
naphthenic
acid."

The
Agency
solicits
comment
on
these
proposed
conforming
changes.

3.
Proposed
conforming
changes
for
co­
proposed
regulatory
Option
#
2.

As
explained
above,
under
co­
proposed
Option
#
1
some
existing
regulatory
waivers
and
exclusions
would
be
rendered
moot,
since
all
of
the
materials
addressed
by
those
provisions
would
also
be
covered
under
the
proposed
40
CFR
261.2(
g)
exclusion.
However,
this
would
not
be
the
case
under
Option
#
2,
since
a
recycler
of
these
currently
unregulated
materials
would
be
ineligible
for
today's
proposed
exclusion
if
the
recycling
facility
also
managed
regulated
hazardous
wastes
generated
from
a
different
industry.
To
illustrate,
a
recycler
handling
pulping
liquors
that
are
currently
excluded
from
regulation
under
40
CFR
261.4(
a)(
6)
would
not
be
able
to
use
the
40
CFR
261.2(
g)
exclusion
if
he/
she
also
were
recycling
hazardous
wastes
from
a
different
industry.
87
Thus,
under
this
option
we
would
need
to
maintain
the
existing
40
CFR
261.4(
a)(
6)
exclusion
in
order
to
avoid
changing
the
coverage
of
the
existing
exclusion.

If
the
Agency
chooses
to
adopt
Option
#
2
in
the
final
rule,
we
are
proposing
that
the
four
existing
provisions
which
would
be
rendered
moot
and
deleted
under
Option
#
1
(
these
are
discussed
above
in
section
III.
A.
7.
a
of
this
preamble)
would
be
retained,
but
would
be
amended
so
that
they
would
remain
effective
for
recyclers
that
would
not
be
eligible
for
the
40
CFR
261.2(
g)
exclusion.
For
example,
the
current
40
CFR
261.4(
a)(
6)
exclusion
for
pulping
liquors
would
be
retained,
but
would
be
amended
to
add
the
following
sentence:
"
Pulping
liquors
that
are
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry
are
subject
to
the
exclusion
in
40
CFR
261.2(
g)
rather
than
this
paragraph."
The
other
three
provisions
that
would
otherwise
be
eliminated
completely
under
Option
#
1
would
be
amended
similarly
if
Option
#
2
were
promulgated
in
the
final
rule.

In
the
above
discussion
of
conforming
changes
for
co­
proposed
Option
#
1,
we
identify
a
number
of
existing
provisions
that
would
be
only
partially
affected
by
today's
proposed
exclusion,

and
we
are
proposing
to
add
text
to
each
provision
specifying
that
if
the
materials
are
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry
they
would
be
subject
to
the
exclusion
in
40
CFR
261.2(
g),
rather
than
the
existing
provision.
Under
Option
#
2,
these
provisions
would
also
be
only
partially
affected.
We
are
thus
proposing
to
make
the
same
conforming
changes
to
those
provisions
in
the
final
rule
if
we
choose
to
adopt
Option
#
2
to
define
"
continuous
process
within
the
generating
industry."

EPA
invites
comment
on
the
proposed
conforming
changes
described
above,
for
both
regulatory
options.
88
4.
Used
Oil
Regulations
­
40
CFR
Part
279.

This
part
contains
management
standards
for
used
oil,
including
used
oil
that
is
recycled.

Used
oil
is
a
solid
waste
under
RCRA.
Because
EPA
promulgated
these
provisions
pursuant
to
a
specific
Congressional
mandate
governing
used
oil
(
i.
e.,
section
3014
of
RCRA,
as
amended
by
the
Used
Oil
Recycling
Act
of
1980),
they
will
not
be
affected
by
today's
proposed
40
CFR
261.2(
g).

10.
How
would
the
proposal
be
implemented
and
enforced?

Implementation.
Since
the
exclusion
from
the
definition
of
solid
waste
in
today's
proposal
is
deregulatory
in
nature,
implementing
the
rule
as
proposed
may
have
important
consequences
at
certain
facilities
where
recycling
activities
are
currently
regulated
under
RCRA,
but
would
no
longer
be
regulated
if
this
rule
were
promulgated
and
became
effective.

One
key
issue
has
to
do
with
the
effects
of
the
rule
on
facilities
that
currently
have
RCRA
permits
or
interim
status,
and
are
managing
hazardous
wastes
that
would
become
excluded
under
this
rule.
Under
one
scenario,
a
facility
that
manages
a
variety
of
hazardous
waste
materials,

including
some
that
become
excluded
under
this
rule,
would
be
affected
only
to
the
extent
that
certain
units
or
processes
at
the
facility
would
no
longer
be
subject
to
hazardous
waste
regulations.
A
somewhat
different
scenario
could
involve
a
facility
whose
hazardous
wastes
would
all
become
excluded
from
regulation
when
this
rule
takes
effect
(
i.
e.,
the
facility
is
no
longer
a
hazardous
waste
management
facility).

For
permitted
facilities
that
would
be
managing
hazardous
secondary
materials
excluded
under
this
rule
in
addition
to
regulated
hazardous
wastes,
some
changes
to
the
facility's
permit
would
likely
need
to
be
made,
though
they
may
be
relatively
minor.
These
facilities
would
need
to
89
maintain
their
permits,
but
the
units
used
solely
to
manage
excluded
materials
would
no
longer
need
to
be
subject
to
permit
conditions.
In
such
cases,
the
facility
owner/
operator
could
seek
a
permit
modification
from
EPA
or
the
authorized
state
agency
to
remove
the
formerly
subject
unit(
s)
from
the
permit.

A
permitted
facility
that
would
no
longer
be
considered
a
hazardous
waste
management
facility
under
the
exclusion
(
e.
g.,
a
facility
managing
only
hazardous
secondary
materials
that
become
excluded
under
today's
proposal)
would
no
longer
need
a
hazardous
waste
operating
permit.
Owner/
operators
of
such
facilities
could
therefore
apply
to
the
overseeing
agency
to
have
the
facility's
permit
terminated.
However,
where
such
a
facility
has
not
yet
completed
facilitywide
corrective
action
(
see
40
CFR
264.101),
the
obligation
to
conduct
such
cleanup
would
remain
in
effect.
Therefore,
in
such
cases,
the
permit
would
not
be
terminated,
but
could
be
modified
to
remove
the
requirements
that
applied
to
the
now­
excluded
material,
and
maintain
the
corrective
action
provisions
of
the
permit.
In
such
a
case,
the
facility
would
thereafter
have
a
Acorrective
action­
only@
permit
that
would
expire
only
when
facility­
wide
corrective
action
is
determined
to
be
complete.
It
should
be
noted
that
for
facilities
in
these
situations,
EPA
or
an
authorized
state
might
also
choose
to
address
a
facility's
cleanup
obligations
under
an
alternative
federal
or
state
enforcement
mechanism
that
may
be
available,
rather
than
continuing
to
pursue
corrective
action
under
a
permit.

A
facility
that
is
operating
under
RCRA
interim
status
would
be
affected
by
promulgation
of
today's
proposed
rule
in
much
the
same
way
as
permitted
facilities,
and
the
issue
of
corrective
action
would
be
addressed
in
a
similar
manner.
For
an
interim
status
facility
managing
only
materials
that
become
excluded
under
today's
proposal,
the
Part
265
interim
status
standards
that
90
applied
to
the
hazardous
waste
management
units
at
the
facility,
as
well
as
the
general
facility
standards
in
Part
265,
would
be
moot
and
no
longer
in
effect.
Under
RCRA
regulations,

however,
cessation
of
hazardous
waste
operations
alone
does
not
eliminate
a
facility's
interim
status.
See
40
CFR.
270.73.
A
facility
that
wishes
to
no
longer
be
in
interim
status
could
seek
a
denial
of
its
pending
permit
application.
Since
the
Agency
believes
it
appropriate
to
ensure
that
corrective
action
is
addressed
prior
to
denying
a
permit
under
these
circumstances,
we
would
expect
to
grant
the
denial
only
when
we
concluded
that
the
facility's
corrective
action
obligations
have
been
satisfied.

In
addition
to
the
above
described
issues
relating
to
permits
and
corrective
action,
today's
proposed
rule
may
also
have
implications
with
regard
to
closure
of
hazardous
waste
storage
units
at
affected
facilities.
In
cases
where
hazardous
waste
storage
units
would
only
be
managing
excluded
material
pursuant
to
today's
proposal,
the
current
regulations
could
be
read
as
triggering
the
closure
requirements
for
those
units,
since
owners/
operators
of
non­
land
based
hazardous
waste
units
(
e.
g.,
tanks,
containers,
containment
buildings)
must
begin
closure
within
90
days
of
receiving
a
unit's
final
volume
of
hazardous
wastes.
See
40
CFR
264.113(
a)
and
265.113(
a).

EPA
is
concerned
that
requiring
closure
of
units
in
these
situations
would
serve
little
environmental
purpose,
since
after
closure
the
unit
would
be
immediately
reopened
and
used
to
store
the
same
(
now
excluded)
material.
It
should
also
be
noted
that,
under
today's
proposal,

units
storing
excluded
materials
would
be
considered
essentially
the
same
as
similar
units
used
to
store
products.
Thus,
we
do
not
believe
that
requiring
these
particular
units
to
close
through
RCRA
Subtitle
C
procedures
is
necessary
to
protect
human
health
and
the
environment.

The
Agency
is
today
proposing
that
closure
of
storage
units
would
not
be
required
when
13The
loss
of
the
exclusion
for
some
materials
at
a
facility
does
not
automatically
affect
the
status
of
other
hazardous
secondary
materials
managed
under
the
exclusion.
For
example,
if
a
hazardous
secondary
material
at
a
reclaimer
loses
the
exclusion
and
thus
is
hazardous
waste,
the
status
of
other
hazardous
secondary
materials
managed
by
that
reclaimer
remain
unaffected,
provided
that
they
are
managed
consistently
with
the
boundaries
of
the
exclusion.

91
such
units
cease
storing
hazardous
wastes
and
are
subsequently
used
to
store
the
same
materials
that
would
no
longer
be
regulated
as
wastes
under
today's
proposed
exclusion.
If,
however,
such
units
were
used
previously
to
store
different
types
of
hazardous
wastes,
the
units
would
be
subject
to
hazardous
waste
closure
requirements.
We
request
comment
as
to
whether
more
explicit
regulatory
provisions
to
address
RCRA
closure
requirements
in
these
types
of
situations
would
be
appropriate
in
the
final
rule.

Enforcement
Today's
proposed
rule
describes
an
exclusion
from
Subtitle
C
regulations
for
hazardous
secondary
materials
recycled
in
certain
ways,
with
the
regulatory
text
describing
the
"
boundaries"

of
the
exclusion.
If
a
material
is
not
managed
within
these
boundaries,
the
material
is
not
excluded
and
is
a
hazardous
waste
for
Subtitle
C
purposes
from
the
time
the
generator
first
generated
it.
Therefore,
each
person
who
manages
a
hazardous
secondary
material
that
loses
its
exclusion
would
have
to
manage
it
consistently
with
hazardous
waste
management
requirements
from
the
point
when
the
material
was
first
generated,
regardless
of
whether
the
person
is
the
one
who
actually
causes
the
loss
of
the
exclusion.
13
EPA
could
choose
to
bring
an
enforcement
action
under
RCRA
section
3008(
a)
for
all
violations
of
Subtitle
C
requirements
occurring
from
the
time
the
material
is
generated
through
the
time
that
it
is
finally
disposed.
States
could
choose
to
enforce
for
violations
of
state
hazardous
waste
requirements
under
state
authorities.
Any
92
enforcement
action
would
address
the
management
of
those
hazardous
secondary
materials
that
are
outside
the
boundaries
of
the
exclusion.

EPA
believes
that
this
approach,
which
treats
hazardous
secondary
material
that
does
not
come
within
the
boundaries
of
the
exclusion
as
hazardous
waste
from
its
point
of
generation,

provides
everyone
involved
with
an
incentive
to
handle
materials
to
prevent
the
loss
of
the
exclusion.
It
also
encourages
each
person
to
use
all
appropriate
steps
to
see
that
others
handle
the
material
so
it
is
legitimately
reclaimed.

To
illustrate,
if
the
generator
of
a
hazardous
secondary
material
claims
the
exclusion
and
then
sends
the
material,
via
a
transporter,
to
a
reclamation
facility
not
in
the
same
industry,
then
the
material
would
not
be
excluded.
It
would
be
a
hazardous
waste.
Further,
if
a
generator
considered
a
hazardous
secondary
material
to
be
excluded,
and
sent
the
material
via
a
transporter
to
a
reclaimer
who
decided
to
dispose
of
it
rather
than
reclaim
it,
the
material
again
would
be
a
hazardous
waste.
In
both
cases,
EPA
and
an
authorized
state
could
choose
to
bring
an
enforcement
action
against
the
reclaimer,
transporter,
and/
or
generator,
for
violations
of
applicable
RCRA
hazardous
waste
requirements.
The
material
would
be
a
hazardous
waste
from
the
time
the
generator
first
generated
it.
Those
who
managed
the
waste
also
could
be
subject
to
EPA
and/
or
state
enforcement.

As
with
any
violation,
EPA
and
authorized
states
would
have
a
range
of
enforcement
options.
Enforcing
agencies
would
use
their
discretion
to
select
the
option
that
is
appropriate
to
a
specific
case
and
its
factual
circumstances.
Some
of
these
options
include
sending
a
notice
of
violation,
ordering
that
the
situation
be
remedied,
or
assessing
fines
or
other
penalties
as
appropriate.
93
In
an
enforcement
action,
a
respondent
who
claims
that
a
particular
hazardous
secondary
material
is
excluded
because
that
material
was
managed
consistently
with
40
CFR
261.2(
g)
would
have
the
burden
of
proof,
including
the
burden
of
persuasion,
to
demonstrate
that
the
material
has
been
managed
in
a
manner
that
maintains
the
exclusion
from
the
point
it
was
generated.
40
CFR
261.2(
f).
For
example,
a
reclamation
facility
rebutting
an
allegation
that
it
disposed
of
hazardous
waste
in
violation
of
RCRA
Subtitle
C
would
have
the
burden
of
proving
the
material
was
an
excluded
hazardous
secondary
material
because
it
had
been
managed
consistently
with
40
CFR
261.2(
g)
from
the
point
when
it
was
generated.

In
addition,
the
exclusion
in
today's
rule
would
not
affect
the
obligation
to
promptly
respond
to
and
remediate
any
releases
of
hazardous
secondary
material
that
may
occur.
If,
for
example,
a
hazardous
secondary
material
is
spilled
or
released,
then
the
material
would
be
discarded.
Any
management
of
the
released
material
not
in
compliance
with
applicable
Federal
and
State
hazardous
waste
requirements
could
result
in
an
enforcement
action.
For
example,
a
person
who
spilled
or
released
a
hazardous
secondary
material,
and
failed
to
immediately
clean
it
up,
could
potentially
be
subject
to
enforcement
for
illegal
disposal
of
the
waste.
See,
for
example,

40
CFR
264.1(
g)(
8).
In
addition,
the
waste
could
potentially
be
addressed
through
enforcement
orders,
such
as
orders
under
RCRA
sections
3013
and
7003.

B.
Legitimate
Recycling
1.
What
is
legitimate
recycling?

Under
the
current
Subtitle
C
definition
of
solid
waste,
many
hazardous
secondary
materials
that
would
otherwise
be
subject
to
regulation
under
RCRA's
"
cradle
to
grave"
system
are
not
considered
wastes
if
they
are
recycled.
The
general
idea
behind
this
construct
is
that
94
recycling
of
such
materials
often
closely
resembles
normal
industrial
production,
rather
than
waste
management.
Since
there
can
be
a
considerable
economic
incentive
to
manage
recyclable
materials
outside
the
RCRA
regulatory
system,
there
is
a
clear
potential
for
some
handlers
to
claim
that
they
are
recycling,
when
in
fact
they
are
conducting
waste
treatment
and/
or
disposal
in
the
guise
of
recycling.

In
the
preamble
to
the
1985
regulations
(
50
FR
638,
January
4,
1985),
EPA
articulated
the
need
to
distinguish
between
"
sham"
and
"
legitimate"
recycling
of
hazardous
secondary
materials.

The
issue
is
whether
these
activities
are
legitimate
recycling,
or
are
rather
some
form
of
treatment
or
disposal
being
called
recycling
in
an
attempt
to
evade
regulation.
The
1985
preamble
discussion
cited
above
outlined
several
guidelines
for
making
such
distinctions.
Subsequent
guidance
(
discussed
in
more
detail
below)
elaborated
on
those
guidelines,
and
reinforced
the
principle
that
recycling
of
hazardous
secondary
materials
that
is
not
legitimate
amounts
to
treatment
or
disposal,
which
is
a
regulated
activity
under
RCRA.

In
recent
years,
a
wide
range
of
RCRA
stakeholders,
including
many
state
agency
officials,

have
expressed
concern
that
the
statements
in
preamble
and
current
guidance
on
legitimate
recycling
do
not
provide
sufficient
clarity
or
predictability
for
making
recycling
legitimacy
determinations.
Because
of
these
concerns,
many
stakeholders
have
encouraged
EPA
to
revise
and
clarify
the
current
legitimacy
criteria,
and
to
promulgate
them
in
regulations.

EPA
believes
that
today's
proposed
rulemaking
is
a
good
opportunity
to
establish
RCRA's
recycling
legitimacy
criteria
in
regulations,
and
at
the
same
time
to
make
clarifying
revisions
to
them.
Accordingly,
today's
proposal
includes
specific
regulatory
provisions
for
distinguishing
legitimate
recycling
from
sham
recycling
practices,
which
reorganize
and
clarify
the
95
existing
criteria
that
have
been
articulated
in
preamble
statements
and
guidance.
Today's
proposal
to
codify
recycling
legitimacy
criteria
is
not
based
on
any
direction
from
the
D.
C.
Circuit
Court.

Today's
proposed
legitimacy
criteria
are
intended
primarily
to
clarify
and
simplify
the
same
basic
legitimacy
principles
that
have
been
in
use
since
1985.
We
believe
that
the
new
codified
regulatory
criteria
will,
when
applied
to
actual
recycling
scenarios,
result
in
determinations
that
are
consistent
with
those
based
on
current
guidance.
As
such,
we
do
not
anticipate
the
need
for
overseeing
agencies
to
revisit
previous
legitimacy
determinations
if
the
proposed
criteria
are
finalized.

2.
What
is
the
current
guidance
for
legitimate
recycling?

In
the
January
4,
1985
preamble
to
the
final
rule
that
established
the
current
definition
of
solid
waste
regulations,
EPA
described
several
indications
of
sham
recycling.
A
similar
discussion
that
addressed
legitimacy
as
it
pertains
to
burning
materials
for
energy
recovery
was
presented
in
the
preamble
to
the
January
8,
1988
proposed
amendments
to
the
definition
of
solid
waste
(
53
FR
522),
portions
of
which
were
never
finalized.
On
April
26,
1989,
the
Office
of
Solid
Waste
issued
a
memorandum
that
consolidated
preamble
statements
concerning
legitimate
recycling
into
a
single
list
of
criteria
to
be
considered
in
evaluating
legitimacy
(
OSWER
directive
9441.1989(
19)).

This
memorandum
has
been,
and
still
is,
the
primary
source
of
guidance
for
the
regulated
community
and
for
overseeing
agencies
in
distinguishing
between
legitimate
and
sham
recycling.

As
explained
in
the
1989
memorandum,
a
legitimacy
determination
involves
evaluating
case­
specific
information
to
determine
whether
or
not
a
secondary
material
being
recycled
is
in
effect
being
used
as
a
commodity,
rather
than
as
a
waste.
The
1989
memorandum
identified
six
14It
should
be
noted
that
today's
proposed
legitimacy
criteria
are
not
intended
to
apply
to
recycling
of
materials
that
are
non­
hazardous
(
i.
e.,
materials
that
are
not
listed
hazardous
wastes,
and
that
do
not
exhibit
a
hazardous
characteristic)
.
Thus,
for
example,
recycling
of
non­
hazardous
household
wastes,
such
as
newspapers
and
aluminum
cans,
would
not
be
subject
to
the
proposed
criteria.
Likewise,
the
proposed
criteria
would
not
apply
to
recycling
of
non­
hazardous
secondary
materials
generated
from
industrial
operations.

96
criteria
to
be
considered
in
evaluating
this
fundamental
question,
explaining
that
each
recycling
scenario
is
likely
to
require
a
case­
specific
evaluation.
The
memorandum
further
explained
that,

depending
on
the
case­
specific
facts
and
circumstances,
certain
criteria
may
weigh
more
heavily
than
others
in
making
legitimacy
determinations.
The
general
criteria
presented
in
the
1989
guidance
memorandum
are
as
follows:

°
Is
the
secondary
material
similar
to
an
analogous
raw
material
or
product?

°
What
degree
of
processing
is
required
to
produce
a
finished
product?

°
What
is
the
value
of
the
secondary
material?

°
Is
there
a
guaranteed
market
for
the
end
product?

°
Is
the
secondary
material
handled
in
a
manner
consistent
with
the
raw
material/
product
it
replaces?

°
Other
relevant
factors
(
e.
g.,
economics
of
the
recycling
process,
toxic
constituents
"
along
for
the
ride")?

3.
Today's
proposed
criteria
for
legitimate
recycling.

A.
What
types
of
recycling
would
be
addressed
by
today's
legitimacy
criteria?
Today's
proposal
would
add
a
new
paragraph
(
h)
to
the
40
CFR
261.2
definition
of
solid
waste,
specifying
four
general
criteria
to
be
used
in
determining
whether
recycling
of
hazardous
secondary
materials
is
legitimate14.
These
legitimacy
criteria
are
intended
to
apply
generally
to
the
following
types
of
materials:
97
°
Recyclable
hazardous
secondary
materials
that
would
be
excluded
from
Subtitle
C
regulation
as
wastes
under
today's
proposal
for
intra­
industry
recycling.

°
Hazardous
secondary
materials
that,
because
they
are
recycled,
are
excluded
or
exempted
from
Subtitle
C
regulation
under
other
regulatory
provisions
(
see,
for
example,
the
exclusions
in
40
CFR
261.4).

°
Recyclable
hazardous
wastes
that
are
regulated
under
Subtitle
C
prior
to
recycling.

Today's
proposal
is
the
Agency's
first
attempt
to
codify
in
regulatory
form
general,

broadly
applicable
principles
for
making
recycling
legitimacy
determinations.
It
should
be
noted,

however,
that
the
Agency
has
examined
in
depth
a
number
of
waste­
specific
and
industry­
specific
recycling
practices,
and
has
promulgated
regulations
that
address
the
legitimacy
of
many
of
these
practices
in
much
more
specific
terms.
Thus,
there
will
be
situations
where
today's
broadlyapplicable
proposed
criteria
would
in
a
sense
overlap
with
these
more
specific
legitimacy
provisions.
One
example
of
this
would
be
the
recently
promulgated
regulations
for
zinc
fertilizers
made
from
recycled
hazardous
secondary
materials,
which
(
among
other
things)
specifies
numerical
limits
on
five
heavy
metal
contaminants
and
dioxins
in
these
zinc
fertilizer
products
(
67
FR
48393,
July
24,
2002).
Other
examples
of
more
specific
legitimacy
provisions
are
found
in
the
regulations
promulgated
for
comparable
fuels
(
63
FR
33782,
June
19,
1998),
the
"
use
constituting
disposal"
provisions
in
40
CFR
Part
266,
Subpart
C,
and
the
"
burning
for
energy
recovery"

provisions
in
40
CFR
Part
266,
Subpart
H.

Where
more
specific
criteria
or
requirements
have
been
established
in
regulations,
affected
parties
should
look
to
those
regulatory
provisions,
in
addition
to
the
generic
legitimacy
criteria
being
proposed
in
today's
rule.
For
example,
for
a
zinc
micronutrient
fertilizer
manufacturer,
the
98
analysis
of
"
toxics
along
for
the
ride"
(
see
Criterion
#
4,
discussed
below)
would
involve
an
analysis
of
whether
his
fertilizer
product
meets
the
contaminant
limits
specified
in
40
CFR
261.4(
a)(
21).
The
Agency
specifically
requests
comments
on
any
scenarios
where
the
public
sees
a
conflict
between
the
generic
legitimacy
criteria
and
more
specific
regulatory
provisions
for
a
particular
recycling
practice,
and
what
potential
problems
could
arise
from
any
such
conflicting
legitimacy
provisions.

If
EPA
or
an
authorized
state
agency
determines
that
a
process
is
not
legitimate
recycling,

the
activity
would
be
considered
waste
treatment
or
disposal
and
would
thus
be
subject
to
regulation
under
RCRA
Subtitle
C,
if
hazardous.
These
proposed
criteria
are
intended
to
apply
to
all
recycling
of
hazardous
secondary
materials,
including
any
recycling
that
may
be
covered
under
today's
proposed
exclusion
for
"
materials
recycled
in
a
continuous
process
within
the
generating
industry."
If
an
owner/
operator
claims
they
are
conducting
legitimate
recycling
but
the
appropriate
regulatory
agency
determines
that
the
process
is
sham
recycling,
the
recycler
and
the
generator(
s)
of
the
recycled
material
may
be
subject
to
enforcement
action.
As
noted
earlier,
if
a
hazardous
secondary
material
is
discarded
through
sham
recycling,
the
generator
and
all
others
who
have
handled
or
managed
the
material
may
be
subject
to
enforcement
for
violations
of
RCRA
Subtitle
C
requirements.
To
avoid
enforcement,
a
prudent
generator
will
take
steps
to
ensure
that
the
recycling
of
his
materials
is
legitimate.

B.
What
are
today's
proposed
legitimacy
criteria,
and
how
would
they
be
used?
The
following
is
a
discussion
of
today's
proposed
legitimacy
criteria,
with
an
explanation
of
how
each
of
the
proposed
criteria
relates
to
preamble
statements
and
guidance
currently
in
use.
The
four
proposed
criteria
are:
99
1.
Criterion
#
1:
The
secondary
material
to
be
recycled
is
managed
as
a
valuable
commodity.

Where
there
is
an
analogous
raw
material,
the
secondary
material
should
be
managed
in
a
manner
consistent
with
the
management
of
the
raw
material.
Where
there
is
no
analogous
raw
material,
the
secondary
material
should
be
managed
to
minimize
the
potential
for
releases
into
the
environment.

2.
Criterion
#
2:
The
secondary
material
provides
a
useful
contribution
to
the
recycling
process
or
to
a
product
of
the
recycling
process
and
evaluating
this
criterion
should
include
consideration
of
the
economics
of
the
recycling
transaction.
The
recycling
process
itself
may
involve
reclamation,
or
direct
reuse
without
reclamation.

3.
Criterion
#
3:
The
recycling
process
yields
a
valuable
product
or
intermediate
that
is:
(
i)

Sold
to
a
third
party;
or
(
ii)
Used
by
the
recycler
or
the
generator
as
an
effective
substitute
for
a
commercial
product
or
as
a
useful
ingredient
in
an
industrial
process.

4.
Criterion
#
4:
The
product
of
the
recycling
process:

(
i)
Does
not
contain
significant
amounts
of
hazardous
constituents
that
are
not
found
in
analogous
products;
and
(
ii)
Does
not
contain
significantly
elevated
levels
of
any
hazardous
constituents
that
are
found
in
analogous
products;
and
(
iii)
Does
not
exhibit
a
hazardous
characteristic
that
analogous
products
do
not
exhibit.

As
proposed
today,
these
legitimacy
criteria
are
not
expressed
as
questions
to
be
answered,
as
they
were
in
the
1989
guidance.
Rather,
they
are
expressed
as
principles
to
be
assessed
on
a
case­
specific
basis.
As
proposed,
therefore,
a
legitimacy
determination
would
be
a
case­
specific
judgment
as
to
whether
a
particular
recycling
practice
is
consistent
with
the
four
100
criteria
in
40
CFR
261.2(
h).

The
proposed
legitimacy
criteria
are
intended
to
apply
to
a
wide
range
of
recycling
scenarios
across
a
wide
array
of
industries.
Although
EPA
expects
that
most,
if
not
all,
legitimate
recycling
practices
will
conform
to
each
of
the
four
criteria,
the
application
of
the
criteria
will
require
some
subjective
evaluation
and
balancing.
Furthermore,
there
may
be
situations
when
a
recycling
activity
that
does
not
conform
to
one
or
more
of
the
criteria
could
be
considered
legitimate.
For
example,
with
regard
to
the
first
criterion
listed
above,
there
could
be
a
situation
in
which
the
secondary
material
to
be
recycled
is
managed
in
a
different
(
though
protective)

manner
than
analogous
raw
materials
are
managed.
Such
recycling
might
nevertheless
be
considered
legitimate
if
the
recycling
process
satisfied
the
other
three
criteria,
and
management
of
the
materials
is
reasonable
and
appropriate.
There
are
likely
to
be
other
types
of
situations
where
a
particular
legitimacy
criterion
may
not
be
met,
but
where
the
overall
recycling
practice
would
nevertheless
be
considered
legitimate.
Although
we
believe
that
today's
proposed
criteria
would
provide
a
sound
basis
for
making
legitimacy
determinations,
we
are
interested
in
any
examples
of
legitimate
recycling
practices
that
might
not
meet
all
of
the
criteria
proposed
today.

The
proposed
legitimacy
criteria,
if
finalized,
would
continue
to
be
used
in
the
same
way
as
the
current
guidance
has
been
used.
That
is,
we
would
expect
the
regulated
community
to
continue
to
evaluate
their
recycling
operations
using
the
criteria,
and
reach
their
own
conclusions
without
prior
approval
by
an
overseeing
agency.
Such
conclusions
would,
of
course,
be
subject
to
review
by
EPA
or
the
authorized
state
should
the
need
arise.

EPA
requests
comment
as
to
whether
the
proposed
legitimacy
criteria
should
be
structured
differently
in
the
final
rule,
such
as
in
the
form
of
mandatory
requirements
that
must
all
101
be
met,
or
perhaps
in
a
system
where
certain
criteria
are
mandatory
and
others
are
not.
We
are
especially
interested
as
to
whether
structuring
the
legitimacy
criteria
differently
would
necessitate
revisiting
previous
legitimacy
determinations
made
by
regulated
entities
or
implementing
agencies.

We
are
also
interested
in
comments
as
to
any
case­
specific
examples
of
legitimate
recycling
where
one
or
more
of
the
proposed
factors
would
not
be
relevant
in
making
determinations,
and
whether
or
not
other
additional
criteria
beyond
those
proposed
today
should
be
considered
in
making
legitimacy
determinations.

The
following
is
an
explanation
of
each
of
the
four
proposed
legitimacy
criteria,
including
a
discussion
of
how
each
proposed
criterion
relates
to
existing
guidance.

1.
Criterion
#
1:
"
The
secondary
material
to
be
recycled
is
managed
as
a
valuable
commodity.

Where
there
is
an
analogous
raw
material,
the
secondary
material
should
be
managed
in
a
manner
consistent
with
the
management
of
the
raw
material.
Where
there
is
no
analogous
raw
material,
the
secondary
material
should
be
managed
to
minimize
the
potential
for
releases
into
the
environment."

In
EPA's
view,
a
recycler
will
value
secondary
materials
that
provide
an
important
contribution
to
his
process
or
product
and
will
manage
them
in
a
manner
consistent
with
a
valuable
feedstock
material
(
i.
e.,
will
manage
them
to
minimize
their
loss).
If
the
recycler
does
not
manage
them
as
he
would
manage
valuable
feedstock,
it
may
indicate
that
the
"
recycling"

practice
actually
involves
disposal
of
the
secondary
material.

Therefore,
the
secondary
material
to
be
recycled
should
be
managed
prior
to
recycling
in
essentially
the
same
way
as
raw
materials
are
managed
in
the
course
of
normal
manufacturing.

EPA
expects
all
parties
involved
in
handling
secondary
materials
destined
for
recycling
to
handle
102
them
as
carefully
as
"
analogous"
raw
materials
would
be
handled.
Such
parties
include
generators,
transporters,
and
recyclers,
as
well
as
any
other
parties
that
manage
the
secondary
materials
prior
to
recycling.
To
illustrate,
hazardous
metal­
bearing
secondary
materials
can
often
be
used
as
substitutes
for
"
raw"
metal
ore
concentrates
in
making
metal
products.
Assuming
both
types
of
materials
have
similar
physical
properties,
the
Agency
would
expect
the
secondary
materials
and
the
metal
ore
concentrates
to
be
managed
in
the
same
or
similar
units.
If,
however,

in
this
example
the
secondary
materials
were
managed
in
outdoor
piles,
while
the
ore
concentrate
materials
were
managed
in
containers,
an
overseeing
agency
might
well
determine
that
the
practice
of
storing
the
secondary
materials
in
outdoor
piles
indicates
sham
recycling.
(
In
addition,

any
releases
of
the
hazardous
secondary
materials
to
the
environment
would
also
be
considered
discard
under
RCRA.)

In
some
recycling
situations,
a
hazardous
secondary
material
could
be
used
as
a
substitute
for
a
raw
material
that
has
very
different
physical
characteristics,
and
thus
would
not
be
considered
"
analogous"
for
the
purposes
of
this
criterion.
This
could
be
the
case,
for
example,
if
a
secondary
material
is
in
dry
powder
form,
while
the
raw
material
is
a
solid
material
that
is
not
susceptible
to
dispersal
by
wind
or
rain.
Similarly,
if
the
secondary
material
contains
hazardous
constituents
that
the
raw
material
it
replaces
does
not,
it
also
might
not
be
considered
"
analogous"

for
the
sake
of
this
criterion.
Similarly,
there
may
be
some
situations
where
there
is
no
"
analogous"
raw
material,
such
as
where
the
recycling
process
is
uniquely
designed
to
use
a
specific
secondary
material.

In
these
types
of
situations,
where
it
may
be
difficult
to
compare
management
of
secondary
materials
with
"
analogous"
practices
for
raw
materials,
consideration
of
this
specific
103
legitimacy
criterion
should
focus
on
whether
or
not
the
secondary
material
is
managed
to
minimize
the
potential
for
releases
into
the
environment.
This
is
consistent
with
the
idea
that
normal
manufacturing
processes
are
designed
to
use
valuable
material
inputs
efficiently,
rather
than
allowing
them
to
be
released
into
the
environment.
Thus,
in
situations
where
it
is
not
feasible
to
compare
management
practices
for
hazardous
secondary
materials
with
analogous
practices,

assessment
of
this
legitimacy
criterion
would
involve
examining
the
effectiveness
of
a
facility's
equipment
and
systems
in
preventing
releases
of
the
hazardous
secondary
materials
into
the
environment.

How
does
this
criterion
compare
to
existing
guidance?

Although
worded
somewhat
differently,
this
criterion
is
essentially
the
same
as
the
fifth
criterion
in
the
previously
cited
1989
guidance
memorandum
("
Is
the
secondary
material
handled
in
a
manner
consistent
with
the
raw
material/
product
it
replaces?").
The
1985
preamble
similarly
asked
whether
recyclable
secondary
materials
were
"
handled
in
a
manner
consistent
with
their
use
as
raw
materials
or
commercial
product
substitutes..."
In
one
respect,
however,
today's
proposed
criterion
is
less
restrictive
 
the
1989
guidance
posed
an
additional
question
"
Is
the
secondary
material
stored
on
the
land?,"
implying
that
storage
on
the
land
is
an
indication
of
sham
recycling.
However,
the
Agency
is
aware
of
situations
where
storage
of
raw
materials
on
the
land
is
a
normal
part
of
the
manufacturing
process
(
this
is
the
case
with
certain
large­
scale
mineral
processing
operations,
for
example).
Thus,
today's
proposal
does
not
identify
land
storage
as
a
specific
indicator
of
sham
recycling.
EPA
notes,
however,
that
land
storage
may
result
in
releases
to
the
environment
that
constitute
discard.

2.
Criterion
#
2:
"
The
secondary
material
provides
a
useful
contribution
to
the
recycling
process
104
or
to
a
product
of
the
recycling
process
and
evaluating
this
criterion
should
include
consideration
of
the
economics
of
the
recycling
transaction.
The
recycling
process
itself
may
involve
reclamation,
or
direct
reuse
without
reclamation."

This
criterion
expresses
the
fundamental
principle
that
secondary
materials
should
actually
be
useful
(
i.
e.,
contribute
value)
to
a
recycling
process.
This
is
intended
to
prevent
the
practice
of
adding
secondary
materials
to
manufacturing
operations
simply
as
a
means
of
disposing
of
them,

which
is
sham
recycling.
An
example
of
a
recycling
operation
that
would
fail
to
satisfy
this
criterion
would
be
a
wastewater
treatment
sludge
that
is
fed
into
a
metals
smelter,
but
that
contains
no
recoverable
amounts
of
metal,
and
does
not
otherwise
contribute
to
the
smelting
process.
Another
example
would
be
using
a
toxic
metal­
bearing
sludge
as
a
feedstock
to
make
ceramics,
where
neither
the
toxic
metals
or
other
components
of
the
sludge
contribute
valuable
properties
to
the
ceramic
products.
There
may
also
be
situations
where
some
amount
of
a
secondary
material
is
useful
to
a
recycling
process,
but
much
larger
volumes
of
the
material
are
actually
introduced
into
the
process.
A
material
that
is
added
in
excess
of
the
amount
actually
needed
to
make
an
end­
product
might
also
fail
to
meet
this
criterion
for
useful
contribution.

Not
every
component
of
a
secondary
material
would
necessarily
have
to
contribute
to
the
product
or
process
to
satisfactorily
meet
this
criterion.
For
example,
a
legitimate
recycling
operation
involving
recovery
of
precious
metals
might
not
recover
all
of
the
components
of
a
hazardous
secondary
material,
but
would
recover
precious
metals
with
sufficient
value
to
justify
the
recycling.
A
similar
example
might
be
where
recycling
involves
recovery
of
the
hazardous
component
of
a
secondary
material
(
e.
g.,
cadmium
in
batteries),
where
the
more
inert
constituents
of
the
secondary
material
are
not
recovered
or
reused,
but
the
recovered
portion
is
of
sufficient
105
value
to
justify
reclamation.

This
proposed
criterion
consolidates
and
clarifies
existing
guidance
that
addresses
how
useful
or
valuable
a
hazardous
secondary
material
should
be
to
a
recycling
process.
In
practice,

this
issue
has
often
been
viewed
primarily
as
an
economic
question,
such
as
whether
the
secondary
material
is
marketable
as
a
valuable
commodity,
or
whether
it
has
a
marketplace
value
comparable
to
an
analogous
virgin
material.
EPA
is
not
proposing
a
particular
economic
test
for
evaluating
this
criterion,
nor
do
we
necessarily
believe
that
a
secondary
material
must
be
marketable
to
the
public
in
order
for
it
to
have
sufficient
value
for
the
recycling
process
to
be
legitimate
recycling.

In
general,
we
believe
that
evaluation
of
the
usefulness
of
a
secondary
material
to
the
recycling
process
should
be
based
on
the
nature
of
the
material
and
its
value
to
the
recycling
process.
The
question
of
who
pays
whom,
the
amounts
of
money
involved,
and
other
aspects
of
the
transaction
between
the
generator
and
recycler
can
be
an
indicator
as
to
whether
or
not
the
recycling
is
legitimate
or
is
disposal
in
the
guise
of
recycling.
It
is
EPA's
experience
that
in
many
legitimate
recycling
transactions
the
generator
pays
the
recycler
to
accept
the
material
to
be
recycled.

However,
the
Agency
is
also
aware
that
in
many
sham
recycling
cases
the
recycler
has
received
payment
from
the
generator.
The
usefulness
of
the
secondary
material
to
the
recycling
process
(
whether
established
through
knowledge
of
the
material
and
process
or
consideration
of
the
economics
of
the
transaction)
needs
to
be
evaluated
along
with
the
other
legitimacy
criteria
articulated
in
today's
proposal
in
evaluating
whether
the
recycling
is
legitimate.

Another
issue
that
could
arise
in
evaluating
this
"
useful
contribution"
criterion
is
the
efficiency
of
a
recycling
process
in
recovering
or
regenerating
the
useful
component
of
a
recyclable
material.
For
example,
if
the
objective
of
a
recycling
process
were
recovery
of
copper
106
from
a
secondary
material,
but
only
a
small
fraction
of
the
copper
in
the
material
is
actually
recovered,
sham
recycling
could
be
indicated.
If,
however,
the
recycling
process
was
reasonably
efficient
and
recovered
all
but
a
small
amount
of
the
copper
(
e.
g.,
90
to
95
percent),
it
would
likely
meet
this
criterion
and
thus
indicate
legitimate
recycling.
A
pattern
of
mismanagement
of
the
residues
by
the
recycling
facility
may
also
be
an
indicator
of
sham
recycling.

In
a
similar
vein,
there
may
be
instances
where
more
than
one
secondary
material
is
used
in
a
single
recycling
process,
and
the
materials
are
mixed
or
blended
as
part
of
the
process.
In
such
cases,
each
of
the
recyclable
materials
used
would
need
to
satisfy
the
"
useful
contribution"

criterion.
This
is
to
avoid
situations
where
a
relatively
worthless
secondary
material
could
be
mixed
with
a
more
valuable
or
useful
material
in
an
attempt
to
disguise
and
dispose
of
it,
which
is
sham
recycling.

Given
the
wide
variety
of
possible
recycling
practices
that
may
be
subject
to
legitimacy
determinations
under
today's
proposed
criteria,
and
the
many
different
ways
materials
may
be
"
useful"
to
those
practices,
the
following
examples
are
offered
to
clarify
what
we
mean
by
"
useful
contribution"
under
this
criterion.

The
secondary
material
contributes
valuable
ingredients
to
a
product
of
the
recycling
process.
Secondary
materials
often
contribute
to
a
recycling
process
by
becoming
ingredients
in
a
product.
For
example,
spent
solvents
from
a
paint
spray
booth
can
often
be
used
directly
as
ingredients
in
manufacturing
paint.
In
some
cases,
secondary
materials
will
need
to
be
reclaimed
first
to
remove
contaminants
or
to
make
them
otherwise
suitable
for
use
as
ingredients
in
making
a
product.
An
example
would
be
a
zinc­
bearing
sludge
that
is
first
processed
(
i.
e.,
reclaimed)
into
zinc
oxide,
which
is
used
as
a
feedstock
in
an
electrolytic
zinc
refinery
that
manufactures
zinc
107
metal.

The
secondary
material
replaces
a
catalyst
or
carrier
in
the
process.
In
some
cases,

secondary
materials
can
be
reused
(
either
directly,
or
after
being
reclaimed)
in
production
processes,
but
are
not
incorporated
as
ingredients
in
the
resulting
products.
This
includes
catalysts
and
chemicals
that
act
as
carriers
or
synthesis
media
for
other
chemicals
in
a
production
process.
In
either
case,
the
secondary
material
must
be
useful
for
that
purpose.

The
secondary
material
is
the
source
of
a
valuable
constituent(
s)
recovered
in
the
recycling
process.
Many
legitimate
recycling
operations
involve
reclamation
of
a
secondary
material
primarily
to
recover
a
specific,
valuable
component
of
the
material.
A
common
example
is
mineral
processing,
where
metal­
bearing
secondary
materials
such
as
baghouse
dusts
and
other
sludges
are
reclaimed
to
extract
valuable
minerals.

The
secondary
material
is
regenerated
by
the
recycling
process.
Regeneration
is
a
type
of
"
useful
contribution,"
where
a
spent
material
is
reclaimed
to
restore
its
original
useful
properties
so
that
it
can
be
reused.
Regeneration
of
spent
solvents
through
distillation
is
one
example
of
this
type
of
recycling.
Another
example
is
regeneration
of
acid
baths
used
to
"
pickle"

steel
by
removing
impurities
and
restoring
their
acidic
properties.

The
secondary
material
is
used
as
an
effective
substitute
for
a
commercial
product.
In
many
cases,
a
secondary
material
can
be
used
directly
as
a
substitute
for
a
commercial
product
without
reclamation.
This
type
of
recycling
is
perhaps
the
clearest
example
of
"
useful
contribution,"
in
that
the
secondary
material
is
used
productively,
and
it
replaces
a
commercial
product
that
would
otherwise
have
to
be
purchased.
Use
of
spent
pickling
acid
as
a
conditioning
agent
in
wastewater
treatment
plants
is
an
example
of
such
a
practice.
108
How
does
this
criterion
compare
to
existing
guidance?

This
proposed
criterion
addressing
"
useful
contribution"
has
been
distilled
from
and
clarifies
concepts
in
the
Agency's
existing
guidance
for
legitimate
recycling.
For
example,
the
preamble
to
the
January
4,
1985
recycling
regulations
noted
that
if
a
secondary
material
is
"
ineffective
or
only
marginally
effective
for
the
claimed
use,
the
activity
is
not
recycling
but
surrogate
disposal."
Similarly,
the
January
8,
1988
proposed
rule
discussed
as
a
legitimacy
concept
"
how
much
energy
or
material
value
each
waste
contributes
to
the
recycling
purpose."
In
the
1989
legitimacy
guidance,
the
issue
of
effectiveness
was
addressed
by
the
questions:
"
Is
much
more
of
the
secondary
material
used
as
compared
with
the
analogous
raw
material/
product
it
replaces?";
"
Is
only
a
nominal
amount
used?";
and
"
Is
the
secondary
material
as
effective
as
the
raw
material
or
product
it
replaces?"
The
guidance
also
addressed
the
value
of
the
secondary
material
by
posing
the
questions,
"
Is
it
(
the
secondary
material)
listed
in
industry
news
letters,

trade
journals,
etc.?"
and
"
Does
the
secondary
material
have
economic
value
comparable
to
the
raw
material
that
normally
enters
the
process?"

3.
Criterion
#
3:
"
The
recycling
process
yields
a
valuable
product
or
intermediate
that
is:

(
i)
Sold
to
a
third
party;
or
(
ii)
Used
by
the
recycler
or
the
generator
as
an
effective
substitute
for
a
commercial
product
or
as
a
useful
ingredient
in
an
industrial
process."

This
proposed
criterion
is
intended
to
capture
the
fundamental
precept
that
legitimate
recycling
must
produce
something
of
value.
If
a
"
recycling"
process
creates
a
material
that
no
one
wants
or
will
use,
it
can
be
presumed
that
the
process
is
conducted
to
dispose
of
the
material;

i.
e.,
it
is
sham
recycling.
109
For
the
purpose
of
this
criterion,
a
recycled
product
may
be
considered
"
valuable"
if
it
can
be
shown
to
have
either
economic
value,
or
a
value
that
is
more
intrinsic
(
i.
e.,
it
is
useful
to
the
end
user,
though
it
may
not
be
salable
as
a
product
or
commodity
in
the
marketplace).
One
relatively
simple
way
to
demonstrate
that
the
recycling
process
yields
a
valuable
product
would
be
the
documented
sale
of
a
recycled
product
to
a
third
party.
Such
documentation
could
be
in
the
form
of
receipts,
as
well
as
contracts
or
agreements
establishing
the
terms
of
sale
or
transaction.

A
recycler
that
has
not
yet
arranged
for
sale
of
its
product
to
a
third
party
could
establish
the
value
of
the
recycled
product
by
demonstrating
that
it
can
replace
another
product
or
intermediate
(
process
input)
that
is
available
in
the
marketplace.
It
is
also
possible
that
in
some
situations
a
recycled
product
could
be
sold
at
a
loss
(
e.
g.,
as
a
"
loss
leader"
to
attract
customers,
or
because
of
normal
market
fluctuations),
and
nevertheless
be
considered
a
"
valuable
product"
under
this
criterion.
In
such
cases,
however,
the
recycler
would
need
to
demonstrate
how
selling
the
product
at
a
loss
is
economically
beneficial
to
the
seller,
and
that
the
product
is
actually
valuable
to
the
person
who
uses
it.

Many
recycling
processes
produce
outputs
that
are
not
sold
to
another
party,
but
are
instead
used
by
the
generator
or
recycler.
For
example,
some
recycled
products
or
intermediates
may
be
very
useful
as
feedstocks
in
a
specific
manufacturing
process,
but
may
have
no
established
monetary
value
in
the
marketplace.
Such
recycled
products
or
intermediates
would
be
considered
to
have
"
intrinsic"
value,
though
demonstrating
that
value
may
be
less
straightforward
than
for
products
that
are
sold
in
the
marketplace.

Demonstrating
the
value
of
recycled
products
that
are
not
sold
to
third
parties
could
involve
showing
that
the
recycled
product
replaces
an
alternative
product
or
material
that
would
110
otherwise
have
to
be
purchased.
In
other
cases,
the
recycler
could
show
that
the
product
or
intermediate
meets
certain
specific
product
specifications,
or
meets
established
industry
standards.

Another
approach
to
demonstrating
the
value
of
these
types
of
recycled
products
or
intermediates
could
be
to
compare
their
characteristics
(
e.
g.,
their
physical/
chemical
properties,
or
their
efficacy
for
certain
uses
or
applications)
with
comparable
products
or
intermediates
made
from
raw
materials.

Some
recycling
processes
may
consist
of
multiple
steps,
which
may
occur
at
separate
facilities.
In
some
cases,
each
processing
step
will
yield
a
valuable
product,
such
as
when
a
metalbearing
sludge
is
processed
to
reclaim
a
precious
metal,
and
is
then
put
through
another
process
to
reclaim
a
different
mineral.
When
each
step
in
the
process
yields
a
valuable
product
that
is
salable
or
usable
in
that
form,
that
recycling
process
would
meet
this
proposed
criterion.
If,

however,
a
particular
step
in
a
recycling
process
does
not
yield
a
separate
salable
or
ready­
for­
use
product,
that
process
step
would
typically
need
to
add
value
to
the
material
in
some
way
in
order
to
satisfy
this
criterion.
Thus,
for
example,
if
the
first
step
in
reclaiming
a
metal­
bearing
secondary
material
results
in
a
fused
or
agglomerated
material,
a
second
step
consisting
of
particle
size
reduction
may
be
necessary
to
facilitate
the
next
reclamation
step.
Although
reducing
the
particle
size
in
this
case
would
not
by
itself
produce
a
valuable
product,
it
may
add
value
to
the
recycling
process
and
is
consistent
with
the
intent
of
this
criterion.

How
does
this
criterion
compare
to
existing
guidance?

This
proposed
criterion
distills
several
of
the
questions
posed
by
the
1989
legitimacy
guidance.
In
that
guidance,
the
value
of
recycled
products
sold
to
third
parties
was
addressed
by
posing
the
questions,
"
Is
there
a
guaranteed
market
for
the
end
product?"
and
"
Is
there
a
contract
111
in
place
to
purchase
the
`
product'
ostensibly
produced
from
the
hazardous
secondary
materials?"

The
guidance
addressed
recycled
products
used
by
the
recycler
or
the
generator
as
process
ingredients
by
posing
the
questions
"...
is
the
product
used
by
the
(
recycler)?
The
generator?
Is
there
a
batch
tolling
agreement?"
The
"
usefulness"
of
a
recycled
material
was
addressed
by
the
questions:
"
Is
the
(
recycled)
product
a
recognized
commodity?"
and
"
Are
there
industryrecognized
quality
specifications
for
the
product?"
The
language
we
are
proposing
today
attempts
to
reflect
these
concepts
in
a
concrete
manner
by,
for
example,
making
it
clear
that
one
needs
to
assess
not
only
whether
there
are
industry­
recognized
quality
specifications,
but
also
that
the
recycled
product
would
need
to
meet
or
exceed
any
applicable
specifications
to
be
considered
legitimate
recycling.
We
believe
that
today's
proposed
Criterion
#
3
captures
the
essence
of
the
original
guidance.

The
1989
guidance
posed
additional
questions
aimed
at
distinguishing
recycling
operations
that
involve
direct
use
or
reuse
of
secondary
materials
from
recycling
operations
that
involve
reclamation.
These
concepts,
however,
are
not
particularly
relevant
to
distinguishing
legitimate
from
sham
recycling,
and
we
therefore
did
not
attempt
to
capture
them
in
today's
proposed
legitimacy
criteria.

4.
Criterion
#
4:
"
The
product
of
the
recycling
process:

(
i)
Does
not
contain
significant
amounts
of
hazardous
constituents
that
are
not
found
in
analogous
products;
and
(
ii)
Does
not
contain
significantly
elevated
levels
of
any
hazardous
constituents
that
are
found
in
analogous
products;
and
15
Hazardous
constituents
are
defined
in
40
CFR
Part
261,
Appendix
VIII.

112
(
iii)
Does
not
exhibit
a
hazardous
characteristic
that
analogous
products
do
not
exhibit."

This
proposed
criterion
addresses
"
toxics
along
for
the
ride"
in
products
made
from
recycled
secondary
materials.
Put
another
way,
the
question
posed
by
this
criterion
is
whether
hazardous
constituents
are
"
discarded"
by
being
incorporated
into
a
product
made
from
hazardous
secondary
materials,
which
would
indicate
sham
recycling.
15
In
evaluating
this
aspect
of
legitimacy,
a
recycler
would
ordinarily
compare
the
recycled
product
to
an
analogous
product
made
with
raw
materials.
Thus,
if
a
recycling
process
produced
(
for
example)
paint,
the
levels
of
hazardous
constituents
in
the
paint
could
be
compared
with
the
levels
of
the
same
constituents
found
in
similar
paint
made
from
raw
materials.

Although
this
criterion
focuses
on
hazardous
constituents
that
may
be
found
in
the
endproducts
of
recycling
processes,
a
recycler
could
choose
to
evaluate
this
criterion
indirectly
by
comparing
the
hazardous
constituents
in
the
secondary
material
feedstock
with
those
in
an
analogous
raw
material
feedstock.
If
the
secondary
material
feedstock
does
not
contain
higher
concentrations
of
hazardous
constituents
than
the
raw
material
feedstock,
then
the
end
product
of
the
recycling
process
should
not
contain
excess
hazardous
constituents
"
along
for
the
ride."
This
feedstock
comparison
may
be
simpler
than
the
product
comparison
when
the
recycler
knows
the
secondary
material
is
very
similar
in
profile
to
the
raw
material.
It
may
also
be
more
practical
than
the
product
comparison
when
there
is
no
analogous
product,
or
when
production
of
the
recycled
product
has
not
yet
begun.

Today's
proposed
criterion
#
4
identifies
three
specific
tests
for
evaluating
whether
or
not
this
criterion
is
met.
This
criterion
is
designed
to
determine
whether
or
not
unacceptable
amounts
16
These
characteristics
are
defined
in
40
CFR
Part
261,
Subpart
C.

113
of
toxic
constituents
are
passed
through
to
recycled
products.
The
first
test
specifies
that
where
analogous
products
made
with
raw
materials
do
not
contain
hazardous
constituents,
the
recycled
product
should
not
contain
significant
amounts
of
any
hazardous
constituent.
For
example,
if
paint
made
from
reclaimed
solvent
contains
significant
amounts
of
cadmium,
while
the
same
type
of
paint
made
from
raw
materials
does
not
contain
cadmium,
it
would
likely
indicate
that
the
cadmium
serves
no
useful
purpose
and
is
being
passed
through
the
recycling
process
and
discarded.

The
second
test
addresses
situations
where
an
analogous
product
does
contain
some
hazardous
constituents,
and
asks
whether
those
hazardous
constituents
are
found
in
the
recycled
product
at
levels
significantly
higher
than
in
the
analogous
product.
This
test
ensures
that
levels
of
hazardous
constituents
in
recycled
products
are
comparable
to
levels
of
the
same
constituents
in
analogous
products
made
from
raw
materials.
For
example,
if
a
lead­
bearing
hazardous
sludge
was
used
as
an
ingredient
in
making
ceramic
tiles,
and
the
amount
of
lead
in
the
tiles
was
significantly
higher
than
the
lead
level
found
in
similar
tiles
made
of
raw
materials,
discard
would
likely
be
indicated.
As
with
the
previous
test,
the
comparison
could
be
made
product­
to­
product,

or
could
be
made
by
comparing
the
constituent
levels
in
the
secondary
material
with
those
in
the
analogous
raw
material.

The
third
test
under
this
criterion
is
whether
the
recycled
product
exhibits
a
hazardous
characteristic
that
analogous
products
do
not
exhibit.
This
test
ensures
that
recycled
products
do
not
exhibit
the
characteristics
of
toxicity,
ignitability,
corrosivity,
or
reactivity
when
the
analogous
products
do
not.
16
The
Agency
believes
that
most
issues
associated
with
"
toxics
along
for
the
114
ride"
will
involve
the
presence
of
toxic
constituents,
which
are
addressed
under
the
first
two
tests
discussed
above.
We
believe
that
there
are
few,
if
any,
cases
where
the
first
two
tests
described
above
would
be
met
for
a
recycled
product,
but
the
product
would
nevertheless
exhibit
the
hazardous
characteristic
of
toxicity.

It
is
possible,
though,
that
the
use
of
a
hazardous
secondary
material
as
an
ingredient
could
cause
a
product
to
exhibit
a
hazardous
characteristic,
such
as
corrosivity,
that
is
not
exhibited
by
analogous
products.
We
seek
comments
as
to
how
often
this
test
might
be
relevant
to
making
legitimacy
determinations,
and
information
as
to
any
specific
recycling
processes
that
might
be
affected
by
this
test.

In
evaluating
this
criterion
for
a
particular
recycling
process,
regulators
and
the
regulated
community
may
frequently
need
to
assess
what
amount
of
a
hazardous
constituent
is
a
"
significant
amount"
or
a
"
significantly
elevated
level."
EPA
is
not
proposing
a
specific
formula
or
method
for
defining
"
significant"
in
this
context.
Given
the
exceptional
diversity
and
variability
of
potentially
recyclable
materials,
we
believe
that
this
issue
is
best
addressed
on
a
case­
by­
case
basis,
instead
of
imposing
a
generic
limit
that
could
apply
to
all
recycling
and
all
recyclable
materials.

The
following
examples
are
offered
to
illustrate
how
"
significant"
might
be
evaluated
for
certain
recycled
products.
In
one
example,
if
zinc
galvanizing
metal
made
from
recycled
hazardous
secondary
materials
contains
500
parts
per
million
(
ppm)
of
lead,
while
the
same
zinc
product
made
from
raw
materials
typically
contains
475
ppm,
this
difference
in
concentration
would
likely
not
be
considered
"
significant"
in
evaluating
this
legitimacy
criterion.
If,
on
the
other
hand,
in
this
example
the
lead
levels
in
the
recycled
zinc
product
were
1,000
ppm,
it
would
likely
115
indicate
discard
of
significant
amounts
of
lead.
To
offer
another
example,
if
a
"
virgin"
solvent
contains
no
detectable
amount
of
barium,
while
spent
solvent
that
has
been
reclaimed
contains
a
minimal
amount
of
barium
(
e.
g.,
1
ppm),
this
difference
might
not
be
considered
significant.
If,

however,
the
barium
in
the
reclaimed
solvent
were
at
much
higher
levels
(
e.
g.,
50
ppm),
it
would
likely
indicate
discard
of
the
barium.

Evaluating
the
"
significance"
of
levels
of
hazardous
constituents
in
recycled
products
for
the
purpose
of
this
criterion
may
involve
taking
into
account
several
factors,
such
as
the
type
of
product,
how
it
is
used
and
by
whom,
whether
or
not
elevated
levels
of
hazardous
constituents
compromise
in
any
way
the
efficacy
of
the
product,
and
other
factors.
To
illustrate
one
such
situation,
if
a
recycled
plastic
product
contains
low
but
detectable
levels
of
vinyl
chloride
(
a
human
carcinogen)
that
analogous
plastics
do
not
contain,
and
the
plastic
could
be
used
to
make
children's
teething
toys,
a
more
rigorous
evaluation
of
the
"
significance"
of
the
vinyl
chloride
in
the
recycled
product
would
be
called
for
than
if
the
product
were
used
for
some
type
of
industrial
application.

How
does
this
criterion
compare
to
existing
guidance?

The
1989
guidance
and
the
preamble
statements
that
support
it
have
addressed
the
question
of
"
toxics
along
for
the
ride"
in
a
more
general
way
than
today's
proposed
criterion.

The
1989
guidance,
for
example,
places
emphasis
on
examining
the
presence
of
toxic
constituents
in
the
secondary
material
destined
for
recycling,
rather
than
focusing
primarily
on
the
presence
of
such
constituents
in
the
recycled
product.
As
noted
above,
today's
criterion
is
intended
to
primarily
address
the
question
of
"
toxics
along
for
the
ride"
in
the
products
of
recycling.
We
believe
that
the
presence
of
toxic
constituents
in
recyclable
secondary
materials
is
less
relevant
to
116
assessing
the
legitimacy
of
recycling,
primarily
because
much
if
not
most
recycling
(
as
well
as
manufacturing)
involves
removing
or
destroying
such
harmful
materials.
As
reflected
in
this
proposed
criterion,
the
central
question
is
whether
or
not
(
and
in
what
amount)
hazardous
constituents
pass
through
the
recycling
process
and
become
incorporated
into
the
products
of
recycling.

We
do
not
believe
that
this
shift
in
emphasis
will
substantially
affect
the
outcome
of
legitimacy
determinations.
In
fact,
the
approach
in
today's
proposal
(
i.
e.,
focusing
on
toxic
constituents
in
recycled
products)
may
be
somewhat
less
restrictive
than
the
guidance
it
would
replace.
It
is
possible,
however,
that
by
focusing
the
proposed
criterion
on
toxics
in
recycled
products,
some
recycling
that
may
have
previously
been
considered
legitimate
might
not
be
under
today's
proposal.
We
invite
comment
on
this
issue,
and
specifically
solicit
examples
where
existing
legitimacy
determinations
could
change
if
today's
proposed
criterion
were
finalized.

Alternatives
Considered
The
Agency
examined
two
main
alternative
approaches
to
addressing
the
issue
of
"
toxics
along
for
the
ride"
that
would
have
provided
greater
specificity
in
assessing
the
"
significance"
of
elevated
levels
of
toxic
constituents
in
recycled
products.
These
regulatory
alternatives
are
discussed
below.

"
Bright
Line"
Approach.
One
alternative
approach
would
be
to
establish
a
specific
numerical
limit
to
define
"
significant"
for
the
purpose
of
evaluating
this
legitimacy
criterion.
This
approach
would
in
effect
establish
a
"
bright
line"
for
defining
"
significant
amounts"
and
"
significantly
elevated
levels"
under
today's
proposal.
Under
such
an
approach,
this
criterion
might
specify
that
the
amount
of
hazardous
constituents
in
a
recycled
product
could
be
present
at
117
levels
no
greater
than
one
or
two
standard
deviations
above
those
in
an
analogous
product
made
from
raw
materials.
The
limit
could
also
be
expressed
as
a
percentage
(
e.
g.,
"
no
greater
than
5
percent
more...").

Such
a
bright
line
approach
could
provide
greater
clarity
and
predictability
to
the
regulated
community
and
state
and
federal
agencies
overseeing
new
regulations
for
legitimate
recycling.
On
the
other
hand,
this
alternative,
in
establishing
a
specific
quantitative
test
for
whether
hazardous
constituents
are
along
for
the
ride
in
a
recycled
product,
could
be
somewhat
arbitrary,
and
depending
on
the
particular
constituents
of
concern
and
product
use,
could
result
in
either
over­
regulation
or
under­
regulation,
or
both.

Risk­
based
Approach.
The
"
bright
line"
approach
described
above
would
only
function
to
compare
levels
of
constituents
in
recycled
products
with
those
in
analogous
products.
That
approach
would
not,
therefore,
directly
address
the
issue
of
the
potential
risks
posed
by
those
hazardous
constituents.
Depending
on
the
hazardous
constituents
of
concern
and
the
uses
of
the
recycled
product,
some
increased
levels
of
hazardous
constituents
may
not
pose
any
risk
to
workers
(
where
the
recycled
product
is
a
process
intermediate)
or
the
public
(
where
the
recycled
product
is
a
consumer
product).
It
is
also
possible
that
such
hazardous
constituents
could
pose
unacceptable
risks,
even
if
they
are
present
at
levels
below
a
statistical
"
cutoff"
limit
that
might
be
established
under
the
option
described
above.
Thus,
in
developing
this
proposed
criterion,
we
considered
an
alternative
approach
that
would
more
explicitly
address
the
risks
posed
by
toxic
constituents
in
recycled
products.

One
possible
approach
could
be
to
specify
that
if
a
recycled
product
contains
hazardous
constituents
at
higher
levels
than
those
in
an
analogous
product
made
with
raw
materials,
the
118
recycler
would
need
to
assess
the
risks
to
human
health
and
the
environment
posed
by
those
increased
levels.
This
criterion
would
be
met
if
the
risks
were
acceptable
("
acceptable"
risks
would
presumably
also
be
defined
under
such
an
approach).

This
approach
would
likely
require
recyclers
in
many
cases
to
perform
a
life­
cycle
risk
assessment,
examining
potential
exposure
scenarios
from
use
of
recycled
products,
and
estimating
the
risks
associated
with
such
exposures.
In
many
cases,
such
analyses
could
be
relatively
straightforward
"
screening"
analyses,
though
in
other
cases
more
elaborate
analysis
might
be
needed,
particularly
for
consumer
products.

EPA
is
not
proposing
a
risk­
based
approach
to
setting
limits
on
"
toxics
along
for
the
ride,"

primarily
due
to
its
potential
complexity.
It
can
also
be
argued
that
the
legitimacy
of
a
recycling
process
relates
more
directly
to
how
it
compares
with
normal
industrial
production,
rather
than
the
risks
that
may
be
posed
by
recycled
products
(
since
products
made
from
raw
materials
can
also
pose
risks).
Finally,
a
risk­
based
approach
in
assessing
toxics
along
for
the
ride
would
be
a
radical
departure
from
how
this
issue
is
currently
considered,
which
is
not
our
intent
in
today's
proposal.

The
Agency
invites
comment
on
the
alternative
approaches
described
above,
and
other
approaches
for
establishing
legitimate
recycling
with
regard
to
hazardous
constituents
or
characteristics
in
recycled
products.

IV.
Request
for
Comment
on
a
Broader
Exclusion
for
Legitimate
Recycling
While
the
scope
of
today's
lead
proposal
is
limited
to
materials
that
are
generated
and
reclaimed
within
the
same
industry,
discussions
with
various
stakeholders
during
the
development
of
this
proposal
identified
an
alternative
regulatory
option
that
could
further
encourage
recycling
119
and
reuse
while
maintaining
protection
of
human
health
and
the
environment.
EPA
is
considering
this
regulatory
option,
and
may
adopt
it
in
the
final
rule;
we
therefore
solicit
comment
on
the
option,
as
described
below.

This
option,
as
identified
by
stakeholders,
would
provide
a
broader
regulatory
conditional
exclusion
from
RCRA
regulation
for
essentially
all
materials
that
are
legitimately
recycled
by
reclamation,
whether
the
recycling
is
done
within
the
generating
industry,
or
between
industries.

Although
RCRA
provides
the
authority
to
regulate
many
of
those
materials
recycled
between
industries,
such
a
broader
regulatory
exclusion,
properly
crafted,
could
encourage
additional
recycling
and
reuse
while
protecting
human
health
and
the
environment.
It
is
not
envisioned
that
such
a
broader
regulatory
exclusion
would
alter
the
current
status
of
the
three
types
of
recycling
practices
that
are
specifically
outside
the
scope
of
today's
proposal
(
i.
e.,
burning
for
energy
recovery,
as
defined
at
40
CFR
261.2(
c)(
2);
use
constituting
disposal,
as
defined
at
40
CFR
261.2(
c)(
1);
or
recycling
of
inherently
waste­
like
materials,
as
defined
at
40
CFR
261.2(
d)).

By
removing
most
regulatory
controls
from
all
legitimate
reclamation,
this
broader
option
could
encourage
additional
recycling
of
hazardous
secondary
materials
above
and
beyond
that
expected
as
a
result
of
the
intra­
industry
option
proposed
today.
This
broader
regulatory
exclusion
could
thus
potentially
result
in
less
disposal
of
valuable
materials,
less
use
of
virgin
materials,
and
better
resource
conservation.
In
addition,
it
could
result
in
lower
costs
associated
with
RCRA
permits,
manifesting,
and
other
requirements.
Such
an
approach
might
be
of
particular
benefit
for
an
industry
that
is
composed
primarily
of
small
business
entities.
For
onsite
recycling
to
be
economically
feasible,
large
quantities
of
secondary
materials
may
be
required.

Small
businesses
generally
do
not
generate
such
large
quantities.
Therefore,
smaller
businesses
120
may
often
not
be
able
to
recycle
materials
themselves,
and
may
rely
primarily
on
third
party
recyclers
that
are
considered
part
of
the
waste
management
industry.
These
specialized
recycling
businesses
may
have
particular
expertise
with
reclaiming
materials
and
finding
markets
for
them.

A
broader
exclusion
would
tend
to
encourage
these
types
of
inter­
industry
recycling
transactions.

Stakeholders
suggesting
this
approach
also
believe
that
legitimate
recycling
activities
do
not
pose
risks
of
hazardous
material
releases
or
human
exposures
to
such
releases,
and
hence
such
an
exclusion
could
achieve
the
benefits
of
increased
recycling
and
at
the
same
time
protect
human
health
and
the
environment.

A
broader
regulatory
exclusion
of
this
kind
would
apply
only
to
hazardous
secondary
materials
that
are
legitimately
recycled
by
reclamation.
With
regard
to
defining
legitimate
recycling,
today's
proposal
specifies
four
legitimacy
criteria
that
would
be
evaluated
on
a
case­

bycase
basis
in
judging
whether
a
particular
recycling
practice
is
legitimate.
As
discussed
in
detail
in
section
III.
B.,
there
may
be
some
situations
in
which
a
recycling
activity
that
does
not
conform
to
one
or
more
of
the
criteria
could
be
considered
legitimate.
The
proposed
criteria,
and
the
manner
in
which
they
would
be
used,
are
modeled
on
EPA's
current
guidance
for
legitimate
recycling.

Today's
proposed
legitimacy
criteria
could
be
adopted
as
part
of
a
broader
regulatory
exclusion
for
legitimate
recycling.
Alternatively,
the
same
legitimacy
principles
could
be
expressed
as
explicit
regulatory
requirements
that
would
each
have
to
be
met,
rather
than
as
criteria
to
be
considered,
as
discussed
in
section
III.
B.
Expressing
legitimacy
principles
as
regulatory
requirements
could
result
in
more
transparent
and
predictable
legitimacy
determinations,
which
could
be
an
advantage
in
implementing
a
broader
regulatory
exclusion
that
would
apply
to
a
wider,
more
diverse
set
of
industries
and
recycling
practices.
However,
such
an
121
approach
would
be
a
departure
from
the
current
system
for
evaluating
legitimacy,
and
could
be
considered
more
stringent
than
the
legitimacy
criteria
proposed
today.
We
anticipate
that,

whichever
approach
to
defining
legitimacy
is
adopted
in
the
final
rule
(
i.
e.,
the
approach
proposed
today,
or
expressing
legitimacy
principles
as
regulatory
requirements),
the
new
legitimacy
provisions
would
apply
universally
to
all
recycling,
rather
than
only
to
materials
affected
by
the
new
exclusion.
We
solicit
comment
on
this
issue.

If
a
broader
regulatory
exclusion
were
to
be
adopted,
we
envision
that
certain
key
requirements
in
today's
proposal
would
be
maintained.
For
example,
persons
claiming
the
exclusion
would
be
required
to
submit
a
one­
time
notification
to
the
appropriate
State
or
EPA
Region,
as
proposed
today
in
40
CFR
261.2(
g)(
4).
Persons
handling
these
materials
would
also
be
required
to
comply
with
the
existing
requirements
for
speculative
accumulation
(
see
40
CFR
40
CFR
261.1(
c)(
8)
and
261.2(
c)(
4)).
We
generally
impose
these
limits
when
we
issue
conditional
exclusions
from
the
definition
of
solid
waste,
to
help
ensure
that
secondary
materials
are
actually
recycled.

In
addition,
to
ensure
protection
of
human
health
and
the
environment,
it
might
be
appropriate
to
impose
additional
requirements
or
conditions
beyond
those
included
for
the
intraindustry
option
discussed
in
section
III.
A
of
this
preamble.
For
example,
more
frequent
reporting
and
recordkeeping
requirements
might
be
appropriate,
similar
to
those
types
of
conditions
included
in
EPA's
recently­
promulgated
rulemaking
for
zinc
fertilizers
made
from
hazardous
secondary
materials
(
see
67
FR
48393,
July
24,
2002).
Alternatively,
recordkeeping
approaches
as
discussed
in
section
III.
A.
8.
of
today's
rule
could
provide
additional
safeguards
through
monitoring
and
documentation.
Additional
safeguards
on
storage
or
handling
(
e.
g.,
a
ban
on
land
122
placement,
or
requiring
a
tracking
system
for
off­
site
shipments)
might
also
be
appropriate
to
ensure
environmental
protection
and/
or
assist
regulatory
agencies
in
their
oversight
efforts.

Regulatory
text
implementing
such
a
broader
exclusion
for
legitimately
reclaimed
materials
would
be
codified
in
40
CFR
261.4(
a),
which
lists
a
series
of
exclusions
from
the
definition
of
solid
waste.
Specifically,
a
new
exclusion
would
be
added
at
40
CFR
261.4(
a),
stating
that
secondary
materials
that
are
legitimately
recycled
by
reclamation
are
not
solid
wastes,
provided
that
certain
conditions
are
met.
The
exclusion
would
include
a
notification
requirement
identical
to
that
set
out
in
40
CFR
261.2(
g)(
4)
of
the
regulatory
text
proposed
today
for
the
intra­
industry
option,
except
that
identification
of
the
industry
would
not
be
required.
The
exclusion
would
also
include
a
requirement
prohibiting
speculative
accumulation
identical
to
that
set
out
in
40
CFR
261.2(
g)(
3)(
ii)
of
the
regulatory
text
proposed
today
for
the
intra­
industry
option.
If
it
were
determined
appropriate
to
express
the
legitimacy
principles
for
this
broader
exclusion
as
regulatory
requirements,
the
exclusion
would
restate
the
legitimacy
criteria
proposed
today
in
40
C
FR
261.2(
h),
and
would
specify
that
each
of
the
four
criteria
must
be
met.
If
it
were
determined
appropriate
to
apply
today's
proposed
legitimacy
criteria
to
this
broader
option,

restating
the
criteria
would
not
be
necessary
because
40
CFR
261.2(
h)
as
proposed
would
apply
to
all
recycling
(
including
materials
subject
to
the
broader
exclusion).

The
regulatory
text
for
this
broader
exclusion
would
also
include
a
provision
specifying
that
materials
used
in
a
manner
constituting
disposal,
materials
burned
for
energy
recovery,
and
inherently
waste­
like
materials
are
not
eligible
for
the
exclusion.
This
provision
would
be
identical
to
that
set
out
in
40
CFR
261.2(
g)(
1)(
i)
­
(
3)
of
the
regulatory
text
proposed
today.
Finally,
the
text
for
the
broader
exclusion
would
(
if
deemed
necessary)
include
a
provision
specifying
any
123
additional
reporting
and
any
recordkeeping
requirements
applied
to
the
exclusion,
and
any
other
conditions
determined
appropriate
to
protect
human
health
and
the
environment.

EPA
seeks
comment
on
the
potential
advantages
and
disadvantages
of
the
broader
regulatory
exclusion
for
reclaimed
materials
described
above.
Specifically,
we
request
comment
on
the
increased
recycling
and
reuse
that
would
result
from
broadening
the
rule
in
this
way,
as
well
as
comment
on
the
potential
effects
to
human
health
and
the
environment.
We
also
request
comment
on
whether
the
legitimacy
criteria
proposed
today
would
be
sufficient
to
ensure
that
only
real
recycling
and
reuse
would
be
exempted
under
such
a
provision,
and
on
whether
the
proposed
criteria
should
be
reformulated
into
more
prescriptive
regulatory
requirements.
We
are
further
interested
in
whether
a
case­
by­
case
variance
mechanism
(
i.
e.,
analogous
to
the
existing
provision
for
variances
from
classification
as
a
solid
waste
 
see
40
CFR
260.30)
would
be
a
more
appropriate
means
of
providing
the
type
of
regulatory
relief
for
reclaimed
materials
that
would
flow
from
a
broader
exclusion
based
on
legitimate
recycling.
Finally,
we
request
comment
on
any
additional
requirements,
restrictions
or
conditions
that
should
be
added
to
such
a
broader
exclusion.
The
Agency
will
carefully
consider
all
comments
received
on
this
regulatory
option
in
determining
the
appropriate
scope
of
the
final
rule.

V.
Effect
of
Today's
Proposal
on
Other
Programs
A.
Exports
and
Imports.

The
40
CFR
261.2(
g)
exclusion
in
today's
proposed
rule
for
materials
that
are
recycled
"
intra­
industry"
does
not
place
any
geographic
restrictions
on
movements
of
such
materials,

provided
they
remain
within
the
generating
industry.
It
is
therefore
possible
that
in
some
cases
124
excluded
materials
could
be
generated
in
the
United
States
and
subsequently
exported
for
reclamation
to
a
facility
in
a
foreign
country
that
is
in
the
same
industry
that
generated
the
material.
Under
today's
proposal,
the
exclusion
would
be
effective
while
the
excluded
material
is
within
the
United
States.
However,
such
excluded
materials
may
be
subject
to
regulation
as
hazardous
wastes
in
the
receiving
country,
even
if
they
are
excluded
from
the
definition
of
solid
waste
domestically
(
i.
e.,
under
RCRA).
If
this
is
the
case,
the
U.
S.
exporter
of
the
excluded
material
will
need
to
comply
with
any
applicable
requirements
of
the
importing
country.

It
is
also
important
to
note
that
there
is
an
international
agreement
regarding
imports
and
exports
of
hazardous
wastes
and
other
wastes
that
can
affect
international
waste
shipments.
As
of
November
2002,
152
countries
are
Parties
to
the
1989
Basel
Convention
on
the
Control
of
Transboundary
Movements
of
Hazardous
Wastes
and
their
Disposal
("
Basel
Convention").
The
Basel
Convention
prohibits
transboundary
movements
of
Basel­
controlled
hazardous
and
other
wastes
between
Parties
and
non­
Parties,
unless
a
Party
and
a
non­
Party
have
concluded
a
separate
agreement
pursuant
to
Article
11
of
the
Basel
Convention.
The
United
States
signed
the
Basel
Convention
in
1990,
but
has
not
ratified
it
and
therefore
is
not
a
party
to
the
Convention.
The
United
States
is
a
party
to
two
bilateral
agreements
and
one
multilateral
agreement
governing
exports
of
RCRA­
defined
hazardous
wastes.
The
1986
"
Agreement
Between
the
Government
of
United
States
of
America
and
the
Government
of
Canada
Concerning
the
Transboundary
Movement
of
Hazardous
Waste,"
and
the
1986
"
Agreement
of
Cooperation
Between
the
United
Mexican
States
and
the
United
States
of
America
Regarding
the
Transboundary
Movement
of
Hazardous
Waste
and
Hazardous
Substances"
are
valid
Basel
Convention
Article
11
bilateral
agreements,
and
the
2001
"
Decision
C(
2001)
107
Concerning
the
Revision
of
Decision
C(
92)
39
125
on
the
Control
of
Transboundary
Movements
of
Wastes
Destined
for
Recovery
Operations"
of
the
Organization
for
Economic
Cooperation
and
Development
(
OECD)
is
a
valid
Basel
Convention
Article
11
multilateral
agreement
among
the
30
OECD
member
countries.

The
U.
S.
government
over
the
last
decade
has
considered
ratification
of
the
Basel
Convention
at
various
times.
In
order
to
ratify
the
Convention,
legislation
must
be
enacted
that
would
amend
RCRA
to
provide
new
authorities
necessary
to
implement
the
terms
of
the
Convention
fully.
The
Basel
Convention
defines
"
hazardous
waste"
more
broadly
than
RCRA
does,
subjecting
a
larger
universe
of
materials
to
its
jurisdiction.
EPA
is
currently
studying
options
for
implementing
the
Basel
Convention,
including
ways
of
defining
"
waste"
for
import
and
export
purposes.
Under
various
approaches,
certain
materials
that
are
excluded
from
the
RCRA
definition
of
solid
wastes
domestically
would
be
regulated
for
purposes
of
the
Basel
Convention
when
they
are
exported.
Basel
Convention
protocols
would
not
affect
the
domestic
classification
of
excluded
materials
while
such
materials
are
physically
located
within
the
legal
jurisdiction
of
the
United
States.

If
the
U.
S.
ratifies
the
Basel
Convention,
Basel­
covered
hazardous
and
other
wastes,

potentially
including
certain
domestically
excluded
materials
that
are
exported,
would
be
subject
to
notice
and
consent
procedures.
Furthermore,
if
such
wastes
and
excluded
materials
were
to
be
exported
to
countries
with
which
we
do
not
have
Article
11
agreements,
EPA
would
have
to
be
satisfied
that
there
is
no
reason
to
believe
the
exported
wastes
and
materials
would
not
be
managed
in
an
"
environmentally
sound
manner"
(
ESM)
at
the
receiving
facility
in
the
importing
country.
For
example,
certain
copper
plating
wastes
are
excluded
from
the
RCRA
definition
of
solid
waste,
even
though
they
may
exhibit
the
toxicity
characteristic
for
lead,
cadmium,
126
chromium,
or
even
cyanide.
If
the
U.
S.
were
to
ratify
the
Basel
Convention,
these
materials
would
be
subject
to
the
Basel
Convention
(
assuming
the
importing
country
defined
the
materials
as
hazardous
wastes),
and
the
U.
S.
exporter
would
be
required
to
comply
with
notification
and
consent
procedures
for
the
export
of
the
materials.
Additionally,
if
these
materials
were
to
be
exported
to
smelters
in
countries
with
which
we
do
not
have
existing
Article
11
agreements,
such
as
Chile
or
Peru,
the
export
would
be
subject
to
additional
requirements,
including
ESM
determinations
by
EPA.

Imported
Basel
Convention
hazardous
and
other
wastes
that
meet
domestic
exclusions
under
the
definition
of
solid
waste
would
become
subject
to
their
exclusions
upon
entry
into
the
legal
jurisdiction
of
the
United
States;
however,
U.
S.
importers
of
such
excluded
materials
may
be
required
to
comply
with
certain
Basel
Convention
requirements
if
necessary
for
the
U.
S.
to
meet
its
Basel
obligations
and/
or
if
the
exporting
Basel
Party
requires
it.
For
example,
the
Basel
Convention
requires
that,
"...
each
person
who
takes
charge
of
a
transboundary
movement
of
hazardous
wastes
or
other
wastes,
sign
the
movement
document
upon
delivery
or
receipt
of
the
wastes
in
question."
(
Basel
Convention
Article
6,
paragraph
9).
Thus,
the
U.
S.
importer,

transporter(
s)
and
receiving
facility
would
be
required
to
undertake
this
responsibility
for
the
excluded
material
when
it
is
imported
into
the
United
States.

B.
Superfund.

A
primary
purpose
of
today's
proposed
rule
is
to
encourage
safe,
beneficial
recycling
of
hazardous
secondary
materials.
In
1999,
Congress
enacted
the
Superfund
Recycling
Equity
Act
(
SREA),
explicitly
defining
those
hazardous
substance
recycling
activities
that
potentially
may
be
exempted
from
liability
under
the
Comprehensive
Environmental
Response,
Compensation
and
127
Liability
Act
(
CERCLA).
CERCLA
section
9627.
Today's
proposed
rule
does
not
change
the
universe
of
recycling
activities
that
could
be
exempted
from
CERCLA
liability
pursuant
to
CERCLA
section
127.
Today's
proposed
rule
only
changes
the
regulatory
definition
of
solid
waste
for
purposes
of
implementing
the
RCRA
Subtitle
C
regulatory
requirements.
The
proposed
rule
also
does
not
limit
or
otherwise
affect
EPA's
ability
to
pursue
potentially
responsible
persons
under
section
107
of
CERCLA
for
releases
or
threatened
releases
of
hazardous
substances.

VI.
State
Authority
A.
Applicability
of
Rules
in
Authorized
States
Under
section
3006
of
RCRA,
EPA
may
authorize
qualified
states
to
administer
the
RCRA
Subtitle
C
hazardous
waste
program
within
the
state.
Following
authorization,
EPA
retains
Subtitle
C
enforcement
authority,
although
authorized
states
have
primary
enforcement
responsibility.
EPA
retains
(
and
does
not
delegate)
authority
under
sections
3007,
3008(
h),
3013
and
7003.
The
standards
and
requirements
for
state
authorization
are
found
at
40
CFR
Part
271.

Prior
to
enactment
of
the
Hazardous
and
Solid
Waste
Amendments
of
1984
(
HSWA),
a
State
with
final
RCRA
authorization
administered
its
hazardous
waste
program
entirely
in
lieu
of
EPA
administering
the
federal
program
in
that
state.
The
federal
requirements
no
longer
applied
in
the
authorized
state,
and
EPA
could
not
issue
permits
for
any
facilities
in
that
state,
since
only
the
state
was
authorized
to
issue
RCRA
permits.
When
new,
more
stringent
federal
requirements
were
promulgated,
the
state
was
obligated
to
enact
equivalent
authorities
within
specified
time
frames.
However,
the
new
federal
requirements
did
not
take
effect
in
an
authorized
state
until
the
state
adopted
the
federal
requirements
as
state
law.
128
In
contrast,
under
RCRA
section
3006(
g)
(
42
U.
S.
C.
6926(
g)),
which
was
added
by
HSWA,
new
requirements
and
prohibitions
imposed
under
HSWA
authority
take
effect
in
authorized
states
at
the
same
time
that
they
take
effect
in
unauthorized
states.
EPA
is
directed
by
the
statute
to
implement
these
requirements
and
prohibitions
in
authorized
states,
including
the
issuance
of
permits,
until
the
state
is
granted
authorization
to
do
so.
While
states
must
still
adopt
HSWA
related
provisions
as
state
law
to
retain
final
authorization,
EPA
implements
the
HSWA
provisions
in
authorized
states
until
the
states
do
so.

Authorized
states
are
required
to
modify
their
programs
only
when
EPA
enacts
federal
requirements
that
are
more
stringent
or
broader
in
scope
than
existing
federal
requirements.

RCRA
section
3009
allows
the
states
to
impose
standards
more
stringent
than
those
in
the
federal
program
(
see
also
40
CFR
271.1).
Therefore,
authorized
states
may,
but
are
not
required
to,

adopt
federal
regulations,
both
HSWA
and
non­
HSWA,
that
are
considered
less
stringent
than
previous
federal
regulations.

B.
Effect
on
State
Authorization
Today's
proposed
rule
is
less
stringent
than
the
current
federal
program.
Because
states
are
not
required
to
adopt
less
stringent
regulations,
they
do
not
have
to
adopt
the
exclusions
being
proposed,
although
EPA
encourages
them
to
do
so.
If
a
state's
standards
for
the
materials
discussed
here
are
less
stringent
than
those
in
today's
proposed
rule,
the
state
will
need
to
amend
its
regulations
to
make
them
equivalent
to
today's
standards
and
pursue
authorization.

C.
Interstate
Transport
Because
some
states
may
choose
not
to
seek
authorization
for
today's
proposed
rulemaking,
there
will
probably
be
cases
where
the
materials
in
question
will
be
transported
129
through
states
with
different
regulations
governing
these
wastes.

First,
a
waste
which
is
subject
to
an
exclusion
from
the
definition
of
solid
waste
regulations
may
be
sent
to
a
state,
or
through
a
state,
where
it
is
subject
to
the
full
hazardous
waste
regulations.
In
this
scenario,
for
the
portion
of
the
trip
through
the
originating
state,
and
any
other
states
where
the
waste
is
excluded,
neither
a
hazardous
waste
transporter
with
an
EPA
identification
number
per
40
CFR
263.11
nor
a
manifest
would
be
required.
However,
for
the
portion
of
the
trip
through
the
receiving
state,
and
any
other
states
that
do
not
consider
the
waste
to
be
excluded,
the
transporter
must
have
a
manifest,
and
must
move
the
waste
in
compliance
with
40
CFR
Part
263.
In
order
for
the
final
transporter
and
the
receiving
facility
to
fulfill
the
requirements
concerning
the
manifest
(
40
CFR
263.20,
263.21,
263.22,
264.71,
264.72,
264.76
or
265.71,
265.72,
and
265.76),
the
initiating
facility
should
complete
a
manifest
and
forward
it
to
the
first
transporter
to
travel
in
a
state
where
the
waste
is
not
excluded.
The
receiving
facility
must
then
sign
the
manifest
and
send
a
copy
to
the
initiating
facility.
EPA
recommends
that
the
initiating
facility
note
in
block
15
of
the
manifest
(
Special
Handling
Instructions
and
Additional
Information)
each
state
where
the
wastes
are
not
covered
by
an
exclusion.

Second,
a
hazardous
waste
generated
in
a
state
which
does
not
provide
an
exclusion
for
the
waste
may
be
sent
to
a
state
where
it
is
excluded.
In
this
scenario,
the
waste
must
be
moved
by
a
hazardous
waste
transporter
while
the
waste
is
in
the
generator's
state
or
any
other
states
where
it
is
not
excluded.
The
initiating
facility
would
complete
a
manifest
and
give
copies
to
the
transporter
as
required
under
40
CFR
262.23(
a).
Transportation
within
the
receiving
state
and
any
other
states
that
exclude
the
waste
would
not
require
a
manifest
and
need
not
be
transported
by
a
hazardous
waste
transporter.
However,
it
is
the
initiating
facility's
responsibility
to
ensure
130
that
the
manifest
is
forwarded
to
the
receiving
facility
by
any
non­
hazardous
waste
transporter
and
sent
back
to
the
initiating
facility
by
the
receiving
facility
(
see
40
CFR
262.23
and
262.42).

Third,
a
waste
may
be
transported
across
a
state
in
which
it
is
subject
to
the
full
hazardous
waste
regulations
although
other
portions
of
the
trip
may
be
from,
through,
and
to
states
in
which
it
is
excluded.
Transport
through
the
State
must
be
conducted
by
a
hazardous
waste
transporter
and
must
be
accompanied
by
a
manifest.
In
order
for
the
transporter
to
fulfill
its
requirements
concerning
the
manifest
(
Subpart
B
of
Part
263),
the
initiating
facility
must
complete
a
manifest
as
required
under
the
manifest
procedures
and
forward
it
to
the
first
transporter
to
travel
in
a
state
where
the
waste
is
not
excluded.
The
transporter
must
deliver
the
manifest
to,
and
obtain
the
signature
of,
either
the
next
transporter
or
the
receiving
facility.

As
more
states
streamline
their
regulatory
requirements
for
these
wastes,
the
complexity
of
interstate
transport
will
be
reduced.

VII.
STATUTORY
AND
EXECUTIVE
ORDER
REVIEWS
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866
(
58
FR
51735),
the
Agency
must
determine
whether
this
regulatory
action
is
"
significant''
and
therefore
subject
to
formal
review
by
the
Office
of
Management
and
Budget
(
OMB)
and
to
the
requirements
of
the
Executive
Order,
which
include
assessing
the
costs
and
benefits
anticipated
as
a
result
of
the
proposed
regulatory
action.
The
Order
defines
"
significant
regulatory
action''
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)

have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
131
public
health
or
safety,
or
state,
local,
or
tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)

materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
the
Agency
has
determined
that
today's
proposed
rule
is
a
significant
regulatory
action
because
this
proposed
rule
may
have
an
annual
effect
on
the
economy
of
$
100
million
or
more.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
are
documented
in
the
docket
to
today's
proposal.

To
estimate
the
cost
savings,
incremental
costs,
economic
impacts
and
benefits
from
this
rule
to
affected
regulated
entities,
we
completed
an
economic
analyses
for
this
rule.
Copies
of
these
analyses
(
entitled
"
Economic
Assessment
of
the
Association
of
Battery
Recyclers
Proposed
Rule")
have
been
placed
in
the
RCRA
docket
for
public
review.
The
Agency
solicits
comment
on
the
methodology
and
results
from
the
analysis
as
well
as
any
data
that
the
public
feels
would
be
useful
in
a
revised
analysis.

1.
Methodology
To
estimate
the
cost
savings,
incremental
costs,
economic
impacts
and
benefits
of
this
rule,
the
Agency
estimated
both
the
affected
volume
of
hazardous
secondary
materials
and
affected
entities.
The
Agency
has
evaluated
a
baseline
(
pre­
regulatory)
scenario
based
on
prior
management
practice
in
the
1997
and
1999
Biennial
Reporting
System
database.
The
Agency
identified
on­
site
recycling
or
recycling
that
occurred
offsite
between
facilities
with
the
same
4
17
Note:
The
Standard
Industrial
Classification
(
SIC)
system
was
the
predecessor
to
the
North
American
Industrial
Classification
System
(
NAICS)
that
the
Agency
is
using
to
define
industry
today.
Because
only
the
SIC
code
as
a
data
element
was
reported
in
the
1997
and
1999
BRS,
EPA
is
using
4
digit
SIC
codes
as
a
proxy
for
the
4
digit
NAICS
code
with
the
exception
of
the
definitions
of
petroleum
and
mineral
processing
which
remain
as
previously
described
and
are
discussed
above
in
this
proposal.

132
digit
SIC
code.
17
Entities
that
reclaimed
hazardous
wastes
in
1997
but
abandoned
(
e.
g.,
landfilled
or
incinerated)
in
1999
are
modeled
to
abandon
their
waste
in
the
1999
baseline
and
reclaim
postrule
Entities
that
reclaim
in
the
1999
baseline
are
modeled
to
continue
reclaiming
at
lower
costs.

EPA
has
also
evaluated
regulated
entities
that
recycled
their
waste
off­
site
at
facilities
outside
of
their
industry,
generally
commercially
established
hazardous
waste
treatment
facilities.
Finally,

the
Agency
has
evaluated
entities
that
have
land
disposed
of
wastes
that
may
be
technically
and
economically
recycleable
under
today's
proposal.

EPA
has
estimated
incremental
costs
and
costs
savings
for
affected
entities
through
comparing
hazardous
waste
management
costs
in
the
1999
baseline
(
whether
recycled
or
abandoned)
with
the
cost
of
reclaiming
these
secondary
materials
as
excluded
from
RCRA
jurisdiction.
To
do
this,
the
Agency
examined
two
options
as
previously
described
above
as
Co­

Proposal
Option
#
1
and
Co­
Proposal
Option
#
2.
Option
1
provides
that
hazardous
secondary
materials
that
are
recycled
within
the
same
generating
industry
are
not
solid
wastes
under
RCRA
irrespective
of
whether
the
recycling
facility
also
receives
wastes
from
other
industries.
By
contrast,
Option
2
limits
the
scope
of
the
exclusion
to
facilities
that
solely
recycle
hazardous
secondary
materials
from
within
the
same
generating
industry
and
do
not
receive
waste
from
other
industries.

The
benefits
from
today's
proposed
rulemaking
are
presented
qualitatively.
EPA
solicits
comment
on
the
need
and
means
to
evaluate
more
quantitative
benefits
from
today's
rule.
133
2.
Results
a.
Volume
The
estimated
volume
of
secondary
materials
affected
by
this
rulemaking
for
Option
1
are
1570
thousand
tons.
Of
this
total
1506
thousand
tons
of
material
are
recycled
onsite
and
64
thousand
tons
of
material
recycled
offsite.
This
volume
of
material
is
generated
by
1749
affected
plants.
For
Option
2
the
estimated
volume
is
1534
thousand
tons.
Because
it
is
possible
for
the
affected
volume
of
hazardous
waste
to
be
either
higher
or
lower
than
the
estimated
volume,
EPA
notes
that
the
estimated
cost
savings
and
impacts
to
affected
entities
could
be
greater
or
smaller
as
well.
The
Agency
solicits
comment
on
how
it
should
adjust
its
methodology
to
account
for
this
uncertainty
and
whether
it
would
be
more
appropriate
to
use
a
range
than
this
value.

b.
Cost/
Economic
Impact
For
Option
1,
EPA
has
estimated
the
average
annual
cost
savings
from
this
rulemaking
at
$
178
million.
For
Option
2,
EPA
has
estimated
this
amount
at
$
172
million.
These
cost
savings
for
both
those
who
are
modeled
to
switch
to
recycling
and
those
who
currently
recycle
either
onsite
or
within
the
same
industry
comes
from
reduced
administrative
costs,
transportation
costs,

disposal/
management
costs,
state
hazardous
waste
taxes,
contingency
planning
costs
and
increased
salvage
revenue
(
for
entities
that
shift
from
disposal
to
recycling).
The
Agency
notes
that
the
cost
saving
results
are
relatively
sensitive
(
i.
e.,
change
with)
to
the
proportion
of
entities
and
volumes
that
are
modeled
to
shift
from
disposal
to
recycling.
In
particular,
the
estimated
cost
savings
in
this
rulemaking
for
entities
that
shift
from
treatment
and
disposal
to
recycling
are
much
higher
on
a
per
ton
basis
due
to
the
disposal
cost
avoided
by
recycling
and
the
salvage
revenue
of
the
reclaimed
product.
Salvage
revenue
is
the
market
price
of
the
reclaimed
material
less
the
cost
134
of
recycling
it.
The
Agency
also
notes
that
it
has
only
been
able
to
evaluate
a
portion
of
those
entities
in
the
Biennial
Reporting
Systems
1997
and
1999
database
who
potentially
may
elect
to
shift
from
disposal
to
recycling.
And
although
there
is
uncertainty
inherent
in
estimating
these
cost
savings
for
both
entities
that
are
modeled
to
recycle
pre­
rule
and
post­
rule,
as
well
as
those
who
are
modeled
to
shift
from
disposal
to
recycling,
the
Agency
notes
that
the
potential
magnitude
of
this
uncertainty
is
greater
in
those
who
are
modeled
to
shift
from
disposal
to
recycling
both
because
the
cost
savings
are
more
sensitive
to
these
volumes
and
because
the
coverage
of
these
types
of
entities
is
less
complete
than
it
is
for
those
who
currently
recycle.
EPA
solicits
comment
on
additional
methodologies,
sources
of
data
or
other
information
that
would
help
to
minimize
this
uncertainty
in
prospective
analysis.

To
estimate
the
economic
impact
of
this
proposed
rule,
the
Agency
evaluated
the
cost
savings
or
incremental
costs
as
a
percentage
of
firm
sales.
In
virtually
all
cases,
economic
impacts
are
cost
savings
and
are
less
than
one
percent
of
firm
sales.
The
average
cost
savings
for
an
affected
entity
that
either
recycles
onsite
or
within
the
same
industry
in
the
1999
BRS
or
did
so
in
the
1997
and
is
projected
to
shift
back
to
recycling
post­
rule
from
this
proposal
for
both
Options
ranges
from
$
4
thousand
to
$
150
thousand
annually.

c.
Benefits
EPA
has
evaluated
the
qualitative
benefits
and
to
a
lesser
extent,
the
quantitative
benefits
of
the
proposed
revisions
to
the
definition
of
solid
waste.
Some
of
the
benefits
resulting
from
today's
rule
include
conservation
of
landfill
capacity,
increase
in
resource
efficiency,
growth
of
a
recycling
infrastructure
and
development
of
innovative
technologies
for
affected
secondary
materials.
EPA
estimates
that
approximately
425
thousand
tons
or
over
460
thousand
cubic
feet
18
Note,
characteristic
sludges
and
byproducts
from
recycling
processes
that
are
themselves
recycled
are
not
solid
wastes
or
hazardous
wastes
currently
(
40
CFR
261.2(
c)(
3))
and
would
not
be
under
today's
proposal.

135
of
secondary
materials
would
be
redirected
away
from
landfills
towards
recycling
under
the
Agency's
proposal
today.
In
addition,
as
mentioned
above,
the
use
of
secondary
materials
generated
onsite
or
within
the
same
industry
benefits
the
manufacturer
by
mitigating
the
need
to
purchase
expensive
virgin
feed
materials.
This
rule
will
facilitate
the
growth
and
development
of
the
innovative
recycling
technologies
in
the
United
States
by
reducing
regulatory
barriers
to
new
technologies
becoming
established.

The
Agency
acknowledges
that
some
1500
thousand
tons
of
hazardous
secondary
materials
would
be
no
longer
subject
to
regulation
as
hazardous
waste
under
subtitle
C
of
RCRA
under
this
proposal.
As
part
of
today's
proposal,
EPA
has
not
evaluated
any
potential
for
changes
resulting
in
either
higher
or
lower
releases
to
the
environment
of
hazardous
constituents
from
different
handling
methods
for
affected
secondary
materials.
The
Agency
notes
that
most
hazardous
waste
that
is
currently
recycled
is
stored
in
tanks,
containers
or
buildings
prior
to
the
reclamation
process.
And
this
practice
is
likely
to
continue
post­
rule
both
because
most
affected
entities
have
already
purchased
these
storage
units
and
as
a
means
of
avoiding
legal
liability
for
releases
to
groundwater
from
land
based
units
(
materials
excluded
from
RCRA
subtitle
C
regulation
if
recycled
under
this
proposal
would
still
be
considered
hazardous
wastes
if
released
to
the
environment
and
then
abandoned).
Also,
residuals
from
excluded
recycling
processes
would
still
be
considered
hazardous
wastes
if
they
exhibit
a
hazardous
characteristic
and
are
discarded.
18
However,
residuals
from
formerly
listed
hazardous
wastes
would
not
be
considered
hazardous
wastes
under
the
derived­
from
rule
if
recycled
under
this
proposal.
In
such
cases,
these
residuals
136
could
be
land
disposed
in
units
other
than
hazardous
waste
landfills.
The
Agency
has
not
evaluated
the
potential
for
such
management
of
these
materials
to
result
in
a
change
in
releases
to
the
environment.

B.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
proposed
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.

3501
et
seq.
An
Information
Collection
Request
(
ICR)
document
has
been
prepared
by
EPA
(
ICR
No.
2106.01)
and
a
copy
may
be
obtained
from
Susan
Auby
by
mail
at
U.
S.
Environmental
Protection
Agency,
Collection
Strategies
Division
(
Mail
Code
2822),
1200
Pennsylvania
Avenue,

N.
W.,
Washington,
DC
20460­
0001,
by
email
at
auby.
susan@
epamail.
epa.
gov,
or
by
calling
(
202)
260­
4901.
A
copy
may
also
be
downloaded
off
the
internet
at
http://
www.
epa.
gov/
icr.

Under
Section
3001
of
RCRA,
Congress
directed
EPA
to
promulgate
regulations
identifying
the
characteristics
of
hazardous
waste
and
listing
particular
hazardous
wastes.
The
proposed
exclusion,
when
finalized,
will
be
self­
implementing.
Notification
of
a
facility's
basis
for
claiming
the
exclusion
would
allow
authorized
States
or
EPA
Regions
to
more
effectively
render
assistance
to
recyclers
wishing
to
ensure
that
their
operations
are
within
the
exclusion.

In
addition,
persons
claiming
to
be
excluded
from
hazardous
waste
regulation
because
they
are
engaged
in
recycling
must
be
able
to
demonstrate
that
the
recycling
is
legitimate.
These
demonstration
criteria
are
comparable
to,
if
not
more
streamlined
than,
the
existing
guidance.

Following
are
the
affected
ICRs,
along
with
a
brief
description
of
relevant
assumptions:

Manifest
ICR
(
EPA
ICR
Number
801):
All
claimants
are
expected
to
be
relieved
of
manifesting
their
excluded
waste
under
the
proposal.
O&
M
costs
are
associated
with
postage
for
137
sending
and
returning
copies
of
the
manifest
forms.

Generator
Standards
ICR
(
EPA
ICR
Number
820):
Large
quantity
generators
(
LQGs)

generating
excluded
waste
under
40
CFR
261.2(
g)
are
expected
to
become
small
quantity
generators
(
SQGs)
under
the
rule,
i.
e.,
their
excluded
waste
will
not
count
toward
their
generator
status
determinations.
SQGs
are
subject
to
less
burdensome
paperwork
requirements
than
LQGs.

O&
M
costs
are
associated
with
postage
for
sending
various
documents
to
EPA.

Biennial
Report
ICR
(
EPA
ICR
Number
976):
Claimants
are
expected
to
be
relieved
of
the
need
to
prepare
a
Waste
Generation
and
Management
(
GM)
Form
for
their
excluded
materials.
Destination
facilities
will
be
relieved
of
the
need
to
prepare
a
Waste
Received
from
Off­
Site
(
WR)
Form.
O&
M
costs
are
associated
with
maintaining
copies
of
GM
and
WR
Forms.

Specific
Units
ICR
(
EPA
ICR
Number1572):
EPA
assumes
that
recyclers
with
a
storage
permit
will
be
relieved
of
the
need
to
comply
with
their
permit
conditions
for
their
storage
units,
if
they
receive
and
recycle
only
hazardous
materials
generated,
reclaimed,
and
legitimately
reused
within
their
same
four
digit
NAICS
code.
Based
on
1999
BRS
data,
EPA
estimates
that
each
year
approximately
12
recyclers
would
be
relieved
of
these
requirements.

Part
B
ICR
(
EPA
ICR
Number
1573):
EPA
assumes
that
recyclers
with
a
storage
permit
will
be
relieved
of
the
need
for
a
permit
under
the
rule,
if
they
receive
and
recycle
only
hazardous
materials
generated,
reclaimed,
and
legitimately
reused
within
their
same
four
digit
NAICS
code.

Based
on
1999
BRS
data,
EPA
estimates
that
each
year
approximately
12
recyclers
would
be
relieved
of
the
requirement
to
renew
their
permit.

EPA
estimates
the
total
annual
burden
to
respondents
to
be
approximately
226
hours
and
$
7,018.
The
total
bottom­
line
burden
to
respondents
over
three
years
is
estimated
to
be
138
approximately
678
hours
and
$
21,054.
EPA
estimates
the
total
annual
aggregate
burden
savings
to
respondents
to
be
approximately
15,985
hours
and
$
531,169.
The
total
bottom­
line
burden
savings
over
three
years
is
estimated
to
be
approximately
47,955
hours
and
$
1,593,507.
EPA
estimates
the
total
annual
burden
to
the
Agency
under
the
proposed
rule
to
be
about
260
hours
and
$
10,807.
The
total
bottom­
line
burden
to
the
Agency
over
three
years
is
estimated
to
be
about
780
hours
and
$
32,421.

EPA
believes
the
proposed
notification
requirement
is
needed
to
ensure
safe
and
compliant
management
of
waste.
Because
the
exclusion
at
40
CFR
261.2(
g)
is
self­
implementing,

EPA
believes
that
submittal
of
the
notification
is
necessary
to
inform
the
regulatory
agency
of
the
exclusion
claim
and
the
claimant's
excluded
waste.
As
shown
in
Exhibit
3
of
ICR
No.
2106.01,

EPA
believes
the
notification
requirement
would
result
in
only
a
minor
burden
to
respondents.

This
burden
would
be
greatly
offset
by
the
expected
savings
for
no
longer
complying
with
the
existing
RCRA
paperwork
requirements
for
the
excluded
waste.
The
public
reporting
burden
from
the
notification
requirement
is
estimated
to
be
about
30
minutes
per
respondent.
This
time
includes
reading
the
rule
and
preparing/
submitting
the
one­
time
notification.
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
139
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.

Comments
are
requested
on
the
Agency's
need
for
this
information,
the
accuracy
of
the
provided
burden
estimates,
and
any
suggested
methods
for
minimizing
respondent
burden,

including
through
the
use
of
automated
collection
techniques.
Send
comments
on
the
ICR
to
the
Director,
Collection
Strategies
Division;
U.
S.
Environmental
Protection
Agency
(
2823);
1200
Pennsylvania
Avenue,
N.
W.,
Washington,
DC
20460­
0001;
and
to
the
Office
of
Information
and
Regulatory
Affairs,
Office
of
Management
and
Budget,
725
17th
St.,
N.
W.,
Washington,
DC
20503,
marked
"
Attention:
Desk
Officer
for
EPA."
Include
the
ICR
number
in
any
correspondence.
Since
OMB
is
required
to
make
a
decision
concerning
the
ICR
between
30
and
60
days
after
[
Insert
date
of
publication
in
the
FEDERAL
REGISTER],
a
comment
to
OMB
is
best
assured
of
having
its
full
effect
if
OMB
receives
it
by
[
Insert
date
30
days
after
publication
in
the
FEDERAL
REGISTER].
The
final
rule
will
respond
to
any
OMB
or
public
comments
on
the
information
collection
requirements
contained
in
this
proposal.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
USC
601
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
140
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
that
has
fewer
than
1000
or
100
employees
per
firm
depending
upon
the
SIC
code
the
firm
primarily
is
classified;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

The
economic
impact
analysis
conducted
for
today's
proposal
indicates
that
these
revisions
to
the
definition
of
solid
waste
would
generally
result
in
savings
to
affected
entities
compared
to
baseline
requirements.
The
rule
is
not
expected
to
result
in
a
net
cost
to
any
affected
entity.

Thus,
adverse
impacts
are
not
anticipated.

After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
Public
Law
104­
4,

establishes
requirements
for
federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
state,
local,
and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
the
proposed
and
final
rules
with
"
federal
mandates''
that
may
result
in
expenditures
by
state,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
141
Before
promulgating
a
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.

Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enable
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

The
Agency's
analysis
of
compliance
with
the
Unfunded
Mandates
Reform
Act
(
UMRA)

of
1995
found
that
today's
proposed
rule
imposes
no
enforceable
duty
on
any
state,
local
or
tribal
government
or
the
private
sector.
This
proposed
rule
contains
no
federal
mandates
(
under
the
regulatory
provisions
of
Title
II
of
the
UMRA)
for
state,
local,
or
tribal
governments
or
the
private
sector.
In
addition,
EPA
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
The
Act
generally
excludes
from
the
definition
of
"
federal
intergovernmental
mandate''
(
in
sections
202,
203,
and
205)
duties
that
arise
from
participation
in
a
voluntary
federal
program.
Today's
proposed
rule
is
voluntary,
and
142
because
it
is
less
stringent
than
the
current
regulations,
state
governments
are
not
required
to
adopt
the
proposed
changes.
The
UMRA
generally
excludes
from
the
definition
of
"
Federal
intergovernmental
mandate"
duties
that
arise
from
participation
in
a
voluntary
federal
program.

The
UMRA
also
excludes
from
the
definition
of
"
Federal
private
sector
mandate"
duties
that
arise
from
participation
in
a
voluntary
federal
program.
Therefore
we
have
determined
that
today's
proposal
is
not
subject
to
the
requirements
of
sections
202
and
205
of
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."
This
proposed
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
6,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
143
policies
that
have
tribal
implications."
"
Policies
that
have
tribal
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
federal
Government
and
the
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
federal
government
and
Indian
tribes.
This
proposed
rule
does
not
have
tribal
implications.
It
will
not
have
substantial
direct
effects
on
tribal
governments,
on
the
relationship
between
the
federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
&
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

EPA
interprets
Executive
Order
13045
as
applying
only
to
those
regulatory
actions
that
are
based
on
health
or
safety
risks,
such
that
the
analysis
required
under
section
5­
501
of
the
Order
has
the
potential
to
influence
the
regulation.
This
proposed
rule
defines
some
of
the
limits
of
EPA's
regulatory
jurisdiction
under
Subtitle
C
of
RCRA.
It
is
not
based
on
any
analysis
144
of
health
or
safety
risks.
EPA
believes
that
it
is
not
subject
to
Executive
Order
13045.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,

or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"

(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
Today's
proposed
rule
excludes
secondary
materials
reclaimed
within
the
generating
industry
from
RCRA
Subtitle
C
jurisdiction.
By
encouraging
reuse
and
recycling,
the
rule
may
save
energy
costs
associated
with
manufacturing
new
materials.

It
will
not
cause
reductions
in
supply
or
production
of
oil,
fuel,
coal,
or
electricity.
Nor
will
it
result
in
increased
energy
prices,
increased
cost
of
energy
distribution,
or
an
increased
dependence
on
foreign
supplies
of
energy.

I.
National
Technology
Transfer
and
Advancement
Act
of
1995
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA''),
Public
Law
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
rule
does
not
establish
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.
145
List
of
Subjects
40
CFR
Part
260
Administrative
practices
and
procedure,
Confidential
business
information,
Hazardous
waste
40
CFR
Part
261
Environmental
protection,
Hazardous
waste,
Recycling,
Reporting
and
recordkeeping
requirements
Dated:

Marianne
Lamont
Horinko,

Acting
Administrator
For
the
reasons
set
forth
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
proposed
to
be
amended
as
follows:

PART
260
 
HAZARDOUS
WASTE
MANAGEMENT
SYSTEM:
GENERAL
Subpart
C
 
[
Amended]

1.
The
authority
citation
for
part
260
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
6905,
6912(
a),
6921­
6927,
6930,
6934,
6935,
6937,
6938,
6939,

and
6974.
146
2.
Section
260.30
is
amended
by
removing
and
reserving
paragraph
(
b),
and
by
revising
paragraph
(
c)
to
read
as
follows:.

§
260.30
Variances
from
classification
as
solid
wastes.

*
*
*
*
*

(
c)
Materials
that
have
been
reclaimed
but
must
be
reclaimed
further
before
the
materials
are
completely
recovered.
If
the
materials
are
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry,
they
are
subject
to
the
exclusion
in
§
261.2(
g)
rather
than
the
standards
and
criteria
listed
in
§
261.31(
c).

§
260.31
­
[
Amended]

3.
Section
260.31
is
amended
by
removing
and
reserving
paragraph
(
b).

PART
261
 
IDENTIFICATION
AND
LISTING
OF
HAZARDOUS
WASTE
Subpart
A
 
[
Amended]

4.
The
authority
citation
for
part
261
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
6905,
6912(
a),
6921,
6922,
6924(
y),
and
6938.

5.
Section
261.2
is
amended
by:

a.
Revising
the
heading
for
Column
3
of
Table
1
in
paragraph
(
c)(
4)
to
read:

Reclamation
(
261.2(
c)(
3)),
except
for
materials
marked
with
an
"*"
that
are
generated
and
reclaimed
in
a
continuous
process
within
the
generating
industry,
as
provided
in
§
261.2(
g).

b.
Revising
paragraph
(
c)(
3).

c.
Removing
paragraph
(
e)(
1)(
iii).

d.
Adding
paragraphs
(
g)
and
(
h).

The
revisions
and
additions
read
as
follows:
147
§
261.2
Definition
of
solid
waste.

*
*
*
*
*

(
c)
*
*
*

(
3)
Reclaimed.
Materials
noted
with
a
"
 
"
in
column
3
of
Table
1
are
not
solid
wastes
when
reclaimed.
Materials
noted
with
an
"*"
in
column
3
of
Table
1
are
solid
wastes
except
when
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry,
as
provided
in
paragraph
(
g)
of
this
section
.

*
*
*
*
*

(
g)
Hazardous
secondary
materials
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.
(
1)
Spent
materials,
listed
sludges
and
listed
by­
products
that
are
identified
in
paragraph
(
c)(
3)
of
this
section
and
accompanying
Table
1
of
this
section
are
not
discarded,
and
therefore
are
not
solid
wastes,
if
they
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.
This
exclusion
does
not
apply,
however,
to
the
following
materials:

(
i)
Materials
that
are
inherently
waste­
like,
as
provided
in
paragraph
(
d)
of
this
section.

(
ii)
Materials
used
in
a
manner
constituting
disposal,
or
used
to
produce
products
that
are
applied
to
the
land,
as
provided
in
paragraph
(
c)(
1)
of
this
section.

(
iii)
Materials
burned
for
energy
recovery,
used
to
produce
a
fuel,
or
contained
in
fuels,

as
provided
in
paragraph
(
c)(
2)
of
this
section.

Option
1
for
paragraph
(
g)(
2):

(
2)
For
the
purposes
of
this
paragraph:

(
i)
Both
the
generation
and
reclamation
of
the
hazardous
secondary
materials
must
occur
within
a
single
industry
listed
in
Appendix
X
of
this
Subpart.
Such
reclamation
may
148
involve
one
or
more
processing
steps,
provided
that
all
steps
take
place
within
the
same
industry
in
which
the
secondary
material
was
generated,
and
that
such
reclamation
produces
a
product
or
ingredient
that
is
used
or
reused
without
further
reclamation.

Reclamation
steps
need
not
take
place
at
the
site
where
the
material
was
generated,

provided
such
reclamation
activities
take
place
within
the
generating
industry.

(
ii)
If
such
reclamation
produces
any
materials
that
are
sent
to
a
different
industry
for
further
reclamation,
those
materials
will
not
be
eligible
for
the
exclusion
in
paragraph
(
g)(
1)
of
this
section.
This
would
not,
however,
affect
the
exclusion
for
other
materials
that
are
generated
and
reclaimed
within
the
same
industry.

(
iii)
The
guidelines
and
industry
classifications
specified
in
Appendix
X
of
this
Part
must
be
used
to
identify
the
appropriate
industry
classification
of
each
establishment
that
generates
or
reclaims
materials
excluded
under
this
paragraph
(
g).
An
"
establishment"
for
the
purpose
of
this
paragraph
is
an
economic
unit,
generally
at
a
single
physical
location,

where
business
is
conducted
or
where
services
or
industrial
operations
are
performed.
An
establishment
is
the
smallest
such
unit
for
which
records
provide
information
on
the
cost
of
resources,
materials,
labor
and
capital
employed
to
produce
the
units
of
output.

(
iv)
Facilities
comprised
solely
of
establishments
engaged
in
waste
management
services
are
in
industries
not
eligible
for
this
exclusion.
This
includes
facilities
with
establishments
classified
under
NAICS
Codes
5621,
5622,
or
5629,
and
any
other
facility
that
reclaims
secondary
materials
received
from
off­
site
generators,
and
that
does
not
produce
any
products
made
from
non­
secondary
materials.
Hazardous
secondary
materials
sent
to
these
facilities
are
not
considered
to
be
generated
and
reclaimed
in
a
continuous
process
149
within
the
same
industry.

(
v)
If,
using
the
guidelines
in
Appendix
X
of
this
Part,
it
is
not
clear
whether
a
reclamation
unit,
process,
or
activity
is
part
of
the
same
industry
in
which
the
material
was
generated,

then
the
generation
and
reclamation
of
these
materials
will
be
presumed
to
occur
within
the
same
industry,
provided
that
the
reclamation
unit,
process,
or
activity
is
located
on­
site
(
as
defined
in
40
CFR
260.10)
with
respect
to
the
process
that
generated
the
material.

Option
2
for
paragraph
(
g)(
2):

(
2)
For
the
purposes
of
this
paragraph:

(
i)
Both
the
generation
and
reclamation
of
the
hazardous
secondary
materials
must
occur
within
a
single
industry
listed
in
Appendix
X
of
this
Subpart.
Such
reclamation
may
involve
one
or
more
processing
steps,
provided
that
all
steps
take
place
within
the
same
industry
in
which
the
secondary
material
was
generated,
and
that
such
reclamation
produces
a
product
or
ingredient
that
is
used
or
reused
without
further
reclamation.

Reclamation
steps
need
not
take
place
at
the
site
where
the
material
was
generated,

provided
such
reclamation
activities
take
place
within
the
generating
industry.

(
ii)
If
such
reclamation
produces
any
materials
that
are
sent
to
a
different
industry
for
further
reclamation,
those
materials
will
not
be
eligible
for
the
exclusion
in
paragraph
(
g)(
1).
This
would
not,
however,
affect
the
exclusion
for
other
materials
that
are
generated
and
reclaimed
within
the
same
industry.

(
iii)
The
guidelines
and
industry
classifications
specified
in
Appendix
X
of
this
Part
must
be
used
to
identify
the
appropriate
industry
classification
of
each
establishment
that
generates
or
reclaims
materials
excluded
under
this
paragraph
(
g).
An
"
establishment"
for
150
the
purpose
of
this
paragraph
is
an
economic
unit,
generally
at
a
single
physical
location,

where
business
is
conducted
or
where
services
or
industrial
operations
are
performed.
An
establishment
is
the
smallest
such
unit
for
which
records
provide
information
on
the
cost
of
resources,
materials,
labor
and
capital
employed
to
produce
the
units
of
output.

(
iv)
Facilities
comprised
solely
of
establishments
engaged
in
waste
management
services
are
in
industries
not
eligible
for
this
exclusion.
This
includes
facilities
with
establishments
classified
under
NAICS
Codes
5621,
5622,
or
5629,
and
any
other
facility
that
reclaims
secondary
materials
received
from
off­
site
generators,
and
that
does
not
produce
any
products
made
from
non­
secondary
materials.
Hazardous
secondary
materials
sent
to
these
facilities
are
not
considered
to
be
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.

(
v)
If,
using
the
guidelines
in
Appendix
X
of
this
Part,
it
is
not
clear
whether
a
reclamation
unit,
process,
or
activity
is
part
of
the
same
industry
in
which
the
material
was
generated,

then
the
generation
and
reclamation
of
these
materials
will
be
presumed
to
occur
within
the
same
industry,
provided
that
the
reclamation
unit,
process,
or
activity
is
located
on­
site
(
as
defined
in
260.10)
with
respect
to
the
process
that
generated
the
material.

(
vi)
The
exclusion
provided
under
this
paragraph
for
materials
that
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry
does
not
apply
if
the
reclamation
facility
also
recycles
hazardous
waste
from
a
different
industry.
151
(
3)
For
the
purpose
of
this
paragraph,
materials
are
generated
and
reclaimed
in
a
continuous
process
if:

(
i)
The
materials
are
not
handled
by
any
entity
or
facility
outside
of
the
generating
industry,
except
for
a
transporter;
and
(
ii)
The
materials
are
not
speculatively
accumulated,
as
defined
in
§
261.1(
c)(
8).

(
4)
Generators
of
secondary
materials
that
have
previously
been
subject
to
regulation
as
hazardous
wastes,
but
which
will
be
excluded
from
regulation
under
this
paragraph,
must
send
a
one­
time
notification
to
the
Regional
Administrator.
The
notification
must
identify
the
name,

address,
and
EPA
ID
number
(
if
applicable)
of
the
generator
facility;
the
name
and
phone
number
of
a
contact
person;
the
type
of
material
that
will
be
excluded;
and
the
industry
that
generated
the
material,
as
classified
according
to
Appendix
X
of
this
Part.

(
h)
Legitimate
Recycling.
Materials
that
are
not
legitimately
recycled
are
discarded
and
are
solid
wastes.
Persons
who
recycle
hazardous
wastes,
as
well
as
persons
claiming
to
be
excluded
from
hazardous
waste
regulation
under
§
261.2
or
§
261.4(
a)
because
they
are
engaged
in
recycling,

must
be
able
to
demonstrate
that
the
recycling
is
legitimate.
Moreover,
hazardous
wastes
must
be
legitimately
recycled
to
qualify
for
special
management
standards
under
40
CFR
261.6
and
40
CFR
Part
266.
Determinations
as
to
the
legitimacy
of
specific
recycling
activities
must
be
made
by
considering
whether:

(
1)
The
secondary
material
to
be
recycled
is
managed
as
a
valuable
commodity.
Where
there
is
an
analogous
raw
material,
the
secondary
material
should
be
managed
in
a
manner
consistent
with
the
management
of
the
raw
material.
Where
there
is
no
analogous
raw
material,

the
secondary
material
should
be
managed
to
minimize
the
potential
for
releases
to
the
152
environment.

(
2)
The
secondary
material
provides
a
useful
contribution
to
the
recycling
process
or
to
a
product
of
the
recycling
process
and
evaluating
this
criterion
should
include
consideration
of
the
economics
of
the
recycling
transaction.
The
recycling
process
itself
may
involve
reclamation,
or
direct
reuse
without
reclamation.

(
3)
The
recycling
process
yields
a
valuable
product
or
intermediate
that
is:

(
i)
Sold
to
a
third
party;
or
(
ii)
Used
by
the
recycler
or
the
generator
as
an
effective
substitute
for
a
commercial
product
or
as
an
ingredient
in
an
industrial
process.

(
4)
The
product
of
the
recycling
process:

(
i)
Does
not
contain
significant
amounts
of
hazardous
constituents
that
are
not
found
in
analogous
products;
and
(
ii)
Does
not
contain
significantly
elevated
levels
of
any
hazardous
constituents
that
are
found
in
analogous
products;
and
(
iii)
Does
not
exhibit
a
hazardous
characteristic
that
analogous
products
do
not
exhibit.

6.
Section
261.4
is
amended
by
deleting
and
reserving
paragraphs
(
a)(
6)
and
(
a)(
8),
and
by
revising
paragraphs
(
a)(
7),
(
a)(
10),
(
a)(
11),
(
a)(
13),
(
a)(
14),
(
a)(
17)
introductory
text
and
(
a)(
19)

and
by
adding
paragraph
(
a)(
9)(
iii)(
F)
to
read
as
follows:

(
a)
*
*
*

(
6)
[
Reserved]

(
7)
Spent
sulfuric
acid
used
to
produce
virgin
sulfuric
acid,
unless
it
is
accumulated
speculatively
153
as
defined
in
§
261.1(
c).
Spent
sulfuric
acid
that
is
reclaimed
to
produce
virgin
sulfuric
acid
in
a
continuous
process
within
the
generating
industry
is
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.

(
8)
[
Reserved]

(
9)
*
*
*

(
iii)
*
*
*

(
F)
If
the
products
of
this
recycling
practice
are
not
used
in
a
manner
constituting
disposal,
the
spent
wood
preserving
solutions
are
subject
to
the
exclusion
in
§
261.2(
g),

rather
than
this
paragraph,
provided
the
wood
preserving
solutions
are
generated
and
reclaimed
in
a
continuous
process
within
the
same
industry.

(
10)
EPA
Hazardous
Waste
Nos.
K060,
K087,
K141,
K142,
K143,
K144,
K145,
K147,
and
K148,
and
any
wastes
from
the
coke
by­
product
processes
that
are
hazardous
only
because
they
exhibit
the
Toxicity
Characteristic
(
TC)
specified
in
§
261.24
when,
subsequent
to
generation,

these
materials
are
recycled
to
coke
ovens,
to
the
tar
recovery
process
as
a
feedstock
to
produce
coal
tar,
or
mixed
with
coal
tar
prior
to
the
coal
tar's
sale
or
refining.
This
exclusion
is
conditioned
on
there
being
no
land
disposal
of
the
wastes
from
the
point
they
are
generated
to
the
point
they
are
recycled
to
coke
ovens
or
tar
recovery
or
refining
processes,
or
mixed
with
coal
tar.
If
the
wastes
described
above
in
this
paragraph
are
reclaimed
and
recycled
in
a
continuous
process
within
the
generating
industry
and
are
not
burned
for
energy
recovery,
they
are
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.

(
11)
Nonwastewater
splash
condenser
dross
residue
from
the
treatment
of
K061
in
high
temperature
metals
recovery
units,
provided
it
is
shipped
in
drums
(
if
shipped)
and
not
land
154
disposed
before
recovery.
If
the
residue
is
reclaimed
as
part
of
a
continuous
process
within
the
generating
industry,
it
is
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.

*
*
*
*
*

(
13)
Excluded
scrap
metal
(
processed
scrap
metal,
unprocessed
home
scrap
metal,
and
unprocessed
prompt
scrap
metal)
being
recycled.
If
the
scrap
metal
is
recycled
in
a
continuous
process
within
the
generating
industry,
it
is
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.

(
14)
Shredded
circuit
boards
being
recycled
provided
that
they
are
stored
in
containers
sufficient
to
prevent
a
release
to
the
environment
prior
to
recovery;
and
free
of
mercury
switches,
mercury
relays
and
nickel­
cadmium
or
lithium
batteries.
Shredded
circuit
boards
that
are
reclaimed
in
a
continuous
process
within
the
generating
industry
are
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.

*
*
*
*
*

(
17)
Spent
materials
(
as
defined
in
§
261.1)
(
other
than
hazardous
wastes
listed
in
subpart
D
of
this
part)
generated
within
the
primary
mineral
processing
industry
from
which
minerals,
acids,

cyanide,
water,
or
other
values
are
recovered
by
beneficiation,
provided
that:

*
*
*
*
*

(
19)
Spent
caustic
solutions
from
petroleum
refining
liquid
treating
processes
used
as
a
feedstock
to
produce
cresylic
or
naphthenic
acid
unless
the
material
is
placed
on
the
land,
or
accumulated
speculatively
as
defined
in
§
261.1(
c).
Such
spent
caustic
solutions
that
are
reclaimed
in
a
continuous
process
within
the
generating
industry
are
subject
to
the
exclusion
in
§
261.2(
g),
rather
than
this
paragraph.
155
*
*
*
*
*

7.
Part
261
is
amended
by
adding
new
Appendix
X,
to
read
as
follows:

Appendix
X
to
Part
261­
Industries
for
the
Purpose
of
§
261.2(
g)

(
a)
This
Appendix
defines
"
industry"
for
the
purposes
of
§
261.2(
g).
It
does
not
affect
other
industry
definitions
within
40
CFR
Parts
260
through
283.

(
b)
Primary
Mineral
Processing
Industry.
For
the
purpose
of
this
Appendix,
an
establishment
falls
within
the
primary
mineral
processing
industry
if
it:
(
1)
involves
operations
that
follow
beneficiation
of
an
ore
or
mineral;
(
2)
serves
to
remove
the
desired
product
from
or
enhance
the
characteristics
of
and
ore
or
mineral
or
a
beneficiated
ore
or
mineral;
(
3)
uses
feedstock
that
is
comprised
of
less
than
50
percent
scrap
materials;
(
4)
produces
either
a
final
or
an
intermediate
to
the
final
mineral
product,
and
(
5)
does
not
combine
the
mineral
product
with
another
material
that
is
not
an
ore
or
mineral,
or
beneficiated
ore
or
mineral
(
e.
g.,
alloying)
and
does
not
involve
fabrication
or
other
manufacturing
activities.

(
c)
Petroleum
Refining
Industry.
This
industry
is
defined
as
petroleum
refining,
exploration,

production
and
bulk
storage,
and
transportation
incident
thereto,
as
specified
in
40
CFR
261.4(
a)(
12).

(
d)
All
other
industries
are
classified
using
the
following
categories;
these
classifications
must
be
made
in
accordance
with
the
reference
document
"
North
American
Industry
Classification
System"
or
NAICS,
effective
January
1,
2002:

1111
Oilseed
and
Grain
Farming
1112
Vegetable
and
Melon
Farming
156
1113
Fruit
and
Tree
Nut
Farming
1114
Greenhouse,
Nursery,
and
Floriculture
Production
1119
Other
Crop
Farming
1121
Cattle
Ranching
and
Farming
1122
Hog
and
Pig
Farming
1123
Poultry
and
Egg
Production
1124
Sheep
and
Goat
Farming
1125
Animal
Aquaculture
1129
Other
Animal
Production
1131
Timber
Tract
Operations
1133
Logging
1141
Fishing
1142
Hunting
and
Trapping
1151
Support
Activities
for
Crop
Production
1152
Support
Activities
for
Animal
Production
1153
Support
Activities
for
Forestry
2111
Oil
and
Gas
Extraction
2121
Coal
Mining,

2122
Metal
Ore
Mining
2123
Nonmetallic
Mineral
Mining
and
Quarrying
2131
Support
Activities
for
Mining
2211
Electric
Power
Generation,
Transmission
and
Distribution
157
2212
Natural
Gas
Distribution
2213
Water,
Sewage
and
Other
Systems
2361
Residential
Building
Construction
2362
Nonresidential
Building
Construction
2371
Utility
System
Construction
2372
Land
Subdivision
2379
Other
Heavy
and
Civil
Engineering
Construction
2381
Foundation,
Structure,
and
Building
Exterior
Contractors
2382
Building
Equipment
Contractors
2383
Building
Finishing
Contractors
2389
Other
Specialty
Trade
Contractors
3111
Animal
Food
Manufacturing
3112
Grain
and
Oilseed
Milling
3113
Sugar
and
Confectionery
Product
Manufacturing
3114
Fruit
and
Vegetable
Preserving
and
Specialty
Food
Manufacturing
3115
Dairy
Product
Manufacturing
3116
Animal
Slaughtering
and
Processing
3117
Seafood
Product
Preparation
and
Packaging
3118
Bakeries
and
Tortilla
Manufacturing
3119
Other
Food
Manufacturing
3121
Beverage
Manufacturing
3122
Tobacco
Manufacturing
1
Although
this
industry
classification
may
include
establishments
in
the
petroleum
refining
industry,
note
that
as
specified
in
subparagraph
(
c)
of
this
Appendix,
the
petroleum
refining
industry
for
the
purpose
of
the
exclusion
in
§
261.2(
g)
is
defined
at
§
261.4(
a)(
12).

158
3131
Fiber,
Yarn,
and
Thread
Mills
3132
Fabric
Mills
3133
Textile
and
Fabric
Finishing
and
Fabric
Coating
Mills
3141
Textile
Furnishings
Mills
3149
Other
Textile
Product
Mills
3151
Apparel
Knitting
Mills
3152
Cut
and
Sew
Apparel
Manufacturing
3159
Apparel
Accessories
and
Other
Apparel
Manufacturing
3161
Leather
and
Hide
Tanning
and
Finishing
3162
Footwear
Manufacturing
3169
Other
Leather
and
Allied
Product
Manufacturing
3211
Sawmills
and
Wood
Preservation
3212
Veneer,
Plywood,
and
Engineered
Wood
Product
Manufacturing
3219
Other
Wood
Product
Manufacturing
3221
Pulp,
Paper,
and
Paperboard
Mills
3222
Converted
Paper
Product
Manufacturing
3231
Printing
and
Related
Support
Activities
3241
Petroleum
and
Coal
Products
Manufacturing1
3251
Basic
Chemical
Manufacturing
3252
Resin,
Synthetic
Rubber,
and
Artificial
Synthetic
Fibers
and
Filaments
Manufacturing
2
Although
this
industry
classification
may
include
establishments
in
the
mineral
processing
industry,
note
that
for
the
purpose
of
the
exclusion
provided
in
§
262.2(
g),
the
mineral
processing
industry
is
defined
in
subparagraph
(
b)
of
this
appendix.

159
3253
Pesticide,
Fertilizer,
and
Other
Agricultural
Chemical
Manufacturing
3254
Pharmaceutical
and
Medicine
Manufacturing
3255
Paint,
Coating,
and
Adhesive
Manufacturing
3256
Soap,
Cleaning
Compound,
and
Toilet
Preparation
Manufacturing
(
except
for
third­
party
operations
that
reclaim
dry
cleaning
fluids
at
sites
that
do
not
conduct
dry­
cleaning).

3259
Other
Chemical
Product
and
Preparation
Manufacturing
(
except
for
third­
party
operations
that
reclaim
degreasing
solvents
at
sites
that
do
not
conduct
degreasing
operations).

3261
Plastics
Product
Manufacturing
3262
Rubber
Product
Manufacturing
3271
Clay
Product
and
Refractory
Manufacturing
3272
Glass
and
Glass
Product,
Manufacturing
3273
Cement
and
Concrete
Product
Manufacturing
3274
Lime
and
Gypsum
Product
Manufacturing
3279
Other
Nonmetallic
Mineral
Product
Manufacturing2
3311
Iron
and
Steel
Mills
and
Ferro
alloy
Manufacturing2
3312
Steel
Product
Manufacturing
from
Purchased
Steel2
3313
Alumina
and
Aluminum
Production
and
Processing2
3314
Nonferrous
Metal
(
except
Aluminum)
Production
and
Processing2
160
3315
Foundries
3321
Forging
and
Stamping
3322
Cutlery
and
Handtool
Manufacturing
3323
Architectural
and
Structural
Metals
Manufacturing
3324
Boiler,
Tank,
and
Shipping
Container
Manufacturing
3325
Hardware
Manufacturing
3326
Spring
and
Wire
Product
Manufacturing
3327
Machine
Shops;
Turned
Product;
and
Screw,
Nut,
and
Bolt
Manufacturing
3328
Coating,
Engraving,
Heat
Treating,
and
Allied
Activities
3329
Other
Fabricated
Metal
Product
Manufacturing
3331
Agriculture,
Construction,
and
Mining
Machinery
Manufacturing
3332
Industrial
Machinery
Manufacturing
3333
Commercial
and
Service
Industry
Machinery
Manufacturing
3334
Ventilation,
Heating,
Air­
Conditioning,
and
Commercial
Refrigeration
Equipment
Manufacturing
3335
Metalworking
Machinery
Manufacturing
3336
Engine,
Turbine,
and
Power
Transmission
Equipment
Manufacturing
3339
Other
General
Purpose
Machinery
Manufacturing
3341
Computer
and
Peripheral
Equipment
Manufacturing
3342
Communications
Equipment
Manufacturing
3343
Audio
and
Video
Equipment
Manufacturing
3344
Semiconductor
and
Other
Electronic
Component
Manufacturing
161
3345
Navigational,
Measuring,
Electromedical,
and
Control
Instruments
Manufacturing
3346
Manufacturing
and
Reproducing
Magnetic
and
Optical
Media
3351
Electric
Lighting
Equipment
Manufacturing
3352
Household
Appliance
Manufacturing
3353
Electrical
Equipment
Manufacturing
3359
Other
Electrical
Equipment
and
Component
Manufacturing
3361
Motor
Vehicle
Manufacturing
3362
Motor
Vehicle
Body
and
Trailer
Manufacturing
3363
Motor
Vehicle
Parts
Manufacturing
3364
Aerospace
Product
and
Parts
Manufacturing
3365
Railroad
Rolling
Stock
Manufacturing
3366
Ship
and
Boat
Building
3369
Other
Transportation
Equipment
Manufacturing
3371
Household
and
Institutional
Furniture
and
Kitchen
Cabinet
Manufacturing
3372
Office
Furniture
(
including
Fixtures)
Manufacturing
3379
Other
Furniture
Related
Product
Manufacturing
3391
Medical
Equipment
and
Supplies
Manufacturing
3399
Other
Miscellaneous
Manufacturing
4231
Motor
Vehicle
and
Motor
Vehicle
Parts
and
Supplies
Merchant
Wholesalers
4232
Furniture
and
Home
Furnishing
Merchant
Wholesalers
4233
Lumber
and
Other
Construction
Materials
Merchant
Wholesalers
4234
Professional
and
Commercial
Equipment
and
Supplies
Merchant
Wholesalers
162
4235
Metal
and
Mineral
(
except
Petroleum)
Merchant
Wholesalers
4236
Electrical
and
Electronic
Goods
Merchant
Wholesalers
4237
Hardware,
and
Plumbing
and
Heating
Equipment
and
Supplies
Merchant
Wholesalers
4238
Machinery,
Equipment,
and
Supplies
Merchant
Wholesalers
4239
Miscellaneous
Durable
Goods
Merchant
Wholesalers
4241
Paper
and
Paper
Product
Merchant
Wholesalers
4242
Drugs
and
Druggists'
Sundries
Merchant
Wholesalers
4243
Apparel,
Piece
Goods,
and
Notions
Merchant
Wholesalers
4244
Grocery
and
Related
Product
Wholesalers
4245
Farm
Product
Raw
Material
Merchant
Wholesalers
4246
Chemical
and
Allied
Products
Merchant
Wholesalers
4247
Petroleum
and
Petroleum
Products
Merchant
Wholesalers
4248
Beer,
Wine,
and
Distilled
Alcoholic
Beverage
Merchant
Wholesalers
4249
Miscellaneous
Nondurable
Goods
Merchant
Wholesalers
4251
Wholesale
Electronic
Markets
and
Agents
and
Brokers
4411
Automobile
Dealers
4412
Other
Motor
Vehicle
Dealers
4413
Automotive
Parts,
Accessories,
and
Tire
Stores
4421
Furniture
Stores
4422
Home
Furnishings
Stores
4431
Electronics
and
Appliance
Stores
4441
Building
Material
and
Supplies
Dealers
163
4442
Lawn
and
Garden
Equipment
and
Supplies
Stores
4451
Grocery
Stores
4452
Specialty
Food
Stores
4461
Health
and
Personal
Care
Stores
4471
Gasoline
Stations
4481
Clothing
Stores
4482
Shoe
Stores
4483
Jewelry,
Luggage,
and
Leather
Goods
Stores
4511
Sporting
Goods,
Hobby,
and
Musical
Instrument
Stores
4512
Book,
Periodical,
and
Music
Stores
4521
Department
Stores
4529
Other
General
Merchandise
Stores
4531
Florists
4532
Office
Supplies,
Stationery,
and
Gift
Stores
4533
Used
Merchandise
Stores
4539
Other
Miscellaneous
Store
Retailers
4541
Electronic
Shopping
and
Mail­
Order
Houses
4542
Vending
Machine
Operators
4543
Direct
Selling
Establishments
4811
Scheduled
Air
Transportation
4812
Nonscheduled
Air
Transportation
4821
Rail
Transportation
164
4831
Deep
Sea,
Coastal,
and
Great
Lakes
Water
Transportation
4832
Inland
Water
Transportation
4841
General
Freight
Trucking
4842
Specialized
Freight
Trucking
4851
Urban
Transit
Systems
4852
Interurban
and
Rural
Bus
Transportation
4853
Taxi
and
Limousine
Service
4854
School
and
Employee
Bus
Transportation
4855
Charter
Bus
Industry
4859
Other
Transit
and
Ground
Passenger
Transportation
4861
Pipeline
Transportation
of
Crude
Oil
4862
Pipeline
Transportation
of
Natural
Gas
4869
Other
Pipeline
Transportation
4871
Scenic
and
Sightseeing
Transportation,
Land
4872
Scenic
and
Sightseeing
Transportation,
Water
4879
Scenic
and
Sightseeing
Transportation,
Other
4881
Support
Activities
for
Air
Transportation
4882
Support
Activities
for
Rail
Transportation
4883
Support
Activities
for
Water
Transportation
4884
Support
Activities
for
Road
Transportation
4885
Freight
Transportation
Arrangement
4889
Other
Support
Activities
for
Transportation
165
4911
Postal
Service
4921
Couriers
4931
Warehousing
and
Storage
5111
Newspaper,
Periodical,
Book,
and
Directory
Publishers
5112
Software
Publishers
5121
Motion
Picture
and
Video
Industries
5122
Sound
Recording
Industries
5151
Radio
and
Television
Broadcasting
5152
Cable
and
Other
Subscription
Programming
5161
Internet
Publishing
and
Broadcasting
5171
Wired
Telecommunications
Carriers
5172
Wireless
Telecommunications
Carriers
(
except
Satellite)

5173
Telecommunications
Resellers
5174
Satellite
Telecommunications
5175
Cable
and
Other
Program
Distribution
5179
Other
Telecommunications
5181
Internet
Service
Providers
and
Web
Search
Portals
5182
Data
Processing,
Hosting,
and
Related
Services
5191
Other
Information
Services
5211
Monetary
Authorities
­
Central
Bank
5221
Depository
Credit
Intermediation
5222
Nondepository
Credit
Intermediation
166
5223
Activities
Related
to
Credit
Intermediation
5231
Securities
and
Commodity
Contracts
Intermediation
and
Brokerage
5232
Securities
and
Commodity
Exchanges
5239
Other
Financial
Investment
Activities
5241
Insurance
Carriers
5242
Agencies,
Brokerages,
and
Other
Insurance
Related
Activities
5251
Insurance
and
Employee
Benefit
Funds
5259
Other
Investment
Pools
and
Funds
5311
Lessors
of
Real
Estate
5312
Offices
of
Real
Estate
Agents
and
Brokers
5313
Activities
Related
to
Real
Estate
5321
Automotive
Equipment
Rental
and
Leasing
5322
Consumer
Goods
Rental
5323
General
Rental
Centers
5324
Commercial
and
Industrial
Machinery
and
Equipment
Rental
and
Leasing
5331
Lessors
of
Nonfinancial
Intangible
Assets
(
except
Copyrighted
Works)

5411
Legal
Services
5412
Accounting,
Tax
Preparation,
Bookkeeping,
and
Payroll
Services
5413
Architectural,
Engineering,
and
Related
Services
5414
Specialized
Design
Services
5415
Computer
Systems
Design
and
Related
Services
5416
Management,
Scientific,
and
Technical
Consulting
Services
167
5417
Scientific
Research
and
Development
Services
5418
Advertising
and
Related
Services
5419
Other
Professional,
Scientific,
and
Technical
Services
5511
Management
of
Companies
and
Enterprises
5611
Office
Administrative
Services
5612
Facilities
Support
Services
5613
Employment
Services
5614
Business
Support
Services
5615
Travel
Arrangement
and
Reservation
Services
5616
Investigation
and
Security
Services
5617
Services
to
Buildings
and
Dwellings
5619
Other
Support
Services
Note:
NAICS
Category
562,
Waste
Management
and
Remediation
Services
is
not
included
in
appendix
X.

5629
Remediation
and
Other
Waste
Management
Services
6111
Elementary
and
Secondary
Schools
6112
Junior
Colleges
6113
Colleges,
Universities,
and
Professional
Schools
6114
Business
Schools
and
Computer
and
Management
Training
6115
Technical
and
Trade
Schools
6116
Other
Schools
and
Instruction
6117
Educational
Support
Services
168
6211
Offices
of
Physicians
6212
Offices
of
Dentists
6213
Offices
of
Other
Health
Practitioners
6215
Medical
and
Diagnostic
Laboratories
6216
Home
Health
Care
Services
6219
Other
Ambulatory
Health
Care
Services
6221
General
Medical
and
Surgical
Hospitals
6223
Specialty
(
except
Psychiatric
and
Substance
Abuse)
Hospitals
6231
Nursing
Care
Facilities
6232
Residential
Mental
Retardation,
Mental
Health
and
Substance
Abuse
Facilities
6233
Community
Care
Facilities
for
the
Elderly
6239
Other
Residential
Care
Facilities
6241
Individual
and
Family
Services
6242
Community
Food
and
Housing,
and
Emergency
and
Other
Relief
Services
6243
Vocational
Rehabilitation
Services
6244
Child
Day
Care
Services
7111
Performing
Arts
Companies
7112
Spectator
Sports
7113
Promoters
of
Performing
Arts,
Sports,
and
Similar
Events
7114
Agents
and
Managers
for
Artists,
Athletes,
Entertainers,
and
Other
Public
Figures
7115
Independent
Artists,
Writers,
and
Performers
7121
Museums,
Historical
Sites,
and
Similar
Institutions
169
7131
Amusement
Parks
and
Arcades
7132
Gambling
Industries
7139
Other
Amusement
and
Recreation
Industries
7211
Traveler
Accommodation
7212
RV
(
Recreational
Vehicle)
Parks
and
Recreational
Camps
7213
Rooming
and
Boarding
Houses
7221
Full­
Service
Restaurants
7222
Limited­
Service
Eating
Places
7223
Special
Food
Services
7224
Drinking
Places
(
Alcoholic
Beverages)

8111
Automotive
Repair
and
Maintenance
8112
Electronic
and
Precision
Equipment
Repair
and
Maintenance
(
except
recycling
inkjet
cartridges
when
conducted
off­
site
as
a
service
provided
by
a
third
party
reclaimer
that
does
not
conduct
repair
of
office
machines.)

8113
Commercial
and
Industrial
Machinery
and
Equipment
(
except
Automotive
and
Electronic)

Repair
and
Maintenance
8114
Personal
and
Household
Goods
Repair
and
Maintenance
8121
Personal
Care
Services
8122
Death
Care
Services
8123
Dry­
cleaning
and
Laundry
Services
8129
Other
Personal
Services
8131
Religious
Organizations
170
8132
Grantmaking
and
Giving
Services
8133
Social
Advocacy
Organizations
8134
Civic
and
Social
Organizations
8139
Business,
Professional,
Labor,
Political,
and
Similar
Organizations
8141
Private
Households
9211
Executive,
Legislative,
and
Other
General
Government
Support
9221
Justice,
Public
Order,
and
Safety
Activities
9231
Administration
of
Human
Resource
Programs
9241
Administration
of
Environmental
Quality
Programs
9251
Administration
of
Housing
Programs,
Urban
Planning,
and
Community
Development
9261
Administration
of
Economic
Programs
9271
Space
Research
and
Technology
9281
National
Security
and
International
Affairs
171
