Revisions to the Definition of Solid Waste Final Rule 

Response to Comments Document 

Summaries and Responses

October 1, 2008

Note: 	This version of the Response to Comments Document contains the
Agency’s summaries of the comments received on various topics related
to the rulemaking and the Agency’s responses to those comments. The
Agency has also made available a version of the Response to Comment
Document that includes the commenter’s language that is being
summarized in each section’s Summary. That version of the Response to
Comment Document is titled “Response to Comment Document: Comment
Excerpts, Summaries, and Responses” and is also available in the
rulemaking docket,   HYPERLINK
"https://fdms.erulemaking.net/fdms-web-agency/component/agencyInbox?Relo
ad=1222966142653&__dmfFrameId=AgencyMain_content_0" \l "#" \o "edit this
docket"  EPA-HQ-RCRA-2002-0031 .

To locate the particular sections in which a specific comment is
addressed in the Response to Comment document, please see the index,
found at the end of the document. Note that many excerpts are attached
to more than one section. 

Table of Contents

Section Number	Section Title						Page

1			Overall scope of supplemental proposal…..………………	10

2			EPA's authority to regulate recycling……...………………	14

2.1			Specific to the concept of
“discard”……………………….	14

2.1.1.			Secondary materials that are legitimately 

recycled are not discarded…………………………………	14

General comments that recycling cannot be 

considered discarded………………………………………	14

2.1.1.2.		Implications of the AMC I court case……………………..
22

2.1.1.3.		Implications of the ABR court
case………………………..	24

2.1.1.4.		Implications of the Safe Food
case………………………..	26 2.1.1.5.		Recycled "scrap" is not
discarded…………………………	29

2.1.1.6.		Secondary materials that are recycled are only solid 

wastes if shown to be discarded……………………………	30

2.1.1.7.		Materials transferred for recycling are not abandoned…….
32

2.1.1.8.		EPA needs to address when materials become solid waste..	34

2.1.1.9.		Congressional report
language…………………………….	35

2.1.1.10.		Other laws address recycled
materials…………………….	36

2.1.2.			Secondary materials used, reused, or recycled in an 

ongoing production process are not discarded and should 

not be subject to conditions………………………………..	36

2.1.3.			EPA's proposed exclusions inappropriately deregulate 

materials that are discarded………………………………..	42

2.1.3.1.		Proposed exclusion for hazardous secondary materials 

recycled under the control of the generator is unrelated 

to discard………………………………………………….	54

2.1.3.2.		EPA should evaluate each type of hazardous secondary 

material in making recycling determinations…………….	61

2.1.3.3.		2003 proposal lacks data to support the exclusion………..
64

2.1.4.			EPA's 2007 proposed exclusions have appropriately 

focused on the concept of discard…………………………	68

2.1.5.			EPA inappropriately imposes conditions on materials 

that are not discarded………………………………………	70

2.1.5.1.		“Contained” and
discard…………………………………..	71

2.1.5.2.		Reasonable efforts and
discard……………………………	76

2.1.5.3.		Financial assurance and
discard…………………………..	82

2.1.5.4.		“Generator-controlled” and
discard……………………….	83

2.1.5.5.		Speculative accumulation and discard…………………….
85

2.1.6.			Conditions in the proposal are not sufficient to protect 

against discard and must be strengthened………………..	86

2.2.			Other matters of consistency of regulation with court 

rulings and statutory responsibilities……………………..	95

2.2.1.			2003 proposal inappropriately "parses" the court decision 

and is not linked to discard………………………………..	97

3.			Recycling studies………………………………………….
100

3.1.			Successful recycling study………………………………..
101

3.1.1.			Scope of successful recycling study………………………
101

3.1.2.			Methodology of successful recycling study……………….
102

3.1.3.			Findings of successful recycling study…………………….
103

3.1.4.			Additional information not included in successful 

recycling study…………………………………………….	105

3.2.			Environmental problems study (only 2003 comments)……	106

3.2.1.			Scope and methodology of environmental problems study..	109

3.2.2.			Findings of environmental problems study………………..
110

3.2.3.			Additional information for the environmental problems 

study………………………………………………………	114

3.3.			Market forces study……………………………………….
116

4.			General comments on the 2003 proposal and comparison 

with the 2007 proposal, including use of NAICS to define 

“same industry”…………….………………………………
119

5.			Requirements/ conditions applicable to all exclusions…….	122

5.1.			Speculative accumulation………………………………….
122

5.2.		
Notification………………………………………………...
125

5.2.1.			Notification
requirements………………………………….	137

5.2.2. 			Format of notification and use of Subtitle C Site 

Identification form…………………………………………	147

5.2.3.			Requirement that the notification be signed by an 

authorized representative…………………………………..	150

5.2.4.			Maintain notification at facility rather than submitting to 

regulatory authority………………………………………..	152

5.2.5.			Require renotification if any of the information in the 

original notice changes…………………………………….	153

5.3.			Definitions of
terms………………………………………..	157

6.			Exclusion for hazardous secondary materials that are 

legitimately reclaimed under the control of the generator: 

general support or opposition………………………………	159

6.1.			Hazardous secondary materials generated and reclaimed 

at the generating facility……………………………………	160

6.1.1.			Should facilities under separate ownership but located at 

the same site be included within this proposed exclusion?...	161

6.1.2.			Other definitions which might be equally compatible 

with generator control as the definitions proposed in 

today's notice……………………………………………….
164

6.2.			Hazardous secondary materials generated and reclaimed 

by the same company………………………………………	166

6.3.			Hazardous secondary materials generated and reclaimed 

under a tolling contract…………………………………….	171

6.4.			Management requirements for hazardous secondary 

materials managed under the control of the generator……..	178

6.5.			Enforcement of the exclusion for hazardous secondary 

materials managed under the control of the generator……..	189

7.			Conditional exclusion for hazardous secondary materials 

that are transferred for the purpose of reclamation 

("broader exclusion")………………………………………	193

7.1.			Purpose and intent of proposed exclusion…………………	193

7.1.1.			Support for broader
exclusion……………………………..	193

7.1.1.1. 		Additional conditions needed to support the broad 

exclusion...............................................................
................	194

7.1.1.2.		Additional conditions are not needed for broader 

exclusion…………………………………………………..	196

7.1.2.			Opposition to broader exclusion…………………………..
197

7.1.2.1.		Additional information needed to evaluate broader 

exclusion…………………………………………………..	201

7.2.			Scope and applicability of proposed conditional exclusion..	205

7.3.			Brokers, intermediate facilities, and multiple reclaimers….	206

7.4.			Conditions specific for generators…………………………
212

7.4.1.			Reasonable efforts
condition………………………………	212

7.4.1.1.		Questions that reasonable efforts must address at a 

minimum…………………………………………………..	221

7.4.1.1.1.		Question (A) notification and financial assurance………..
229

7.4.1.1.2.		Question (B) equipment and trained personnel for safe 

recycling………………………………………………….	231

7.4.1.1.3.		Question (C) compliance
history………………………….	233

7.4.1.1.4.		Question (D) recyclable material providing useful 

contribution............................................................
..............	235

7.4.1.1.5.		Question (E) recycled product generally traded commodity.
237

7.4.1.1.6.		Question (F) residuals
management……………………….	239

7.4.1.2.		Reasonable efforts applies only to non-permitted facilities..
241

7.4.1.3.		Reasonable efforts to include only questions (A) and (F)…
244

7.4.1.4.		Relationship between reasonable efforts and legitimacy ….
244

7.4.1.5.		Scope of a typical
audit……………………………………	249

7.4.1.6.		Frequency of periodically updating reasonable efforts……
253

7.5.			Conditions specific for reclaimers…………………………
255

7.5.1.			Storage of recyclable
materials……………………………	255

7.5.1.1.		Requirement to manage materials in same manner as 

analogous raw materials and to contain…………………..	255

7.5.1.2.		Alternatives to proposed storage condition, including 

if more specific terms for storage should be set…………..	256

7.5.1.3.		No storage condition
needed………………………………	260

7.5.2.			Management of recycling residuals……………………….
260

7.5.2.1.		Manage any residuals that are generated from reclamation

 			processes in a manner protective of human health and 

the environment……………………………………………	261

7.5.2.2.		Whether “derived from” principle should be used to 

regulate management of recycling residuals………………	262

7.5.3.			Financial assurance requirements…………………………
268

7.5.3.1.		Support for financial assurance condition…………………
269

7.5.3.2.		Opposition to financial assurance condition………………
270

7.5.3.3.		Suggested changes to financial assurance condition………
272

7.5.3.3.1.		Adjust language of Subpart H for exempt facilities………
272

7.5.3.3.2.		Closure plan needed to document costs…………………..
273

7.5.3.3.3.		Require copies of financial assurance documents to be 

sent to regulatory authority………………………………..	273

7.5.3.3.4.		Set minimum standards for financial assurance…………..
273

7.5.3.3.5.		Less stringent financial assurance requirements for 

reclaimers……………….………………………………..	274

7.5.3.3.6.		Study the availability of financial assurance coverage…..
274

7.5.3.3.7.		Provide cost estimate
guidance…………………………..	275

7.5.3.4.		Alternative approaches to 40 CFR Part 265 Subpart H.....	275

7.5.4.			Provisions allowing reclamation facilities to claim 

conditional exclusion even if generator chooses to 

manage secondary materials as hazardous waste…………	276

7.5.5.			Other conditions for generators and reclaimers…………..
277

7.6.			Recordkeeping…………………………………………….
288

7.6.1.			Recordkeeping requirements……………………………..
293

7.6.2.			Confirmations of
receipt………………………………….	303

7.6.3. 			Periodic
reports……………………………………………	305

7.6.4.			Documentation of reasonable efforts……………………..
317

7.6.5.			Certification of reasonable
efforts………………………..	321

7.7.			Imports/Exports…………………………………………..
324

7.7.1.			Export
requirements………………………………………	332

7.7.2.			Exports under the control of the generator……………….
337

7.7.3.			Exports to OECD countries……………………………….
339

7.8.			Enforcement………………………………………………
341

8.			Non-waste determination…………………………………	346

8.1.			Purpose/ intent of non-waste determination………………	346

8.2.			Non-waste determination for hazardous secondary 

material reclaimed in a continual industrial process………	357

8.2.1.			Definition of
“continuous”………………………………..	357

8.2.2.			Capacity of the production process to use material in a 

reasonable time frame…………………………………….	364

8.2.3.			Whether the hazardous constituents in the secondary 

material are reclaimed rather than released to air, land, 

or water at significantly higher concentrations than 

would otherwise be released by the production process….	366

8.3.	Non-waste determination for hazardous secondary materials
indistinguishable in all relevant aspects from a product or
intermediate…………………………………………….…	368

8.4.	Non-waste determination for hazardous secondary materials reclaimed
under the control of the generator via a tolling arrangement or similar
contractual agreement……………	370 

8.5.			Non-waste determination process…………………………	372

9.			General comments on changes to legitimacy……………..	376

9.1.			Change in structure for legitimacy………………………..
379

9.1.1.			The 2007 proposed structure for legitimacy is 

appropriate….……………………………………………..	379

9.1.2.			The 2007 proposed structure for legitimacy is 

not appropriate……………………………………………..	380

9.1.3.			All legitimacy factors should/ should not be mandatory…..	383

9.1.3.1.		Make all legitimacy factors mandatory……………………
384

9.1.3.2.		Make all legitimacy factors non-mandatory……………….
386	

9.1.3.3.		Clarify legitimacy
structure……………………………….	388

9.1.4.			The legitimacy factors should/ should not be codified……	390

9.1.4.1.		Codify the legitimacy
factors……………………………..	392

9.1.4.2.		Do not codify the legitimacy
factors………………………	394

9.2.			General comments on the legitimacy factors……………..	398

9.2.1.			General comments on the mandatory factors of legitimacy.	401

9.2.1.1.		General comments on Legitimacy Factor 1: 

useful contribution…….…………………………………..	401

9.2.1.1.1.		Support for Factor
1….………………………………...….	402

9.2.1.1.2.		Opposition to Factor
1……………………………………..	403

9.2.1.1.3.		Consideration of economics for useful contribution 

(only 2003 comments)…………………………………….	404

9.2.1.1.4.	
Other………………………………………………………	407

9.2.1.1.4.1.		Factor 1: Contribution to the
process……….……………..	407	

9.2.1.1.4.2.		Factor 1: Efficiency of the
process………….…………….	408

9.2.1.1.4.3.		Factor 1:
Residuals………………………………………..	410	

9.2.1.1.4.4.		Implementation of Factor
1……………………………….	411	

9.2.1.1.4.5.		Factor 1: Miscellaneous
comments……………………….	411	

9.2.1.2.		General comments on legitimacy Factor 2: Valuable 

product or intermediate……………………………………	412

9.2.1.2.1.		Support for Factor
2……………………………………….	413

9.2.1.2.2.		Opposition to Factor
2…………………………………….	414

9.2.1.2.3.		Factor 2: Definition of
“valuable”………………………..	415

9.2.1.2.4.		Factor 2: Miscellaneous comments……………………….
419

9.2.2.			General comments on the factors to be considered in 

a legitimacy determination………………………………..	420

9.2.2.1.		General comments on Legitimacy Factor 3: Managed 

as a valuable commodity…………………………………..	422

9.2.2.1.1.		Support for Factor
3……………………………………….	424

9.2.2.1.2.		Opposition to Factor
3……………………………………..	424

9.2.2.1.3.		Factor 3: Management
standards…………………………..	431

9.2.2.1.4.		Factor 3: Definition of
“valuable”…………………………	438

9.2.2.1.5.		Factor 3: Definition of
“analogous”…….…………………	439

9.2.2.1.6.		Factor 3: Standard to minimize the potential for releases…
441

9.2.2.1.7.		Factor 3: The effect on existing
exclusions……………….	442

9.2.2.1.8.		Factor 3: Miscellaneous comments……………………….
443

9.2.2.2.		General comments on Legitimacy Factor 4: Toxics 

along for the ride………………………………………….	444

9.2.2.2.1.		Support for Factor
4……………………………………….	446

9.2.2.2.2.		Opposition to Factor
4…………………………………….	447

9.2.2.2.3.		Factor 4: Definition of
“significance”…………………….	451

9.2.2.2.4.		Factor 4: Evaluate toxics in the secondary material 

or in the product…………………………………………...	455

9.2.2.2.5.		Factor 4: Comments on regulating products of recycling…
458

9.2.2.2.6.		Factor 4: Products that exhibit a hazardous
characteristic…	460

9.2.2.2.7.		Factor 4: Bright line
approach……………………………..	462

9.2.2.2.8.		Factor 4: Risk-based
approach…………………………….	465 9.2.2.2.9.		Factor 4:
Miscellaneous comments………………………..	467

9.2.2.2.10.		Implementation concerns regarding Factor
4……………...	469	

9.2.2.2.11.		Factor 4:
Scope…………………………………………….	472

9.2.2.2.12.		Factor 4: Relevance of TARs to
legitimacy……………….	474

9.2.2.2.13.		Factor 4: Risk
concerns…………………………………….	476

9.2.2.2.14.		Factor 4: Application of factor on a case-by-case
basis……	478

9.2.3.			Consideration of economics for legitimate recycling………
478

9.2.3.1.		Preamble discussion about consideration of economics 

for legitimacy………………………………………………	478

9.2.3.2.		Regulatory requirement for consideration of economics 

for legitimacy………………………………………………	480

9.2.4.			Additional legitimacy criteria/factors that should be 

considered……….…………………………………………	482

9.3.			Purpose and intent of legitimacy factors…………………..
483

9.3.1.			How legitimacy factors compare to the guidance on 

legitimacy………………………………………...………..
488

9.3.2.			Examples of how legitimacy, as described in 2007, might 

apply to processes………………………………………….	491

9.3.3.			Examples of how legitimacy, as described in 2003, might 

apply to processes………………………………………….	492

9.4.			Industry-specific examples of legitimate recycling……….	493

9.4.1.			Examples of cases where the legitimacy factors are 

not relevant………………………………………………...
493

9.4.2.			Examples where legitimacy factors are not met, but 

recycling is legitimate……………………………………..	494	

9.5.			Enforcement and documentation/ demonstration 

of legitimacy……………………………………………….	496

9.6.			Other approaches to legitimate recycling………………….
498

10.			Effects of the Proposed Rule on other programs………….	500

10.1.			Conforming changes to existing exclusions………………	501

10.1.1.			Definition of metals
recovery……………………………..	503

10.1.2.			Should a regulated entity be allowed to choose which 

exclusion to follow in those cases where more than one 

exclusion could apply and, if so, should the entity be 

required to document the choice made?...............................	504

10.2.			Effects on RCRA permitted or interim status facilities……	512

10.2.1.			Should EPA allow a facility to either (1) "close" a unit 

without physically removing the now-excluded materials 

or (2) defer closure until the end of the unit's 

operating life?..……………………………………………	515

10.2.1.1.		Should EPA allow financial assurances obtained for closure 

be redirected to address corrective action?..........................
517

10.2.2.			Corrective action under the
exclusion…………………..…	518

10.3.			CERCLA/ Superfund………………………………………
523	

11.			Applicability of rules in authorized states…………………
526

12.			Administrative rulemaking requirements………………….	530	

12.1.			EO 12866: Regulatory planning and review………………	530

12.2.			Paperwork reduction act (ICR)…………………………….
561

12.3.			Unfunded mandates reform act……………………………
563

12.4.			EO 13132: Federalism…………………………………….
564

12.5.			EO13045: Children's health………………………………..
566

12.6.			EO 12898: Environmental justice…………………………
566

13.			Other/ Miscellaneous………………………………………
570

13.1.			Other suggested
revisions………………………………….	570

13.1.1.			Alternative to proposed
exclusions………………………..	570

13.1.2.			Other suggested changes to regulations…………………...
573

13.1.3.			Regulatory interpretations for specific hazardous 

secondary materials………………………………………..	575

13.2.			Burning for energy recovery and use constituting 

disposal are outside the scope of the proposed 

regulations…………………………………………………	577

Index of Commenters to the October 2003 Proposed

Rule and the March 2007 Supplemental Proposal …….	581

1 - Overall Scope of Supplemental Proposal

1 - Summary

General Support

Many commenters were generally supportive of EPA's March 2007
supplemental proposal to revise the definition of solid waste and urged
EPA to finalize the proposal as soon as possible.  Commenters believed
that the proposed rule, by deregulating certain materials that are
recycled by being reclaimed, presents recycling opportunities for
industry with respect to material reclamation and reuse as opposed to
waste management, and that the proposal strikes an appropriate balance
between removing regulatory barriers and EPA's mandate to maintain
environmental protections.  By including in the proposal a broad range
of options, the Agency is encouraging a full spectrum of comment.  In
some cases, commenters objected to some aspects of the proposal as being
potentially regulatory or burdensome, including many of the conditions
of the exclusion and the application of legitimacy criteria to existing
exclusions.   In supporting the proposed revisions, commenters noted
that they believe that the current regulations are unnecessarily
restrictive and impose burdens, both regulatory and monetary, on
industry related to monitoring, record keeping, testing, insurance
premiums, material handling, transportation requirements, compliance,
and enforcement.  They noted that according to EPA’s vision for RCRA, 
"any effort to diminish the distinctions between what are now considered
'wastes' (particularly wastes now identified as hazardous) and
'materials' must not ignore legitimate needs to protect humans and the
environment from risks posed by hazardous chemicals." (US EPA, Office of
Solid Waste. "Beyond RCRA, Waste and Materials Management in the Year
2020." EPA530-R-02-009. April 2003.)  Commenters said that EPA should
also recognize the significant improvements in waste management that
have been made over the two decades since the establishment of RCRA: 
"In these past twenty years waste management practices have improved
tremendously. Uncontrolled dumping of hazardous industrial wastes has
decreased dramatically…" (US EPA, Office of Solid Waste. "Beyond RCRA,
Waste and Materials Management in the Year 2020." EPA530-R-02-009. April
2003.)  Commenters noted that beneficial reuse and recycling: 1)
provides substitutes for virgin raw materials and prevents the pollution
generated by their manufacture, 2) reduces the need for petroleum-based
solvents, with its implications for energy independence, 3) is
consistent with the goals of RCRA to prevent pollution and minimize
waste and 4) is consistent with U.S. Energy policy by minimizing
petroleum use and import. On the other hand, not reusing and recycling
1) increases hazardous waste generation and the risks associated with
it, 2) increases off-site hazardous waste transportation and disposal,
and the risks associated with them, 3) increases greenhouse gases
because organic waste materials are usually combusted and 4) increases
manufacturing costs unnecessarily.  Uncertainty in the regulatory scheme
with respect to recycling materials effectively eliminates recycling
opportunities.  They urged EPA to balance the need for assurance of
environmental protection with the thought that each regulatory
requirement serves to further burden recycled materials as they attempt
to compete with analogous virgin materials which carry no such burden.

[0072, 0093, 0112, 0122, 0168, 0184, 0190, 0222, 0441, 0443, 0451, 0452,
0453, 0454, 0456, 0458, 0463, 0464, 0467, 0471.1, 0471.2, 0473, 0478,
0485, 0486, 0491, 0492, 0493, 0494, 0495, 0500, 0501, 0503, 0507, 0510,
0511, 0517, 0519, 0520 0521, 0523, 0525, 0528, 0535, 0537, 0544, 0545,
0546, 0551, 0555]

Opposition 

Other commenters, while supportive of the goals of the March 2007
supplemental proposal, did not support the specific exclusions from the
definition of solid waste included in the proposal. Commenters stated
that it is important that the safety of human health and the environment
is protected during the legitimate recycling of secondary material and
that "sham recycling" is prohibited. The proposed revisions to the
definition of solid waste contain a number of provisions which are
intended to do just that, and those provisions should be maintained in
the final rule. However, there are some additional provisions which, if
added, would make the rule more protective without impacting the ability
to safely and legitimately recycle secondary materials.  While recycling
and reclamation of hazardous waste should be encouraged, hazardous
waste, by its very name, is the waste that the EPA should most closely
regulate as a matter of protecting the environment and public health. 
Deregulation makes sense only if inspection and enforcement are
sufficient to prevent its abuse. Once a secondary material is exempted
from being a solid or hazardous waste, waste regulatory controls are
essentially gone.  If the material is mismanaged, CERCLA, or Air or
Water programs become the avenues to deal with the mismanagement.  One
example would be scrap yards. Reclamation of metal is a good thing, but
there can be consequences.  Scrap metal being recycled is excluded from
hazardous waste regulation with the end result commonly being
contaminated soils at yards from accumulated scrap metal that exhibited
hazardous waste toxicity characteristics (TCs). The metals, though TC,
were not hazardous waste because of the exemption.  Commenters note that
the rule would encompass sludges and by-products that are listed
hazardous wastes, scrap metal, and listed or characteristic spent
materials. This is a large amount of hazardous waste that is currently
safely recycled under RCRA.  EPA's own regulatory impact analysis shows
that the proposed rule will encourage very little new recycling. 
Commenters believe that to eliminate RCRA safeguards with respect to
more than 90% of these hazardous wastes that are currently reclaimed in
order to encourage a small percentage increase in recycling seems to
violate common sense and EPA's mandate to protect public health and the
environment.  The commenter said EPA must address how the benefits of
this small increase in materials recycled could possibly outweigh the
potential costs of environmental damage cause by uncontrolled storage,
untracked shipments, and recycling sites that ultimately require
remediation, as evidenced by the damage cases surveyed in the comments. 
 Commenters argued that the current recycling opportunities became
available because of the current regulatory system, not despite it. If
finalized, the proposal would create a duality within states that adopt
it: They would have to supervise and enforce both the existing
regulatory requirements for reclaimers operating under the current
system as well as the provisions of the new rule, which are largely left
to the generators and reclaimers to implement, after the generator has
made a one-time notification that it is switching from the old system to
the new.  Commenters urged EPA to improve its current approach by
treating all forms of recycling in an equitable manner and adopting
changes that actually will increase recycling of hazardous wastes while
maintaining a reasonable regulatory regime that will continue to ensure
appropriate management of these secondary materials. Preferably, the
improved approach should be technically supported, proven to be
environmentally safe, provide adequate tracking measures, and possess
demonstrably positive economic and recycling effects.

[0119, 0172, 0430, 0450, 0457, 0458, 0459, 0460, 0461, 0462, 0470, 0475,
0479, 0482, 0484, 0530, 0531, 0532, 0536, 0539, 0543, 0563, 0564]

Still other commenters opposed the proposed changes to the regulations,
both in concept and execution, viewing them as unacceptable and
impermissible attempts on the part of EPA to remove entire waste streams
from RCRA's protective and mandatory regulations.  Commenters believe
that, given its myriad legal deficiencies, unsupported and arbitrary
assumptions, and tremendous data gaps, EPA must withdraw this proposed
regulation and instead work to ensure the proper handling,
transportation, treatment, storage, disposal, and recycling of solid
waste within RCRA's scheme.  Commenters questioned the goal of the
proposed revisions, and state that while recycling and reclamation of
wastes is an activity that should be encouraged, it must not be promoted
at the expense of public safety and the environment.  Preferential
treatment of recycling is also likely to disadvantage more appropriate
waste prevention/reduction priorities, and thus is inappropriate. 
Indeed, recycling enterprises can be every bit as polluting as those not
involved in recycling and are in no need of a let-down in appropriate
regulatory rigor. Commenters believe that by releasing so much hazardous
waste from regulation, in the face of overwhelming evidence of the
damage caused by recycling these wastes, this rule abrogates the
fundamental mission of RCRA to ensure that the generation, treatment,
storage and disposal of hazardous waste does not harm human health or
the environment.  In the process, the proposed rule promises to do very
little to promote resource conservation or recovery. Commenters state
that because the record clearly does not support this proposed action,
the rule is arbitrary, capricious and contrary to law. Commenters
requested that EPA withdraw the regulation and take steps to provide the
necessary regulation of hazardous wastes that RCRA and Congress demand.

One commenter asserted that while EPA purports that this proposed rule
is "improved," it unfortunately is not really much more than a poorly
conceived, somewhat deceptive and rehashed obfuscation attempt through
"self-regulation" and "re-defining" hazardous wastes as either
non-regulated hazardous wastes, or not wastes at all. The exact same
efforts have been perpetuated with "universal wastes," "oils,"
"E-waste," and numerous other hazardous wastes that when tested, fail
EPA's Characteristics but which have been improperly removed from the
true universe of hazardous wastes with their concomitant criminal
penalties through EPA rules, regulatory revisions, and interpretive
memos/  This has given the American public the inaccurate perception
that hazardous waste generation in the United States is under control
and in decline, when in fact, it actually remains at least as high as
when the hazardous waste regulations were initially promulgated on May
19, 1980. The commenter believes that what these and all of the other
self-implementing "recycling" generator or facility requirements have in
common is that such "leniency" discourages wise long-term financial
investment in the commercial hazardous waste management industry,
allowing charlatans, greedy short-term management, and evil-doers to
invade and slowly (thus far) destroy the industry, and perhaps more
importantly, cause environmental problems (fires, explosions,
groundwater contamination, etc.) which subject industrial employees and
the public at large to unnecessary risks, and which the public pays for,
Agencies spend unpaid time correcting, or, which go uncorrected. In
fact, other "leniencies" in the federal hazardous waste management
regulations which are then imposed in the States and have been ongoing
for over five years now have already begun to increase the frequency of
fires & explosions at commercial  treatment, storage and disposal
facilities (see "Wind, Chemicals Fuel Eau Claire Fire, Explosion"
article, June 22, 2007) and elsewhere (see Draft (not yet finalized)
Final Report of the Waste and Hazardous Materials Division, Fire &
Explosions Task Force, Michigan DEQ, November 1, 2005). Commenters
believe that as a result, the ill-conceived proposed loosening of
existing regulations of this proposal will actually create fires,
explosions, Superfund and other clean-up sites (irrespective of whether
they are properly cleaned up or not) and unnecessarily exposes
industrial workers and the public at large to toxic releases.
Essentially, long-term costs (especially clean-ups) are ignored or
inappropriately transferred to the public sector, spent costs are
imposed on society and not the complicit party or parties, and, the
"polluter pays" principle is circumvented.  Commenters stated that both
management diligence and enforced strict hazardous waste management
regulations are necessary for proper and effective hazardous waste (or
"hazardous secondary material") management to preclude returning to the
horrible conditions of the 1970s.

If EPA truly believes that certain legitimate hazardous waste recycling
facilities and/or activities at generators are being precluded by the
current hazardous waste management regulations, then those facilities
and/or activities should take advantage of the petition (variance)
procedure at 40 CFR 260.22 which has existed since May 19, 1980 just for
this very purpose, and if any hazardous waste generator or "recycling"
facility and/or activity is unwilling to be subject to the light of
public scrutiny, then they have no legitimate reason to exist in our
great country.

One commenter stated that even if it was believed that there was a
legitimate reason to de-regulate recycling rules; this should be done in
the rules, and not in the definitions. This is especially true when such
definitional changes are absolutely inconsistent with global definitions
for materials which some would seek to trade on the global market. 
Definitions of solid waste and hazardous waste should be defined in a
technical, scientific manner, based on the intrinsic characteristics of
a material.  They should not become political or policy footballs booted
around at the whim of a particular interest group or policy vogue.  A
material does not magically become less hazardous simply because it is
recycled. It still presents every aspect of inherent risk and in fact
recycling operations can often compound that risk in comparison with
final disposal.  The commenter stated that creating a new definition of
"hazardous secondary raw materials" creates an unnecessary level of
complexity in an already absurdly complicated Act, while creating a
definition and regime completely out of step with all international
waste trade rules.  In a globalized world, operating as a lone wolf
makes exploitation by US exporters easy, makes ratification of global
rules almost impossible in the future, and makes legitimate waste trade
with other countries impossible or at least extremely confusing.  

[0480, 0502, 0559, 0564]

1 - Response

EPA appreciates the time and effort all commenters have made in
reviewing the proposals and providing thoughtful comments.  The purpose
of this final rule is to encourage safe, environmentally sound recycling
and resource conservation in keeping with several court decisions
concerning the definition of solid waste.  The final rule uses
restrictions and conditions to properly define when a hazardous
secondary material is not "discarded" and therefore not a solid waste. 
For each of the restrictions and conditions, EPA has provided an
explanation of why the record demonstrates that they are needed to
properly identify solid wastes and/or to provide information to oversee
compliance with the regulations.   EPA has responded to specific issues
raised by the commenters in the sections of the response to comment
document that follow.

2 - EPA's Authority to Regulate Recycling

2.1 - Specific to the concept of "discard"

2.1.1 - Secondary materials that are legitimately recycled are not
discarded

2.1.1.1 - General comments that recycling cannot be considered discard

2.1.1.1 - Summary

Many comments on both the October 2003 proposal and the March 2007
supplemental proposal asserted that hazardous secondary materials that
are legitimately recycled are not discarded.  Subtitle C of RCRA
authorizes EPA to regulate the management of "hazardous wastes." To be a
hazardous waste, a material must fit the definition of a "solid waste."
42 U.S.C. 6903(5). RCRA defines the term "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,
including solid, liquid, semisolid or contained gaseous material,
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities.  Commenters said that by
proposing conditions and restrictions to the proposed exclusions to the
definition of solid waste, the Agency continues to unlawfully extend its
RCRA regulatory reach to materials that the courts have said are not
"discarded." Commenters stated that EPA's regulatory definition of solid
waste has, at various times, both reached materials that are plainly not
discarded and been based on broad and arbitrary assumptions. 

Some commenters noted that the approach under the March 2007
supplemental proposal appropriately focused on discard, but that it
still failed to fix the threshold problem of equating recycling with
discard.  Commenters instead urged EPA to exclude the legitimate
recycling of all secondary materials from its RCRA Subtitle C
jurisdiction by revising its definition of "discarded material" at 40
C.F.R. 261.2(a)(2) to remove the term "recycled" from the definition of
solid waste and to mirror the holding of the Court, i.e., "discarded
material" is material that is "disposed of, abandoned or thrown away." 
While some commenters agreed with EPA's finding that hazardous secondary
materials destined for "sham recycling" are discarded and, hence, are
solid wastes for Subtitle C purposes.  However, these comments said that
EPA seems to believe that all recycling is presumptively "sham
recycling" and that the secondary materials involved are therefore solid
wastes, unless they fall into one of the narrow recycling exclusions
identified in 40 CFR 261.2(e) or 261.4(a).  The commenters found that
this presumption is the faulty regulatory foundation upon which EPA's
present requirements are built, claiming that the court has made clear
on a number of occasions that EPA did not and does not have the
statutory authority to regulate the legitimate recycling of secondary
materials in the first place. Commenters believe that to now define a
proposed fix to this faulty foundation as "deregulatory" is clearly
misleading - the legitimate recycling of secondary materials should not
have been "regulated" as solid waste activity in the first place. 
[0048-1, 0048-3, 0074-1, 0082-1, 0082-6, 0082-9, 0082-11, 0082-15,
0083-1, 0083-4, 0083-23, 0091-1, 0091-7, 0093-4, 0093-11, 0093-14,
0093-16, 0097-2, 0097-7, 0097-23, 0099-1, 0100-2, 0102-1, 0102-15,
0102-18, 0106-4, 0107-1, 0122-7, 0123-2, 0123-4, 0123-12, 0126-2,
0126-10, 0127-18, 0129-20, 0137-1, 0138-9, 0149-1,  0150-1, 0152-1,
0168-4, 0173-2, 0176-1, 0179-1, 0190-7, 0197-1, 0199-3, 0203-1, 0215-1,
0225-11, 0472-5, 0472-6, 0472-7, 0481-3, 0481-28, 0481-29, 0481-30
0486-18, 0518-2, 0520-1, 0549-5, 0550-2, 0557-1]  

2.1.1.1 - Response

EPA disagrees with comments asserting that hazardous secondary materials
that are legitimately recycled are never discarded.  Recycling, by
itself, cannot be used to determine whether a material is a solid waste
or a hazardous waste and, conversely, the Agency in no way equates all
recycling with discard.  Both materials that have been discarded and
materials that have not been discarded may be legitimately recycled. 
The final rule regulations, to the extent they exclude materials from
the definition of solid waste, deal with secondary materials that are
not discarded in the first instance and are recycled by being reclaimed.
 EPA has determined that various restrictions and conditions are needed
to assure that these materials are not so discarded.  The sections of
the rulemaking record discussing these restrictions and conditions
provide the reasons why these restrictions and conditions are needed. 
However, discarded materials that are, therefore, solid wastes, and are
also hazardous wastes by virtue of their effects on human health or the
environment, may also be recycled.  Recycling of hazardous wastes must
be legitimate, but also must comply with applicable RCRA Subtitle C
regulations.  

Further, these comments badly misread RCRA in claiming that recycling
may not be regulated under RCRA.  As EPA noted in both the October 2003
proposal and the March 2007 supplemental proposal, the RCRA statute and
the legislative history state that Congress expected EPA to regulate as
solid and hazardous wastes certain materials that are destined for
recycling (see 45 FR 33091, citing numerous sections of the statute and
U.S. Brewers' Association v. EPA, 600 F. 2d 974 (D.C. Cir. 1979); 48 FR
14502-04, April 3, 1983; and 50 FR 616-618). Moreover, the case law
clearly shows instances where EPA properly regulated the recycling of
solid and hazardous wastes. 

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

(1) 	The statute and the legislative history suggest that Congress
expected EPA to regulate as solid and hazardous wastes certain materials
that are destined for recycling (see 45 FR 33091, citing numerous
sections of the statute and U.S. Brewers' Association v. EPA, 600 F. 2d
974 (D.C. Cir. 1979); 48 FR 14502-04, April 3, 1983; and 50 FR 616-618).

(2) 	Hazardous secondary materials stored or transported prior to
recycling have the potential to present the same types of threats to
human health and the environment as hazardous wastes stored or
transported prior to disposal. In fact, EPA found that recycling
operations have accounted for a number of significant damage incidents.
For example, hazardous secondary materials destined for recycling were
involved in one-third of the first 60 filings under RCRA's imminent and
substantial endangerment authority, and in 20 of the initial sites
listed under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) (48 FR 14474, April 4, 1983). Congress also cited
some damage cases which involve recycling. (H.R. Rep. 94-1491, 94th
Cong., 2d Sess., at 17, 18, 22). More recent data (i.e., information on
damage incidents occurring after 1982) included in the rulemaking docket
for today's final rule corroborate the fact that recycling operations
can result in significant damage incidents. 

(3) 	Unconditionally excluding all hazardous secondary materials claimed
to be destined for recycling would allow materials to move in and out of
the hazardous waste management system depending on what any person
handling the hazardous secondary material intended to do with them. This
seems inconsistent with the mandate to track hazardous wastes and
control them from "cradle to grave." 

Hence, RCRA confers jurisdiction over at least certain hazardous
secondary materials destined for recycling.  

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

With respect to the comment that EPA should remove references to
"recycling" from its current definition of solid waste, EPA notes the
following.  EPA's current regulations at 40 CFR 261.2(c) provide that
material is a solid waste if it is recycled by being (1) used in a
manner constituting disposal, (2) burned for energy recovery, (3)
reclaimed, or (4) accumulated speculatively.  This rule changes the
reclamation part of the regulation.  The speculative accumulation
condition, as has been noted in this rulemaking record, has been a
critical part of the definition of solid waste for many years.  EPA has
explained in the rulemaking record why it is not, at this time,
modifying the subsections referring to "use constituting disposal" or
"burning for energy recovery."  EPA has not asked for comment on these
issues and could not develop a record to establish appropriate general
conditions for these types of recycling.  Instead, the Agency believes
that these types of recycling are more appropriately dealt with in
separate rulemakings.  However, the Agency notes that there currently
are regulations that exclude certain types of recycling that involve use
constituting disposal and burning for energy recovery.  

EPA notes that comments addressed in this section, which state that
legitimate recycling of hazardous secondary material is never discard, 
are contrasted by comments in section 2.1.3,  which state  that
recycling of hazardous secondary material is always discard.  For the
edification of both extreme positions expressed by comments, EPA
suggests the following reading of the applicable cases to set forth the
basic parameters for establishing the criteria to determine whether a
material is a solid waste under RCRA.  Some of this is repeated
elsewhere in the rulemaking record, but EPA believes that the response
to these comments provides a useful forum for providing these basic
parameters.  EPA, in this rule, is attempting to strike a balance among
the various principles expressed in these cases and has learned from
errors and incorrect arguments made in the past.  

EPA, under RCRA, only has jurisdiction over material that can be defined
as a solid waste, which under RCRA § 1004(27) means

 

". . . any garbage, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility and other
discarded material, including solid, liquid, semisolid or contained
gaseous material, resulting from industrial, commercial, mining, and
agricultural operations, and from community activities. . . ." 42 U.S.C.
§ 6903(27) 

This definition turns on the meaning of the phrase, "other discarded
material," which is the term that encompasses all other examples
provided in the definition.  The courts have focused on this term in
deciding whether EPA has properly considered a material a solid waste.  

The basic formulation of what constitutes a solid waste under RCRA is
provided in American Mining Congress v. EPA, 824 F.2d 1177 (D.C. Cir.
1987) ("AMC I"), where the court noted that the ordinary plain-English
meaning of the term discarded means "disposed of," "thrown away," or
"abandoned."  The court rejected the more expansive meaning, advocated
by EPA at the time, that discard under RCRA would encompass any
materials "no longer useful in their original capacity" even if they
were not destined for disposal.  824 F.2d at 1185-87.  If these
materials do not become part of the waste disposal problem (i.e., they
are not discarded), they are not solid wastes.  Id.  

Because certain materials destined for recycling are saved and reused by
the producer, rather than thrown away or abandoned, the court set aside
an EPA rule regulating secondary "materials reused within an ongoing
industrial process."  824 F.2d at 1182.  This formulation was reiterated
and confirmed in Association of Battery Recyclers v. EPA, 208 F.3d 1047,
1052 (D.C. Cir. 2000) ("ABR"), as well as in American Petroleum
Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000) ("API II"). The
plain-English meaning of the term, "discard," thus provides the operable
jurisdictional standard for determining whether a material is a solid
waste and the D.C. Circuit, which is the primary court that deals with
these issues, has been very clear that EPA needs to show that materials
are discarded to consider them solid wastes.  

Subsequent to AMC I, the Court of Appeals had the opportunity to clarify
the meaning of discard.  In American Petroleum Institute v. EPA, 906
F.2d 729 (D.C. Cir. 1990) ("API I") plaintiffs challenged EPA's decision
not to regulate zinc-bearing slag generated from air pollution control
equipment in steel industry electric furnaces that was subsequently
transported to a metals reclamation facility.  EPA reasoned that the
waste "ceases to be a 'solid waste' when it arrives at a metals
reclamation facility because at that point it is no longer 'discarded
material.'"  906 F.2d at 740.  The Agency concluded, based almost
entirely on the Court's decision in AMC I, that RCRA leaves it no choice
but to disclaim regulatory authority over the recycled slag, even though
the material was clearly discarded when it came out of the electric
furnace.  Id.  The court, however, found that "Congress has not spoken
precisely on the question of EPA's authority to regulate the slag."  906
F.2d at 741.  Because EPA improperly decided it had no discretion to
cover the recycled slag, the court remanded the rule to the Agency.  Id.
 

The court rejected EPA's position that it was precluded from regulating
the slag as a solid waste when it arrived at the metals reclamation
facility.  906 F.2d at 741.  In fact, the court opined that it is at
least an equally plausible interpretation of the statute that the slag
remains discarded throughout the process.  906 F.2d at 740.  The court
distinguished AMC I because, unlike the materials in that case which
were part of an ongoing industrial process, the materials in API I were
part of a mandatory waste treatment plan for hazardous wastes prescribed
by EPA.  906 F.2d at 741.  

Nevertheless, there are other court pronouncements that suggest certain
limitations on EPA's ability to define what is a solid waste.  For
example, the API I opinion specifically rejected the argument made by
interveners in the lawsuit that EPA could not regulate the recycling of
the slag because treatment at the smelter "results in the production of
something of value, namely, reclaimed metals."  906 F.2d at 741 n.16
(citing AMC I for the fact that discarded oil sold for value may be
regulated as a waste).  The court, thus, rejects a reading of RCRA that
says a material is not a waste simply because the material has value. 
Wastes can have value.  See also United States v. ILCO Inc., 996 F.2d
1126, 1131 (11th Cir. 1993) discussed below.  

In American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) ("AMC
II"), industry groups challenged EPA's authority to regulate three
hazardous waste sludges from copper, lead and zinc production that the
Agency had listed.  See 907 F.2d at 1183.  Petitioners argued that these
materials are "beneficially reused in mineral processing operations." 
907 F.2d at 1185.  They claimed that these wastewater sludges are stored
in surface impoundments, "may at some time in the future be reclaimed"
and, therefore, are not discarded.  906 F.2d at 1186.  The agency,
however, concluded that, because these sludges are the product of
wastewater and are  stored in impoundments that threaten harm, these
materials are discarded.  906 F.2d at 1187.  

As in API I, the court determined that Congress had not spoken to the
precise question at issue, so the Court had to decide whether the EPA's
interpretation of discard was reasonable and consistent with the
statute.  907 F.2d at 1186-87.  The Court, accordingly, deferred to
EPA's expert judgment that secondary material that "may" in the future
be reclaimed was discarded.  907 F.2d at 1186.  In fact, the court noted
that "API explicitly rejected the very claim that petitioners assert in
this case, . . . that under RCRA, potential reuse of a material prevents
the agency from classifying it as 'discarded.'"  Id.  The Court could
find nothing in the statute or legislative history to show that the
meaning of the term discard was "any less ambiguous regarding sludges
stored in surface impoundments than it was regarding the materials at
issue" in API I, and rejected the applicability of AMC I because in that
case the materials were "destined for beneficial reuse or recycling in a
continuous process by the generating industry itself" and, thus, were
not discarded.  Id.  

The point that a material does not cease to be a waste solely because it
has value is supported by United States v. ILCO Inc., 996 F.2d 1126
(11th Cir. 1993).  In ILCO, an enforcement case against a lead smelter
that recycled car and truck batteries to produce lead ingot product for
sale, the issue was whether lead components of the batteries recycled by
the smelter were solid wastes.  Clearly the lead ingots were products
and not wastes, but the issue was whether the recycled components were
solid wastes because they were discarded previously.  If the components
were solid wastes, they would be subject to RCRA regulation as hazardous
wastes (because of the lead constituent) and the waste materials from
the smelter would be hazardous wastes.  The court found that the
batteries and their components were solid wastes (and hazardous wastes)
because they were discarded "within the everyday sense of the word" as
noted in AMC I and their "character as recyclable material is irrelevant
to that determination."  996 F.2d at 1132.  

As in the case of API I and AMC II, the Court found that Congress had
not spoken to the precise question at issue.  996 F.2d at 1130.  The
Court found that EPA had reasonably construed recycled batteries to be
solid waste because they had been previously discarded.  996 F.2d at
1131.  However, the fact that the materials are solid wastes by virtue
of having been discarded "does not change just because a reclaimer has
purchased or finds value in the components."  Id.  Again, consistent
with API I and AMC II the Court stated,

"Were we to rule otherwise, waste such as these batteries would arguably
be exempt from regulation under RCRA merely because they are potentially
recyclable.  Previously discarded solid waste, although it may at some
point be recycled, nonetheless remains solid waste." [Id]

Owen Steel v. Browner, 37 F.3d 146 (4th Cir. 1994), was another case in
which the court deferred to EPA's determination that certain material is
a solid waste under RCRA and, as in ILCO, found that subsequent
recycling did not "divest EPA of jurisdiction."  37 F.3d at 150 n.4 
(noting that in ILCO "once the batteries were discarded, . . .
subsequent treatment is irrelevant.").  At Owen Steel's plant certain
materials were used in the steel-making process but afterwards floated
to the surface of the molten metal and were removed.  37 F.3d at 147. 
This "slag" then underwent a six month "curing" process in which it was
placed in holding bays, lay on bare soil for tempering and weathering,
underwent changes where its bulk increased substantially, became stable
and, as a result, became amenable for use as a construction aggregate. 
Id.  The material was sold for use as a road base material and other
commercial construction purposes.  The court found that, because the
material was not "immediately" recycled, as the material of concern in
AMC I, but sat for six months before it was sold to another party, EPA
did not abuse its discretion in finding the material was discarded.  37
F.3d at 150.  

The next significant RCRA definition of solid waste case was Association
of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000) ("ABR"). 
This case was a review of an EPA rule covering residual or secondary
materials generated in mining and mineral processing operations.  Under
EPA's rule, if materials were properly stored under conditions imposed
by EPA, they could be recycled without being considered solid wastes
(and also hazardous wastes).  203 F.3d at 1051.  Industry petitioners
claimed EPA exceeded its statutory authority because the rule said that
secondary material held for recycling in production is a waste.  Id. 
The court held that EPA's rule violated the principles expressed in AMC
I because the manner of storage imposed by the rule resulted in
regulating materials that were reclaimed within a continuous industrial
process.  203 F.3d at 1053-4.  

The value of ABR for our purposes is that it reviewed the previous
definition of solid waste cases.  203 F.3d at 1054-6.  The court
clarified the point that AMC I recognizes EPA authority over "discarded"
materials, such as discarded used oil, but emphasized that EPA goes
beyond its authority when it covers material that is "undiscarded," such
as oil not discarded at petroleum refineries.  203 F.3d at 1054-5.  The
court did not opine on whether there could be "undiscarded" used oil
sold by one entity to another.  

The ABR court also noted that the term, discard, "may be ambiguous as
applied to some situations, but not as applied to others."  203 F.3d at
1056.  This indicates that EPA needs to exercise its discretion with
care.  The court expressed its concern that the rule in ABR was
essentially too broad.  Storage conditions imposed clearly would result
in regulation of material that is part of a continuous process as in AMC
I.  However, other materials would be properly regulated because they
were more like the materials in AMC II - abandoned or thrown away.  203
F.3d at 1056.  In this regard the court criticized all parties in the
case - industry as well as EPA - because they "presented this aspect of
the case in broad abstraction, providing little detail about the many
processes throughout the industry that generate residual material of the
sort EPA is attempting to regulate . . . ."  Id.   

The court also distinguished AMC II and API I by stating that the point
of those cases 

". . . is that once material qualifies as "solid waste," [footnote
omitted] something derived from it retains that designation even if it
might be reclaimed and reused at some future time.  In contrast, the
[rule at issue in ABR] seeks to regulate materials that are not a
by-product of solid waste, but a direct byproduct of industrial
processes. " 203 F.3d at 1056.  

American Petroleum Institute v. EPA, 216 F.3d 50, 55 (D.C. Cir. 2000)
("API II"), decided shortly after ABR and considered by the court at the
same time, provides further guidance for defining solid waste but in the
context of two specific waste streams in the petroleum refining
industry.  Thus, the principles of defining solid waste here have a more
concrete application.  In API II, EPA issued a rule that stated
oil-bearing wastewaters are solid waste (and hazardous waste) under RCRA
and that recovered oil from petrochemical facilities is excluded from
the definition of solid waste only when specified conditions are met. 
216 F.3d at 55.  The court overturned EPA's determination on the oil
bearing wastewaters, 216 F.3d at 55-58, and upheld the petrochemical
recovered oil exclusion, 216 F.3d at 58-59.  

For the oil-bearing wastewaters EPA had determined that the first phase
of treatment, primary treatment, results in a waste being created.  216
F.3d at 55.  This phase removes certain materials from the wastewaters,
including the oil in them.  This treatment meets regulatory requirements
that wastewaters must not have oil in them when discharged but also
allows refineries to recover oil which is cycled back into the refinery
production process.  

Industry petitioners claimed discard did not happen until after primary
treatment when the oil had been recovered.  EPA found discard occurred
before primary treatment.  No one disputed discard at later treatment
phases.  EPA argued that oil recovered from the wastewater is
insignificant, that removal of oil was mandated by regulation and that,
therefore, wastewater treatment is the main purpose of the systems in
question, not oil recovery.  Id.  

The court reviewed all the previous cases and explained how they were
all consistent for the basic reasons noted above.  213 F.3d at 55-57. 
The court noted that the ultimate determination that had to be made was
whether primary treatment is "simply a step in the act of discarding? 
Or is it the last  step in a production process before discard?"  213
F.3d at 57.  The prior cases did not draw a line for deciding when
discard has occurred because they had only drawn on broad principles or
dealt with materials that were either clearly discarded (as determined
by EPA within its discretion) or clearly not discarded.  Id.  

The API II court stated that AMC I only held that in-process secondary
materials are not discarded and rejected industry arguments that AMC I
decided that oil-bearing wastewaters were not wastes because industry
had argued that point in their AMC I briefs.  213 F.3d at 56.  The court
was clear that AMC I did not address the discard status of any of the
particular materials discussed in the briefs.  The API II court also
noted that industry had argued that primary treatment yields valuable
oil and that oil recovery operations were common long before regulations
required oil removal from wastewaters.  213 F.3d. at 56-57.  

The court found that EPA had not engaged in reasoned decision-making in
its determination that primary treatment is a waste process.  To the
Agency's argument that primary treatment only recovers a small amount of
oil compared to refinery output, the court noted the oil "is still
valuable and usable, so that reason alone cannot show discard."  213
F.3d at 57. The court noted that diamonds are only a small portion of
mine output and that industry claimed that it could recover up to 1,000
barrels a day in primary treatment and, thus, EPA needed more
explanation than only the small relative amount of recovered oil.  Id. 
To EPA's argument that oil needs to be removed by regulation before
discharge the court still noted that the Agency had not explained why it
"concluded that the compliance motivation predominates over the
reclamation motivation."  213 F.3d at 58.  The court, vacated EPA's
decision not to exclude oil-bearing wastewaters from the definition of
solid waste and remanded that portion of the rule for more reasoned
decision-making.  

The API II court next dealt with petrochemical recovered oil.  213 F.3d
at 58-59.  Petrochemical manufacturers use petroleum products to produce
other products, such as organic chemicals, in processes that may not use
all the oil and, therefore, result in residuals known as "petrochemical
recovered oil," which can be reinserted into the petroleum refining
process.  213 F.3d at 58.  EPA's regulation excluded the petrochemical
recovered oil from the definition of solid waste, as long as the oil was
not adulterated with non-refinable hazardous materials and imposed
temporal conditions such as a requirement that the oil not be
speculatively accumulated.  213 F.3d at 58-59.  Failure to meet these
requirements would indicate that the recycling was really a sham - an
act of discard and not recycling of a valuable product.  Id.  On the
other hand, EPA allowed the petrochemical recovered oil to exhibit
various hazardous characteristics - such as ignitability or toxicity for
the presence of benzene because, even though these properties indicate
hazards, these properties are "typical of or very similar to basic
petroleum refining feedstocks."  213 F.3d at 58.  

As one might expect, industry persisted in arguing that "EPA has no
authority to regulate any petrochemical recovered oil under any
circumstances" since this material is not discarded.  Id.  As may be
further expected, the court summarily rejected this argument and came
out in favor of EPA, saying that the Agency is "correct that abandoning
a material is discarding even if labeled recycling. . . . " and the rule
was upheld "precisely because it is meant to regulate only discarded
materials."  213 F.3d at 59.  "Speculatively accumulated recovered oil
is a clear example of a condition imposed under the exclusion which
shows that some petrochemical recovered oil can indeed be considered as
discarded."  Id.  Further, the court upheld the rule in the face of the
fact that, even if it "incidentally" regulated non-discarded material, a
company could show that in a specific case materials in the recovered
oil "are not a product of adulteration, not discarded" and not solid
wastes.  Id.  

Note that the reasoning in API II, in addition to being consistent with
previous cases, does not make a distinction between materials recycled
on site, or within a company, and materials transferred between
companies.  Whether material is recycled within a company (oil-bearing
wastewaters) or between companies (petrochemical recovered oil), the
relevant inquiry is still whether the material was discarded in the
first instance.  

The last time the D.C. Circuit considered whether material is discarded
was in Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003)
("Safe Food").  This was a challenge to an EPA rule that excluded from
the definition of solid waste certain recycled materials used to make
zinc fertilizers and the fertilizers themselves as long as they were not
speculatively accumulated and met certain handling, storage and
reporting conditions and as long as the fertilizers had concentration
levels for certain chemicals that fall below specified thresholds.  350
F.3d at 1265.  If these conditions are met, the recycled materials have
not been discarded.  

These conditions would apply to a number of materials not produced in
the fertilizer production industry, including electric arc furnace dust
generated in steel production.  350 F.2d at 1266.    The court rejected
the argument that, as a matter of plain meaning, recycled material
destined for immediate reuse within an ongoing industrial process is
never considered "discarded," whereas material that is transferred to
another firm or industry for subsequent recycling must always be solid
wastes.  350 F.3d at 1268.  

As with previous cases, the court evaluated "whether the agency's
interpretation of ... 'discarded' . . . is, reasonable and consistent
with the statutory purpose. . . ."  Id.  However, in this case, the
court evaluated the validity of EPA's explanation that market
participants treat the exempted materials more like valuable products
than like negatively-valued wastes, manage them in ways inconsistent
with discard, and that the fertilizers derived from these recycled
feedstocks are chemically indistinguishable from analogous commercial
products made from virgin materials.  Id.  

The court specifically stated that it "need not consider whether a
material could be classified as a non-discard exclusively on the basis
of the market-participation theory."  Id.  The market participation
theory was not challenged.  Thus, it left open the question of whether
market participation could, by itself, lead to classification of a
material as not being a solid waste.  The court only determined whether
the combination of market participation and "identity" is enough to
establish that the recycled fertilizers are not discarded, even when
used on the land.  The court found that this was a reasonable
interpretation of the statute.  Id.  Much of the Safe Food opinion
discusses EPA's particular analyses regarding whether EPA's specific
chemical contaminant levels in the recycled products are "identical" to
the levels in products made with virgin materials.  350 F.3d at 1269-72.
 

2.1.1.2 - Implications of AMC I court case

2.1.1.2 - Summary

Many comments discuss the court case American Mining Congress v. EPA
(AMC I) (824 F. 2d 1177 (D.C. Cir. 1987) as supporting their comments. 
In addressing the Agency's statutory obligations and jurisdiction, the
Court wrote: 

 

"RCRA was enacted, as the Congressional objectives and findings make
clear, in an effort to help States deal with the ever-increasing problem
of solid waste disposal by encouraging the search for and use of
alternatives to existing methods of disposal (including recycling) and
protecting health and the environment by regulating hazardous wastes. 
To fulfill these purposes, it seems clear that EPA need not regulate
"spent" materials that are recycled and reused in an ongoing
manufacturing or industrial process.  These materials have not yet
become part of the waste disposal problem; rather, they are destined for
beneficial reuse or recycling in a continuous process by the generating
industry itself." (Id. at 1186.)].

 

Commenters assert that while the Court is clear that materials in a
continuous process remaining within the generating industry are not
wastes, it does not limit its holding to those materials: 

 

"Congress clearly and unambiguously expressed its intent that "solid
waste" (and therefore EPA's authority) be limited to materials that are
"discarded" by virtue of being disposed of, abandoned, or thrown away."
(Id. at 1193.)

 

Commenters note that the word "unambiguous" is important.  Where the
Court finds that Congress has unambiguously expressed its intent on an
issue before it, the Court resolves the issue as Congress intended.  If
the Court finds that Congress has not spoken to the precise issue, it
will defer to the Agency's interpretation -- so long as that Agency
interpretation is reasonable and consistent with the statutory purpose
at hand (Chevron v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 698
(1984).).  Commenters explain that the distinction between regulatory
arenas where EPA has a mandatory duty and those where it is allowed to
exercise discretion forms the backbone of their continued jurisdictional
argument.  While the Court has made clear that EPA jurisdiction is
limited to materials that are "disposed of, abandoned, or thrown away,"
EPA's current regulations assert today, as they did at the time of the
AMC I case, that the term "discarded material," and thus EPA's RCRA
jurisdiction, extends well beyond the Court's definition.  Commenters
state that while EPA now recognizes that the court's ruling in AMC I
does not stand for the proposition that only "materials in a continuous
process remaining within the generating industry" constitutes legitimate
recycling, commenters believe that the Agency continues to unlawfully
extend its jurisdiction over valuable secondary material streams that
are legitimately recycled and reclaimed. 

[0048-2, 0074-1, 0083-1, 0083-4, 0091-7, 0093-11, 0097-3, 0097-11,
0102-16, 0112-4, 0123-4, 0126-2, 0129-20, 0137-1, 0149-2, 0152-1,
0169-8, 0179-1, 0197-1, 0199-3, 0203-1, 0222-56, 0472-7, 0481-1, 0481-30
0486-18, 0492-7, 0494-3, 0518-2, 0518-15,  0520-2, 0526-22, 0528-1,
0537-1].

2.1.1.2 - Response

EPA finds it necessary to clarify the proper reading of the AMC I
opinion in light of incorrect arguments that have historically been
presented by industry, and environmental groups.  Most importantly, the
holding in AMC I is that the Agency's regulations were too broad because
they regulated materials that are clearly not solid wastes because they
are not "discarded" within the ordinary meaning of the term, which is
"disposed of," "abandoned," or "thrown away."  There is no further
holding in that case, although some statements by the court are useful
for defining solid waste.  

By example the court referred to material reclaimed in a continuous
process within a generating industry to show that EPA's regulations were
too broad.  These materials are outside of EPA's jurisdiction.  However,
and this is critical, AMC I did not provide any general framework to
determine when materials would be solid wastes, nor did the court
provide any specific examples of how to determine whether recycled
materials are wastes or not, even though the court did note that certain
waste materials could be recycled - used oil that is discarded and
material that is recycled as part of a waste management program (see
below).  

In fact, when industry attempted in the subsequent API II case to make
the argument that the AMC I case had declared a particular material to
be not discarded, the Court rejected the argument in no uncertain terms.
 See API II at 216 F.3d at 56 (citing AMC I and ABR -- "we did not
address the discard status of any of the particular materials discussed
in the briefs;" "all we can say with certainty is that at least some of
the secondary material EPA seeks to regulate" is not discarded).  

EPA wishes, at this point, to disabuse persons who comment on definition
of solid waste rules of the notion that there is a magical meaning to
the terms "unambiguous" or "ambiguous."  The D.C. Circuit seems to have
said as much in ABR by its statement that "[a] term may be ambiguous as
applied to some situations, but not as applied to others."  ABR 208 F.3d
at 1056.  While the court in AMC I noted that Congress unambiguously
expressed its intent to give EPA jurisdiction only over materials that
are "discarded" (AMC I, 842 F.2d at 1190), the court does not provide
guidance as to how to determine whether any particular material is in
fact discarded.  Thus, commenters would do well to put discussion of
"ambiguity" aside, as EPA has also.  

Returning to the specifics of the AMC I decision as noted by the
comments, in that case 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. Cir. 1987)).  The Court held
that certain of the materials EPA was seeking to regulate were not
"discarded materials" under RCRA section 1004(27). The Court also 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). The Court held that Congress
had directly spoken to this issue, so that EPA's 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 recycled materials could
not be discarded. Commenters are incorrect in characterizing the holding
in AMC I as defining "materials in a continuous process remaining within
the generating industry" equivalent to "legitimate recycling."  As
discussed earlier, both materials that have been discarded and materials
that have not been discarded may be legitimately recycled.  The Court
mentioned at least two examples of recycled materials that EPA properly
considered within its statutory jurisdiction, noting that used oil can
be considered a solid waste (824 F.3d at 1187 (fn 14)). 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. In particular, the Court held that emission control
dust from steelmaking operations listed as hazardous waste "K061" is a
solid waste, even when sent to a metals 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)). In addition, the Court held that it is
reasonable for EPA to consider as discarded (and solid wastes) listed
wastes managed in units that are in part wastewater treatment units,
especially where it is not clear that the industry actually reuses the
materials (AMC II, 907 F. 2d 1179 (D.C. Cir. 1990)). 

It also is worth noting that two other Circuits also have held that EPA
has authority over at least some materials destined for reclamation
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)). In addition, 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)).  

2.1.1.3 - Implications of ABR court case

2.1.1.3 - Summary

Commenters also discuss the court case Association of Battery Recyclers,
v. EPA, (ABR) (208 F3d 1047 (D.C. Cir. 2000).  The material in question
was mineral processing materials and again the Court found them to be
unambiguously not "discarded."  The ABR Court reiterated its holding in
AMC I, expressing exasperation at EPA's lack of action and reminding the
Agency that the Court's "interpretation of RCRA binds not only this
Court, but also EPA" (Id. at 1052.).  The Court repeated its limitation
on RCRA's jurisdiction to "discarded material" and, quoting directly
from AMC I, defined discarded material as synonymous with material that
is "disposed of, abandoned or thrown away" (Id. at 1051.).  

 

Commenters assert that the type of material that the ABR Court
explicitly excludes from this list of synonyms is "recycled" material,
yet EPA's current regulations make clear that the recycling of a
material is equivalent to, and a subset of, solid waste disposal unless
that material is explicitly excluded by another regulatory provision. 
Commenters claim that the court's rulings make clear that the recycling
of spent materials is not part of the solid waste disposal problem. 
Recycling is an alternative to waste disposal, not a subset of it as it
appears in the regulations. 

[0048-2, 0074-1, 0083-1, 0083-4, 0091-7, 0097-5, 0102-16, 0112-4,
0122-7, 0123-4, 0125-1, 0149-2, 0152-1, 0173-1, 0173-2, 0179-1, 0199-3,
0225-10, 0472-7, 0481-3, 0481-43, 0486-18, 0492-7, 0526-22, 0528-1,
0537-5, 0537-8]

2.1.1.3 - Response

In 1998, EPA promulgated a rule in which EPA claimed Subtitle C
jurisdiction over hazardous secondary 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 hazardous secondary
materials destined for reclamation. EPA imposed a condition prohibiting
land-based storage prior to reclamation because it considered hazardous
secondary materials from the mineral processing industry that were
stored on the land to be part of the waste disposal problem (63 FR
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 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 in ABR
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 nor 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). 

Notably, the Court did not hold that storage before reclamation
automatically makes materials "discarded." Rather, it held that "... at
least some of the secondary material EPA seeks to regulate as solid
waste (in the mineral processing rule) is destined for reuse as part of
a continuous industrial process and thus is not abandoned or thrown
away" (208 F.3d at 1056).  It is this latter quotation that shows where
the comments are incorrect.  The D.C. Circuit in no sense under the ABR
decision ever said that any particular recycling, and certainly not all
recycling, makes a material a solid waste or not.  The fact of the
matter is that the court was extremely disappointed in both industry and
government arguments that presented "this aspect of the case in broad
abstraction, providing little detail about the many processes throughout
the industry that generate residual material of the sort EPA is
attempting to regulate under RCRA."  ABR 208 F.3d at 1056.  Cases should
not be cited for broader propositions than they actually stand for.  The
fact of the matter is that recycled material may or may not be waste. 
This the court has made very clear.  No particular material may be
considered a waste, or not, based on the ABR decision.  Recycling may be
an alternative to waste disposal for materials not discarded, but
recycling of discarded materials is, indeed, part of the disposal
problem.  

2.1.1.4 - Implications of Safe Food court case

2.1.1.4 - Summary

Comments also cited the court case  Safe Food and Fertilizer v. EPA,
where the court upheld an Agency rule that excluded from the definition
of "solid waste," material being reclaimed outside the industry that
generated it (350 F. 3d 1263 (D.C. Cir. 2003)).  Petitioners in the Safe
Food case argued that AMC I and ABR limited the definition of "discarded
material" such that recyclable material transferred to another firm or
industry for recycling must always be viewed as discarded.  The Court
rejected this argument holding: 

 

"Petitioners have misread our cases.  We have held that the term
"discarded" cannot encompass materials that "are destined for beneficial
reuse or recycling in a continuous process by the generating industry
itself." (AMC I and ABR citations omitted).  We have also held that
materials destined for future recycling by another industry may
(emphasis in the original) be considered "discarded"; the statutory
definition does not preclude application of RCRA to such materials if
they can reasonably be considered part of the solid waste problem. (API
I and AMC II citations omitted).  But we have never held that RCRA
compels the conclusion that material destined for recycling in another
industry is necessarily "discarded."  Although ordinary language seems
inconsistent with treating immediate reuse within an industry's ongoing
industrial process as a "discard," (AMC I, citation omitted) the
converse is not true.  As firms have ample reasons to avoid complete
vertical integration, (citation omitted) firm-to-firm transfers are
hardly a good indicia of "discard" as the term is ordinarily
understood."

One commenter also explained why they believe that, although the Safe
Food and Fertilizer decision recognizes that under certain conditions
inter-industry recycling may be considered "discard" unless exclusionary
criteria are satisfied, EPA's 2003 proposal does not support continued
regulation of inter-industry recycling, because such a conclusion
requires a showing that the generation and reuse of the material in
question "can reasonably be considered part of the waste disposal
problem." Safe Food and Fertilizer, 350 F.3d at 1268. The commenter
believed that EPA fails to make this requisite showing in the 2003
proposed rule; rather, the Agency merely asserts that "operations that
are similar, but not identical, can generate and reclaim secondary
materials without discarding them." 68 Fed. Reg. at 61,569.

[0074-1, 0087-2, 0087-3, 0091-7, 0093-14, 0097-9, 0102-17, 0112-4,
0126-6, 0141-2, 0149-1, 0149-2, 0152-1, 0168-9, 0173-2, 0179-1, 0199-3,
0199-4, 0225-10, 0225-11, 0225-16, 0472-7, 0486-18, 0492-61]

Specific Implications of Safe Food

One commenter also distinguished the Safe Food and Fertilizer decision
from the ABR decision.  Because the Safe Food and Fertilizer case is in
the context of non-mineral processing activities, its holding is
relevant to evaluating the RCRA status of non-mineral processing
secondary materials that are slated for recycling and, as such, the ABR
decision should apply to the recycling of mineral processing secondary
materials and the Safe Food and Fertilizer decision should apply to the
recycling of all other materials. In other words, the D.C. Circuit
concluded that it may be reasonable for EPA to impose certain conditions
on a secondary material generator and recycler to avoid "discard," but
that such conditions violate ABR when applied to recycled mineral
processing secondary materials. Commenters also noted that the Safe Food
and Fertilizer case dealt with recycled materials that were being "used
in a manner constituting disposal" (UCD) {i.e., used to produce a
fertilizer that is applied to the ground) and the ABR decision did not
address UCD issues. Thus, the Safe Food and Fertilizer decision would
apply to the recycling of secondary materials when used in a manner
constituting disposal (and the products resulting from same) and the ABR
decision would apply in all other recycling scenarios. [0087-3]  Another
commenter noted that Safe Food regulatory exemptions differ in several
important respects from the ones under consideration in the proposed
rulemaking, the single most important one being that the hazardous
secondary materials in that case are used to produce products that by
design are placed onto the land as their intended final use. [0520-2,
0520-7]

Safe Food and Department of Commerce Statement

One commenter also noted that there are similarities between the Safe
Food decision and a statement by the Department of Commerce:

"In an increasingly global market for manufactured goods, competition
will largely take place among supply chains, rather than between
individual manufacturers. That implies an entirely different concept of
manufacturing. Rather than focusing on what traditionally defined
manufacturing - that is, the process of turning raw materials into
components or finished products - manufacturers today think of
manufacturing as a system designed to perform the activities required to
deliver the end-product to the customer and meet the customer's needs,
from design to finance to production to sales and marketing to
after-sales service. Thought of in that way, the structure of
manufacturing no longer implies that all of those processes need take
place in a single enterprise. Manufacturers increasingly see themselves
as system integrators, managing a supply chain or "virtual network "
that may consist of any combination of the activities mentioned above,
whether or not provided by the "manufacturer" itself."  (The U.S.
Commerce Department report "Manufacturing in America: A Comprehensive
Strategy to Address the Challenges to U.S. Manufacturers (page 29),"
dated January 2004 is available at httu://www.comrnerce.Pov/DOC MFG
Report Complete .pdf on the World Wide Web.)

[0168-9]

2.1.1.4 - Response

Commenters are correct to the extent that they state that the Safe Food
court rejects the notion that only materials recycled within an industry
may be excluded from the definition of solid waste.  It is very clear
that material recycled between industries may also be excluded from the
definition.  However, as with many of the comments on this rule, there
is a tendency to cite a case for more than it actually states.  There is
no indication whatsoever in Safe Food, or any other case, that EPA has
to make a positive showing that the generation and reuse of material can
reasonably be considered part of the waste disposal problem.  This is
merely the conclusion of an analysis that determines whether material is
discarded.  EPA, thus, needs to determine whether material is discarded,
which it has done in this case by virtue of the regulatory
determinations made in this rule.  

In Safe Food and Fertilizer v. EPA ("Safe Food"), 350 F.3d 1263 (D.C.
Cir. 2003), the Court upheld an EPA rule that excludes from the
definition of solid waste hazardous secondary materials used to make
zinc fertilizers, and the fertilizers themselves, so long as the
recycled materials meet certain handling, storage and reporting
conditions and the resulting fertilizers have concentration levels for
lead, arsenic, mercury, cadmium, chromium, and dioxins that fall below
specified thresholds (Final Rule, "Zinc Fertilizers Made From Recycled
Hazardous Secondary Materials" ("Fertilizer Rule"), 67 FR 48393, July
24, 2002). EPA determined that, if these conditions are met, the
secondary materials used to make the fertilizer have not been discarded.
The conditions apply to a number of recycled materials not produced in
the fertilizer production industry, including certain zinc-bearing
hazardous secondary materials, such as brass foundry dusts. 

EPA's reasoning was that market participants, consistent with the
EPA-required conditions in the rule, would treat the exempted materials
more like valuable products than like negatively-valued wastes and,
thus, would manage them in ways inconsistent with discard. In addition,
the fertilizers derived from these recycled feedstocks are chemically
indistinguishable from analogous commercial products made from raw
materials (350 F.3d at 1269). The Court upheld the rule based on EPA's
explanation that market participants manage materials in ways
inconsistent with discard, and the fact that the levels of contaminants
in the recycled fertilizers were "identical" to the fertilizers made
with virgin raw materials. The Court held that this interpretation of
"discard" was reasonable and consistent with the statutory purpose. The
Court noted that the identity principle was defensible in this case
because the differences in health and environmental risks between the
two types of fertilizers are so slight as to be substantively
meaningless. 

However, the Court specifically stated that it "need not consider
whether a material could be classified as a non-discard exclusively on
the basis of the market-participation theory" (350 F.3d at 1269). The
Court only determined that the combination of market participants'
treatment of the materials, EPA required management standards, and the
"identity principle" are a reasonable set of tools to establish that the
recycled hazardous secondary materials and fertilizers are not
discarded.  In addition, the Court noted that "materials destined for
future recycling by another industry may be considered 'discarded' (350
F.3d at 1268).

EPA's record for today's rulemaking demonstrates that third-party
recycling of hazardous secondary materials may, indeed, be discard and,
therefore, may continue to be part of the waste disposal problem. 
Without the conditions being finalized today, these hazardous secondary
materials would be solid wastes. Of the 208 damage cases in EPA's study
of environmental problems associated with post-RCRA, post CERCLA
hazardous secondary materials recycling, 94% appeared to take place at
commercial off-site facilities. Moreover, EPA's study of how market
forces impact recycling demonstrates that these damages are consistent
with our understanding of how the business model for commercial
recycling can lead to sub-optimal results. As opposed to manufacturing,
where the cost of inputs, either raw materials or intermediates, is
greater than zero and revenue is from the sale of the output, recycling
conducted by commercial hazardous secondary materials recyclers involves
generating revenue from receipt of the hazardous secondary materials, as
well as from the sale of output. Recyclers of hazardous secondary
materials in this situation can have a short-term incentive to accept
more hazardous secondary materials than they can economically or safely
recycle, resulting in the hazardous secondary materials eventually being
discarded.

Specific Implications of Safe Food

EPA strongly disagrees with comments that the holdings in Safe Food
would not apply to the mineral processing industry or to recycling that
is not "use in a manner constituting disposal."  There is no mention in
either ABR or Safe Food that their holdings are limited to any industry.
 The holdings address whether a material is discarded or not.  As noted
previously, the ABR case could not deal with specific materials because
the parties only referred to the many different kind of materials in
"broad abstractions."  The industry cannot bootstrap these broad
abstractions into a specific determination regarding whether a material
is a solid waste.  Further, there is no indication in Safe Food that it
is limited to situations in which material is used in a manner
constituting disposal.  Both cases apply the general principles in the
D.C. Circuit cases.  ABR does not even relate these principles to
specific situations.  Safe Food does apply the principles to specific
materials, but in no way states that these applied principles only make
sense for situations in which material is applied to the land.  

Safe Food and Department of Commerce Statement

The comment citing a statement from the Department of Commerce appears
irrelevant to this rule.  EPA does apply the principles of Safe Food to
this rulemaking and both EPA and the court acknowledge that materials
recycled between industries may be subject to an exclusion from the
definition of solid waste.  The specifics of the situation together with
the principles provided in this rule will, however, determine whether
the recycling is recycling of a waste or recycling of a material that is
not discarded.  

2.1.1.5 - Recycled "scrap" is not discarded

2.1.1.5 - Summary

One commenter requested EPA to separately address scrap materials
because such materials are not discarded.  [0518-2] While the commenter
agrees that "the concept of 'discard' is the central organizing idea
behind [EPA's] supplemental proposal," it does not agree that EPA's
interpretation of "discard" accurately "reflects the fundamental logic
of the RCRA statute" (72 FR 14177).  Although EPA acknowledged that in
AMC I, "the Court held that Congress used the term 'discarded' in its
ordinary sense, to mean 'disposed of' or 'abandoned',"  the commenter
believes that EPA improperly nullified that holding by first arguing
"[a]t the same time, the Court did not hold that no recycled materials
could be discarded" (72 FR 14177) and then using other Court holdings to
re-expand the meaning of "discard" that had been narrowed in AMC I
(American Mining Congress v. EPA, 824 F.2d 1177, 1178 (DC Cir. 1987)).

The commenter stated that with regard to the RCRA Statute, Congress'
findings at 42 USC 6901 include a reference to "a rising tide of scrap,
discarded, and waste materials," clearly recognizing that scrap and
waste are different and that, simply put, scrap is not waste.  The
definition of "solid waste" at 42 USC 6903 mentions "waste" and
"discard," but interestingly not "scrap."  The commenter believes that
it is clear, based on the distinctions of "scrap, discarded, and waste
materials" in its findings, that Congress intended to omit "scrap" from
the definition of "solid waste."  Based on the Court's holding in AMC I
and the above texts from the RCRA Statute, the commenter believes that
scrap material being recycled does not fall within the definition of
"solid waste" for the purposes of RCRA Subtitles D and C.   

 

To some extent, EPA has demonstrated agreement with this assertion: 

 

"The definition of solid waste contained in this part applies only to
wastes that also are hazardous for purposes of the regulations
implementing subtitle C of RCRA. For example, it does not apply to
materials (such as non-hazardous scrap, paper, textiles, or rubber) that
are not otherwise hazardous wastes and that are recycled." (40 CFR
§261.1(b)(1)) 

 

The commenter requests that EPA develop regulatory language to expand
this explanation to include scrap materials being recycled.  Because
this existing language only addresses the definition of "solid waste" in
RCRA Subtitle C, the commenter also requests that EPA develop regulatory
language in RCRA Subtitle D that similarly notes the exclusion of scrap
materials being recycled from the definition of "solid waste". 
Legislative authority for doing so clearly exists as discussed above in
42 USC 6901 and 42 USC 6903.

The commenter also referenced EPA's 1997 LDR-Phase IV rulemaking, where
EPA indicated that it lacked data on unprocessed obsolete scrap metal
and said that such material would be better addressed under a definition
of solid waste rulemaking. [0518-2, 0518-16]

2.1.1.5 - Response

EPA disagrees with the comment that Congress intended that "scrap"
should never be considered a solid waste.  The reference to "a rising
tide of scrap, discarded, and waste materials," at 42 USC 6901 is an
indication that Congress did consider scrap as a category of materials
that may be of concern.  While EPA agrees that some types of scrap
materials being recycled are not solid wastes, the Agency has already
addressed these materials with a specific exclusion at 40 CFR
261.4(a)(13).  The exclusions being promulgated in today's final rule
apply to all hazardous secondary materials sent to reclamation,
including any such materials that might be considered "scrap" that are
not otherwise excluded.

The commenter's request that EPA develop language in RCRA Subtitle D
regulations excluding non-hazardous scrap is beyond the scope of today's
rulemaking, which only applies to hazardous secondary materials.

2.1.1.6 - Secondary materials that are recycled are only solid wastes if
shown to be discarded

2.1.1.6 - Summary

Some commenters asserted that while they believe that EPA is prohibited
from regulating materials that are beneficially recycled within the
generating industry, they agree that the Agency may have some discretion
in determining whether materials recycled outside the generating
industry can be viewed as discarded and therefore regulated as solid
wastes. Materials destined to be reclaimed outside the generating
industry may be considered "solid wastes" in some cases. But they should
not be considered "solid wastes" if the recycling practices and any
conditions imposed by EPA are sufficient to show that the material is
not being disposed of, thrown away, or abandoned (i.e., is not becoming
"part of the waste disposal problem"), but, instead, is being handled
more like a product than a waste. [0152-2, 0152-4, 0173-3, 0173-10,
0178-6, 0222-10, 0225-33]

One comment referenced the ABR decision, which stated that "the decision
in AMC I that 'discarded' was not ambiguous" at least with respect to
materials generated and recycled within the same industry, but noting
that the term "may be ambiguous as applied to [other] situations." See
ABR, 208 F.3d at 1056. Of course, any discretion must be exercised in a
manner that is reasonable and consistent with the statute and the
relevant case law. See, e.g., APIII, 216F.3d at 57. [0152-2]

Another commenter noted that the Safe Food decision provides a sound
basis for EPA's development of broader exemptions to address categories
of recycling beyond the intra-industry exemption. However, the Safe Food
decision did not provide any clear guidance to EPA on how to address the
problematic issue of further delineating "legitimate" from "sham"
recycling and distinguishing situations in which recycle may involve
material which, in fact, has first been discarded. As the D.C. Circuit
has previously commented, a "spectrum" exists "between the extremes of
ongoing production and indisputable discard." (Am. Petroleum Inst. v.
EPA, 216 F.3d 50, 56 (D.C. Cir. 2000)). Thus, EPA still faces the
challenge of further refining the distinctions that have proven so
difficult to articulate and define throughout the development and
evolution of the hazardous waste program.  In evaluating EPA's path
forward following the Safe Food decision, the commenter stated that it
is important to keep in mind that the Court did not indicate to EPA a
specific path to be taken with respect to the definition of solid waste.
Nor is EPA obligated to respond immediately to the inter-industry
component of the Safe Food decision, in either a specified time frame or
in its final action on this particular rulemaking. [0222-10]

The commenter went on to say that the fact that the intra-industry
exemption does not fully delineate the range of recycling activities
that can occur without discard is not a legitimate basis for challenging
this exemption. As EPA notes, the exemption is deregulatory in nature.
In other words, it is part of the solution. It is fully within EPA's
authority to issue this rule; it is consistent with holdings of the D.C.
Circuit.  (See Steel Mfrs. Ass'n v. EPA,  27 F.3d 642, 647 (D.C. Cir.
1994) (finding it reasonable for EPA to take industry specific action
"without first pursuing the much more difficult and time-consuming task
of establishing discarded/non-discarded criteria for the entire spectrum
of hazardous wastes.") ).  No element of the D.C. Circuit's decisions
have suggested that regulatory exemptions that were tailored to address
more focused approaches to providing regulatory relief were necessarily
invalid, or that previously issued focused exemptions would also now be
vulnerable to challenge. In Safe Food, the Court simply confirmed that
EPA should not presume that all recycling between industries involves
discard. EPA has not done so, and is not doing so here - as evidenced by
the proposed on-site exemption and the broader exclusion options.
[0222-13]

Another commenter noted that, apart from being recognized by the courts,
this discretion has also be used by EPA on numerous occasions to
establish conditional exclusions from the definition of "solid waste"
for a variety of secondary materials that are recycled both within and
outside the generating industry. [See 40 C.F.R. 5 261.4(a)(l2)
(oil-bearing hazardous secondary materials generated at a petroleum
refinery and inserted into the petroleum refining process); 40 C.F.R. 5
261.4(a)(l4) (shredded circuit boards being recycled under specified
conditions); 40 C.F.R. 5 261.4(a)(l6) (comparable fuels or comparable
syngas fuels that meet designated specifications); 40 C.F.R. 5 261.4(a)(
18) (petrochemical recovered oil inserted into a petroleum refining
process if certain conditions are met); 40 C.F.R. 5 261.4(a)(20)
(hazardous secondary materials used to make zinc fertilizers, provided
that specified conditions are satisfied); 40 C.F.R. 5 261.4(a)(21) (zinc
fertilizers made from hazardous secondary materials provided certain
conditions are met).]  Further conditional exclusions of this sort
(without any intra-industry limitation) currently were pending (as of
the date of the comment) as proposed rules. [See proposed 40 C.F.R. 5
261.4(a)(23) (used broken cathode ray tubes destined for recycling that
meet specified conditions), 67 Fed. Reg. 40508, 40525-26 (June 12,
2002); 40 C.F.R. 5 261.4(a)(22) (reusable industrial wipes sent for
laundering or dry cleaning), 68 Fed. Reg. 65586, 6561 8-1 9 (November
20, 2003).]  Similar action - conditionally excluding various solid
wastes from coverage as "hazardous waste" - also has been taken or
proposed by EPA [See 40 C.F.R. 55 266.200-266.206 (military munitions);
proposed 40 C.F.R. 5 261.4(b)(l9) (industrial wipes sent for disposal at
certain non-Subtitle C landfills or combustion facilities, provided
certain conditions are met), 68 Fed. Reg. 65586, 6561 9 (November
20,2003).] and approved by the courts. [See Military Toxics Project v,
EPA, 146 F.3d 948 (D.C. Cir. 1998).] [0178-6]

Other comments stated that materials at different points along the
recycling spectrum may be subject to different standards and they
accepted the distinction proposed by EPA in 2003 between secondary
materials recycled inside and outside the generating industry. In
general, materials recycled within the generating industry (if broadly
defined) (including in-process materials) should not be subject to any
RCRA jurisdiction while materials recycled outside the generating
industry may be subject to certain conditions, although these conditions
should be kept to a minimum to promote resource conservation,
sustainable development and product stewardship. [0225-33] Because the
purpose of the rule is to define solid waste, the only appropriate
conditions are those that tend to define discard. [0179-36]

2.1.1.6 - Response

EPA generally agrees with comments stating that secondary materials that
are recycled are only solid wastes when discarded and the basic approach
reflected in these comments is what the Agency has used in issuing this
final rule.  EPA agrees that it has the authority to determine which
types of recycling do not involve discard and, therefore, which types of
hazardous secondary materials are not solid wastes. As EPA noted in the
March 2007 supplemental proposal, "[u]nder the RCRA Subtitle C
definition of solid waste, many existing hazardous secondary materials
are not solid wastes and, thus, not subject to RCRA's 'cradle-to-grave'
management system if they are recycled. The basic idea behind this
construct is that recycling of such materials often closely resembles
normal industrial manufacturing, rather than waste management" (72 FR
14197).  EPA also agrees that the case law, and the existing exclusions
found in 40 CFR 261.4(a), provide a long historical precedent for EPA's
authority to impose conditions when excluding reclaimed materials from
the definition of solid waste.  

In addition, as discussed in section 2.1.2 of the response to comments
document, EPA also believes it has the authority to impose restrictions
to the exclusion for hazardous materials recycled under the control of
the generator in order to appropriately define when such activities do
not involve discard.  Each of the restrictions and/or conditions is
specifically linked to defining when the hazardous secondary materials
are not discarded and to ensuring that the regulatory authority has the
information needed to oversee the exclusions.

2.1.1.7 - Materials transferred for recycling are not abandoned

2.1.1.7 - Summary

One commenter took issue with EPA's assertion that the proposed
exclusion for materials transferred to another person or company for
reclamation must have substantially more conditions because "subsequent
activities are more likely to involve discard, given that the generator
has relinquished control of the hazardous secondary material."   
[0492-61] The commenter believes that the mere relinquishment of control
by the generator hardly implies "disposing, abandoning or throwing
away."  The commenter noted that the D.C. Circuit has indicated that
"abandonment" in the context of the definition of solid waste is to be
understood in the same sense as abandonment of property in the common
law.  API, 216 F.3d at 57. The D.C. Circuit explained long ago that in
the common law, "[t]o constitute abandonment, there must be a clear and
unequivocal intent to abandon on the part of the owner, and the burden
is on him who alleges abandonment to establish that intent." 
International Finance Corp. v. Jawish, 71 F.2d 985, 986 (D.C. Cir.
1934). 

The commenter states that of particular significance to the present
rulemaking is the principle in the common law that abandonment does not
occur where a direct transfer of ownership to another party occurs.
[0492-8] The high court of one state has explained that

"The characteristic element of abandonment is the voluntary
relinquishment of ownership, whereby the thing so dealt with ceases to
be the property of any person and becomes the subject of appropriation
by the first taker…"

"The word 'abandonment' has a well defined meaning in the law which does
not embrace a sale or conveyance of the property. It is the giving up of
a thing absolutely without reference to any particular person or
purpose…"

"There can be no such thing as abandonment in favor of a particular
individual or for a consideration. Such act would be a gift or sale…."

Commonwealth v. Koontz, 258 Pa. 64, 67-68 (1917).

Thus, the commenter asserted that where a generator conveys title to a
secondary material to a third-party recycler, no "abandonment" in the
traditional sense occurs, whether there is payment for the material or
not.  Nor, if the material is actually recycled (i.e. used, reused, or
reclaimed), would such material ordinarily be deemed to be "disposed of"
or "thrown away."  EPA must take these principles into account in
deciding, via "reasoned decision-making," whether or in what very
limited circumstances firm-to-firm transfers of secondary materials for
purposes of recycling may be labeled as acts of "discard."  

The commenter also stated that EPA may not automatically assume that the
existence of motivations in addition to conservation of resources
renders a recycled material "discarded."  [0492-9] In API, the D.C.
Circuit rejected EPA's unexplained assumptions that the primary purpose
of oil recovery from refinery wastewaters was compliance with the Clean
Water Act and that such a primary purpose would render the oil-bearing
wastewaters "discarded."  "[I]t is not inherently certain why a
substance is definitively 'discarded' if its possessor is continuing to
process it, even though the possessor's decision to continue processing
may have been influenced, or even predominantly motivated, by some
external factor."  (API, 216 F.3d at 58)  Thus, for example, when
secondary materials that historically were landfilled become listed as
hazardous wastes under RCRA, the generators may have new motivations to
find legitimate recycling opportunities for those materials. But the
existence of such external motivations cannot automatically be said to
establish "discard."  

2.1.1.7 - Response

EPA disagrees with the comment that, under the transfer-based exclusion,
EPA cannot consider the fact that the generator has relinquished control
of the hazardous secondary material (along with other factors that
indicate discard) in determining what conditions are needed for this
exclusion. In no sense is EPA saying that mere relinquishment of control
means that a material is discarded.  However, EPA has ample basis, as
explained elsewhere in the rulemaking record, to be concerned about
material over which a company no longer asserts control (e.g., the
numerous cases in which such materials  have become serious
environmental problems).  Further, the conditions EPA is imposing are
designed to ensure that "discard" (including abandonment, disposal or
throwing away) does not in fact occur.  EPA's authority to regulate such
transfers is clear: as the Court noted in Safe Food, "materials destined
for future recycling by another industry may be considered 'discarded';
the statutory definition does not preclude application of RCRA to such
materials if they can reasonably be considered part of the waste
disposal problem" (350 F.3d at 1268). 

EPA is not claiming that these hazardous secondary materials are being
"abandoned" (in sense of the common law definition) by their generators
when sent to a third-party recycler, but EPA's record for today's
rulemaking demonstrates that third-party recycling of hazardous
secondary materials has been and continues to be part of the waste
disposal problem, and, without the conditions being finalized today,
these hazardous secondary materials would be solid wastes. Of the 208
damage cases in EPA's study of environmental problems associated with
post-RCRA, post CERCLA hazardous secondary materials recycling, 94%
appeared to take place at commercial off-site facilities. Moreover,
EPA's study of how market forces impact recycling demonstrates that
these damages are consistent with our understanding of how the business
model for commercial recycling can lead to sub-optimal results. As
opposed to manufacturing, where the cost of inputs, either raw materials
or intermediates, is greater than zero and revenue is from the sale of
the output, recycling conducted by commercial hazardous secondary
materials recyclers involves generating revenue from receipt of the
hazardous secondary materials, as well as from the sale of output.
Recyclers of hazardous secondary materials in this situation can have a
short-term incentive to accept more hazardous secondary materials than
they can economically or safely recycle, resulting in the hazardous
secondary materials eventually being discarded.

With respect to the issue of motivation, EPA has not made motivation an
element of this rule.  Instead, the Agency is imposing conditions on
behavior to ensure that material is not discarded and imposes
restrictions to ensure that material does not become thrown away or
abandoned.  We are not dealing with specific materials as was the case
in API II where the Agency did not discuss conditions or restrictions
but only examined the current practices to determine whether material
was discarded.  

2.1.1.8 - EPA needs to address when materials become solid waste

2.1.1.8 - Summary

One commenter asserted that a proper reexamination of the case law
compels the conclusion that the threshold question in determining the
scope of EPA's RCRA Subtitle C jurisdiction is WHEN (if at all) is a
secondary material disposed of or abandoned?  [0481-30] The commenter
stated that the D.C. Circuit has explicitly stated that prior to that
moment in time, EPA does not have jurisdiction over a secondary
material, because until that moment the material is not discarded and
cannot be a waste.  If and when that moment occurs, the secondary
material can be seen as crossing a line, or passing through a gate. 
Once that line has been crossed, or the gate passed through, EPA
then-and only then-has the authority to regulate the now discarded
material as a solid and hazardous waste. 

This commenter asserted that despite its "reexamination" of the case
law, EPA's 2007 Supplemental Proposal fails to focus on this threshold
question. Instead, EPA proposes "generator control" and "transfer-based"
exclusions consisting of limitations on WHO is reclaiming the secondary
material, WHERE it is being reclaimed, and HOW it is being reclaimed. 
EPA refuses to recognize that as a statutory matter, these questions are
valid only if the threshold question of WHEN has been addressed, and the
"discarded line" has been crossed, or the "discarded gate" passed
through, making the material discarded.  This commenter therefore
believes that EPA's 2007 Supplemental Proposal fails to properly limit
EPA's jurisdiction under RCRA.

2.1.1.8 - Response

EPA disagrees with the comment that consideration of who is reclaiming
the material, where it is being reclaimed and how it is being reclaimed
is not valid in determining whether the material is being discarded. 
Quite the contrary, these considerations have been used by the courts in
determining EPA's authority to regulate recycling.  In the Safe Food
decision, the court said that "[w]e have held that the term "discarded"
cannot encompass materials that "are destined for beneficial reuse or
recycling in a continuous process by the generating industry itself." 
We have also held that materials destined for future recycling by
another industry may be considered "discarded"; the statutory definition
does not preclude application of RCRA to such materials if they can be
reasonably be considered part of the waste disposal problem."  (350 F.3d
at 1268, internal court citations omitted).

As discussed in section XV.C of the preamble to the final rule, EPA's
rulemaking record demonstrates that hazardous secondary materials sent
to third-party recyclers have been discarded and are part of the waste
disposal problem.  Without the conditions being finalized today, these
hazardous secondary materials would be solid wastes.  These conditions
include the prohibition of speculative accumulation, which is a
long-standing requirement that addressing the issue of "when" a
hazardous secondary material that is claimed to be intended for
recycling would cross the threshold into discard.

Furthermore, EPA has also determined that hazardous secondary materials
under the control of the generator (as well as those transferred for
recycling) are discarded if they are (1) speculatively accumulated per
40 CFR 261.1(c)(8) or (2) are not contained in the management unit.  (In
both these cases, EPA has reasonably determined the materials are not
"destined for beneficial reuse or recycling" and are instead being
discarded).

2.1.1.9 - Congressional report language

2.1.1.9 - Summary

One commenter, in addition to citing Court cases in challenging EPA's
authority to regulate legitimate recycling (see section 2.1.1 of the
response to comments section), also noted that both the House and Senate
Appropriations Committees included language in their respective reports
regarding the Agency's 2004 budget, encouraging EPA to promulgate a rule
in 2004 revising the regulation of recycling to comport with the
decisions of the D.C. Circuit by limiting the definition of "discarded
material" to materials that are "disposed of, abandoned, or thrown
away." (See H. Rep. 108-235 at 102, and S. Rep. 108-143 at 96).
[0093-14]

2.1.1.9 - Response

EPA appreciates the commenter pointing out the Congressional report
language encouraging EPA to revise the definition of solid waste to
comport with the decisions of the D.C. Circuit court.  As discussed in
the preamble to the final rule, EPA believes that the revisions to the
definition of solid waste follows valid precedent in the D.C. Circuit,
including  the most recent opinion dealing with the definition of solid
waste Safe Food and Fertilizer v. EPA ("Safe Food"), 350 F.3d 1263 (D.C.
Cir. 2003).

2.1.1.10 - Other laws address recycled materials

2.1.1.10 - Summary

One commenter said that EPA should resist the urge to regulate secondary
materials which are being legitimately recycled, noting that there are
other laws besides RCRA and other agencies that address legitimate
recycling of secondary materials. Examples include the U.S. Department
of Transportation, the U.S. Consumer Products Safety Commission, state
and federal labeling laws and tort laws. Such laws and agencies already
deal with countless daily transactions involving raw materials.
[0127-18]

2.1.1.10 - Response

EPA disagrees with the comment that there is no need to regulate
hazardous secondary materials intended for recycling because of other
laws that address these materials.  While EPA has considered other laws
in responding to comments on the need for additional conditions (see
discussion in section XV.B of the preamble of the final rule), these
laws do not address EPA's fundamental obligation to appropriately
regulate hazardous secondary material that is being discarded, including
when such discard includes the intention to recycle.

2.1.2 - Secondary materials used, reused, or recycled in an ongoing
production process are not discarded and should not be subject to
conditions

2.1.2 - Summary

Many commenters argued that the current regulations unlawfully classify
certain in-process materials as solid wastes and that EPA's proposed
revisions to the definition of solid wastes do not address this issue. 
Instead, commenters requested EPA revise the solid waste definition to
create a simple jurisdictional threshold for RCRA regulation, arguing
that the continued extraction of mineral and metal values from mineral
processing secondary materials, or their continued use for reagent or
water value, would be outside of the scope of waste management
regulations under RCRA regardless of whether the material was used in a
beneficiation or mineral processing operation. [0079-2, 0079-3, 0086-1,
0086-7, 0087-1, 0087-10, 0089-8, 0152-2, 0152-8, 0459-5, 0524-1]

Commenters argue that EPA's proposal exceeds the Agency's RCRA authority
by asserting, in the first instance, jurisdiction over these materials
and then excluding them from regulation as "solid" and "hazardous
wastes" if certain conditions are met. Commenters note that the first
step in determining Congress' intent regarding a statutory provision is
to look at the plain language of the statute itself. Chevron v. NRDC,
467 U.S. 837 (1984). If the intent of Congress is clear, that is, if
Congress "has directly spoken to the precise question at issue," then
"that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress." Id.
at 842-43. If Congress' intent is not clear, then, and only then, "the
question for the court is whether the agency's answer is based on a
permissible construction of the statute .. .." Id. at 843-44.  If a
"secondary material" is generated and destined for reuse within the
primary minerals and metals industry, then it is not "discarded." See
Association of Battery Recyclers v. EPA, 208 F.3d 1047, 1051 (D.C. Cir.
2000). Any attempt to regulate these materials, even through
notification and recordkeeping obligations, is in violation of RCRA.
[0086-1, 0086-3, 0087-1]

Commenters asserted that the primary metals and minerals industry's
utilization of its own in-process secondary materials in its ongoing
production activities is at the extreme end of the broad spectrum of
various types of use, reuse, recycling and waste recycling practices
that exist throughout the wide variety of industries in the United
States.  Commenters assert that the proposal fails to address concerns
raised by the D.C. Circuit in opinions regarding EPA's assertion of RCRA
jurisdiction over materials that are not "discarded." See American
Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 1987) ("In sum,
our analysis of the statute reveals clear Congressional intent to extend
EPA's authority only to materials that are truly discarded, disposed of,
thrown away, or abandoned."). This is especially true in the primary
minerals and metals industry where the extraction of minerals proceeds
incrementally and, as recognized by the D.C. Circuit, "materials are
reprocessed in order to remove as much of the pure metal as possible
from the natural ore." AMC I, 824 F.2d at 1181. [0079-2, 0086-1, 0086-3,
0087-1, 0089-8, 0152-3, 0152-8, 0528-1, 0554-1]

One commenter does not believe that it is appropriate, nor consistent
with prior D.C. Circuit decisions, to consider the extraction of natural
metals from ores or virgin raw materials in a series of processing steps
to constitute the "reclamation" of a "hazardous secondary material." The
primary minerals and metals industry is unique in that its "production"
operations are sequential processes that "recover" target
metals/minerals from natural ores (they do not "reclaim" "secondary
materials" in the ores). The raw material feedstocks for primary metals
production are ores that contain valuable metals. The sequential
production processes produce in-process and intermediate materials that
are further processed to maximize metals recovery. Consequently, any
"production" operation or process that recovers or enhances the recovery
of the metals present in the natural feedstock ores extracted by the
industry is never engaged in management of "discarded" or "hazardous
secondary materials," but is engaged in the fundamental "production" of
natural valuable metals from the ores. As long as a material produced
from a primary minerals processing operation still contains recoverable
metals originating from the ore feedstock, the further processing of
that material in a mineral processing operation is part of the
fundamental "production" process. The only reason why all recoverable
natural minerals can not be "produced" by a single process is due to the
limitations of technology. However, the fact that multiple sequential
processes are technologically necessary to maximize the recovery of
valuable metals from ores does not make those minerals - whose recovery
has been simply delayed temporarily due to technological constraints -
"discarded" materials subject to regulation as "solid" and "hazardous
wastes." [0086-1]

Commenters also expressed concern about the conditional exclusion for
certain land-based units, and in particular the requirement that these
units be "contained" [0459-5, 0465-1, 0481-4], noting that the mining
industry utilizes land-based production units as critical elements of
their production processes. Specifically, the copper and gold sectors
use heap and dump leaching technology as integral parts of their
production operations.  When the mining and mineral processing industry
uses secondary acid streams, or other secondary materials, in land-based
production units, they are not discarded. One commenter asserts that in
the past, EPA has properly disavowed authority over regulating mining
and mineral processing industry land-based production units.  See 63
Fed. Reg. at 28,578, 28,580, & 28,582, and requests that EPA recognize
this limitation on its authority and explicitly state in the final rule
that EPA has no jurisdiction over mining and mineral processing industry
land-based production units.  Another commenter felt that this
restriction was a reprise of the "conditional exclusion" struck down in
the Battery Recyclers case: EPA is seeking to regulate the storage of
materials that - rather than being discarded - "are destined for
beneficial reuse or recycling in a continuous process by the generating
industry itself." Battery Recyclers, 208 F.3d at 1053, quoting AMC I,
824 F.2d at 1186).  The commenter stated that EPA simply doesn't have
RCRA jurisdiction to regulate such materials.  EPA is clearly concerned
about the possibility of emissions from the storage of materials in
land-based units, but this concern merely explains the desire to assert
RCRA jurisdiction; it does not provide any legal basis to do so.  EPA
does not have RCRA jurisdiction to regulate the temporary land storage
of products or raw materials to prevent emissions from them; nor can it
gain such jurisdiction through the claim that such materials can be
called "discarded materials" if emissions from them occur.  The same
holds true of secondary materials that "are destined for beneficial
reuse or recycling in a continuous process by the generating industry
itself." Such materials are not discarded materials and RCRA provides no
jurisdiction to ensure that there are no emissions from them.  There are
regulatory programs that address such concerns - for example, the
Arizona Aquifer Protection Permit program - but RCRA does not.
Accordingly, AAI urges EPA to adopt the proposed exclusion without any
limitation on the management of material in land-based units.

Commenters also specifically objected to classifying secondary materials
from the primary metals and minerals industry as solid wastes if they
are "speculatively accumulated" for more than one year. [0079-2, 0152-8]
They note that in ABR, the D.C. Circuit explicitly stated that
"temporary storage can be a necessary phase of reclaiming mineral
processing secondary material.'' See 208 F.3d at 1054, n.2.  Commenters
assert that this "necessary phase" of the production process must in
many instances continue for longer than one year. Thus, the commenters
argue that the existing regulations classify some in-process materials
as wastes in direct conflict with the holding of the D.C. Circuit in
ABR. See id. at 1053 ("To say that when something is saved it is thrown
away is an extraordinary distortion of the English language."). The
commenters ask EPA to rectify this situation in the final rule. 

Commenters offered specific examples of spent materials for which the
current requirements are of particular concern because they are
unnecessarily burdensome and may not be practical, including refractory
bricks from smelting, used reverts (both "large" and "fine," flue dust,
used copper furnace brick, acidic mineral processing solutions, vanadium
pentoxide catalysts, acid plant blowdown, metal-bearing baghouse dust,
metal- and acid-bearing sulfuric acid plant solutions, and metal-bearing
materials from tapping troughs. [0079-2, 0086-5, 0087-7, 0152-3, 0152-8,
0225-13] Commenters objected to the fact that, with a few limited
exceptions, the proposed revision to the definition of solid waste does
not alter the requirements currently applicable to the mineral
processing industry's use of its own secondary materials. The proposed
rule provides relief only for by-products and sludges that are listed as
hazardous wastes at 40 CFR 261.31 or 40 CFR 261.32 and for "spent
materials" if generated and used/reused within the mineral processing
sector of the primary metals and minerals industry.  

Commenters also argue that the distinctions EPA draws among in-process
materials within the primary metals and minerals industry are
meaningless and create uncertainty and confusion. [0152-8] Under the
existing regulations, materials produced and recycled within the primary
metals and minerals industry are viewed differently, depending upon
whether they are classified as sludges, by-products, spent materials,
commercial products, or scrap metal. Commenters argue that none of these
categories, however, has any meaning within the industry. They believe
that materials at issue are in-process materials (or intermediates),
rather than secondary materials. Thus, it makes no sense to try figuring
out which types of secondary materials they are.

The commenters argue that only relevant consideration within the
industry is whether a particular material has significant amounts of
recoverable metals and/or other useful material values. Because EPA's
categories do not in any way affect the way that the industry views or
handles the materials, such categories cannot be the determining factor
in deciding whether a material is discarded. It is simply arbitrary to
say that a material within the primary metals and minerals industry is a
waste if it is labeled as "spent material," but not if it is labeled a
"by-product" or "sludge."

Commenters believe that the current regulatory scheme is especially
problematic given the difficulty in trying to apply EPA's categories to
materials produced by the primary metals and minerals industry.
Consider, for example, used refractory brick. As noted above, EPA has
indicated that this material qualifies as a "spent material," which is
defined as "any material that has been used and as a result of
contamination can no longer serve the purpose for which it was produced
without processing." See 40 C.F.R. 9 261.l(c)(l). However, used
refractory brick is not "contaminated" and is removed from service for
other reasons (e.g., wearing or cracking). Moreover, it is often still
capable of continuing to serve its original purpose. Refractory brick
might instead be viewed as a by-product. See 40 C.F.R. 9 261.1(~)(3)
(defining a "by-product" as "a material that is not one of the primary
products of a production process and is not solely or separately
produced by the production process").  For example, the Nevada Division
of Environmental Protection has taken the position that used bricks from
rebuilding of autoclaves and roasting units are properly considered
by-products, rather than spent materials.  On the other hand, because
used bricks generally have visible veins of solid metal, they might be
viewed as scrap metal. See 40 C.F.R. 5 261.l(c)(6) (defining "scrap
metal" to include "bits and pieces" of metal).

Rather than trying to figure out which of EPA's categories of materials
comes closest to being relevant to each type of in-process material
produced by the primary metals and minerals industry, the Agency should
simply acknowledge that when the materials are beneficially used within
the industry, they are not being discarded and cannot be regulated as
wastes.

Commenters also objected to classifying spent materials from mineral
processing operations as wastes when destined for reclamation within the
primary metals and minerals industry, unless they meet certain
requirements (e.g., storage in tanks, containers, buildings, or approved
pads). See 40 C.F.R. 261.4(a)(17). These in-process materials are
therefore being regulated as wastes based on their manner of storage.
However, commenters argue that this type of regulatory scheme is
prohibited under RCRA and the relevant case law. See, e.g., Safe Food,
350 F.3d at 1268 ('"the term 'discarded' cannot encompass materials that
are destined for beneficial reuse or recycling in a continuous process
by the generating industry itself."). Accordingly, the regulatory
definition of solid waste must be amended to eliminate the storage
requirements for in-process spent material. [0079-2, 0152-8]

2.1.2 - Response

While EPA agrees that, as the courts have clearly stated, materials
recycled in a continuous process by the generating industry are not
solid wastes, EPA disagrees that the final rule improperly regulates
such materials.   As discussed in the March 2007 supplemental proposal,
EPA believes that the generator-controlled exclusion also excludes from
the definition of solid waste hazardous secondary materials recycled in
a continuous industrial process (72 FR 14202). In effect, hazardous
secondary materials reclaimed in a continuous process are a subset of
the hazardous secondary materials reclaimed under the control of the
generator that are excluded under the final rule. 

EPA also disagrees that the restrictions of the generator-controlled
exclusion (i.e., the requirement that the hazardous secondary material
must be contained, the prohibition on speculative accumulation and the
notification requirement) result in unlawful regulation of materials
recycled in a continuous process by the generating industry itself.

As discussed in section 2.1.5.1 of the response to comments document,
the "contained" standard is directly linked with the concept of discard.
 Commenters have failed to demonstrate how hazardous secondary materials
that are not contained could in any way be considered "reclaimed in a
continuous process." It is a self-evident fact that hazardous secondary
materials released to the environment (e.g., causing soil and
groundwater contamination) are not "destined for recycling" or "recycled
in a continuous process"; they are part of the waste disposal problem.
Moreover, to the extent that significant releases to the environment
from a unit remain unaddressed, it is reasonable to conclude that the
material remaining in the unit is also actively being discarded. (It is
important to note that under the final rule, the hazardous secondary
materials that remain in the unit are not solid wastes, unless the
releases from the storage unit indicate that these materials are not
being managed as valuable commodities and are, in fact, discarded.)

In addition, EPA disagrees that the prohibition on speculative
accumulation results in unlawful regulation of materials recycled in a
continuous process by the generating industry itself.  As noted in the
March 2007 supplemental proposal, restrictions on speculative
accumulation (40 CFR 261.1(c)(8)) have been an important element of the
RCRA hazardous waste recycling regulations since they were promulgated
on January 4, 1985. Historically, hazardous secondary materials excluded
from the definition of solid waste generally become wastes when they are
speculatively accumulated, because, at that point, they are considered
to be unlikely to be recycled and therefore discarded. According to this
regulatory provision, a hazardous secondary material is accumulated
speculatively if the person accumulating it cannot show that the
material is potentially recyclable; further, the person accumulating the
hazardous secondary material must show that during a calendar year
(beginning January 1) the amount of such material that is recycled, or
transferred to a different site for recycling, must equal at least 75%
by weight or volume of the amount of that material at the beginning of
the period.  As noted in the March 2007 supplemental proposal, this
provision already applies to hazardous secondary materials that are 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
by-products being reclaimed (72 FR 14188). Given that a significant
portion of the damage cases stemmed from over-accumulation of hazardous
secondary materials, EPA continues to believe that a restriction on
speculative accumulation is needed to determine that the hazardous
secondary material is actually being recycled and also is not discarded.
 

Moreover, in response to comments that storage of hazardous secondary
materials is a "necessary phase of reclaiming mineral processing
secondary material" that must in many instances continue for longer than
one year, in those cases there is already an administrative remedy in
place to address this situation.  The variance process in 40 CFR
260.31(a) was developed to allow facilities to store materials longer
than one year without sufficient amounts being recycled if the applicant
can demonstrate that sufficient amounts will be recycled the following
year.  This variance can also be renewed annually.    

Thus EPA continues to believe that the application of the prohibition on
speculative accumulation to hazardous secondary materials recycled under
the control of the generator is a reasonable way of determining that the
hazardous secondary materials are in fact going to be recycled rather
than simply stored indefinitely.

The consequences of indefinite storage of hazardous secondary materials
is clearly demonstrated in the record for today's rulemaking.  For
example, the damage case profile for Rockwell Industries, Inc. shows how
indefinite storage of "recyclable" hazardous secondary materials
contributes to the waste disposal problem. (see
EPA-HQ-RCRA-2002-0031-0355 An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials, Appendix 2,
p. 336).  At this site, mineral wool was manufactured in blast furnaces
using raw material such as slags from copper and antimony smelting,
waste from limestone mining and coke and basalts. The residue left in
the furnace from the heating of the slags was a metal "shot" type
material. This "spent iron shot" was the main secondary material
generated as a part of the Rockwool production process.   While some of
the spent iron shot was recycled back into the process, most was piled
up in different locations on-site.   When the facility ceased operations
in 1987, one of the piles was estimated to contain 20,000 to 30,000
cubic yards of waste and span 3 acres, and another was estimated to
contain between 15,000 and 25,000 cubic yards of waste.  Antimony,
arsenic, and lead contamination were found in the soils and groundwater.
  The site was listed on the Superfund National Priorities List in 1998,
with cleanup costs estimated to be more than $3 million.   Clearly, the
bulk of the spent iron shot stored at this site was never "destined for
reuse within the primary minerals and metal industry" and was discarded.
  The prohibition on speculative accumulation in the
generated-controlled exclusion is a reasonable approach to identifying
hazardous secondary material that is not destined for reuse or recycling
and that is therefore discarded.

However, EPA also recognized in the March 2007 supplemental proposal
that production processes can vary widely from industry to industry. (72
FR 14202) Thus, in some cases, case-specific fact patterns may indicate
whether an individual hazardous secondary material is reclaimed in a
continuous industrial process, and therefore not a solid waste.   For
example, in the ABR decision, the Court acknowledged that the term
"discard" could be "ambiguous as applied to some situations, but not as
applied to others," and particularly cited the difficulty in examining
the details of the many processes in the mineral processing industry
(208 F.3d at 1056). While the court overturned EPA's regulations for
casting too wide a net over continuous industrial processes, it
acknowledged that there are a large number of processes, some of which
may be continuous and some of which may not. Determining what is a
continuous process in the mineral processing industry, according to the
Court, would require examination of the details of the processes and
does not lend itself well to broad abstraction. Specifically, the Court
stated,

"Some mineral processing secondary materials covered under the Phase IV
Rule may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate under RCRA." 208 F.3d
at 1056. 

This principle also would apply to temporary storage of materials such
as recycled reverts, which the court in ABR specifically discussed.  208
F.3d at 1054 n.2.  The court criticized EPA's rule for regulating
temporary storage of these materials even though the process seemed to
involve reclamation in a continuous process.  This rule, however,
remedies that situation.  Such storage would be allowed but only under
conditions that would ensure that material is not discarded and truly is
reclaimed within a continuous process - for example, material would need
to be contained and not accumulated speculatively.  This is consistent
with the court's general direction to avoid broad abstractions while
still appropriately defining solid waste under RCRA.  

While in most instances, hazardous secondary materials reclaimed in a
continuous process would be excluded under the self-implementing
generator-controlled exclusion, for those applicants who do not believe
that the restrictions imposed by the self-implementing exclusions are
applicable to their materials, the non-waste determination process
provides an administrative procedure for receiving a formal
determination that their hazardous secondary materials are not discarded
and, therefore, are not solid wastes when recycled.

Such individual determinations are beyond the scope of today's
rulemaking, which is focused on appropriately defining solid waste for
hazardous secondary materials that are reclaimed regardless of the
specific hazardous secondary material or generating industry affected. 
In addition, comments on the existing definitions of spent materials,
by-products, sludges, scrap metals, commercial products in 40 CFR 261
and on the existing exclusions under 40 CFR 261.4(a), including 40 CFR
261.4(a)(17), are outside the scope of today's rulemaking.

2.1.3 - EPA's proposed exclusions inappropriately deregulate materials
that are discarded

2.1.3 - Summary

Many commenters argue that EPA has no authority under the RCRA statute
to broadly exclude hazardous secondary materials from the definition of
solid waste, arguing that Congress intended for recycling to occur
within the constrains of RCRA, and not beyond the statute's protective
reach.  "If the regulations were void from the beginning then no
amendment to the underlying provision or enactment of a new statutory
provision can infuse them with life unless they are specifically enacted
as law." US Brewer's Association v. EPA 600 F.2d 974.  Commenters state
that the federal statute provides for only one opportunity to exempt
materials recovered from solid waste from regulation when recycled,
found at 42 U.S.C. 6903 (19) "The term ''recovered material'' means
waste material and byproducts which have been recovered or diverted from
solid waste, but such term does not include those materials and
byproducts generated from, and commonly reused within, an original
manufacturing process. Comments note that Congress took steps under
Public Law 98-616 to affirm the EPA's authority over these activities
and require the establishment of standards: 

Section 8. Reuse, recycling, and reclamation 

"This Section of the bill amends Section 3001 of RCRA to require the
Administrator to issue regulations regarding the use, reuse, recycling,
and reclamation of hazardous wastes.  This provision is intended to
reaffirm the Agency's existing authority to regulate as hazardous waste
to the extent it may be necessary to protect human health and the
environment.  The Committee affirms that RCRA already provides
regulatory authority over these activities (which authority the Agency
has exercised to a limited degree) and in this provision is amending to
clarify that materials being used, reused, recycled, or reclaimed can
indeed be solid and hazardous wastes and that these various recycling
activities may constitute hazardous waste treatment, storage, or
disposal."

Commenters also note that Congress established the EPA as the standard
setting agency for the management of hazardous waste, but specifically
gave the authority for identifying which wastes would be appropriate
substitutes for virgin materials to the Department of Commerce. 
Commenters also cite the definition of the central statutory term
"disposal": the discharge, deposit, injection, dumping, spilling,
leaking, or placing of any solid or hazardous waste into or on any land
or water so that such solid or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or
discharged into any wastes, including ground waters. 42 U.S.C. Sec.
6903(3). Commenters assert that this definition clearly encompasses more
than the everyday meaning of disposal, which is a "discarding or
throwing away" (Webster's).  The definition is functional: waste is
disposed under this provision if it is put into contact with land or
water in such a way as to pose the risks to health and the environment
that animated Congress to pass RCRA.  Whether the manufacturer
subjectively intends to put the material to additional use is irrelevant
to this definition, as indeed it should be, because the manufacturer's
state of mind bears no necessary relation to the hazards of the
industrial processes he employs."   824 F.2d 1177 American Mining
Congress vs. EPA. [0130-2, 0227-2, 0231-14, 0231-16, 0231-23, 0231-27,
0539-2, 0559-4, 0559-18, 0561-1, 0561-2, 0561-8]

Commenters also argue that it is counterintuitive that RCRA would
require of small quantity generators: 1) "cradle-to-grave"
accountability of wastes generated"  ["the Administrator shall
promulgate standards under sections 6922, 6923, and 6924 of this title
for hazardous waste generated" 42 U.S.C. 6921 (d)(1)];  2) "standards
applicable to the legitimate use, reuse, recycling and reclamation of
such wastes" 42 U.S.C. 6921 (d)(2), and 3) "a Uniform Hazardous Waste
Manifest form signed by the generator" for "material which is shipped
off the premises on which such waste is generated"  42 U.S.C. 6921
(d)(3) and then allow the EPA to promulgate rules exempting a much
larger universe of wastes from regulation. Additionally, commenters
believe that to provide a rule that provides a blanket proviso to a
universe of unidentified hazardous wastes flies in the face of the
public's right to comment on a process of removing hazardous waste from
regulation - the equivalent of "delisting" 42 U.S.C. 6921 (f)(1-3),
i.e., excludes a waste generated from a particular facility from being
listed as hazardous. [0561-2]

Commenters also note that several statutorily defined terms show that
Congress intended for materials to be classified as "solid wastes" even
when they are recycled.  Specifically, the statute includes several
definitions related to "resource recovery" (i.e., recycling), and all of
these terms are based on the premise that the recycled or recovered
materials will be first defined as solid wastes. The term "recovered
material," for example, is defined as "waste material and byproducts
which have been recovered or diverted from solid waste."

 42 U.S.C. 6903(19). "Recovered resources" are "material or energy
recovered from solid waste." 42 U.S.C. 6903(20).  The term
"recoverable," moreover, "refers to the capability and likelihood of
being recovered from solid waste for a commercial or industrial use." 
42 U.S.C.  6903(18). "Resource recovery," in turn, is the "recovery of
material or energy from solid waste." 42 U.S.C. 6903(22). A "resource
recovery system" is "a solid waste management system which provides for
collection, separation, recycling, and recovery of solid wastes," and a
"resource recovery facility" is "any facility at which solid waste is
processed for the purpose of extracting, converting to energy, or
otherwise separating and preparing solid waste for reuse." 42 U.S.C. 
6903(23) and (24).  In addition, resource recovery and recycling are
repeatedly mentioned as aspects of solid waste management plans.  See 42
U.S.C. §§ 6902(a)(1)&(6) ("The objectives of this chapter are to
promote the protection of health and the environment and to conserve
valuable material and energy resources by - providing assistance for the
development of solid waste management plans (including resource recovery
and resource conservation systems) which will promote recovery of solid
waste; [and] minimizing the generation of hazardous waste and the land
disposal of hazardous waste by encouraging process substitution,
materials recovery, properly conducted recycling and reuse, and
treatment.").  Commenters believe that EPA's proposed rule substitutes
recycling for solid waste management, and therefore is contrary to
Congress' intent that recycling be a component of solid waste
management, and also renders the resource recovery provisions of RCRA
null and cannot therefore be upheld. [0231-29, 0559-26]

Commenters argue also that EPA's proposals go far beyond the court's
ruling that ". . .at least some of the secondary material EPA seeks to
regulate as solid waste [in the mineral processing rule] is destined for
reuse as part of a continuous industrial process."  Commenters also
state that the Agency erred when it attempted to apply the decisions by
the Court in AMC I and II, as well as API I and ABR as justification for
modifying the regulations that apply to off-site recycling. Commenters
state that these cases neither compel or even support EPA's proposed
definition and that the legal underpinnings of EPA's proposed regulation
are, therefore, utterly lacking.  Commenters also note that EPA has also
already responded to these cases by revoking the offending regulations
and has no further obligation to act. See 67 Fed. Reg. at 11251.

In each of the court decisions, the focus was on how secondary materials
were classified when they were managed on-site prior to recycling back
into the industrial process, and involved industries (mineral processing
and petroleum) whose nature involves multiple processing steps with
residues inserted directly back into the process.   Of primary
importance to the petitioners was the concept that secondary materials
that were stored or otherwise managed on-site prior to being
reintroduced to the production process (recycled) were not discarded,
abandoned, or thrown away. However, a generator that sends his material
off-site either for reclamation or disposal clearly has no further use
for them either because he does not have the capability of conducting
the reclamation himself, or because the material does not have valuable
components in sufficient quantity or quality that would make reclamation
economically feasible. In this case, the material could be considered
abandoned or thrown away. [0076-1, 0110-2, 0117-1, 0119-1, 0119-6,
0191-6, 0231-14, 0231-22, 0539-3, 0559-28, 0559-29]

Commenters also believe that the court's decision in Safe Food and
Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003), confirms that EPA
reads, or rather misreads, the prior case law far too broadly. The court
said that "Petitioners assert that, as a matter of plain meaning, the
materials in question are "discarded" even though they are recycled in a
useful product. They claim that under the cases recycled material
destined for immediate reuse within an ongoing industrial process is
never considered "discarded," whereas material that is transferred to
another firm or industry for subsequent recycling must always be so
viewed."  350 F.3d at 1265.  Commenters believe that the juxtaposition
of "material destined for immediate reuse" in the first clause with
"material that is transferred to another firm or industry" in the second
clause indicates that the court meant the two clauses to describe
different and contrasting situations. [0119-1, 0119-5]  

Commenters believe that Safe Food is further instructive because the
court then carefully examined EPA's reasons for the conditional
exclusion of K061 wastes used to produce fertilizer.  EPA's main reason
was that "market participants treat the exempted materials more like
valuable products than like negatively-valued wastes, managing them in
ways inconsistent with discard …."  350 F.3d at 1267.  But the court
suggested that this reason might not be sufficient, and that the
agency's case rested "on the combination: market participants' treatment
of the materials, together with EPA-required management practices and
contaminant limits assuring substantial chemical identity."  Id. The
court evaluated these reasons from the "proper perspective - namely, a
perspective based on health and environmental risk."  The court held
that these three, each of undefined weight, were critical to EPA's
reasoning, and the court placed great weight on a risk assessment study
in the administrative record showing that the excluded materials would
"not endanger human health or the environment."  350 F.3d at 1268. 
Commenters note that, while upholding EPA's rule in general, the record
did not clearly show that the contaminant level for chromium was safe,
so the court remanded for an explanation of the chromium limit "when
considered in light of possible effects on human health or the
environment."  Id.  Commenters assert that most of the secondary
materials that come from processes that are not as amenable to proper
recycling as the metals and petroleum refining industries, will fail the
first test.  Commenters also note that record compiled by EPA in support
of the proposed rule demonstrates that unregulated recyclers treat
hazardous secondary materials as wastes, not valuable commodities, and
accordingly do not properly handle or store the wastes.  As a result,
unregulated recycling operations cause the vast majority of damage cases
identified by EPA. Under EPA's proposed rule, the second item above is
not codified, and is not supported by the damage case information.
Commenters also assert that the proposed rule also clearly fails to
satisfy the "identity" requirement, and that EPA has proposed to convert
this requirement into an optional element of the agency's assessment of
what constitutes legitimate recycling.  70 Fed. Reg. at 14,199. Since
the "identity" factor played such a large role in the court's conclusion
in SFF I, 350 F.3d at 1269-71, commenters believe that it is
inconceivable that EPA could claim that it is acting consistent with
this decision  when EPA is turning "identity" into an optional
consideration.  Overall, the commenters assert that EPA's proposed rule
fails to measure up to the standards set by the D.C. Circuit. [0119-5,
0539-3, 0559-32]

Commenters also assert that Court decisions that address EPA's exercise
of discretion to regulate recyclable materials as solid wastes provide
valuable guidance.  The court views the question of discard along a
continuum of materials and recycling practices.  At one end of the
continuum are materials directly reinserted by the generator into the
production process from which they are produced, such as the mineral
processing secondary materials in AMC I. At the other end of the
continuum are materials that are "indisputably discarded" before being
reclaimed, such as the K061 furnace dust that was shipped to a metals
recovery furnace in API I. "A material somewhere between the extremes of
ongoing production and indisputable discard was addressed" in AMC II. 
216 F.3d at 56. There sludges from a surface impoundment that the court
said may later be reclaimed in smelting operations were part of the
facility's wastewater treatment system and not part of ongoing
industrial processes. AMC II, 907 F.2d at 1186. Somewhere along the
continuum were the oil-bearing wastewaters at issue in API II. The court
noted that "[o]ur prior cases have not had to draw a line for deciding
when discard has occurred."  216 F.2d at 57. That line was the central
issue in API II. The court reviewed EPA's determination that oily
wastewaters were discarded prior to treatment to recover oil, against
industry's contention that they were in-process materials that were
recycled and not discarded.  Most importantly, the court examined EPA's
reasons in detail, emphasizing that "the record must reflect that EPA
engaged in reasoned decision-making to decide which characterization
[i.e., discarded material or in-process material] is appropriate."   Id.
The court carefully reviewed EPA's reasons, examining each one in
detail, and concluded "[t]he record in this case is deficient in that
regard." Id. [0119-5]

Commenters also argue that the proposed exclusions are contrary to the
plain language of RCRA. RCRA defines solid waste as: 

"any garbage, refuse, sludge from a waste treatment plant, water supply
treatment plant, or air pollution control facility and other discarded
material, including solid, liquid, semisolid or contained gaseous
material, resulting from industrial, commercial, mining, and
agricultural operations, and from community activities." 42 U.S.C. §
6903(27). 

Commenters noted that despite this expansive statutory definition, EPA
has focused its own regulatory program solely on materials that meet the
Agency's ever-shifting definition of "discarded material."  However, the
commenters argue that the plain language of RCRA shows that Congress
intended for certain wastes - namely garbage, refuse, and sludge from
pollution control facilities - to qualify always as solid wastes.  The
statutory definition of "solid waste" also shows that Congress intended
for the term "discarded material" to encompass a broad range of
materials, even if such materials could ultimately be recycled or
reclaimed.  Commenters believe that EPA accordingly lacks authority
under RCRA to redefine the term solid waste in a way that excludes
materials that Congress intended RCRA to regulate, and EPA's proposed
exclusions are therefore contrary to law. [0119-9, 0231-15, 0559-18,
0561-1] 

Specifically, commenters argue that the rules of statutory construction
prohibit EPA from excluding statutory solid wastes from regulation.  
EPA has long claimed that it has authority to redefine the term "solid
waste" based on the alleged ambiguity of the term "discarded material." 
Whatever ambiguity may exist in that term, however, the commenters
believe that statutory definition of solid waste clearly identifies
certain materials - garbage, refuse, and pollution control sludges - as
solid wastes, whether or not those materials are also discarded.  See 42
U.S.C. § 6903(27). Other parts of the statute further show that RCRA
requires strict regulation of pollution control sludges as solid wastes.
Giving effect to the "unambiguously expressed intent of Congress," API
I, 906 F.2d at 740 (quoting Chevron, 467 U.S. at 842-43), commenters
believe EPA must withdraw this proposed regulation as it relates to
pollution control sludges, which are per se solid wastes, whether or not
they may ultimately be recycled. [0231-22, 0231-28, 0559-19, 0559-20,
0559-21]

RCRA defines solid waste as "any garbage, refuse, [pollution control]
sludge and other discarded material."  42 U.S.C. § 6903(27).  The Act
thus defines "solid waste" by listing first those categories of
materials that are always solid wastes and then providing a general
"residual" term to encompass all other materials that are also
considered solid waste. Commenters believe that EPA may not define the
residual term "discarded material" in a way that will negate the
independent significance of the inclusion of the term "sludge" in the
definition of solid waste. It is a "settled principle of statutory
construction that [the agency] must give effect, if possible, to every
word of the statute." Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833
(1983). As both the Supreme Court and the D.C. Circuit have held,
allowing a residual, general term to define the specific terms in a
statute renders the specific terms redundant.  See, e.g., Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001); Cole v. Burns
Intern. Sec. Servs., 105 F.3d 1465, 1470-71 (D.C. Cir. 1997). Indeed,
the Supreme Court in Circuit City declared the statutory language before
it, in which specific examples were followed by a general residual
phrase, to be an "insurmountable obstacle" that could not be interpreted
in a manner that would negate the specific terms.  532 U.S. at 114.
Here, EPA's approach to statutory construction would render the terms
"garbage," "refuse," and "sludge" superfluous if EPA could define "solid
waste" solely based on EPA's determination of whether a given material
qualifies as "discarded material." Commenters therefore believe that
EPA's approach violates basic commands of statutory construction and is
therefore illegal. [0559-21]

Commenters assert that had Congress intended under RCRA for "other
discarded material" to modify all of the other words in the definition
of solid waste, it would not have needed to specifically list "garbage,
refuse, and sludge" separately.  Instead, Congress could have simply
stated that solid waste means "any discarded material."  Rather than do
that, however, Congress as a body rejected just such a definition.  The
House bill H.R. 14496 generally used the term "discarded materials" in
lieu of the Senate's "solid waste."  H.R. 14496 also had a different
definition: "[t]he term 'discarded material' means any garbage, refuse,
sludge, or other waste, including solid, liquid, semisolid, or contained
gaseous material from any source."  94 Cong. House Debates 1976, 32606. 
However, the House tabled H.R. 14496 and instead passed S.2150,
deliberately acceding to the Senate definition. See Id. at 32599 ("The
Senate's 'solid waste' terminology was agreed to be used instead of the
House's 'discarded materials' terminology. The Senate definitions of
solid waste and solid waste management have been included."); see also
id. at 33817. By treating "discarded material" as the only statutory
term of significance, commenters believe that EPA has negated Congress'
intent that pollution control sludges categorically qualify as solid
wastes.  Under rules of statutory construction, EPA lacks the authority
to do this.  [0231-24, 0231-26, 0559-21]

Commenters also state that EPA's proposed rule also violates the well
established ejusdem generis canon of construction, under which "general
words [that] follow specific words in a statutory enumeration are
construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words."  Circuit City, 532 U.S. at
114-15, quoting 2A n. Singer, Sutherland on Statutes and Statutory
Construction § 47.17 (1991).  According to this canon, although the
residual clause may be read to give effect to the specific terms, it
also must be controlled and defined by reference to the specific terms
it follows.  Id. at 115; Cole, 105 F.3d at 1470-71. Nothing in the
ejusdem generis canon of construction allows for specific terms to be
defined away by the general residual term.  EPA's to attempt to nullify
the specific term "sludge" within the definition of solid waste is thus
impermissible.  [0227-3, 0231-25, 0559-21]

Indeed, the D.C. Circuit itself relied on ejusdem generis to reach its
conclusions in its first decision interpreting the term "solid waste." 
AMC I, 824 F.2d at 1189-90. There, the court analyzed whether EPA could
define as "discarded material," and thus solid waste, intermediate
manufacturing or mining products that would be processed in the ongoing
production processes of the same facility.  Id. at 1181-83. In
concluding that EPA could not extend the term "discarded material" to
encompass materials involved in the ongoing production processes, the
D.C. Circuit turned to the ejusdem generis canon of construction for
support. Specifically, the Court observed: 

“[T]he statutory definition of "solid waste" is quite specific. [T]he
definition here is carefully crafted with specificity.  It contains
three specific terms and then sets forth the broader term, "other
discarded material."  The definitional structure brings to mind a
long-standing canon of statutory construction, ejusdem generis. Under
that familiar canon, where general words follow the enumeration of
particular classes of things, the general words are most natural
construed as applying only to things of the same general class as those
enumerated.  Here, the three particular classes - garbage, refuse, and
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility - contain materials that clearly fit
within the ordinary, everyday sense of "discarded." It is most sensible
to conclude that Congress, in adding the concluding phrase "other
discarded material," meant to grant EPA authority over similar types of
waste, but not to open up the federal regulatory reach of an entirely
new category of materials, i.e., materials neither disposed of nor
abandoned, but passing in a continuous stream or flow from one
production process to another.” Id. at 1189-90. 

Commenters assert that, notably, in referencing the ejusdem generis
canon, the D.C. Circuit made several observations that apply with
particular force here.  First, the court acknowledged that the RCRA
statutory definition of solid waste contains three specific terms that
must be regulated.  Id. at 1189. Second, in finding that these three
specific terms should also help define the broader term, "discarded
material," the court noted that garbage, refuse, and pollution control
sludges "clearly fit within the ordinary, everyday sense of
'discarded.'" Id. at 1190. The court's interpretation thus shows that,
while the specific terms lend meaning to the catch-all term, "discarded
material," they cannot be undermined by EPA's shifting interpretation of
the catch-all term.  Finally, the court acknowledged that a "plain,
everyday" meaning of discard - and not one based on market
participation, economic factors, chemical identity, and other extraneous
considerations - provides the legal touchstone for analyzing EPA's
statutory interpretations.  Accordingly, using the ejusdem generis canon
of construction, and as the D.C. Circuit's opinion in AMC I
acknowledges, Congress intended for three specific categories of
materials - garbage, refuse, and pollution control sludges - to fall
always within the statute's regulatory schemes.  Commenters assert that
EPA's attempt to upset Congress' specific designation of these three
categorical wastes cannot stand under basic statutory construction
rules. [0227-3, 0559-21]

Commenters also cite the Supreme Court's decision in Massachusetts v.
EPA, 127 S.Ct. 1438 (2007), which shows that EPA and the courts must
consider the entirety of a statutory definition when attempting to
define specific terms within that definition.  The Supreme Court found
that the Clean Air Act's statutory definition of "air pollutant" plainly
encompassed carbon dioxide and other greenhouse gases.  Id. at 1460. In
so doing, the Court made clear that EPA cannot single out specific
statutory words, to the exclusion of other defining terms, in an effort
to avoid regulating particular substances.  Id. at 1460 n. 26. 
Commenters assert that the structure of the definition of "air
pollutant" under the Clean Air Act is remarkably similar to the
structure of the definition of "solid waste" under RCRA. Therefore, the
commenters believe that Court's statutory analysis in Massachusetts
applies with particular force here, and it shows that EPA's
interpretation of the term "discarded material" impermissibly exempts
material "resulting from industrial, commercial, mining, and
agricultural operations" from regulation as solid waste. The Clean Air
Act defines "air pollutant" as "any air pollution agent or combination
of agents, including any physical, chemical, biological, radioactive 
substance or matter which is emitted into or otherwise enters the
ambient air."  (42 U.S.C. 7602(g)). RCRA, as noted, defines "solid
waste" as "any garbage, refuse, [pollution control] sludge , or other
discarded material, including solid, liquid, semisolid, or contained
gaseous material, resulting from industrial, commercial, mining, and
agricultural operations." 42 U.S.C. 6903(27).  Both statutory
definitions start with broad terms - "air pollution agent" under the
Clean Air Act and "garbage, refuse, sludge and other discarded material"
under RCRA - that are further defined by a description of substances
that the broad terms include.  Under the Clean Air Act, "air pollution
agent" includes any physical substance that enters the ambient air.  127
S.Ct. at 1460. Under RCRA, then, the term discarded material must
similarly include materials "resulting from industrial, commercial,
mining, and agricultural operations."  EPA's definition of "solid waste"
reads these terms out of the statute entirely.  Moreover, because RCRA
defines "solid waste" to include "any" garbage, refuse, pollution
control sludge, and other discarded material.  42 U.S.C.6903(27),
commenters believe that in using the term "any," Congress signaled its
clear intent that the term "solid waste" would apply broadly and without
limitation. [0559-25, 0559-26]

Although the commenters acknowledged that EPA has promulgated exclusions
for these materials in the past, and that one such exclusion was
recently upheld in court in Safe Food and Fertilizer v. EPA, they stated
that they believed that the D.C. Circuit erred in  Safe Food and
Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) ("SFF I"). In that
case, the court invoked a "reverse ejusdem generis" principle to find
that EPA could override Congress' express determination that pollution
control sludges are per se solid wastes, if EPA determined that these
sludges were not also "discarded material."  Id. at 1268-69. Commenters
believe that the court's approach to statutory construction, however,
has no basis in law and cannot be used to allow an agency to ignore
clear statutory directives.  Because the court has consistently reviewed
the term "discarded material" as a stand-alone provision unhinged from
the rest of the statutory definition, commenters believe that the
court's opinions, as a result, are all premised on a significant
misapprehension of the statutory language of RCRA and the regulatory
requirements that Congress intended to impose on "solid, liquid,
semisolid, or contained gaseous material, resulting from industrial,
commercial, mining, and agricultural operations."  42 U.S.C. 6903(27).
Commenters believe that if the court were to properly view the statutory
definition in its entirety, and not view the term "discarded material"
in isolation, it would have to conclude that the materials at issue here
in EPA's proposed exclusions plainly fall within RCRA's statutory
definition of solid waste and therefore must be regulated as such,
whether or not they may at some point be recycled.  Moreover, commenters
believe that the D.C. Circuit relied upon inappropriate factors to
uphold EPA's assessment that pollution control sludges were not
"discarded materials" in SFF I. Accordingly, commenters believe that EPA
cannot rely on SFF I to exclude pollution control sludges from
regulation as solid wastes under RCRA. [0559-21, 0559-24]

Commenters also argue that the "reverse ejusdem generis" principle does
not support EPA's exclusion of pollution control sludges.  The "reverse
ejusdem generis" concept appears for the first time in federal case law
in a 1996 decision authored, like SFF I, by Judge Williams.  United
States v. Davis-Williams, 90 F.3d 490, 509 (D.C. Cir. 1996). In that
case, the relevant statute defined "a person engaged in a continuing
criminal enterprise" to require the person to be "undertaken by such
person in concert with five or more other persons with respect to whom
such person occupies a position of organizer, a supervisory position, or
any other position of management."  Id. at 508 (citing 21 U.S.C.
848(c)).  The Ninth Circuit had held that the statutory terms "a
position of organizer, a supervisory position, or any other position of
management," require the government to show that a person occupying a
"position of organizer" play some sort of managerial role.  Id. at
508-09 (citing United States v. Delgado, 4 F.3d 780, 785 (9th Cir. 1993)
and United States v. Jerome, 942 F.2d 1328 (9th Cir. 1991).
Specifically, as a matter of syntax, the Ninth Circuit held that the
phrase "A, B, or any other C" indicates that A is a subset of C.  Id. at
509. The D.C. Circuit dubbed this approach "a sort of reverse ejusdem
generis" in which the syntax made clear that a person could be liable as
an "organizer" only where he occupied a sort of managerial position. 
Id. at 508-09.

The D.C. Circuit's second use of the "reverse ejusdem generis" principle
appears in Dong v. Smithsonian Inst., 125 F.3d 877 (D.C. Cir. 1997),
another decision authored by Judge Williams.  There, a private plaintiff
sued the Smithsonian Institution for failing to adhere to the Privacy
Act, which applies to any "agency."  Id. at 878. The Privacy Act defines
"agency" to include "any executive department, military department,
Government corporation, Government controlled corporation, or other
establishment in the executive branch of the Government, or any
independent regulatory agency."  5 U.S.C. 552(f). The D.C. Circuit held
first that the Smithsonian was not "an establishment in the executive
branch." 125 F.3d at 879. It then considered whether the Smithsonian
qualified as a "Government controlled corporation."  Without addressing
the specific arguments raised by the Smithsonian, the court concluded
that the definition of agency, with its catch-all use of the term "or
other establishment in the executive branch," signaled Congress' intent
to limit the Privacy Act only to the executive branch.  Id. To support
this conclusion, the D.C. Circuit relied on the "reverse ejusdem
generis" principle, as well as a Congressional publication that defines
"agency" to apply solely to the executive branch.  Id. at 879 n.2. The
court did not, however, adopt a categorical rule that a general
catch-all phrase at the end of a list of terms must necessarily be read
so that the general catch-all phrase defines all other words in a list. 
 

In SFF I, however, the D.C. Circuit expanded its use of the "reverse
ejusdem generis" principle in a way that goes well beyond its previous
employment of the term.  Indeed, in both Davis-Williams and Dong, the
D.C. Circuit considered the overall syntax of the statutory terms at
issue and the statutory schemes as a whole before it read the general
catch-all phrases to impose limitations on the previously listed terms. 
In SFF I, in contrast, the court stated that EPA's reading of the
statute was "sensible" and "consistent with the 'reverse ejusdem
generis' principle."  350 F.3d at 1269. The court never explained how
the "reverse ejusdem generis" principle gives effect to RCRA's statutory
structure and plain language or how it operates consistently with
Congress' intent in establishing RCRA.  [Footnote 3: (Further, the
"reverse ejusdem generis" explanation only works where a statute uses
the disjunctive "or" rather than the conjunctive "and," and so it should
not apply to the RCRA definition of solid waste, which encompasses "any
garbage, refuse, sludge  and other discarded material.")] Any such
explanation would have faltered under the directive that courts "must
give effect, if possible, to every word of the statute."  Bowsher v.
Merck & Co., Inc., 460 U.S. 824, 833 (1983). In SFF I, by employing the
"reverse ejusdem generis" canon of construction, the court made the term
"discarded material" the only relevant part of the statutory definition
of solid waste.  This is simply impermissible.

Commenters believe that the SFF I opinion is additionally flawed because
the D.C. Circuit impermissibly allowed EPA to justify its exclusion of
pollution control sludges by relying on factors that Congress did not
allow EPA to consider under RCRA.  Specifically, the D.C. Circuit
accepted EPA's argument that EPA could define "discarded materials"
based on a combination of "market participants' treatment of the
materials, together with EPA-required management practices and
contaminant limits assuring substantial chemical identity." 350 F.3d at
1269. Yet nothing in RCRA gives EPA the authority to define "discarded
materials" based on these factors.  RCRA does not allow EPA to define
the term "solid waste" through a market-based approach.  Nor does RCRA
give EPA the authority to exclude materials as "solid wastes" because
EPA believes that the excluded materials have "substantial chemical
identity" with other products or substances.  Commenters believe that
the statute limits EPA's assessment to a consideration of whether the
materials are 1) garbage, 2) refuse, 3) pollution control sludge, and 4)
discarded material, (i.e., material resulting from industrial,
agricultural, mining, and commercial operations).  42 U.S.C. §
6903(27). Commenters assert that the other factors that EPA has included
in its proposed rule may relate to other parts of the statute, but they
have no place in the assessment of whether materials are "solid wastes"
at the outset.

[559-23, 559-27]

2.1.3 - Response

EPA disagrees with comments that state that the Agency has exceeded its
authority by the exclusions in the final rule. While EPA agrees that
Congress has given it the authority to regulate hazardous secondary
materials that are reclaimed under Subtitle C of RCRA when discard is
involved, the Agency also believes (and the courts have confirmed) that
when hazardous secondary materials are reclaimed and such recycling
operations do not involve discard, the hazardous secondary materials
involved are not solid wastes under RCRA. 

EPA also has the authority to determine which types of recycling do not
involve discard and, therefore, which types of hazardous secondary
materials are not solid wastes. As EPA noted in the March 2007
supplemental proposal, "[u]nder the RCRA Subtitle C definition of solid
waste, many existing hazardous secondary materials are not solid wastes
and, thus, not subject to RCRA's 'cradle-to-grave' management system if
they are recycled. The basic idea behind this construct is that
recycling of such materials often closely resembles normal industrial
manufacturing, rather than waste management" (72 FR 14197). Existing
exclusions, found in 40 CFR 261.4(a), provide a long historical
precedent for EPA's authority to exclude reclaimed materials from the
definition of solid waste. EPA refers these commenters to the discussion
of case law in the 2007 supplemental proposal (72 FR 14176-78) and the
final rule (Section III of the final rule preamble), and asserts that
this rule follows valid precedent in the D.C. Circuit, including the
court's opinion in Safe Food. 

As discussed in section 2.1.5 of the response to comments document, EPA
does not agree that hazardous secondary material that meets the
conditions of the final rule must be subject to full Subtitle C
regulatory control.  Because the conditions define hazardous secondary
materials that are not discarded, and therefore not solid wastes, they
are appropriate for use in this context.  

EPA also does not agree that hazardous secondary materials would have to
meet the three factors evaluated by the court in the Safe Food and
Fertilizer v. EPA (350 F.3d at 1267) case (i.e., market participants'
treatment of the materials, together with EPA-required management
practices, and contaminant limits assuring substantial chemical
identity) in order to be excluded.  EPA's rationale in the final rule is
somewhat different than in the Safe Food case, but it is nonetheless
specifically linked to the concept of discard.

Specifically, as discussed in section 2.1.3.1 of the response to
comments document, EPA has determined that if the generator maintains
control over the recycled hazardous secondary material, the material is
legitimately recycled under the standards established in the final rule,
and the material is not speculatively accumulated within the meaning of
EPA's regulations, then the hazardous secondary material is not
discarded. This is because the hazardous secondary material is being
treated as a valuable commodity rather than as a waste. By maintaining
control over, and potential liability for, the recycling process, the
generator ensures that the hazardous secondary materials are not
discarded (see ABR 208 F.3d 1051 ("Rather than throwing these materials
[destined for recycling] away, the producer saves them; rather than
abandoning them, the producer reuses them.")) (72 FR 14178).  EPA
continues to believe that when a generator legitimately reclaims
hazardous secondary material under its control, the generator has not
abandoned the material and has every opportunity and incentive to
maintain oversight of, and responsibility for, the hazardous secondary
material that is reclaimed. 

In addition, in the case of hazardous secondary materials sent to
another party for recycling, specific conditions allow the Agency to
determine that these hazardous secondary materials are not discarded.  
One key condition that reflects the basic premise underlying the
exclusion is the condition that the hazardous secondary material
generator perform and document reasonable efforts to ensure that its
hazardous secondary material will be properly and legitimately recycled.
As EPA explained in the March 2007 supplemental proposal, in order to
demonstrate that hazardous secondary materials will not be discarded,
generators who transfer their hazardous secondary materials to a third
party for reclamation must have a reasonable understanding of who will
be reclaiming the materials and how they will be managed and reclaimed
and a reasonable assurance that the recycling practice is safe and
legitimate (72 FR 14194). In order for a generator to determine whether
its hazardous secondary materials are not solid wastes because they are
not discarded, the generator must make a reasonable effort to ensure
that the reclaimer intends to legitimately recycle the material pursuant
to 40 CFR 260.43 and not discard it, and that the reclaimer (and any
intermediate facility) will properly manage the material. 

EPA continues to find that the reasonable efforts condition is critical
in determining when hazardous secondary materials sent to another party
for reclamation are not discarded. According to the study of successful
recycling practices found in the docket for today's rulemaking,
generators of hazardous secondary materials frequently perform audit
activities and inquiries to determine whether the entity to which they
are sending hazardous secondary materials is equipped to responsibly and
legitimately reclaim and manage those materials without the risk of
releases or other environmental damage. These recycling and waste audits
of other companies' facilities form a backbone of many of the
transactions in the hazardous secondary materials markets. As noted in
the March 2007 supplemental proposal, EPA's study of good practices for
recycling quotes one large recycling and disposal vendor as stating that
of its new customers, 60% of the large customers and 30%-50% of the
smaller customers now perform audits on them (72 FR 14191). Thus,
although these practices are not universal, they do indicate that there
are currently many generators who recognize the risk of third-party
recyclers discarding their hazardous secondary materials and who take
responsibility to ensure that this discard does not occur. By codifying
the reasonable efforts condition of the transfer-based exclusion, EPA
has structured the exclusion to appropriately exclude from the
definition of solid waste hazardous secondary materials that are
generated by companies who take this type of responsibility and
therefore are not discarding these materials.  

In addition, EPA has determined that the financial health of a
reclamation facility can be a crucial consideration in determining
whether discard is taking place. According to the successful recycling
study, an examination of a company's finances is an important part of
many environmental audits. In addition, the environmental problems study
showed that bankruptcies or other types of business failures were
associated with 138 (66%) of the damage cases, and the market forces
study identified a low net worth of a firm as a strong indication of a
sub-optimal outcome of recycling.  To address the issue of the
correlation of financial health with the absence of discard, EPA
proposed in the March 2007 supplemental proposal to require that
reclamation facilities obtain financial assurance. The financial
assurance requirements are designed to help EPA determine that the
hazardous secondary material generator is not discarding the hazardous
secondary material by sending it to a reclamation facility that is
financially unsound.  In addition, by obtaining financial assurance, the
owner/operator of the reclamation facility (or intermediate facility) is
making a direct demonstration that it will not abandon the hazardous
secondary material. Discard through abandonment was a major cause of
damages identified in the environmental problems study. Of the 208
damage cases, 69 (33%) involved abandoned materials. By obtaining
financial assurance, a reclaimer (or intermediate facility) is
demonstrating that even if unexpected events or events beyond its
control make its operations uneconomical, the hazardous secondary
material will not be abandoned.

In the March 2007 supplemental proposal, EPA also proposed a condition
for reclaimers that they must manage the hazardous secondary materials
in at least as protective a manner as they would an analogous raw
material, and in such a way that the hazardous secondary materials would
not be released into the environment (72 FR 14195). This condition
addresses another major cause of damages identified in the environmental
problems study, mismanagement of recyclable materials, constituting the
primary cause of damage in 81 (40%) of the 208 cases. After reviewing
the comments, EPA continues to find that such a condition is necessary
to distinguish which hazardous secondary materials are not discarded.

The third major source of damages identified in the environmental
problems study was mismanagement of residuals generated from the
reclamation activity, constituting the primary cause of damage in 71
(34%) of the 208 cases. As discussed in the March 2007 supplemental
proposal, EPA found that in many cases, the residuals were comprised of
the most hazardous components of the hazardous secondary materials
(e.g., polychlorinated biphenyls (PCBs) from transformers) and were
simply disposed of in on-site landfills or piles, with little regard for
the environmental consequences of such mismanagement or possible CERCLA
liabilities associated with cleanup of these releases. Therefore, EPA
proposed that "any residuals that are generated from reclamation
processes will be properly managed. If any residuals exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261, or themselves
are listed hazardous wastes, they are hazardous wastes (if discarded)
and must be managed according to the applicable requirements of 40 CFR
parts 260 through 272'' (72 FR 17195). EPA continues to find that this
condition is important to clarify the regulatory status of these waste
materials, to emphasize in explicit terms that the residuals generated
from reclamation operations must be managed properly (i.e., consistent
with federal and state requirements) and to distinguish which hazardous
secondary materials are not discarded. 

Finally, other provisions of the transfer-based exclusion help ensure
that the hazardous secondary material is properly transferred to the
reclamation facility for recycling and is not discarded. Only the
hazardous secondary material generator, transporter, intermediate
facility and reclaimer can handle the material. (Note that, as with
hazardous waste, a hazardous secondary material can be held up to 10
days at a transfer facility and still be considered as being
transported.) The hazardous secondary material generators, intermediate,
and reclamation facilities claiming the exclusion must keep records of
the hazardous secondary material shipments, and reclamation and
intermediate facilities must send confirmations of receipt back to the
hazardous secondary material generator. Thus, all parties responsible
for the excluded hazardous secondary materials will be able to
demonstrate that the materials were in fact sent for recycling and
arrived at the intended facility and were not discarded in transit. For
hazardous secondary material generators who are exporting to other
countries for recycling, notice and consent must be obtained, thus
facilitating oversight of the hazardous secondary material when sent
beyond the borders of the United States, helping to ensure that it is
recycled rather than discarded.

EPA's discussion of the issues summarized above in the preamble to the
final rule, as well as all materials in the rulemaking record, support
EPA's decision that materials meeting the conditions and restrictions in
this rule are excluded from the definition of solid waste.  The comments
repeat old arguments that have been raised in the courts and have been
decided.  EPA disagrees with both extremes of the arguments so often
presented in comments on this rule.  That is, the Agency disagrees with
those that would, essentially, prevent the Agency's reasonable exercise
of discretion to exclude materials from the definition of solid waste
and, also, disagrees with those that say the Agency has no discretion to
regulate any recycling.  EPA responds to the latter arguments in other
places in this Response to Comment document and the rulemaking record. 
The overall concept that the cases establish is that both wastes and
non-wastes may be recycled.  RCRA may exercise its Subtitle C regulatory
jurisdiction over recycling of materials that have been discarded -
solid wastes - that are also hazardous wastes.  If the materials are not
solid waste, however, recycling is not covered by RCRA Subtitle C
regulations.  

With respect to the arguments presented in these comments, EPA will
avoid repeating the "mind-numbing journey through RCRA" that has already
been undertaken by the courts.  See, for example, AMC I, 824 F.2d at
1187-89.  Specific RCRA provisions cited by comments do not "revamp the
basic definitional section of the statute."  Id. at 1187.  EPA refers
the commenters to existing case law.  EPA, also, does not need to
respond to arguments that the D.C. Circuit has wrongly decided cases,
particularly the Safe Food case, since the Agency is bound by decisions
of that court in issuing its rules.  

2.1.3.1 - Proposed exclusion for hazardous secondary material recycled
under the control of the generator is unrelated to discard

2.1.3.1 - Summary

EPA's Rationale For Generator-Controlled Exclusion - Comments

Commenters expressed concern about what they understood as the basic
rationale for EPA's broad exclusion for generator on-site recycling,
that: "[b]y maintaining control over, and potential liability for, the
recycling process, the generator ensures that the materials are not
discarded."  57 FR 14178, citing ABR, 208 F.3d at 1051.  However,
commenters assert that EPA is extending the principle too far. 
Commenters believe that mere control and potential liability are by no
means sufficient to "ensure" that materials are not discarded,
especially when the generator thereby avoids the cost of proper
recycling or disposal. In addition, commenters assert that whether a
company is "familiar" or not with the hazardous secondary material has
little bearing on anything, and it especially has no bearing on whether
the particular material is discarded.  

Excluding Hazardous Secondary Material that is No Longer Useful -
Comments

While commenters acknowledge that a generator that directly reuses a
hazardous secondary material in its ongoing production process has not
discarded that material, they note that EPA's proposed exclusion for
hazardous secondary material under the control of the generator goes
further than direct reuse, and would exclude materials that are no
longer useful to the generator, that are accumulated and stored for
potentially lengthy periods of time, and that are reclaimed in a
recycling process that is not part of the generator's production
activities.  

Generator-Controlled Recycling Not Part of Core Business - Comments

Commenters note that many companies recycle on-site to avoid the cost of
RCRA's regulated disposal.  When the reclamation occurs on-site in a
company's normal production processes, commenters believe that EPA can
reasonably conclude that the material is not discarded and is part of a
continuous process. Thus, a paint manufacturing company may reclaim
pigment-impregnated sludges in its production process.  However, normal
paint production does not include a separate solvent distillation unit
that is used to reclaim spent solvent from metal parts cleaning.  Making
solvent to clean equipment is a completely different industry than paint
production - paint companies make paint, not reclaimed solvents.   

Commenters also provided the example of a paint manufacturer who must
operate wastewater treatment systems to comply with the discharge limits
of the Clean Water Act and air pollution control systems to meet
emission limits of the Clean Air Act, and then decides to make the
capital investment to construct a metals separation and smelting unit on
its property to recover ferrous metals from the sludge. That process
would clearly be separate and distinct from paint production. 
Commenters agssert that it is common sense that the pollution control
sludge is discarded material which is no longer useful to the paint
company for the production of paint, and that the sludge is subsequently
reclaimed as a waste management activity. 

Commenters provided another example of a manufacturer that recycles
F-listed spent solvents from equipment cleaning in a thermal
distillation unit that is separate and distinct from its manufacturing
operation.  This generator is not directly reusing the solvent in its
production process, but rather is collecting, storing, and processing a
RCRA-listed spent solvent just like a commercial solvent recycler. 
Commenters assert that this situation is similar to the reclamation of
oil-bearing wastewaters at petroleum refineries, which the court held
could be subject to RCRA jurisdiction.  American Petroleum Institute v.
EPA ("API II"), 216 F.3d 50 (D.C. Cir 2000).   In API II, the court
could not determine whether oily wastewater recovered at petroleum
refineries was part of production or waste treatment, and remanded to
EPA for a reasoned explanation.  The administrative record in that case
that was far more fulsome than EPA's meager effort here.  Yet EPA's
proposed rule would exclude all oily wastewater recovery by any company,
without any reasonable explanation of why this is not hazardous waste
reclamation. EPA needs to explain why those reclamation processes,
either at the generator's site or at another firm's site, do not involve
discard prior to recycling.  In other words, EPA must explain how
materials stored and recycled in a subsequent off-site reclamation
process can possibly be viewed as "passing in a continuous stream or
flow from one production process to another." AMC I, 824 F.2d at 1190.  

Commenters also note that EPA itself assumes in the Economic Assessment
that paint manufacturers will build solvent recycling units and aluminum
manufacturers will build Vortec systems to recover fluoride from
aluminum potliner.  These reclamation activities are not part of the
basic production process in those industries, which is producing paint
or aluminum, but are separate processes for reclaiming unusable spent
materials.  Thus commenters believe that the proposed rule would exclude
materials that are not reclaimed in an ongoing industrial process, but
can only reasonably be viewed as discarded and subsequently recycled. 

Commenters note that EPA's 2003 proposed regulation claims that it would
result in safe recycling, because facilities within the "same industry"
already possess the technological expertise necessary to accomplish safe
and effective recycling. However, EPA also recognized that, under its
proposed rule, facilities within the "same industry" would be allowed to
manufacture recycled products which they do not normally produce and
with which they have no experience, much less expertise.  The commenters
said that EPA fails to explain how allowing industries to experiment
with recycling hazardous wastes (which themselves will be excluded from
regulation) will lead to safe management, when the premise of EPA's
definition hinges on EPA's expectation of the industries' inherent
expertise.  This inconsistency is at its apex when one considers that
EPA has made clear that hazardous wastes that are in fact sent to the
industries with the greatest expertise in waste recycling - the waste
management facilities - will actually be subject to greater regulation
than wastes sent to facilities with absolutely no recycling, or even
waste management, experience.

[0119-7, 0119-8, 0231-17, 0231-34, 0558-5, 0559-38]

2.1.3.1 - Response

EPA's Rationale For Generator-Controlled Exclusion - Response

In the March 2007 supplemental proposal, EPA determined that if the
generator maintains control over the recycled hazardous secondary
material, the material is legitimately recycled under the standards
established in the proposal, and the material is not speculatively
accumulated within the meaning of EPA's regulations, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. By maintaining control over, and potential liability for,
the recycling process, the generator ensures that the hazardous
secondary materials are not discarded (see ABR 208 F.3d 1051 ("Rather
than throwing these materials [destined for recycling] away, the
producers saves them; rather than abandoning them, the producer reuses
them.")) (72 FR 14178).

EPA disagrees with comments that state that the proposed exclusion for
hazardous secondary materials recycled under the control of generator is
unrelated to discard. While the court in Association of Battery
Recyclers v. EPA ("ABR"), 208 F.3d 1047 (D.C. Cir. 2000) specifically
addressed the case where a generator that directly reuses a hazardous
secondary material in its ongoing production process and therefore has
not discarded that material, EPA disagrees that this is the only type of
recycling that does not involve discard.  In the case of hazardous
secondary material recycled under the control of the generator, EPA
believes that the combination of the fact pattern surrounding these
types of recycling situations, coupled with the specific restrictions of
the exclusion, appropriately identify recycling activities that do not
involve discard.  EPA emphasizes the fact material is under the control
of the generator is not sufficient by itself to determine it is not
discarded.  These other factors also come into play.   EPA's view is
that other factors would need to be evaluated to determine whether such
recycling involves waste or not.  

EPA continues to believe that when a generator legitimately recycles
hazardous secondary material under its control and meets certain
restrictions described below, the generator has not abandoned the
material and has every opportunity and incentive to maintain oversight
of, and responsibility for, the hazardous secondary material that is
reclaimed. 

In determining when recycling occurs "under the control" of the
generator, EPA looked at three scenarios: recycling performed on-site,
recycling performed within the same company, and recycling performed
under certain specific tolling arrangements.

In the March 2007 supplemental proposal, EPA noted that, of the 208
recycling cases that caused environmental damage, only 13 (approximately
6%) occurred as a result of on-site recycling. We also agreed with
commenters on the October 2003 proposal who asserted that "generators
who recycle materials on-site (even if the reclamation takes place in a
different NAICS code) are likely to be familiar with the material and
more likely to maintain responsibility for the materials" (72 FR 14185).
  Familiarity is an important consideration because a facility that is
not familiar with a hazardous secondary material would have a difficult
time recycling it properly.

EPA also determined that this rationale applies to reclamation taking
place within the same company. In the case of same-company recycling,
both the generating facility and the reclamation facility (if they are
different) would be familiar with the hazardous secondary materials and
the company would be ultimately liable for any mismanagement of the
hazardous secondary materials. Under these circumstances, the incentive
to avoid such mismanagement would be so strong that mismanagement also
would be unlikely. 

In the case of certain tolling operations, EPA determined in the March
2007 supplemental proposal that a certain specific type of tolling
arrangement provides equivalent assurance that recycling is performed
"under the control of the generator" and does not constitute discard.
Under this type of arrangement, one company (the tolling contractor)
contracts with a second company (the toll manufacturer) to produce a
specialty chemical from specified virgin materials identified in the
tolling contract. The toll manufacturer produces the chemical and the
production process generates a hazardous secondary material (such as a
spent solvent) which is routinely reclaimed at the tolling contractor's
facility. The typical toll manufacturing contract contains detailed
specifications about the product to be manufactured, including
management of any hazardous secondary materials that are produced and
returned to the tolling contractor for reclamation. Under this scenario,
the hazardous secondary material continues to be managed as a valuable
product, so discard has not occurred. Moreover, because the contract
specifies that the tolling contractor retains ownership of, and
responsibility for, the hazardous secondary materials, there is a strong
incentive to avoid any mismanagement or release. In essence, the tolling
contractor has outsourced a step in its manufacturing process, but
continues to take responsibility and maintain control of the process as
a whole, including both the virgin materials going into the process and
the product and hazardous secondary materials resulting from the
process.

For all three of these generator-controlled exclusions (reclamation
performed on-site, within the same company, and via certain tolling
arrangements) EPA continues to find that the hazardous secondary
material generator still finds value in the hazardous secondary
materials, has retained control over them, and intends to reclaim them.
Therefore, EPA is finalizing an exclusion for these materials, with
certain restrictions discussed below.

In the March 2007 supplemental proposal, EPA also noted that management
in a land-based unit does not automatically indicate a hazardous
secondary material is being discarded. As long as the hazardous
secondary material is contained and is destined for recycling under the
control of the generator, it would still meet the terms of the
exclusion. However, if the hazardous secondary material is not managed
as a valuable product and, as a result, a significant release from the
unit occurs, the hazardous secondary material in the land-based unit
would be considered discarded (72 FR 14186). Thus, EPA proposed that the
hazardous secondary material must be contained in the land-based unit in
order for the exclusion to be applicable. 

However, in making this finding that hazardous secondary materials
managed in a land-based unit must be contained in order to retain the
exclusion, EPA did not intend to imply that hazardous secondary
materials managed in non-land-based units do not need to be contained.
Hazardous secondary materials released to the environment are not
destined for recycling and are clearly discarded whether they originated
from a land-based unit or not. Because non-land-based units do not
involve direct contact with the land, in the March 2007 supplemental
proposal, EPA did not include an explicit "contained" restriction for
these units. However, as commenters noted, it is still possible for
non-land-based units to leak or otherwise release significant amounts of
hazardous secondary materials to the environment, even if they are not
in direct contact with the land, resulting in those materials being
discarded. Thus, in the final rule, EPA is requiring that hazardous
secondary materials must be contained (whether managed in land-based
units or non-land-based units) in order to identify the hazardous
secondary materials that are not being discarded and, therefore, are not
solid wastes.

Another restriction on the generator-controlled exclusions is the
prohibition against speculative accumulation. As noted in the March 2007
supplemental proposal, restrictions on speculative accumulation (40 CFR
261.1(c)(8)) have been an important element of the RCRA hazardous waste
recycling regulations since they were promulgated on January 4, 1985.
Historically, hazardous secondary materials excluded from the definition
of solid waste generally become wastes when they are speculatively
accumulated, because, at that point, they are considered to be unlikely
to be recycled and therefore are discarded. According to this regulatory
provision, a hazardous secondary material is accumulated speculatively
if the person accumulating it cannot show that the material is
potentially recyclable; further, the person accumulating the hazardous
secondary material must be able to show that during a calendar year
(beginning January 1) the amount of such material that is recycled, or
transferred to a different site for recycling, equals at least 75% by
weight or volume of the amount of that material at the beginning of the
period. As noted in the March 2007 supplemental proposal, this provision
already applies to hazardous secondary materials that are 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 characteristic
sludges and by-products being reclaimed (72 FR 14188). Given that a
significant portion of the damage cases stemmed from over-accumulation
of hazardous secondary materials, EPA continues to believe that a
restriction on speculative accumulation is necessary to distinguish
which that the hazardous secondary material is being recycled and is not
discarded. 

In addition, as with all recycling exclusions under RCRA, the excluded
hazardous secondary materials must be recycled legitimately. As
discussed in section IX of the final rule preamble, EPA has long
articulated the need to distinguish between "legitimate" (i.e., true)
recycling and "sham" recycling, beginning with the preamble to the 1985
regulations that established the definition of solid waste (50 FR 638,
January 4, 1985) and continuing with the October 2003 and March 2007
proposed codification of criteria for identifying legitimate recycling.
Because there can be a significant economic incentive to manage
hazardous secondary materials outside the RCRA regulatory system, there
is a 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. While the legitimacy construct applies to both
excluded recycling and the recycling of regulated hazardous wastes,
hazardous secondary materials that are not legitimately recycled (i.e.,
that are being treated and/or disposed in the guise of recycling) are
discarded materials and, therefore, are solid wastes. 

A final restriction on the generator-controlled exclusion from the
definition of solid waste is that the hazardous secondary material must
be generated and recycled within the United States.  Because hazardous
secondary materials that are exported for recycling pass out of the
regulatory control of the federal government, making it difficult to
determine if these activities are "under the control of the generator"
and because, as noted in the March 2007 supplemental proposal, we do not
have sufficient information about most recycling activities outside of
the United States to decide whether discard is likely or unlikely (72 FR
14187), EPA continues to find that this restriction is needed to
properly define when the hazardous secondary material is not being
discarded.  

Excluding Hazardous Secondary Material that is No Longer Useful -
Response

EPA disagrees with the comments that material no longer useful to the
generator is automatically a solid waste.  In the first place, the D.C.
Circuit in AMC I specifically rejected the argument that Congress
defined "discard" in an "open-ended way, so as to encompass materials no
longer useful in their original capacity though destined for immediate
reuse in another phase of the industry's ongoing production process." 
824 F.2d at 1185.  This, of course, differs from material that is "no
longer useful, valuable, or pleasurable" as noted at 825 F.2d at 1184
n.7.  A material is a waste when it is destined for ultimate disposal or
abandonment.  Furthermore, in Safe Food the court stated, "[W]e have
never said that RCRA compels the conclusion that material destined for
recycling in another industry is necessarily 'discarded.'"  350 F.3d at
1268.  

Material recycled under the control of the generator, in many cases,
will fall between these two cases.  That is, it may not be recycled in a
continuous process and it is generally not recycled in another industry.
 In any case material not considered a solid waste under this rule must
meet a number of conditions or restrictions.  Usefulness is only one of
them.  EPA acknowledges that discarded material may, at some point in
the future, be useful but will still be considered a waste.  Simply put,
wastes may have value and may be useful.  See e.g., Owen Steel v.
Browner, 37 F.3d 146, 150 n.4 (4th Cir. 1994); United States v. ILCO
Inc., 996 F.2d 1126, 1131 (11th Cir. 1993); AMC II, 907 F.2d at 1186. 
Further, recycling within an industry may or may not be recycling of
wastes, as the D.C. Circuit discussed with respect to oil-bearing
wastewater in API II, 216 F.3d at 55-58.  In this case, however, EPA has
determined that materials that meet the conditions and restrictions of
this rule are not wastes in the first instance.  

In response to commenters' concern regarding hazardous secondary
materials being "accumulated and stored for potentially lengthy periods
of time," the Agency would like to clarify the difference between the
2003 proposal and the 2007 proposal regarding speculative accumulation.
In 2003, EPA proposed that reclaimed hazardous secondary materials that
were stored in accordance with existing speculative accumulation
provisions would be considered reclaimed in a "continuous industrial
process.”  However, for the reasons explained in the preamble to the
March 26, 2007 proposal, at that time we chose not to continue pursuing
an exclusion for hazardous secondary materials that are recycled in a
continuous industrial process.  Instead, under the 2007 proposal, we
proposed to require that generators, intermediate facilities, and
reclaimers must comply with the long-standing speculative accumulation
provisions of 40 CFR 261.1(c)(8).  The speculative accumulation
provision distinguishes hazardous secondary materials that a reclaimed
from those that are merely being stored hopes of possible future
recycling.  These provisions already apply to almost all forms of
excluded recycling;  failure to comply with the requirements means that
the material in question is considered a solid waste, and, if it is also
a hazardous waste, subject to all applicable Subtitle C requirements.
The use of these regulations as part of the definition of solid waste
under RCRA has been upheld by the D.C. Circuit (API II, 216 F.3d at
58-59) and the Agency has not reopened these regulations for comment in
this rulemaking.

Generator-Controlled Recycling Not Part of Core Business - Comments

Comments providing examples of on-site recycling that are not part of a
company's production process or otherwise part of its core business
appear to be based on the commenters' misconception that the only type
of recycling that does not involve discard is direct reuse of a
hazardous secondary material in an ongoing production process.  EPA
rejects this premise.  While the generator-controlled exclusions would
include reuse in an ongoing production process, that is not the only
type of generator-controlled reclamation that EPA has determined does
not involve discard.  EPA emphasizes the fact that a hazardous material
under the control of the generator is not a sufficient reason, by
itself, for determining a hazardous secondary material is not discarded.
 These other factors also come into play.  In this respect, EPA
acknowledges the comment's reference to the oil-bearing wastewaters
discussed in API II.  That material may, or may not, be a waste and the
mere fact that it was recycled on-site was not dispositive.  EPA's view
is that other factors would need to be evaluated to determine whether
such recycling involves waste or not.  

Accordingly, EPA disagrees with the comments' reference to various
examples of hazardous secondary materials recycled in a way that is not
part of the company's core business and the assertion that these
materials are automatically discarded.  A hazardous secondary material
can be determined to not be a solid waste even if it is recycled outside
the main production process.  Paint manufacturers may still recycle
solvents, or metal-bearing sludge,  even if they decide to ship them to
another company, and the recycling could still be considered recycling
of a useful product depending on compliance with other conditions and
restrictions included in the regulation.  

EPA also notes that commenters appear to misinterpret the application of
API II and the AMC I cases to this rulemaking.  EPA is not arguing that
materials stored and recycled in off-site reclamation process are
"passing from a continuous stream." As EPA in this final rule and the
D.C. Circuit in all its cases have repeatedly stressed, AMC I (as well
as ABR) is only cited for the fact that EPA's overturned regulation was
too broad in the sense that it regulated as a waste material reclaimed
in a continuous process.  In ABR, in fact, the court acknowledged that
some material was appropriately regulated as a waste but other material
was also regulated that was clearly not a waste.  EPA in this final rule
is in no sense trying to fit this regulation into a rubric that defines
"reclamation in a continuous process within an industry."  Moreover, AMC
I was not an instruction by the court to have EPA determine criteria for
making that determination.  

In regards to the citation to API II and the comparison of solvent
recycling to the recycling of oil bearing wastewater in API II, EPA
acknowledges that solvent recycling, as well as oil bearing wastewater
recycling as discussed in API II, may be waste recycling or may not be,
depending on other factors discussed here.  Further, EPA disagrees that
this rule would exclude all oil bearing wastewater recycling at
refineries from regulation and finds no discussion anywhere in this rule
that says so.  Rather, reclamation of secondary materials would be
excluded from RCRA Subtitle C regulation only if it meets the conditions
and restrictions set forth in this rule.  In fact, the kinds of
questions asked by the court in API II regarding whether the recycling
of the oil bearing wastewaters is waste treatment or not would be the
same kinds of questions that would be asked under this rule -
essentially, "Is it simply a step in the act of discarding? Or is it the
last step in a production process before discard?"  API II 216 F.3d at
57.  Thus, this rule will be upheld (or overturned) based on the
Agency's reasoning in issuing the conditions and restrictions and
showing how hey relate to discard, not on any abstract principle stated
in arguments made by the comments.  A detailed explanation for each
process is simply not warranted given the broad principles established
by this regulation.  

In response to the comment on the 2003 proposal concerning EPA's
reliance on facilities within the "same industry" possessing the
technological expertise and familiarity with the hazardous secondary
materials to accomplish safe and effective recycling, EPA notes that, as
discussed elsewhere, the EPA has abandoned the "same industry" approach
in favor of an approach more focused on the concept of discard. 
However, the commenters basic issue - that allowing industries to
experiment with recycling hazardous wastes will not lead to safe
management, and that waste management facilities, which have more
expertise in recycling, are subject to greater regulation - is closely
related to other comments in this section.  

Again, EPA notes that the central organizing principle of this final
rule is the concept of discard.  EPA has determined that if the
generator maintains control over the recycled hazardous secondary
material, the material is legitimately recycled under the standards
established in the final rule, and the material is not speculatively
accumulated within the meaning of EPA's regulations, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. By maintaining control over, and potential liability for,
the recycling process, the generator ensures that the hazardous
secondary materials are not discarded (see ABR 208 F.3d 1051 ("Rather
than throwing these materials [destined for recycling] away, the
producers saves them; rather than abandoning them, the producer reuses
them.")) (72 FR 14178).   While the generator will already be familiar
with the hazardous secondary material that is generated from its
production process, this is a peripheral issue in determining whether
the hazardous secondary material is discarded.  In contrast, hazardous
secondary material sent to a third party is subject to additional
conditions because EPA has determined, based on the record, that such
material is more likely to be discarded.

2.1.3.2 - EPA should evaluate each type of hazardous secondary material
in making recycling determinations

2.1.3.2 - Summary

One commenter asserted that EPA should evaluate each type of secondary
hazardous material and the particular process at issue in making
recycling determinations under RCRA. After EPA undertakes this inquiry,
the agency must exercise its discretion to determine regulated and
unregulated materials under RCRA from the "proper perspective —
namely, a perspective based on health and environmental risk."  Safe
Food and Fertilizer v. EPA, 350 F.3d 1263, 1265 (D.C. Cir. 2003).
Namely, EPA's record must contain specific evidence that the particular
processes and products at issue protect public health and the
environment.  Safe Food and Fertilizer v. EPA, 350 F.3d 1263, 1265 (D.C.
Cir. 2003). EPA has failed to provide such data or rationales for the
scope of this proposal.  Courts have noted that EPA must have specific
data to make regulatory decisions under RCRA. American Mining Congress
v. EPA, 907 F.2d 1179, 1186-1190 (D.C. Cir. 1990) and Association of
Battery Recyclers v. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000). In
Association of Battery Recyclers v. EPA, the D.C. Circuit chastised the
parties for failing to note that some of the particular mining wastes at
issue: 

"may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of this sort that EPA is attempting the regulate under RCRA. At
this stage, all we can say with certainty is that at least some of the
secondary material EPA seeks to regulate as solid waste is destined for
reuse as part of a continuous industrial process... " 208 F.3d 1047 at
1056.  

The D.C. Circuit reemphasized the fact-intensive nature of determining
which materials are recycled and which are not in American Petroleum
Institute v. EPA, 216 F.3d 50, 56 (D.C. Cir 2000) (“We only held that
in-process secondary materials are not 'discarded' so that EPA could not
regulate them; we did not address the discard status of any of the
particular materials discussed in the briefs.") 

The classes of materials included in the proposal involve a tremendous
variety of manufacturing processes that produce an array of distinct
products, many of which do not normally integrate reclamation as part of
their production cycle. EPA's Industry Sector Notebooks, which the
agency uses in enforcement, compliance assistance, and pollution
prevention activities, detail a wide variety of the products and
processes that are affected by the proposal. E.g. Environmental
Protection Agency, Electronics and Computer Industry Sector Notebook,
Chapter II and III; Environmental Protection Agency, Fabricated Metal
Products Industry Sector Notebook , Chapter II and II (1995);
Environmental Protection Agency, Inorganic Chemical Industry Sector
Notebook, Chapter II and III (1995); Environmental Protection Agency,
Rubber and Miscellaneous Plastic Products Industry Sector Notebook,
Chapter II and III (1995); Environmental Protection Agency, Profile of
the Organic Chemical Industry 2nd, Chapter II and III (2002);
Environmental Protection Agency; Metal Casting Industry Sector Notebook,
Chapter II and III (1998); Environmental Protection Agency, Nonferrous
Metal Industry Sector Notebook , Chapter II through VIII (1995); and
Environmental Protection Agency, Profile of the Pharmaceuticals
Manufacturing Industry, Chapter II and III (1997) (The following link
contains other sector notebooks on describe a multitude of other
production processes potentially effected under EPA's proposed rule
http://www.epa.gov/compliance/resources/publications/assistance/sectors/
notebooks/ for additional data on other industries included in this
rule).] However, given the breadth of these processes and products, even
these resources fail to address the full range of products and
activities included in some sectors.  

For example, EPA's Non-Ferrous Metal Industry Notebook focuses on only a
limited number of production processes because the industry "is a
diverse industrial area which is comprised of many different
manufacturing processes. It is because of this diversity of processes
and related pollutant issues that [EPA's] notebook focuses only on
Primary and Secondary Nonferrous Metals Processing." EPA, Nonferrous
Metal Industry Sector Notebook, II.B.5 (1995). EPA's Metal Casting
Industry Notebook simply acknowledges that the industrial processes are
too diverse to describe: "In addition to the casting techniques
described below, there are numerous special processes and variations of
those processes that cannot be discussed here." EPA, Metal Casting
Industry Sector Notebook, II.B.1.4. (1998). Similarly, the Organic
Chemical Manufacturing section "accounts for much of the diversity" in
the 15,000 types of chemicals manufactured in the U.S. in quantities
greater than 10,000 pounds. EPA, Profile of the Organic Chemical
Industry 2nd, II.A.3 (2002). Of course, the diversity of processes and
products is even greater when one includes the scores of other chemical
products manufactured in the United States in amounts smaller than
10,000 pounds.

[0231-32, 0231-33]

2.1.3.2 - Response

EPA disagrees with comments asserting that the Agency should
individually evaluate each and every type of hazardous secondary
material and the particular process at issue in making recycling
determinations.  While EPA agrees that many of the past determinations
have been made on a material-specific basis, this type of determination
was not the purpose of the final rule.  The final rule instead
identifies in general when reclamation is discard and when it is not,
regardless of the material being reclaimed or the specific process used
for reclamation.  EPA believes that the principles included in the final
rule for determining which hazardous secondary materials are discarded
and which are not are appropriate for the universe of hazardous
secondary materials that re recycled by reclamation.  Further discussion
of EPA's basis for determining when hazardous secondary material
reclamation does not involve discard can be found in Section V of the
preamble to the final rule and in section 2.1 (and its subsections) of
this response to comments document.  EPA notes that the universes of
hazardous secondary materials recycled in ways other than reclamation
(e.g., burning for energy recover or use constituting disposal) are not
included in this rule and thus the principles laid out here are not
applied by this rule to these other universes.

EPA also takes issue with the comment's discussion of the case law.  In
the first place, EPA takes issue with the argument that the Agency must
evaluate each and every particular potential waste stream, based on the
court's statements in various cases and particularly the concern in ABR
that parties only referred to particular processes in "broad
abstractions."  However, the court in no case said that a regulation
must deal with each specific process.  EPA has established criteria in
this rule to evaluate reclamation processes for indicia of discard. 
These are reasonable criteria, as noted elsewhere in this Response to
Comment document and in the rulemaking record, and would allay the
court's concern that matters are dealt with in "broad abstractions." 
The criteria are sufficient to evaluate particular reclamation processes
for whether discard is occurring.  

Second, EPA disagrees with the comment that Safe Food requires a risk
assessment for a determination that a material is not discarded.  In the
regulation challenged in Safe Food, EPA had determined that certain
recycled materials used to make zinc fertilizers and the fertilizers
themselves are not solid wastes so long as they are not speculatively
accumulated and meet certain handling, storage and reporting conditions
and (in the case of the fertilizers themselves) have concentration
levels for lead, arsenic, mercury, cadmium, chromium, and dioxins that
fall below specified thresholds.  350 F.3d at 1265.  

These conditions mean that the recycled materials have not been
"discarded" as RCRA defines the term.  These conditions apply to a
number of materials not produced in the fertilizer production industry,
including electric arc furnace dust generated in steel production,
commonly known by its RCRA designation "K061."  350 F.3d at 1266.  

The court rejected the argument that, as a matter of plain meaning,
recycled material destined for immediate reuse within an ongoing
industrial process is never considered "discarded," whereas material
that is transferred to another firm or industry for subsequent recycling
must always be solid wastes.  350 F.3d at 1268.  Instead, the court
determined "whether the agency's interpretation of ... 'discarded' . . .
is, reasonable and consistent with the statutory purpose," by evaluating
the validity of EPA's explanation that market participants treat the
exempted materials more like valuable products than like
negatively-valued wastes, manage them in ways inconsistent with discard,
and that the fertilizers derived from these recycled feedstocks are
chemically indistinguishable from analogous commercial products made
from virgin materials.  350 F.3d at 1269.  

The court specifically stated that it "need not consider whether a
material could be classified as a non-discard exclusively on the basis
of the market-participation theory."  The market-participation theory
was not challenged.  Thus, it left open the possibility that market
participation could, by itself, lead to classification of a material as
not being a solid waste.  Id.  

The court only determined whether the combination of market
participation and "identity" is enough to establish that the recycled
fertilizers are not "discarded."  The question, therefore, was whether
the identity principle, when used in conjunction with indicators like
market valuation and management practices, is a reasonable tool for
distinguishing products from wastes.  The court found that it is.  Id. 
Thus, the court left open issues whether market valuation or management
practices, alone, is/are reasonable to distinguish products from wastes.
 

The remainder of the opinion discusses whether EPA's analysis that the
levels of contaminants in the recycled products were "identical" to the
products made with virgin materials when contaminant levels in the
recycled products were sometimes considerably higher.  350 F.3d at
1269-72.  

The court determined that it could affirm EPA's determination if, based
on the Agency's analysis of health and environmental risks, the
differences are so slight as to be substantively meaningless.  The court
found that "the apparent differences in the EPA's exclusion ceilings and
the contaminant levels in the virgin fertilizer samples lose their
significance when put in proper perspective--namely, a perspective based
on health and environmental risks."  Those who argue that a risk
assessment is required latch on to the word "proper" to argue that a
risk assessment is always required.  The court made no such
determination.  It only decided that in this case a risk assessment
analysis was proper.  In fact for non-dioxin contaminants the court did
not demand as detailed a risk assessment.  

With respect to dioxins EPA set a level in the final product of 8 parts
per trillion (ppt) and determined that level was "identical" enough
[sic] to support a finding that recycled materials with 8 ppt dioxin are
products rather than "discarded" wastes.  Again, all the court did was
find EPA's analysis reasonable.  In no sense did the court say that
EPA's risk assessment was required.  

In fact, for materials other than dioxin and chromium, EPA explained
that its technology-based exclusion limits "are considerably below
levels ... safe for humans and ecosystems," and that setting stricter
limits would yield no substantial environmental benefits. In addition,
EPA explained that the commenters proposing stricter limits failed to
provide data indicating the specified metals' presence in zinc
fertilizers. 

For chromium, however, the court determined that EPA has not pointed to
anything in the record indicating that differences in chromium
concentrations are trivial from a health and environment perspective
and, therefore, could not affirm the identity principle for chromium.
The court remanded for clarification on chromium levels.  

While Safe Food does not require a risk assessment of the environmental
and health effects of recycling of materials that are not wastes, there
are certain indications in the court's opinion that show how the Agency
may evaluate certain aspects of risk.  For example, in Safe Food, under
the identity principle, the court indicated that comparison of levels
would be appropriate between products made from raw materials and
products made from recycled materials.  Further, if there were an
apparent discrepancy between the products, the Agency could examine
relative risks.  The degree of analysis, however, would depend on the
circumstances in particular cases.  Note that the analysis of dioxin,
chromium and other substances varied depending on the relationship of
the levels in the different products (i.e., those derived from hazardous
secondary materials and those derived from other sources).  Furthermore,
there are various places in this rule where EPA has chosen to consider
whether discard occurs that have some relationship to risk.  For
example, material is discarded if it is stored in a way that is not
contained, residuals have to be managed so they are not improperly
released to the environment, and the legitimacy criteria take into
consideration whether in some circumstances the recycling is merely an
excuse for disposing of unwanted toxic materials. 

2.1.3.3 - 2003 proposal lacks data to support the exclusion

2.1.3.3 - Summary

Commenters criticized the 2003 proposal, asserting that EPA lacked the
data to support the proposed exclusions.  Commenters said that there is
no EPA analysis of the potential environmental harm from the proposed
rule, and no reasoned analysis of the indicia of discard or the
environmental basis for EPA's approach.  Commenters asserted that, as of
February 22, 2004, the docket contained no information supporting EPA's
position that the proposed rule would promote safe recycling. Commenters
said that there is no proof in the docket that facilities within certain
industries actually possess expertise necessary to safely recycle
materials, nor is there any evidence in the docket supporting EPA's
blanket assertion that raw materials and valuable materials are
necessarily handled so that releases to the environment do not occur.
Commenters state that the types of materials eligible for the proposed
exclusion include wastes that are typically discarded and subsequently
recycled and that EPA offered very little explanation in just six
paragraphs of the preamble on why the proposal does not exclude
discarded material.  

Commenters also cite a memorandum from EPA Headquarters to EPA Region VI
dated March 24, 1994, regarding the regulatory status of mercuric
chloride catalyst.  EPA stated that the partially spent catalyst was a
solid and hazardous waste when it was no longer used by Borden for its
original purpose and was sent to another chemical company for
reprocessing back into mercuric chloride catalyst. EPA stated that
"[t]his is the only interpretation that makes environmental sense,"
since such materials are handled in the same way and pose the same risks
as hazardous wastes.  The commenter asserts that EPA has done a complete
about-face from this position without adequately explaining its
departure from its prior reasoning.  Commenters believe that if EPA's
long-standing position that materials sent for reclamation are discarded
is "the only interpretation that makes environmental sense," then EPA
has damned the proposed rule in its own words. Nowhere in the proposal
does EPA provide reasons why materials that "pose the same potential
risks" when shipped to reclamation should now be deemed non-wastes.
After more than 30 years of RCRA-based experience with reclamation
practices in U.S. industry, the commenter believes that EPA should
certainly be able to develop an adequate record, and notes that EPA has
produced guidance documents for making recycling determinations under
the current rules.  

Commenters also note that despite EPA's assertion in 2003 that recycling
operations will not result in risks to human health and the environment
because they involve valuable materials, EPA also acknowledges that
numerous "recycling" operations are responsible for a large number of
environmental damage cases.  Commenters note that numerous environmental
damage cases requiring remediation under RCRA or CERCLA have in fact
involved improper storage, transportation, and handling of "valuable"
raw materials.  Commenters believe that EPA has thus failed to
demonstrate recycling will necessarily involve protective management
practices and thus calls for withdrawal of the proposal.

[0119-9, 0119-10, 0119-11, 0119-12, 0231-17, 0231-34, 0564-24]

2.1.3.3 - Response

EPA acknowledges the public comments to the October 2003 proposal that
criticized the Agency specifically for not having conducted a study of
the potential impacts of the proposed regulatory changes and for not
explaining how the proposed exclusion relates to discard.   In light of
these comments on the October 2003 proposal, and in deliberating on how
to proceed with this rulemaking effort, the Agency decided that
additional information on hazardous secondary material recycling would
benefit the regulatory decision-making process, and would provide
stakeholders with a clearer picture of the hazardous secondary material
recycling industry in this country. 

Accordingly, in support of the 2007 supplemental proposal, the Agency
examined three basic issues that we believed were of particular
importance to informing this rulemaking effort:

(1) How do responsible generators and recyclers of hazardous secondary
materials ensure that recycling is done in an environmentally safe
manner?

(2) To what extent have hazardous secondary material recycling practices
resulted in environmental problems in recent years, and why?

(3) Are there certain economic forces or incentives specific to
hazardous secondary material recycling that can explain why
environmental problems can sometimes originate from such recycling
activities? 

Reports documenting these studies are available in the docket for this
rulemaking, under the following titles:

- An Assessment of Good Current Practices for Recycling of Hazardous
Secondary Materials (EPA-HQ-RCRA-2002-0031-0354 ) ("successful recycling
study")

- An Assessment of Environmental Problems Associated With Recycling of
Hazardous Secondary Materials (EPA-HQ-RCRA-2002-0031-0355)
("environmental problems study")

- A Study of Potential Effects of Market Forces on the Management of
Hazardous Secondary Materials Intended for Recycling
(EPA-HQ-RCRA-2002-0031-0358) ("market forces study")

The results of these three studies have informed and supported EPA's
decision making in today's final rule. 

The successful recycling study has provided information to the Agency
that has helped us determine what types of restrictions and conditions
would be appropriate for hazardous secondary materials sent for
reclamation to determine that they are handled as commodities rather
than wastes. EPA found that responsible recycling practices used by
generators and recyclers to manage hazardous secondary materials fall
into two general categories. The first category includes the audit
activities and inquiries performed by a generator of a hazardous
secondary material to determine whether the entity to which it is
sending such material is equipped to responsibly manage it without risk
of releases or other environmental damage. These recycling and waste
audits of other companies' facilities are a critical component of many
of the transactions in the hazardous secondary materials market. The
second category of responsible recycling practices consists of the
control practices that ensure responsible management of any given
shipment of hazardous secondary material, such as the contracts under
which the transaction takes place and the tracking systems in place that
inform a generator that its hazardous secondary material has been
properly managed.  These findings helped inform EPA's decision to
require that a hazardous secondary material generator conduct reasonable
efforts to ensure its materials are properly and legitimately recycled,
and to require certain recordkeeping requirements.

The goal of the environmental problems study was to identify and
characterize environmental problems that were caused by some types of
hazardous secondary material recycling activity that are relevant for
the purpose of this rulemaking effort. To address commenters concerns
that historic damages are irrelevant to current practices, EPA only
included cases where damages occurred after 1982 (post-RCRA and -CERCLA
implementation). The study identifies 208 cases in which environmental
damages of some kind occurred from some type of recycling activity and
that otherwise fit the scope of the study. The Agency believes that the
occurrence of certain types of environmental problems associated with
current recycling practices shows that discard has occurred. In
particular, instances where materials were abandoned (e.g., in
warehouses) and which required removal overseen by a government agency
and expenditure of public funds clearly demonstrate that the hazardous
secondary material was discarded. Of the 208 damage cases, 69 (33%)
involve abandoned materials. The relatively high incidence of abandoned
materials reflects the fact that bankruptcies or other types of business
failures were associated with 138 (66%) of the cases.

In addition, the pattern of environmental damages that resulted from the
mismanagement of recyclable materials (including contamination of soils,
groundwater, surface water and air) is a strong indication that the
hazardous secondary materials were generally not managed as valuable
commodities and were discarded. Of the 208 damage cases, 81 cases (40%)
primarily resulted from the mismanagement of recyclable hazardous
secondary materials. Mismanagement of recycling residuals was the
primary cause in 71 cases (34%). Often, in the case of mismanagement of
recycling residues, reclamation processes generated residuals in which
the toxic components of the recycled materials were separated from the
non-toxic components, and these portions of the hazardous secondary
material were then mismanaged and discarded. Examples of this include a
number of drum reconditioning facilities, where large numbers of used
drums were cleaned out to remove small amounts of remaining product such
as solvent, and these wastes were then improperly stored or disposed.

These findings helped inform EPA's decision to require that the
hazardous secondary material be contained in the unit and managed in a
manner that is at least as protective as an analogous raw material
(where there is an analogous material),  that the recycling residuals be
properly managed, and that the reclamation facility and any intermediate
facilities have financial assurance. In addition, the relatively small
proportion of cases of damages from on-site recycling (13 of the 208
cases (6%)) lends support for EPA's decision to include fewer
limitations on the exclusion for hazardous secondary materials recycled
under the control of the generator.

The market forces study uses accepted economic theory to describe how
various market incentives can influence a firm's decision-making process
when the recycling of hazardous secondary materials is involved. This
study helps explain some of the fundamental economic drivers of both
successful and unsuccessful recycling practices, which, in turn, helped
the Agency to design the exclusions in the final rule. As pointed out by
some commenters to the October 2003 proposed rule and explained in the
study, the economic forces shaping the behavior of firms that recycle
hazardous secondary materials are often different from those at play in
manufacturing processes using virgin materials. The market forces study
uses economic theory to provide information on how certain
characteristics can influence three different recycling models to result
in an optimal outcome. The three recycling models examined are: (1)
commercial recycling, where the primary business of the firms is
recycling hazardous secondary materials that are accepted for recycling
from off-site industrial sources (which usually pay a fee); (2)
industrial intra-company recycling, where firms generate hazardous
secondary materials as by-products of their main production processes
and recycle the hazardous secondary materials for sale or for their own
reuse in production; and (3) industrial inter-company recycling, where
firms whose primary business is not recycling either use or recycle
hazardous secondary materials obtained from other firms, with the
objective of reducing the cost of their production inputs. The report
looks at how the outcome from each model is potentially affected by
three market characteristics: (1) value of the recycled product, (2)
price stability of recycling output or inputs, and (3) net worth of the
firm.

While an individual firm's decision-making process is based on many
factors and attempting to extrapolate a firm's likely behavior from a
few factors could be an over-simplification, when used in conjunction
with other pieces of information, the economic theory can be quite
illuminating. 

For example, according to the market forces study, the industrial intra-
and inter-company recyclers have more flexibility in adjusting to
unstable recycling markets (e.g., during price fluctuations, these
companies can more easily switch from recycling to disposal or from
recycled inputs to virgin inputs). Therefore, they would be expected to
be less likely to have environmental problems from over-accumulated
materials. On the other hand, certain specific types of commercial
recycling, where the product has low value, the prices are unstable,
and/or the firm has a low net worth, could be more susceptible to
environmental problems from over-accumulation of hazardous secondary
materials, especially when compared to recycling by a well-capitalized
firm that yields a product with high value. In both cases, these
predicted outcomes are supported by the results of the environmental
problems study, which show the majority of problems occur at off-site
commercial recyclers. 

However, as shown by the study of successful recycling practices,
generators who might otherwise bear a large liability from poorly
managed recycling of their materials at other companies have addressed
this issue by carefully examining the recyclers to which they send their
hazardous secondary materials to ensure that they are technically and
financially capable of performing the recycling. In addition, we have
seen that successful recyclers (both commercial and industrial) have
often taken advantage of mechanisms such as long-term contracts to help
stabilize price fluctuations, allowing recyclers to plan their
operations better. 

In response to the comment citing the memorandum on spent catalyst, EPA
notes that the catalyst in question was not subject at the that time to
the conditions and restrictions of the final rule, which EPA has
designed to define when hazardous secondary materials are not solid
wastes.  Thus the discussion in the memo does not address and is not
relevant to the universe of hazardous secondary material managed within
the restrictions and conditions of the final rule.   The record for the
final rule supports the conditions and restrictions that allow EPA to
appropriately define when hazardous secondary material reclamation does
not result in discard.

2.1.4 - EPA's 2007 proposed exclusions have appropriately focused on the
concept of discard

2.1.4 - Summary

Commenters stated that EPA's 2007 supplemental proposal approach
correctly relies on whether or not a secondary material has been
discarded, although some also said that the approach still fails to fix
the threshold problem of EPA assuming all recycling is discard, unless
the activity is specifically exempted. 

Commenters supported EPA's new approach of using the concept of
"discard" as the critical identifies of whether secondary materials fall
under the jurisdiction of RCRA's Subtitle C, instead of the approach
used in the original proposal in 2003 ( 68 Fed. Reg. 61558 (October 28,
2003))]. Basing the supplemental proposed rule on the concept of discard
is in keeping with RCRA's basic tenets as well as the underlying case
law to this rulemaking.  

Commenters said that the proposed rule demonstrates EPA's commitment to
increasing environmentally beneficial recycling and promoting materials
reuse and recovery.  Beneficial product reuse is consistent with the
goals of RCRA. As EPA correctly points out, basing the proposed rule on
the concept of discard reflects the fundamental logic of the RCRA
statute, which defines a "solid waste" as "…any garbage, refuse,
sludge from a waste treatment plant, or air pollution control facility
and other discarded material…" (emphasis added) (72 Fed. Reg. 14178
(March 26, 2007)).   EPA has now given stakeholders a viable option to
appropriately define all materials that are being legitimately recycled
and beneficially reused and thus, not abandoned, disposed of or
discarded. And, unlike the original proposal, the current proposed rule
does not define "discarded" in terms of a "generating industry" and
narrow possible beneficial reuse to within the same manufacturing
industries.  Instead, under the proposed rule, legitimate recycling by
reclamation can now rightly be accomplished whether the recycling and
reclamation is done within the generating industry or between
industries.

Commenters state that EPA's new approach is also consistent with what
the Court has held: materials that have not been discarded are not under
the jurisdiction of RCRA, apart from whether or not they are recycled
within or among generating industries.  For example, in American Mining
Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987), the Court held that EPA
had exceeded its scope in regulating "solid waste," statutorily defined
as "discarded material," by including material destined for reuse in an
industry's ongoing production process.  The Court based its decision on
the plain language of the statute, stating that RCRA did not encompass
materials retained for immediate reuse, and that the legislative intent
of RCRA - to deal with problems of solid waste disposal - indicated that
Congress was using the term "discarded" in its ordinary sense.  In
American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990), the
Court ruled that EPA was not constrained to interpret the relevant
portions of RCRA based on "an ongoing manufacturing or industrial
process within the generating industry," but rather, is constrained by
RCRA jurisdiction covering materials that have been "disposed of,
abandoned, or thrown away." 

Lastly, in the most recent decision on this issue, the Court in Safe
Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003), held that
while "We have held that the term "discarded" cannot encompass materials
that 'are destined for beneficial reuse or recycling in a continuous
process by the generating industry itself'… We have also held that
materials destined for future recycling by another industry may be
considered 'discarded'; the statutory definition does not preclude
application of RCRA to such materials if they can reasonably be
considered part of the waste disposal problem ... But we have never said
that RCRA compels the conclusion that material destined for recycling in
another industry is necessarily 'discarded' " (emphasis added)
[footnote4: (Safe Food, 350 F.3d at 1268)].   

Commenters thus believe that EPA's new approach to defining whether or
not waste falls under RCRA Subtitle C jurisdiction based on whether or
not the secondary material is discarded is a reasonable construction
consistent with the plain statutory language of RCRA as well as the
Court's direction.

[0452-5, 0453-5, 0463-2, 0468-2, 0468-3, 0471-5, 0472-1, 0476-1, 0476-2,
0481-27, 0481-129, 0486-4, 0491-2, 0492-2, 0492-11, 0492-27, 0524-3,
0526-1, 0529-1, 0529-12, 0529-33, 0534-1, 0534-2, 0534-8, 0534-10,
0534-11, 0549-1, 0550-1, 0553-1]

2.1.4 - Response

EPA agrees with and appreciates comments that state that EPA's 2007
supplemental proposal approach correctly relies on whether or not a
secondary material has been discarded.

In regards to the comment that the proposal does not address the
"threshold problem of EPA assuming all recycling is discard," EPA notes,
as discussed earlier, the regulations do not equate all recycling as
discard.  EPA's current regulations at 40 CFR 261.2(c) provide that
certain types of hazardous secondary material are solid waste if it is
recycled by being (1) used in a manner constituting disposal, (2) burned
for energy recovery, (3) reclaimed, or (4) accumulated speculatively. 
Under this same provision, certain types of hazardous secondary
materials are not solid wastes when recycled in these ways (e.g.,
sludges exhibiting a characteristic of hazardous waste are not solid
wastes when reclaimed).  The final rule only applies to the reclamation
part of the regulation.  The speculative accumulation condition, as has
been noted in this rulemaking record, has been a critical part of the
definition of solid waste for many years.  EPA has explained in the
rulemaking record why the "use constituting disposal" and "burning for
energy recovery" provision are outside the scope for this rulemaking.  

2.1.5 - EPA inappropriately imposes conditions on materials that are not
discarded

2.1.5 - Summary

Commenters stated that some of the conditions that EPA proposes for the
exclusions are in the nature of regulatory requirements and are not
truly relevant to defining discard or the absence of discard. Commenters
urge EPA to consider deleting such conditions in the final rule, and
believe that EPA should certainly decline to add more conditions of a
regulatory nature because the addition of such conditions would simply
constitute a modified regulatory regime for undiscarded, recycled
materials, rather than an exclusion of such materials from RCRA
regulation consistent with the limits on EPA's statutory authority.
Commenters note that, according to EPA, the ability to propose these
obligations 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."  68 Fed.
Reg. at 61,577.  However, commenters believe that if a material is not
being "discarded," the Agency has no jurisdiction over that material and
find EPA's justification to be confusing in the context of those
secondary materials defined by the Agency as "materials that are not
considered wastes when recycled."  68 Fed. Reg. at 61,561.  If a
material is not considered a "waste," then how can it be "discarded"? 
One commenter stated that a condition of meeting some very basic
recordkeeping requirements - consistent with normal business practices
for handling valuable commodities - may reasonably help to define the
absence of discard, because it may show a material is "being treated as
a valuable commodity rather than as a waste," 72 Fed. Reg. 14178.
However, the commenter believed that conditions of meeting highly
prescriptive and detailed recordkeeping, certification, or materials
management requirements would go far beyond defining the absence of
discard, and merely constitute a new set of regulatory mandates.

[0197-14, 0481-10, 0492-3, 0492-12, 0492-58]

2.1.5 - Response

EPA disagrees with comments that state that the conditions and
restrictions for the exclusions are not relevant to defining discard. 
EPA's authority use conditions to define when a hazardous secondary
material is long-established, and was most recently upheld in Safe Food
and Fertilizer v. EPA ("Safe Food"), 350 F.3d 1263 (D.C. Cir. 2003).  As
discussed in Section V of the preamble to the final rule and elsewhere
in this response to comments document, EPA's record establishes the link
of each of the conditions or restrictions for the exclusions in the
final rule to the concept of discard, or otherwise explains EPA's
authority to impose specific requirements.  Once again, the comments beg
the question.  The mere assertion that a material is not a waste does
not make it so.  EPA is entitled to define reasonable restrictions and
conditions for hazardous secondary material that will be reclaimed to
distinguish when such material is not discarded .  See, API II, 216 F.3d
at 59 (EPA may regulate sham recycling because it is meant to regulate
only discarded materials).  

2.1.5.1 - "Contained" and discard

2.1.5.1 - Summary

Containment Prohibited by Case Law - Comments

Some commenters objected to the restriction that hazardous secondary
material excluded under the proposed rules must be "contained" in the
unit, asserting that such a condition is prohibited by recent case law
(particularly when applied to mining and mineral processing) and
improperly relies on an ambiguous and undefined standard that fails to
provide required regulatory certainty, and is also not supported by the
Agency’s analysis of past recycling practices.

Commenters stated that EPA's assertion of RCRA authority over the
storage of mineral processing materials prior to reclamation is
blatantly illegal under principles of res judicata. The D.C. Circuit, in
both AMC I and ABR, explicitly addressed this issue and rejected EPA's
prior attempts to exert jurisdiction over stored in-process materials in
the mining and mineral processing industry that had not been discarded. 
ABR, 203 F.3d at 1053; AMC I, 824 F.2d at 1192-93. The ABR court also
noted that, in the portion of the Phase IV regulation that dealt with
the definition of solid waste for materials that are generated and
reclaimed within the mineral processing industry, "EPA's dividing line
between 'waste' and non-waste is the manner of storage."  The court
concluded that this classification is based "on an improper
interpretation of 'discarded' and an incorrect reading of our AMC I
decision." ABR, 208 F.3d at 1051 and 1056.  Accordingly, commenters
believe that EPA must strike its "storage" conditions from the proposed
"generator control" and "transfer-based" exclusions.  

Land-Based Unit Defined As Discarded - Comments

Commenters claim that under this proposal some reclaimed hazardous
secondary materials would be defined as “discarded" only because it is
managed in a land-based unit. This clearly conflicts with the ABR
holding that the method of storage of mineral processing secondary
materials to be recycled cannot be a basis, by itself, for classifying
such material as "discarded" or as solid waste.  EPA's assertion of RCRA
authority over the storage of mineral processing materials prior to
reclamation is blatantly illegal under principles of res judicata and
AMC I and ABR, where the D.C. Circuit explicitly addressed this issue
and rejected EPA's prior attempts in 1985 and 1998 to exert its
jurisdiction over stored in-process materials in the mining and mineral
processing industry that had not been discarded.  ABR, 203 F.3d at 1053;
AMC I, 824 F.2d at 1192-93.

Containment in Land-Based Unit Lacks Basis - Comments

Commenters note that EPA asserts that management of hazardous secondary
materials to be recycled in land-based units "presents a greater
potential for releases to the environment than management in
non-land-based units." 72 Fed. Reg. at 11186.  However, it was not clear
what this assertion is based upon as the recycling studies that EPA
commissioned did not clearly identify alleged damage caused by recycled
mineral processing secondary materials that are managed in land-based
units. Therefore the commenter believes that the proposed conditional
exclusion lacks a fundamental basis and should be deleted.

Containment Should not Apply to Heap Leaching Or Other Production Units
- Comments

The commenters believe that a close examination of EPA's proposed 2007
Supplemental Proposal actually reveals that EPA's relevant regulatory
language in the "generator control" and "transfer-based" exclusions
should not apply to land-based production units.  Only secondary
materials "managed" in "land-based units," as defined in 40 C.F.R. §
260.10, must be contained.  Accordingly, commenters believe that EPA's
proposed regulatory requirements in both the "generator control" and
"transfer-based" exclusions that secondary materials "managed" in
"land-based units as defined in § 260.10" must be "contained" should
not apply to heap and dump leach production units, or to the use of
secondary materials as part of these production operations.

Commenters note that the mining and mineral processing industry utilizes
land-based production units as critical elements of their production
operations. The copper and gold sectors in particular use heap and dump
leaching technology as integral parts of their production operations.
Generally, ores are placed on the ground, sometimes on pads, and
leaching solutions, e.g., acids or cyanides, are applied to the ores to
recover the desired metal in solution.  These valuable, product-laden
solutions are collected and then sent to subsequent phases of copper and
gold production operations. Commenters assert that when the mining and
mineral processing industry uses secondary acid streams, or other
secondary materials, in land-based production units, they are not
discarded.  Under a lawful and proper regulatory definition of solid
waste, there would be no question that use of secondary materials in
this manner, and the land-based mining and mineral processing industry
production operations where they are used, would not be regulated. 

Trade Press Article - Comments

One comment quoted a trade press article in which an EPA official, Bob
Dellinger, was quoted as stating that the term, "discard," goes "beyond"
tossing out or abandoning a material.  Mr. Dellinger stated that the
waste generator must ensure that material will be truly recycled and not
just transferred to another facility where it might be abandoned.  The
commenter states that this approach is "flat out wrong" because the term
"discard" extends only to materials that are thrown out or abandoned.  

[0459-1, 0459-2, 0459-3, 0468-9, 0472-17, 0481-31, 0481-32, 0481-34,
0481-40, 0481-41, 0481-42, 0481-44, 0481-47, 0486-27, 0537-6, 0537-15]

2.1.5.1 - Response

Containment Prohibited by Case Law - Response

EPA disagrees that including in the exclusions from the definition of
solid waste the provision that hazardous secondary materials must be
"contained" contradicts the court's finding in ABR that EPA does not
have the authority to define when hazardous secondary materials are not
discarded. By limiting the exclusion to hazardous secondary materials
that are contained, EPA is defining "discard" for this material. 

While it is true that the court has said that materials recycled in a
continuous process by the generating industry are not solid wastes,
commenters have failed to demonstrate how hazardous secondary materials
that are not contained meet that description. It is a self-evident fact
that hazardous secondary materials released to the environment (e.g.,
causing soil and groundwater contamination) are not "destined for
recycling" or "recycled in a continuous process;" thus, they are part of
the waste disposal problem. Moreover, to the extent that significant
releases to the environment from a unit remain unaddressed, it is
reasonable to conclude that the material remaining in the unit is also
actively being discarded. 

It is important to note that the hazardous secondary materials that
remain in the unit are not solid wastes, unless the releases from the
storage unit indicate that these materials are not being managed as
valuable commodities and are, in fact, discarded. They would be
considered solid wastes if they are not managed as a valuable raw
material, intermediate, or product, and as a result, a "significant"
release from the unit were to take place. If such a significant release
were to occur, the hazardous secondary materials remaining in the unit
would be considered solid and hazardous wastes and the unit would be
subject to the appropriate hazardous waste regulations. For example, an
acidic hazardous secondary material undergoing reclamation could be
stored in a tank that experienced a failure. A facility might fail to
monitor the structural integrity of the tank, as most product tanks are
monitored, or the tank might not be constructed to contain acidic
hazardous secondary materials, causing a significant release of such
materials into the environment. The unit itself would consequently be
considered a hazardous waste management unit because the hazardous
secondary materials were not being managed as a valuable raw material,
intermediate, or product, as evidenced by the failure to monitor it for
structural integrity, resulting in the release. Thus, the unit and any
remaining waste would be subject to Subtitle C controls because the
hazardous secondary materials in the unit have been discarded and were
not contained. In addition, any of the released materials that were not
immediately recovered would also be considered discarded and, if
hazardous, subject to appropriate federal or state regulations and
applicable authorities. 

Thus, to be excluded from the definition of solid waste, the facility
has an obligation to manage the material as it would any raw material,
intermediate or product because of its value. This includes, for
example, operating and maintaining storage units in the same manner as
product units. In the above example, whether by mismanagement of the
hazardous secondary materials or by storing acidic materials in a tank
not constructed to handle them or because of the failure to monitor the
structural integrity of the unit, the result is that the unit would come
under Subtitle C regulation. 

Conversely, a unit in good condition may experience small releases
resulting from normal operations of the facility.  Sometimes a material
may escape from primary containment and may be captured by secondary
containment or some other mechanism that would prevent the material from
being released to the environment. In that case, the unit would retain
its exclusion from RCRA hazardous waste regulation and the hazardous
secondary materials in the unit would still be excluded from the
definition of solid waste, even though any such materials that had been
released would be considered discarded if not immediately recovered and
would be subject to appropriate regulation. One specific example of
"contained" hazardous secondary materials would be furnace bricks
collected from production units and stored on the ground in walled bins
before being used as feedstocks in the metals production process. If
there were very small releases from the walled bins due to precipitation
runoff, such releases would not cause the storage bins to be subject to
Subtitle C controls.

EPA also notes that, if a facility believes that their hazardous
secondary material is not discarded despite the fact that it is not
contained in the unit, the facility has the option of applying for a
non-waste determination.  As discussed in the March 2007 supplemental
proposal, EPA believes that the generator-controlled exclusion also
excludes from the definition of solid waste hazardous secondary
materials recycled in a continuous industrial process (72 FR 14202). In
effect, hazardous secondary materials reclaimed in a continuous process
are a subset of the hazardous secondary materials reclaimed under the
control of the generator that are excluded under today's rule. However,
EPA also recognized in the March 2007 supplemental proposal that
production processes can vary widely from industry to industry. Thus, in
some cases, EPA may need to evaluate case-specific fact patterns to
determine whether an individual hazardous secondary material is
reclaimed in a continuous industrial process, and therefore not a solid
waste. While the court overturned EPA's regulations for casting too wide
a net over continuous industrial processes, it acknowledged that there
are a large number of processes, some of which may be continuous and
some of which may not. Determining what is a continuous process in the
mineral processing industry, according to the Court, would require
examination of the details of the processes and does not lend itself,
well, to broad abstraction. Specifically, the Court stated,

Some mineral processing secondary materials covered under the Phase IV
Rule may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate under RCRA,  208 F.3d
at 1056 

In the case of today's final rule, which applies across industries,
there are far larger and more diverse processes. While EPA believes it
is establishing a reasonable set of principles in defining when a
hazardous secondary material is not discarded, they must still be
applied to the details of the industrial processes in question. 

In addition, EPA believes it is important to note that these comments
persist in improperly interpreting opinions of the D.C. Circuit with
regard to the definition of solid waste.  Most importantly, AMC I and
ABR provide no res judicata for any particular material in any
particular industry.  The D.C. Circuit in API II stated as much:

 "We only held that in-process secondary materials are not "discarded"
so that EPA could not regulate them; we did not address the discard
status of any of the particular materials discussed in the briefs.  See
AMC I, 824 F.2d at 1181 (describing the petroleum refining process); cf.
 Battery Recyclers, 208 F.3d at 1056 (holding that "all we can say with
certainty is that at least some of the secondary material EPA seeks to
regulate" is not discarded)." API II, 216 F.3d at 56.  

The D.C. Circuit in ABR, indeed, criticized EPA for saying that any
placement on the ground regardless of how long it was stored before
reinsertion into the production process was prohibited because the
material is discarded.  ABR at 208 F.3d at 1051 (material "placed on the
ground for only a few minutes before being put back into the production"
would be subject to RCRA).  This by no means says that any storage
whatsoever of recycled material is not subject to RCRA.  

In this rule, EPA has made every effort to make material subject to its
regulations only if it is discarded.  Thus, this regulation takes a very
different approach from that taken in the rules reviewed in AMC I and
ABR.  Any placement on the land will not result in material being
considered a waste, only material placed on the land not in accordance
with conditions directly related to discard.  This explanation,
summarized above in this response and in the discussion in the
rulemaking record, deals directly with discard and is consistent with
the D.C. Circuit's discussion of that term.  Land-based storage is by no
means prohibited, but material stored on the land so that it is
carelessly released to the environment is hardly undiscarded material.  

EPA appreciates the comment's discussion of land-based storage and
expects that the companies involved will ensure that when such storage
involves hazardous secondary materials reclamation that it complies with
the conditions of this regulation for ensuring that material is not
discarded.  However, again, the comments persist in misinterpreting the
case law.  The important point is that ABR did not hold that storage
before reclamation, even on the land, automatically makes materials
"discarded" or not discarded.  Rather, it held that "... at least some
of the secondary material EPA seeks to regulate as solid waste (in the
mineral processing rule) is destined for reuse as part of a continuous
industrial process and thus is not abandoned or thrown away" (208 F.3d
at 1056).  The court just as readily noted:  

"Some mineral processing secondary materials covered under the Phase IV
Rule may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II.  The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate under RCRA."  Id.  

Land-Based Unit Defined As Discarded - Response

EPA disagrees with commenters' claim that under this proposal some
reclaimed hazardous secondary material would be defined as “discarded"
only because it is managed in a land-based unit.  On the contrary, the
exclusion at 40 CFR 261.4(a)(23) specifically states that hazardous
secondary materials reclaimed under the control of the generator are not
solid wastes when managed in a land-based unit, as long at the material
is contained and is not speculatively accumulated.  Again, hazardous
secondary material that is not contained (e.g., that causes soil and
groundwater contamination) is not "destined for recycling" or "recycled
in a continuous process."  It is not the management in a land-based unit
that would cause such materials to be considered hazardous waste, it is
the lack of containment.

Containment in Land-Based Unit Lacks Basis - Response

However, EPA agrees with comments that state that the recycling study of
environmental problems includes both hazardous secondary materials
managed in land-based units and in non-land-based units.   While many of
the damages were from hazardous secondary materials managed in
land-based units (e.g., uncontrolled waste piles), and the fact that
many hazardous secondary materials are more likely to enter the
environment if they are in direct with the ground, some damages did
occur in units that might be considered non-land-based units (e.g.,
piles on concrete pads).  By specifying in the March 2007 supplemental
proposal that hazardous secondary materials managed in a land-based unit
must be contained in order to retain the exclusion, EPA did not intend
to imply that hazardous secondary materials managed in non-land-based
units do not need to be contained. Hazardous secondary materials
released to the environment are not destined for recycling and are
clearly discarded whether they originated from a land-based unit or not.
Because non-land-based units do not involve direct contact with the
land, in the March 2007 supplemental proposal, EPA did not include an
explicit "contained" restriction for these units. However, as commenters
noted, it is still possible for non-land-based units to leak or
otherwise release significant amounts of hazardous secondary materials
to the environment, even if they are not in direct contact with the
land, resulting in those materials being discarded. 

Thus, for the final rule, rather than deleting the containment provision
for land-based unit, EPA is instead requiring that hazardous secondary
materials must be contained whether it is managed in land-based units or
non-land-based units, thus properly identifying the hazardous secondary
materials that are not being discarded and, therefore, are not solid
wastes.  Again, hazardous secondary material that is not contained
(e.g., that causes soil and groundwater contamination) is not "destined
for recycling" or "recycled in a continuous process."  It is not the
management in a land-based unit that would cause such materials to be
considered hazardous waste, it is the lack of containment.

Containment Should not Apply to Heap Leaching Or Other Production Units
- Response

In response to comments questioning whether the final rule exclusions
would apply to mining and mineral processing production units, or to the
use of secondary materials as part of these production operations, EPA
notes that the final rule exclusions only apply to hazardous secondary
material, which are defined as a "secondary material (e.g., spent
material, by-product or sludge) that, when discarded, would be
identified as hazardous waste under part 261 of this chapter."  The
final rule also does not affect existing solid waste exclusions.  If a
material wouldn't otherwise be identified as hazardous waste, or has
already been determined to not be discarded under other regulatory
provisions, then the final rule exclusions would not be relevant.  
Commenters should consult their authorized state or EPA Regional
enforcement office for case-specific questions, which are outside the
scope of the final rule.  

Trade Press Article - Response

Finally, in response to the comment quoting a trade press article, this
article refers to the official's use of the "vernacular" and EPA here
takes up the media's of the term.  The rulemaking record provides
extensive discussion of the use of "reasonable efforts" condition and
why it is a reasonable and appropriate indicator of discard and that is
the official Agency position.  This discussion is the basis for the
Agency's determination regarding discard under RCRA.  Mr. Dellinger was
simply using the "vernacular" to make it clear that a company official
may not simply raise the defense that his company did not dump the
material into the environment, but another company to which it shipped
the material actually did.  That is a poor defense to the claim that
discard did not occur - particularly if the company made no effort to
ensure that proper recycling would happen.  EPA stands by its
explanation of the condition in the rulemaking record, as well as Mr.
Dellinger's use of the "vernacular” in the context of a discussion
with a member of the public press.   

2.1.5.2 - Reasonable efforts and discard

2.1.5.2 - Summary

EPA Lacks Authority To Impose Reasonable Efforts - Comments

Two commenters argued that EPA lacks the authority under RCRA to impose
the "reasonable efforts" conditions.  One commenter asserted that EPA
lacks the authority to subject facilities to requirements or conditions
when using secondary materials in production operations that are never
discarded.  The other commenter argued that it is tantamount to a
requirement to conduct due diligence on the recycling facility.  Nothing
in the legislative history of the statute or the subsequent court
decisions on the definition of solid waste yield any hint of such
authority.  Even CERCLA does not require due diligence. Instead,
concerns about liability, shareholder interest, and the marketplace
drive the need for companies to conduct such due diligence activities in
the absence of any regulatory requirement to do so.

Allowing these current market and business influences to guide companies
in conducting due diligence has worked well. Many companies already
audit their potential recyclers to ensure that the facilities receiving
materials meet the company's minimum expectations.   The potential
liabilities associated with sending hazardous secondary materials to
facilities ill-equipped to recycle the materials are sufficiently high
so as to render a regulatory requirement on environmental due diligence
unnecessary.  Commenters believe that EPA should delete this condition.

[0481-10, 0481-61, 0525-3]

Reasonable Efforts Linked to Prerequisites for a Lawful Exclusion from
the Definition Of Solid Waste - Comment

One commenter stated that the reasonable efforts condition is directed
at what they consider the two essential prerequisites for a lawful
exclusion from the definition of solid waste that have evolved from the
court cases: legitimate recycling that is not discard, and protection of
human health and the environment.  See, e.g., Safe Food and Fertilizer
v. EPA, 350 F.3d 1263 (D.C. Cir. 2003).

[0558-33]

2.1.5.2 - Response

EPA Lacks Authority To Impose Reasonable Efforts - Response 

EPA disagrees with comments stating that the Agency does not have the
authority to impose a "reasonable efforts" condition on generators
transferring hazardous secondary materials to a third party for
reclamation.  EPA has concluded, based on its studies of the recycling
industry, that it is a reasonable exercise of its discretion to include
the reasonable efforts condition in this rule.  The Agency rejects the
viewpoint, so often expressed, that there is a particular set of
conditions that may be imposed under the statute to determine whether a
material is discarded.  The cases allow EPA to use reasonable and
appropriate conditions to identify materials that are not discarded. 
EPA does not wish to belabor this point further.  Moreover, even though
market forces and business influences can be expected to guide companies
in conducting due diligence, the studies EPA has conducted indicate that
there will be companies that will manage hazardous secondary materials
in a way that results in discard and thus that the conditions and
restrictions included in the final rule are appropriate to identify
those materials that are not discarded.

In fact, in contradiction of the idea that market and business
influences will properly guide companies, as EPA noted in the March 2007
supplemental proposal, in cases where generators of hazardous secondary
materials do not reclaim the materials themselves, it often may be a
sound business decision to ship the hazardous secondary materials to be
reclaimed to a commercial facility or another manufacturer in order to
avoid the costs of disposing of the material. In such situations, EPA
determined that the generator has relinquished control of the hazardous
secondary materials and the entity receiving such materials may not have
the same incentives to manage them as a useful product (72 FR 14178).
This is evidenced by the results of the study of recycling-related
environmental problems, found in the docket of today's final rule. Of
the 208 damage cases EPA identified for the March 2007 supplemental
proposal, 195 (about 94%) were from off-site third-party recyclers, with
clear instances of discard resulting in risk to human health and the
environment, including cases of large-scale soil and ground water
contamination with remediation costs in some instances in the tens of
millions of dollars. 

In addition, the market forces study in the docket for today's
rulemaking supports the conclusion that the pattern of discard at
off-site, third party reclaimers is a result of inherent differences
between commercial recycling and normal manufacturing. As opposed to
manufacturing, where the cost of raw materials or intermediates (or
inputs) is greater than zero and revenue is generated primarily from the
sale of the output, hazardous secondary materials recycling can involve
generating revenue primarily from receipt of the hazardous secondary
materials (72 FR 14182). Recyclers of hazardous secondary materials in
this situation may thus respond differently from traditional
manufacturers to economic forces and incentives, accumulating more
inputs (hazardous secondary materials) than can be processed
(reclaimed). In addition, commercial recyclers appear to have less
flexibility than in-house recyclers (e.g., during price fluctuations,
in-house recyclers can more easily switch from recycling to disposal or
from recycled inputs to virgin inputs, which commercial recyclers
cannot) (72 FR 14183).

After reviewing public comments on the recycling studies (see section
XV.D. of the final rule preamble and comment responses elsewhere in this
response to comment document), EPA continues to believe that conditions
are needed under the transfer-based exclusion for the Agency to
determine that these hazardous secondary materials are not discarded.  

One key condition that reflects the basic premise underlying the
exclusion is the condition that the hazardous secondary material
generator perform and document reasonable efforts to ensure that its
hazardous secondary material will be properly and legitimately recycled.
As EPA explained in the March 2007 supplemental proposal, in order to
demonstrate that hazardous secondary materials will not be discarded,
generators who transfer their hazardous secondary materials to a third
party must have a reasonable understanding of who will be reclaiming the
materials and how they will be managed and reclaimed and a reasonable
assurance that the recycling practice is safe and legitimate (72 FR
14194). In order for a generator to determine that its hazardous
secondary materials are not solid wastes because they are not discarded,
the generator must make a reasonable effort to ensure that the reclaimer
intends to legitimately recycle the material pursuant to 40 CFR 260.43
and not discard it, and that the reclaimer (and any intermediate
facility) will properly manage the material. 

EPA continues to find that the reasonable efforts condition is critical
in determining when hazardous secondary materials sent to another party
for reclamation are not discarded. According to the study of successful
recycling practices found in the docket for today's rulemaking,
generators of hazardous secondary materials frequently perform audit
activities and inquiries to determine whether the entity to which they
are sending hazardous secondary materials is equipped to responsibly and
legitimately reclaim and manage those materials without the risk of
releases or other environmental damage. These recycling and waste audits
of other companies' facilities are a critical component of many of the
transactions in hazardous secondary materials markets. As noted in the
March 2007 supplemental proposal, EPA's study of good practices for
recycling quotes one large recycling and disposal vendor as stating that
of its new customers, 60% of the large customers and 30%-50% of the
smaller customers now perform audits on them (72 FR 14191). Thus,
although these practices are not universal, they do indicate that there
are currently many generators who recognize the risk of third-party
recyclers discarding their hazardous secondary materials and who take
responsibility to ensure that this discard does not occur. By codifying
the reasonable efforts condition of the transfer-based exclusion, EPA
believes that the regulation appropriately indicates that hazardous
secondary materials generated by companies who take this type of
responsibility are not being discarded.

In response to the comment that stated that nothing in the legislative
history of the statute or the subsequent court decisions on the
definition of solid waste indicates the RCRA provides authority to
require due diligence, EPA notes that the reasonable effort requirement
is an appropriate condition that identifies material that is not
discarded.    Generators who do not wish to perform reasonable efforts
can either not claim the exclusion or can send their hazardous secondary
materials to a RCRA permitted or interim status facility.   

The argument, common among some of the comments to this rule, that EPA
lacks any authority to impose conditions on materials that are never
discarded begs the ultimate question to be decided with respect to
secondary materials that are reclaimed.  The mere assertion that
material is not discarded does not make it so.  This argument is that
same the was made by industry in API II and was soundly rejected by the
D.C. Circuit.  Specifically, the court stated the following:  

"Industry petitioner CMA makes one argument, premised solely on Chevron
step one. CMA argues that EPA has no authority to regulate any
petrochemical recovered oil under any circumstances because such
materials are not "discarded."  The reasonableness of the conditions
adopted by EPA as part of its exclusions are not challenged because, in
CMA's opinion, no such conditions may be imposed.  

This Chevron plain meaning argument fails because EPA is correct that
abandoning a material is discarding even if labeled recycling.  EPA is
not violating AMC I's definition of discard.  To the contrary, the
premise of EPA's rule is sound precisely because it is meant to regulate
only discarded materials.  EPA can regulate material "discarded" through
sham recycling even though it cannot regulate under RCRA materials that
are not discarded.  Speculatively accumulated recovered oil is a clear
example of a condition imposed under the exclusion which shows that some
petrochemical recovered oil can indeed be considered as discarded.  Even
if, assuming for the sake of argument, the rule's many conditions might
incidentally regulate oil containing chemicals not caused by sham
recycling (and therefore not discarded), that is beyond the claim we
consider today.  Presumably a refiner in a specific case could attempt
to show that additional chemicals in the oil are not a product of
adulteration, not discarded, and outside EPA's authority to regulate
such material under RCRA.  We therefore deny CMA's petition as to
petrochemical recovered oil."  216 F.3d at 59.  

Accordingly, the proper objections to EPA's conditions would be to argue
that they are not reasonable indicia of discard, or there is no
opportunity to show that material is, in fact, not discarded.  In this
rule EPA has explained why the conditions imposed are reasonable indicia
of discard and there would be ample opportunity in enforcement
proceedings for companies to show that their material is, in fact, not
discarded.   

EPA also notes that the concept is not unique; the Superfund Recycling
Equity Act (SREA), Section 127 of CERCLA, 42 U.S.C. § 9627, exempts
certain persons who "arranged for recycling of recyclable materials"
from liability for arranging for disposal under Sections 107(a)(3) and
107(a)(4) when, among other things, they have exercised reasonable care
to determine whether a recycling facility is in compliance with all
applicable environmental laws. 42 U.S.C. § 127(c)(5).  Furthermore,
there are numerous CERCLA cases in which persons have sent material for
recycling and have been held to be arrangers for disposal because the
recyclers have handled material improperly resulting in a Superfund site
being created.  Courts generally evaluate whether the shipper either had
control over the process or knowledge of potential disposal, or whether
the shipper was actually sending a commodity to be recycled.  See,
Morton International, Inc. v. A.E. Staley Manufacturing Co., 343 F.3d
669 (3rd Cir. 2003) (CERCLA liability for a company that sent material
for mercury processing that became a Superfund site; liability did not
depend on ownership or possession alone); Cadillac Fairview/California,
Inc. v. United States, 41 F.3d 562 (9th Cir. 1994) (liability for
recycling of sulfur tar bottoms); Catellus Development Corp. v. United
States, 34 F.3d 748 (9th Cir. 1994) (liability for recycling of
automotive batteries); United States v. Montana Refining Co., 1994 U.S.
App. LEXIS 22633, (9th Cir. Aug. 17, 1994) (confirming Catellus,
remanding PolyCarb); United States v. PolyCarb, Inc., 951 F. Supp. 1518
(D. Nev. 1996) (liability for sending caustic for reclamation); Chatham
Steel Corp. v. Brown, 858 F. Supp. 1130 (N.D. Fla. 1994) (liability for
sale for recycling of spent batteries); California v. Summer Del Caribe,
Inc., 821 F. Supp. 574 (N.D. Cal. 1993) (liability for recycling of
solder dross produced as a by product of manufacturing process);
Chesapeake & Potomac Tel. v. Peck Iron & Metal, 814 F. Supp. 1269 (E.D.
Va. 1992) (liability for recovery of lead from used batteries);  United
States v. Pesses, 794 F. Supp. 151 (W.D. Pa. 1992) (sellers of scrap
metal to a reprocessor); United States v. A & F Materials, 582 F. Supp.
842 (S.D.Ill. 1984) (liability for caustic solution produced in the
course of the manufacture of jet aircraft to a company which used it to
neutralize acidic oil); but see Pneumo Abex Corp. v. High Point,
Thomasville and Denton R.R. Co., 142 F.3d 769 (4th Cir. 1998) (used rail
car bearings were commodities and recyclers paid a competitive price). 
The CERCLA cases show that arrangers cannot turn a blind eye to the
activities of the reclaimer, and through the reasonable efforts
condition, today's rule echoes that same principle.  See, Catellus
Development Corp. v. United States, 34 F.3d 748, 752 (9th Cir. 1994)
(rejecting the argument of a company that it could not be liable as an
arranger under CERCLA because it sent materials released to the
environment to be recycled because such a formulation "would allow
defendants to simply 'close their eyes' to the method of disposal of
their hazardous substances, a result contrary to the policies underlying
CERCLA"); accord United States v. Aceto Agr. Chemicals Corp., 872 F.2d
1373, 1382 (8th Cir. 1989).   There is no CERCLA case, nor would we
expect one in the future, where courts simply said that a material sent
for recycling is not a RCRA solid waste without examining the conditions
under which the material was sent. The fact is that a person who sends
material for recycling will, in fact, become an arranger for disposal if
that person does not comply with the regulations established today and
does not make reasonable efforts to ensure that material will be
responsibly recycled.  

Reasonable Efforts Linked to Prerequisites to a Lawful Exclusion from
the Definition Of Solid Waste - Response

While EPA agrees with the comment that the reasonable efforts condition
is directed at the issue of identifying legitimate recycling that is not
discard, EPA disagrees with the comment that Safe Food designated
protection of human health and the environment as an "essential
prerequisite" to a lawful exclusion from the definition of solid waste. 
In the regulation challenged in Safe Food, EPA had determined that
certain recycled materials used to make zinc fertilizers and the
fertilizers themselves are not solid wastes so long as they are not
speculatively accumulated and meet certain handling, storage and
reporting conditions and (in the case of the fertilizers themselves)
have concentration levels for lead, arsenic, mercury, cadmium, chromium,
and dioxins that fall below specified thresholds.  350 F.3d at 1265.  

These conditions would mean that the recycled materials have not been
"discarded" as RCRA defines the term.  These conditions would apply to a
number of materials not produced in the fertilizer production industry,
including electric arc furnace dust generated in steel production,
commonly known by its RCRA designation "K061."  350 F.3d at 1266.  

The court rejected the argument that, as a matter of plain meaning,
recycled material destined for immediate reuse within an ongoing
industrial process is never considered "discarded," whereas material
that is transferred to another firm or industry for subsequent recycling
must always be solid wastes.  350 F.3d at 1268.  Instead, the court
determined "whether the agency's interpretation of ... 'discarded' . . .
is, reasonable and consistent with the statutory purpose," by evaluating
the validity of EPA's explanation that market participants treat the
exempted materials more like valuable products than like
negatively-valued wastes, managing them in ways inconsistent with
discard, and that the fertilizers derived from these recycled feedstocks
are chemically indistinguishable from analogous commercial products made
from virgin materials.  350 F.3d at 1269.  

The court specifically stated that it "need not consider whether a
material could be classified as a non-discard exclusively on the basis
of the market-participation theory."  The market-participation theory
was not challenged.  Thus, it left open the possibility that market
participation could, by itself, lead to classification of a material as
not being a solid waste.  Id.  

The court only determined whether the combination of market
participation and "identity" is enough to establish that the recycled
fertilizers are not "discarded."  The question, therefore, was whether
the identity principle, when used in conjunction with indicators like
market valuation and management practices, is a reasonable tool for
distinguishing products from wastes.  The court found that it is.  Id. 
Thus, the court left open issues whether market valuation or management
practices, alone, is/are reasonable to distinguish products from wastes.
 

The remainder of the opinion discusses whether EPA's analysis that the
levels of contaminants in the recycled products were "identical" to the
products made with virgin materials when contaminant levels in the
recycled products were sometimes considerably higher.  350 F.3d at
1269-72.  

The court determined that it could affirm EPA's determination if, based
on the Agency's analysis of health and environmental risks, the
differences are so slight as to be substantively meaningless.  The court
found that "the apparent differences in the EPA's exclusion ceilings and
the contaminant levels in the virgin fertilizer samples lose their
significance when put in proper perspective--namely, a perspective based
on health and environmental risks."  Those who argue that a risk
assessment is required latch on to the word "proper" to argue that a
risk assessment is always required.  The court made no such
determination.  It only decided that in this case a risk assessment
analysis was proper.  In fact for non-dioxin contaminants the court did
not demand as detailed a risk assessment.  

While Safe Food does not require a risk assessment of the environmental
and health effects of recycling of materials that are not wastes, there
are certain indications in the court's opinion that show how the Agency
may evaluate certain aspects of risk.  For example, in Safe Food under
the identity principle the court indicated that comparison of levels
would be appropriate between products made from raw materials and
products made from recycled materials.  Further, if there were an
apparent discrepancy between the products, the Agency could examine
relative risks.  The degree of analysis, however, would depend on the
circumstances in particular cases.  Note that the analysis of dioxin,
chromium and other substances varied depending on the relationship of
the levels in the different products.  Furthermore, there are various
places in this rule where EPA has chosen to consider whether discard
occurs that have some relationship to risk.  For example, material is
discarded if it is stored in a way that is not contained, residuals have
to be managed so they are not improperly released to the environment,
and legitimacy factors have to consider whether in some circumstances
the recycling is merely an excuse for disposing of unwanted toxic
materials. 

2.1.5.3 - Financial assurance and discard

2.1.5.3 - Summary

Two commenters asserted that EPA lacks authority under RCRA to impose
financial assurance requirements on facilities using secondary materials
in production operations which are never discarded. They believe that
this condition does not define the absence of discard and would
effectively impose a waste management requirement upon a non-waste. 
[0481-65, 0492-43]

2.1.5.3 - Response

EPA disagrees with comments stating that the Agency lacks the authority
to impost financial assurance requirements on third-party facilities
accepting excluded hazardous secondary material intended for recycling. 
 EPA's record for today's rulemaking demonstrates that third-party
recycling of hazardous secondary materials has been and continues to be
part of the waste disposal problem, and, without the conditions being
finalized today, these hazardous secondary materials would be solid
wastes. Of the 208 damage cases in EPA's study of environmental problems
associated with post-RCRA, post CERCLA hazardous secondary materials
recycling, 94% appeared to take place at commercial off-site facilities.
Moreover, EPA's study of how market forces impact recycling demonstrates
that these damages are consistent with our understanding of how the
business model for commercial recycling can lead to sub-optimal results.
As opposed to manufacturing, where the cost of inputs, either raw
materials or intermediates, is greater than zero and revenue is from the
sale of the output, recycling conducted by commercial hazardous
secondary materials recyclers involves generating revenue from receipt
of the hazardous secondary materials, as well as from the sale of
output. Recyclers of hazardous secondary materials in this situation can
have a short-term incentive to accept more hazardous secondary materials
than they can economically or safely recycle, resulting in the hazardous
secondary materials eventually being discarded.

The financial assurance condition for the transfer-based exclusion is
directly linked to this situation. By obtaining financial assurance, the
owner or operator of the reclamation facility is making a direct
demonstration that it will not abandon the hazardous secondary material.
Of the 208 damage cases, 69 (or 33%) were primarily caused by
abandonment of the hazardous secondary material by the recycler. None of
69 facilities whose damages were primarily caused by abandonment had
financial assurance. 

Under the transfer-based exclusion, financial assurance is the means by
which the recycler demonstrates an investment in the future of the
recycled materials; even if the market changes in such a way that the
recycler can no longer process the hazardous secondary materials, by
obtaining financial assurance, it has made certain that the hazardous
secondary materials will not be abandoned and therefore not discarded.
EPA therefore disagrees with the comment that the financial assurance
condition is not related to discard of the material.

Moreover, financial assurance also addresses the correlation of
financial health of a reclamation facility with the absence of discard
of hazardous secondary materials. According to the successful recycling
study, an examination of a company's finances is an important part of
many of the environmental audits generators currently use to determine
that their hazardous secondary materials will not be discarded. In
addition, the environmental problems study showed that bankruptcies or
other types of business failures were associated with 138 (66%) of the
damage cases, and the market forces study identified a low net worth of
a firm as a strong indication of a sub-optimal outcome of recycling
(i.e., over-accumulation of hazardous secondary materials, resulting in
releases to the environment and abandonment of hazardous secondary
materials).

In the March 2007 supplemental proposal, EPA proposed to require that
reclamation facilities obtain financial assurance to ensure that the
reclamation facility owner/operators who would operate under the terms
of this exclusion are financially sound (72 FR 14191). Many commenters
supported this condition and EPA's rationale. EPA continues to believe
that the findings of the recycling studies indicate a correlation
between financial health of a reclaimer and the likelihood he will not
discard the hazardous secondary materials.

2.1.5.4 - "Generator-controlled" and discard

2.1.5.4 - Summary

Some commenters objected to some provisions of the
"generator-controlled" exclusion, arguing that they are unrelated to
discard.  

Commenters asserted that the generator's written certification included
in the proposed definition of "hazardous secondary material generated
and reclaimed under the control of the generator" in 40 CFR §260.10
does not change the fact that the materials are being recycled and hence
are not "solid wastes;" this requirement amounts to impermissible
regulation of non-discarded material. [0518-5, 0537-16]

One commenter also argued that the limitation under the
generator-controlled exclusion that material must be generated and
reclaimed within the United States or its Territories has nothing to do
with whether material is actually discarded, and it therefore makes
little sense as part of the RCRA definition of solid waste.  Instead,
this limitation appears to reflect a concern that EPA might have trouble
scrutinizing recycling scenarios involving materials that are either
generated or reclaimed abroad.  This concern, however, would seem to be
misplaced.  EPA has the ability to require any information it needs from
the in-country facility involved in the recycling activity, and such a
facility would have the burden of showing that it really is recycling
the material at issue (or sending it to be recycled, as the case may
be).  EPA could then pursue enforcement if material supposedly being
reclaimed is not.  There is therefore no need - or legal basis - to
treat material as "discarded" just because it happens to cross an
international boundary. [0537-17]

2.1.5.4 - Response

EPA disagrees with comments that the Agency does not have the authority
to impose the certification requirements provided in the definition of
"hazardous secondary material generated and reclaimed under the control
of the generator" in 40 CFR §260.10.  

In the case of same-company recycling, EPA's rationale for extending the
"under the control of the generator" exclusion to such situations was
that both the generating facility and the reclamation facility (if they
are different) would be familiar with the hazardous secondary materials
and the company would be ultimately liable for any mismanagement of the
hazardous secondary materials. Under these circumstances, the incentive
to avoid such mismanagement would be so strong that mismanagement also
would be unlikely. However, due to existing complexities in corporate
structure, ownership and liability, defining "same company" in a way
that ensures that the generation and recycling of the hazardous
secondary material is under the control of the generator is not
possible. The certification is needed to clarify the responsibilities of
the generator and reclaimer and help regulatory authorities determine
whether a facility was eligible for this exclusion.  Thus the generating
facility must certify that it controls the reclaiming facility, or that
the generating facility and the reclaiming facility are under common
control. In addition, the generator must certify that either the
generating facility or the reclaiming facility acknowledges full
responsibility for the proper management of the hazardous secondary
materials, thus demonstrating the material is not discarded.

In the case of certain tolling operations, EPA has determined that a
certain specific type of tolling arrangement provides equivalent
assurance that recycling is performed "under the control of the
generator" and does not constitute discard. Under this type of
arrangement, one company (the tolling contractor) contracts with a
second company (the toll manufacturer) to produce a specialty chemical
from specified virgin materials identified in the tolling contract. The
toll manufacturer produces the chemical and the production process
generates a hazardous secondary material (such as a spent solvent) which
is routinely reclaimed at the tolling contractor's facility. The typical
toll manufacturing contract contains detailed specifications about the
product to be manufactured, including management of any hazardous
secondary materials that are produced and returned to the tolling
contractor for reclamation. Under this scenario, the hazardous secondary
material continues to be managed as a valuable product, so discard has
not occurred. Moreover, because the contract specifies that the tolling
contractor retains ownership of, and responsibility for, the hazardous
secondary materials, there is a strong incentive to avoid any
mismanagement or release. In essence, the tolling contractor has
outsourced a step in its manufacturing process, but continues to take
responsibility and maintain control of the process as a whole, including
both the virgin materials going into the process. 

The certification requirement is therefore needed in this case to
demonstrate that a facility is eligible for an exclusion under a tolling
contract.  The tolling contractor must certify that it has a written
contract with the toll manufacturer to manufacture a product or
intermediate which is made from virgin materials specified by the
tolling contractor, and that the tolling contractor will reclaim the
hazardous secondary materials generated during the course of this
manufacture. The tolling contractor must also certify that it retains
ownership of, and responsibility for, the hazardous secondary materials
that are generated during the course of the manufacture, including any
releases of hazardous secondary materials that occur during the
manufacturing process, thus demonstrating that he continues to take
responsibility and maintain control of the process as a whole and the
material has not been discarded.

EPA also disagrees with comments that argue that the limitation under
the generator-controlled exclusion that material must be generated and
reclaimed within the United States or its Territories has nothing to do
with whether material is actually discarded.  Because hazardous
secondary materials that are exported for recycling pass out of the
regulatory control of the federal government, making it difficult to
determine if these activities are "under the control of the generator"
and because, as noted in the March 2007 supplemental proposal, EPA does
not have sufficient information about most recycling activities outside
of the United States to decide whether discard is likely or unlikely (72
FR 14187), EPA continues to find that this restriction is needed to
properly define when the hazardous secondary material is under the
control of the generator and not being discarded.

2.1.5.5 - Speculative accumulation and discard

2.1.5.5 - Summary

Some commenters agreed with EPA's proposal to include a prohibition on
speculative accumulation in the final rule exclusions.  Commenters said
that the concept is sound and it makes sense to use the definition that
has been in EPA's rules for many years, as EPA proposes to do.
Commenters also agreed that speculative accumulation is a reasonable
condition that relates to "discard" and that these are reasonable
conditions with which the regulated community is very familiar.     

[0179-16, 0491-3]

Other commenters, while not opposing the prohibition on speculative
accumulation, would prefer that it be treated as a condition to be
considered in determining if a particular material is in fact being
beneficially reused rather than discarded, but with some flexibility to
allow for specific circumstances that may be involved. For example, if a
secondary material is being used as a legitimate and valuable feedstock
in the production of products, effectively substituting for, and thereby
conserving, virgin materials, the Agency should be less concerned with
whether something less than 75% of the inventory present on January 1
has been used during a given year.  Under demonstrated adverse market
conditions, this should not result in the remaining material being
classified as a waste, so long as a legitimate market still exists.  

[0093-28, 0203-10]

One commenter (who commented both in 2003 and 2007) objected to the
imposition of speculative accumulation on the mining and mineral
processing industry.  The commenter recognizes that at some point in
time, if a material being stored for use is not actually used, it may
cross the line of discard and become abandoned or disposed of and also
understand that EPA has long used the definition of speculative
accumulation in 40 C.F.R. Q 261.l(c)(8) to identify the relevant point
in time, and this definition has worked well for a wide variety of
industries.  However, given the operational realities of the primary
metals and minerals industry, the commenter believes that EPA's current
speculative accumulation rules are too restrictive for this industry,
and provided specific examples, including furnace bricks and reverts
from copper smelters.  The commenter urges EPA to specify that materials
within this industry are "in process" during the first year after their
production; only after the one-year period should materials start to be
subject to a speculative accumulation "clock."

[0152-10, 0481-12, 0481-70, 0481-71]

2.1.5.5 - Response

In response to comments on the speculative accumulation provisions in
the final rule, EPA notes that notes that it did not reopen the specific
details of the speculative accumulation regulation regarding the time
periods under which materials are to be recycled, since these periods
have been part of the Agency's regulations for many years and are
familiar to persons who are affected by the regulations.

EPA agrees with comments that state that the speculative accumulation
provision is a reasonable condition that relates to "discard" and with
which the regulated community is very familiar.   As noted in the March
2007 supplemental proposal, restrictions on speculative accumulation (40
CFR 261.1(c)(8)) have been an important element of the RCRA hazardous
waste recycling regulations since they were promulgated on January 4,
1985. Historically, hazardous secondary materials excluded from the
definition of solid waste generally become wastes when they are
speculatively accumulated, because, at that point, they are considered
to be unlikely to be recycled and therefore are discarded. According to
this regulatory provision, a hazardous secondary material is accumulated
speculatively if the person accumulating it cannot show that the
material is potentially recyclable; further, the person accumulating the
hazardous secondary material must show that during a calendar year
(beginning January 1) the amount of such material that is recycled, or
transferred to a different site for recycling, equal at least 75% by
weight or volume of the amount of that material at the beginning of the
period. As noted in the March 2007 supplemental proposal, this provision
already applies to hazardous secondary materials that are 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 characteristic
sludges and by-products being reclaimed (72 FR 14188). Given that a
significant portion of the damage cases stemmed from over-accumulation
of hazardous secondary materials, EPA continues to believe that a
restriction on speculative accumulation is needed to determine that the
hazardous secondary material is being recycled and is not discarded.

EPA disagrees with comments that request that the restriction be treated
as a "condition to be considered" in determining if a particular
material is in fact being beneficially reused rather than discarded
instead of a strict restriction, and with comments that say the mining
and mineral processing industry should have more flexibility than other
industrial sectors in implementing speculative accumulation provisions. 
 EPA believes that the existing variance process in 40 CFR 260.31(a) is
adequate for dealing with those cases where materials are accumulated
speculatively when the facility can demonstrate that sufficient amounts
of the material will be recycled in the following year

2.1.6 - Conditions in the proposal are not sufficient to protect against
discard and must be strengthened

2.1.6 - Summary

Commenters argue that before EPA can lawfully claim that excluded
materials are not discarded, the Agency would need to strengthen the
conditions to protect human health and the environment.  Commenters
argue that EPA cannot lawfully determine that hazardous materials are
not discarded prior to recycling if the conditions are not adequate to
protect human health and the environment.  Safe Food and Fertilizer v.
EPA, 350 F.3d 1263, 1268 (D.C. Cir. 2003) (court upheld EPA rule that
excluded hazardous materials used to make zinc fertilizers, provided
conditions were met that ensured the excluded materials would "not
endanger human health or the environment."). Commenters assert that the
minimal conditions in the proposal are not sufficient to protect against
discard and must be strengthened.  Commenters note that in the Damage
Case Study, EPA identified 208 damage cases that are post-RCRA and
Superfund.  The practices documented in these damage cases need to be
addressed by protective management standards in the final rule. 

[0558-1, 0559-33]

Commenters also argue that EPA's proposed rule, which exempts excluded
hazardous wastes from any of RCRA's stringent handling, transportation,
and storage requirements, is inconsistent with Congress' intent that
hazardous wastes would be strictly regulated.  The statutory scheme of
RCRA makes clear that Congress intended to regulate not just the
ultimate disposal, but also the management, of hazardous wastes. See 42
U.S.C. § 6901(5) ("[T]he placement of inadequate controls on hazardous
waste management will result in substantial risks to human health and
the environment.").  A primary purpose of RCRA is to avoid the expense
of remediation by applying prior controls.  See id. §§ 6901(6) ("[I]f
hazardous waste management is improperly performed in the first
instance, corrective action is likely to be expensive, complex, and time
consuming."); 6902(a)(4)&(5) ("The objectives of this chapter are to
promote the protection of health and the environment and to conserve
valuable material and energy resources by - assuring that hazardous
waste management practices are conducted in a manner which protects
human health and the environment; [and] requiring that hazardous waste
be properly managed in the first instance thereby reducing the need for
corrective action at a future date."). 

To effectuate these goals, Congress set forth the hazardous waste
management requirements that would apply to generators, transporters,
and treatment, storage, and disposal facilities.  Generators and
transporters were expected to properly store and ship hazardous wastes
and to maintain comprehensive records regarding the types and amounts of
such wastes.  As a matter of statute, for example, Congress required EPA
to develop regulations for a manifest system "and any other means
necessary to assure that all such hazardous waste generated is
designated for treatment, storage, or disposal in, and arrives at [TSD]
facilities." 42 U.S.C. § 6922(a)(5). EPA was also directed to establish
regulations governing the appropriate type of containers used for
hazardous waste storage and transport, labeling of the containers, and
detailed recordkeeping practices.  42 U.S.C. §§ 6922(a); 6923(a).
Congress clearly considered the manner in which wastes were held and
shipped, pending their ultimate treatment or disposal, of the utmost
importance. 

When Congress passed RCRA in 1976 and the Hazardous and Solid Waste
Amendments of 1984, it evidenced a deep concern with the problems
presented by improper hazardous waste disposal on land. It expressly
found that certain classes of land disposal facilities were "not capable
of assuring long-term containment of certain hazardous wastes, and
[that] to avoid substantial risk to human health and the environment,
reliance on land disposal should be minimized or eliminated, and land
disposal, particularly landfill and surface impoundment, should be the
least favored method for managing hazardous wastes."  42 U.S.C. §
6901(b)(7); see also H.R. Rep. No. 94-1491 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241 (expressing belief that Congress was
"eliminat[ing] the last remaining loophole in environmental law, that of
unregulated land disposal of discarded materials and hazardous wastes.")


Accordingly, Congress imposed extremely stringent restrictions on the
handling, treatment, storage, and disposal of hazardous wastes so as to
protect against contamination of the land.  For example, Congress
enacted sharp restrictions on a wide range of previously-used land
disposal practices, including open dumping, 42 U.S.C. § 6902(a)(3), the
use of salt domes for waste disposal, 42 U.S.C. § 6924(b), and the
placement of liquid hazardous waste directly in a landfill, 42 U.S.C. §
6924(c).  In the 1984 amendments, Congress supplemented these
restrictions with the "land ban" requirements, described above, in which
Congress imposed "sweeping restrictions on the land disposal of
hazardous waste" by prohibiting landfill and surface impoundment
disposal of such waste unless its hazardous constituents are first
treated or the waste is disposed of in "no migration" facilities.  42
U.S.C. §§ 6924(d), (e), (f), (g), (m); Battery Recyclers, 208 F.3d at
1050; API I, 906 F.2d at 733. 

Congress further addressed with remarkable specificity the criteria that
hazardous waste disposal facilities must satisfy in order to accept
waste.  As a matter of statute, for example, each such facility must,
among other things, use two liners and a leachate collection system, and
provide for groundwater monitoring and leak detection, in addition to
complying with requirements set by EPA. 42 U.S.C. § 6924(o). Such
detailed requirements for hazardous waste disposal amply demonstrate
Congress's desire to protect against contamination of the land. 

Commenters believe that EPA's proposed regulation flies in the face of
these concerns.  They believe that EPA has forsaken the statute's
emphasis on preventative hazardous waste management in favor of
after-the fact enforcement and remediation. Compare 42 U.S.C. §
6902(a)(5) (One objective of RCRA is "requiring that hazardous wastes be
properly managed in the first instance thereby reducing the need for
corrective action at a future date.").  EPA has abandoned Congress'
directive that wastes be tracked from the point of generation to the
point of disposal "to assure that all such hazardous waste  arrives at
[TSD] facilities," 42 U.S.C. § 6922(a)(5), for a voluntary system of
compliance, based on the unsupported belief that the wastes' value will
guarantee their safe handling.  EPA's view also defies logic. In the
vast majority of instances, generators are paying to get rid of the
substances EPA refuses to call 'waste."  The wastes in this instance may
have some value, but for many recyclers, their profit is made by the
removal of these wastes from the generators.  Thus the belief that the
"value" of the wastes to the recycler will prevent their mismanagement
and disappearance is ill-founded.  

Commenters also noted that EPA identified 208 damage cases that are
post-RCRA and Superfund.  Commenters believe this large number of damage
cases justifies the need for management standards  In particular,
commenters expressed concern with the large number of damage cases
related to over-accumulation and abandonment (33 percent) and damage
cases related to mismanagement of recycling residuals (also 33 percent).
 72 FR 14181 col 2.  Commenters stated that practices documented in
these damage cases need to be addressed by protective management
standards in the final rule.

Commenters also stated that EPA must answer why manifests are not
necessary to track shipments to other firms and industries in order to
ensure that the material is actually recycled and not illegally
disposed.  Recall the court's admonition that EPA must reconcile its
interpretation of discard with "RCRA's acknowledged objective to
establish a cradle-to-grave regulatory structure for the safe handling
of hazardous wastes." API I, 906 F.2d at 741 (internal quotes omitted),
citing United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir.
1987). EPA must answer why storage of hazardous secondary materials
prior to recycling should not be conducted in facilities with financial
assurance for closure and cleanup, in order to prevent the creation of
more bankrupt contaminated recycling sites as documented in these
comments. EPA must answer how environmental protection is assured if
generators no longer face Superfund liability for mismanagement of
materials that EPA has by rule redefined as "commodity-like" and not
wastes, as discussed further below.  EPA must answer why hazardous
secondary materials can be stored with no tank or container standards,
no training of employees, no inspections of storage areas, no
contingency plan for accidents, and no other protective standards. These
are serious concerns from the perspective of health and environmental
risk that receive scant or no attention in the proposed rule.  One
commenter noted that in the 2007 proposal, EPA said that excluding all
hazardous secondary materials destined for recycling "seems inconsistent
with the mandate to track hazardous wastes and control them from 'cradle
to grave.'"  (72 FR 14176)

Lastly, commenters argue that the proposed exclusion, combined with the
"legitimate recycling" criteria, thwarts Congress' goals of eliminating
unregulated land disposal of hazardous wastes. EPA proposes to allow
storage of hazardous wastes on the ground -ostensibly both at the point
of generation and recycling - so long as analogous raw materials are
also stored on the ground. Storage of wastes in open piles would not be
prohibited, nor would storage in containers not specifically designed to
contain hazardous wastes.

[0119-81, 0231-30, 0231-31, 0558-7, 0559-33, 0559-35, 0564-17]

2.1.6 - Response

Commenters argue that before EPA can lawfully claim that excluded
materials are not discarded, the Agency would need to strengthen the
conditions to protect human health and the environment.  Commenters
argue that EPA cannot lawfully determine that hazardous materials are
not discarded prior to recycling if the conditions are not adequate to
protect human health and the environment.  Safe Food and Fertilizer v.
EPA, 350 F.3d 1263, 1268 (D.C. Cir. 2003) (court upheld EPA rule that
excluded hazardous materials used to make zinc fertilizers, provided
conditions were met that ensured the excluded materials would "not
endanger human health or the environment."). Commenters assert that the
minimal conditions in the proposal are not sufficient to protect against
discard and must be strengthened.  Commenters note that in the Damage
Case Study, EPA identified 208 damage cases that are post-RCRA and
Superfund.  The practices documented in these damage cases need to be
addressed by protective management standards in the final rule. 

[0558-1, 0558-33]

Commenters also argue that EPA's proposed rule, which exempts excluded
hazardous wastes from any of RCRA's stringent handling, transportation,
and storage requirements, is inconsistent with Congress' intent that
hazardous wastes would be strictly regulated.  The statutory scheme of
RCRA makes clear that Congress intended to regulate not just the
ultimate disposal, but also the management, of hazardous wastes. See 42
U.S.C. § 6901(5) ("[T]he placement of inadequate controls on hazardous
waste management will result in substantial risks to human health and
the environment.").  A primary purpose of RCRA is to avoid the expense
of remediation by applying prior controls.  See id. §§ 6901(6) ("[I]f
hazardous waste management is improperly performed in the first
instance, corrective action is likely to be expensive, complex, and time
consuming."); 6902(a)(4)&(5) ("The objectives of this chapter are to
promote the protection of health and the environment and to conserve
valuable material and energy resources by - assuring that hazardous
waste management practices are conducted in a manner which protects
human health and the environment; [and] requiring that hazardous waste
be properly managed in the first instance thereby reducing the need for
corrective action at a future date."). 

To effectuate these goals, Congress set forth the hazardous waste
management requirements that would apply to generators, transporters,
and treatment, storage, and disposal facilities.  Generators and
transporters were expected to properly store and ship hazardous wastes
and to maintain comprehensive records regarding the types and amounts of
such wastes.  As a matter of statute, for example, Congress required EPA
to develop regulations for a manifest system "and any other means
necessary to assure that all such hazardous waste generated is
designated for treatment, storage, or disposal in, and arrives at [TSD]
facilities." 42 U.S.C. § 6922(a)(5). EPA was also directed to establish
regulations governing the appropriate type of containers used for
hazardous waste storage and transport, labeling of the containers, and
detailed recordkeeping practices.  42 U.S.C. §§ 6922(a); 6923(a).
Congress clearly considered the manner in which wastes were held and
shipped, pending their ultimate treatment or disposal, of the utmost
importance. 

When Congress passed RCRA in 1976 and the Hazardous and Solid Waste
Amendments of 1984, it evidenced a deep concern with the problems
presented by improper hazardous waste disposal on land. It expressly
found that certain classes of land disposal facilities were "not capable
of assuring long-term containment of certain hazardous wastes, and
[that] to avoid substantial risk to human health and the environment,
reliance on land disposal should be minimized or eliminated, and land
disposal, particularly landfill and surface impoundment, should be the
least favored method for managing hazardous wastes."  42 U.S.C. §
6901(b)(7); see also H.R. Rep. No. 94-1491 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241 (expressing belief that Congress was
"eliminat[ing] the last remaining loophole in environmental law, that of
unregulated land disposal of discarded materials and hazardous wastes.")


Accordingly, Congress imposed extremely stringent restrictions on the
handling, treatment, storage, and disposal of hazardous wastes so as to
protect against contamination of the land.  For example, Congress
enacted sharp restrictions on a wide range of previously-used land
disposal practices, including open dumping, 42 U.S.C. § 6902(a)(3), the
use of salt domes for waste disposal, 42 U.S.C. § 6924(b), and the
placement of liquid hazardous waste directly in a landfill, 42 U.S.C. §
6924(c).  In the 1984 amendments, Congress supplemented these
restrictions with the "land ban" requirements, described above, in which
Congress imposed "sweeping restrictions on the land disposal of
hazardous waste" by prohibiting landfill and surface impoundment
disposal of such waste unless its hazardous constituents are first
treated or the waste is disposed of in "no migration" facilities.  42
U.S.C. §§ 6924(d), (e), (f), (g), (m); Battery Recyclers, 208 F.3d at
1050; API I, 906 F.2d at 733. 

Congress further addressed with remarkable specificity the criteria that
hazardous waste disposal facilities must satisfy in order to accept
waste.  As a matter of statute, for example, each such facility must,
among other things, use two liners and a leachate collection system, and
provide for groundwater monitoring and leak detection, in addition to
complying with requirements set by EPA. 42 U.S.C. § 6924(o). Such
detailed requirements for hazardous waste disposal amply demonstrate
Congress's desire to protect against contamination of the land. 

Commenters believe that EPA's proposed regulation flies in the face of
these concerns.  They believe that EPA has forsaken the statute's
emphasis on preventative hazardous waste management in favor of
after-the fact enforcement and remediation. Compare 42 U.S.C. §
6902(a)(5) (One objective of RCRA is "requiring that hazardous wastes be
properly managed in the first instance thereby reducing the need for
corrective action at a future date.").  EPA has abandoned Congress'
directive that wastes be tracked from the point of generation to the
point of disposal "to assure that all such hazardous waste  arrives at
[TSD] facilities," 42 U.S.C. § 6922(a)(5), for a voluntary system of
compliance, based on the unsupported belief that the wastes' value will
guarantee their safe handling.  EPA's view also defies logic. In the
vast majority of instances, generators are paying to get rid of the
substances EPA refuses to call 'waste."  The wastes in this instance may
have some value, but for many recyclers, their profit is made by the
removal of these wastes from the generators.  Thus the belief that the
"value" of the wastes to the recycler will prevent their mismanagement
and disappearance is ill-founded.  

Commenters also noted that EPA identified 208 damage cases that are
post-RCRA and Superfund.  Commenters believe this large number of damage
cases justifies the need for management standards  In particular,
commenters expressed concern with the large number of damage cases
related to over-accumulation and abandonment (33 percent) and damage
cases related to mismanagement of recycling residuals (also 33 percent).
 72 FR 14181 col 2.  Commenters stated that practices documented in
these damage cases need to be addressed by protective management
standards in the final rule.

Commenters also stated that EPA must answer why manifests are not
necessary to track shipments to other firms and industries in order to
ensure that the material is actually recycled and not illegally
disposed.  Recall the court's admonition that EPA must reconcile its
interpretation of discard with "RCRA's acknowledged objective to
establish a cradle-to-grave regulatory structure for the safe handling
of hazardous wastes." API I, 906 F.2d at 741 (internal quotes omitted),
citing United Technologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir.
1987). EPA must answer why storage of hazardous secondary materials
prior to recycling should not be conducted in facilities with financial
assurance for closure and cleanup, in order to prevent the creation of
more bankrupt contaminated recycling sites as documented in these
comments. EPA must answer how environmental protection is assured if
generators no longer face Superfund liability for mismanagement of
materials that EPA has by rule redefined as "commodity-like" and not
wastes, as discussed further below.  EPA must answer why hazardous
secondary materials can be stored with no tank or container standards,
no training of employees, no inspections of storage areas, no
contingency plan for accidents, and no other protective standards. These
are serious concerns from the perspective of health and environmental
risk that receive scant or no attention in the proposed rule.  One
commenter noted that in the 2007 proposal, EPA said that excluding all
hazardous secondary materials destined for recycling "seems inconsistent
with the mandate to track hazardous wastes and control them from 'cradle
to grave.'"  (72 FR 14176)

Lastly, commenters argue that the proposed exclusion, combined with the
"legitimate recycling" criteria, thwarts Congress' goals of eliminating
unregulated land disposal of hazardous wastes. EPA proposes to allow
storage of hazardous wastes on the ground -ostensibly both at the point
of generation and recycling - so long as analogous raw materials are
also stored on the ground. Storage of wastes in open piles would not be
prohibited, nor would storage in containers not specifically designed to
contain hazardous wastes.

[0119-81, 0231-30, 0231-31, 0558-7, 0559-33, 0559-35, 0564-17]

EPA disagrees that the restrictions to the under the control of the
generator exclusions or the conditions we are requiring for the
transfer-based exclusion are inadequate. Each of the restrictions and/or
conditions is specifically linked to defining when the hazardous
secondary materials are not discarded and to ensuring that the
regulatory authority has the information needed to oversee the
exclusion. Because of these restrictions and conditions, the hazardous
secondary materials are not solid waste and therefore are not subject to
the Subtitle C hazardous waste regulations.  EPA also points out that it
is not making its finding on discard solely based on the "value" of the
recycled material.  "Value" is one aspect of the Agency's findings and,
contributes to the ultimate determination that materials complying with
the conditions and restrictions of this regulation are not discarded. 
EPA acknowledges that materials that have become discarded and are later
shown to have "value" are still wastes when recycled.  This rule,
however, deals with materials that have not been discarded in the first
instance.  

Specifically, for hazardous secondary materials reclaimed under the
control of the generator, the fact that the generator maintains control
and liability for the hazardous secondary materials, either by managing
them on-site, within the same company, or under a specific tolling
contract, is itself an indication that the materials are not discarded.
The prohibition on speculative accumulation (as defined in 261.1(c)(8)),
addresses both the situation in which a large percentage of the
hazardous secondary material is accumulated over the year without being
recycled and the situation where there is no feasible means of recycling
the hazardous secondary material, regardless of volume. Finally, the
requirement that the hazardous secondary materials must be contained in
the unit recognizes the reality that hazardous secondary materials that
are released to the environment are discarded.

For hazardous secondary materials transferred to another party for
reclamation, the fact that the generator is required to make reasonable
efforts to ensure that its hazardous secondary materials are properly
and legitimately reclaimed demonstrates that the generator is not simply
disposing of the material, but instead is taking responsibility that the
hazardous secondary materials will be recycled. In addition, by
maintaining a record of each shipment and a confirmation of receipt, the
generator demonstrates that it continues to take responsibility for
knowing the ultimate disposition of its hazardous secondary materials.
Furthermore, by obtaining financial assurance, the reclamation facility
demonstrates that it has also taken on the responsibility to ensure that
the hazardous secondary materials will not be abandoned in the event
that circumstances make it impossible for the facility to reclaim the
hazardous secondary materials. For further discussion of how these and
other restrictions and/or conditions of the exclusions are linked to
defining when hazardous secondary materials are not discarded, see
sections V,VII-IX and XVI-XVIII of the final rule preamble. Support for
the Agency's determination regarding which materials are not discarded
is also found throughout the rulemaking record in this proceeding. 

EPA also disagrees that specifying further engineering conditions, such
as secondary containment, liners, and leak detection systems, is needed
to determine which hazardous secondary materials are not being
discarded. The restrictions EPA has established and the conditions that
EPA is finalizing today address a variety of hazardous secondary
materials and reclamation operations that are linked to defining the act
of discard, rather than specifying a particular technology that may not
be appropriate in some cases. 

Furthermore, hazardous secondary materials excluded under today's rule
may remain subject (or become subject) to requirements under other
statutory programs. For example, hazardous secondary material
generators, transporters, intermediate facilities and reclaimers may be
subject to regulations developed under:

The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA) and
the Superfund Amendments and Reauthorization Act (SARA) of 1986 which,
combined, require notification of hazardous substance releases above a
reportable quantity, emergency planning and, if applicable, MSDS and
inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370). Hazardous
secondary material generators and reclaimers meeting defined criteria
are also subject to toxic chemical release reporting (i.e., Toxics
Release Inventory (TRI) under EPCRA (40 CFR part 372). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities alongside of RCRA. For more useful
information on these regulatory programs, please see "Memorandum:
Requirements that other Regulatory Programs would place on Generators,
Reclaimers and Transporters of Hazardous Secondary Materials" located in
the docket for this rulemaking.

While EPA agrees that the results of the environmental problems study do
indicate a need for certain conditions, the Agency believes that the
final rule conditions address the finding of the study.  The goal of the
environmental problems study was to identify and characterize
environmental problems that have been attributed to some types of
hazardous secondary material recycling activity that are relevant for
the purpose of this rulemaking effort. To address commenters concerns
that historic damages are irrelevant to current practices, EPA only
included cases where damages occurred after 1982 (post-RCRA and -CERCLA
implementation). The study identifies 208 cases in which environmental
damages of some kind occurred from some type of recycling activity and
that otherwise fit the scope of the study. The Agency believes that the
occurrence of certain types of environmental problems associated with
current recycling practices shows that discard has occurred. In
particular, instances where materials were abandoned (e.g., in
warehouses) and which required removal overseen by a government agency
and expenditure of public funds clearly demonstrate that the hazardous
secondary material was discarded. Of the 208 damage cases, 69 (33%)
involve abandoned materials. The relatively high incidence of abandoned
materials likely reflects the fact that bankruptcies or other types of
business failures were associated with 138 (66%) of the cases.

In addition, the pattern of environmental damages that resulted from the
mismanagement of recyclable materials (including contamination of soils,
groundwater, surface water and air) is a strong indication that the
hazardous secondary materials were generally not managed as valuable
commodities and were discarded. Of the 208 damage cases, 81 cases (40%)
primarily resulted from the mismanagement of recyclable hazardous
secondary materials. Mismanagement of recycling residuals was the
primary cause in 71 cases (34%). Often, in the case of mismanagement of
recycling residues, reclamation processes generated residuals in which
the toxic components of the recycled materials were separated from the
non-toxic components, and these portions of the hazardous secondary
material were then mismanaged and discarded. Examples of this include a
number of drum reconditioning facilities, where large numbers of used
drums were cleaned out to remove small amounts of remaining product such
as solvent, and these wastes were then improperly stored or disposed.

These findings helped inform EPA's decision to require that the
hazardous secondary material be contained in the unit and managed in a
manner that is at least as protective as an analogous raw material
(where there is an analogous material),  that the recycling residuals be
properly managed, and that the reclamation facility and any intermediate
facilities have financial assurance. In addition, the relatively small
proportion of cases of damages from on-site recycling (13 of the 208
cases (6%)) lends support for EPA's decision to include fewer
limitations on the exclusion for hazardous secondary materials recycled
under the control of the generator.

Specific Legal Issues

1.  The essential response to these comments is that EPA has issued
reasonable conditions and restrictions on reclaimed material to ensure
that it will not become a solid waste.   However, the Agency also
responds to the misconceptions and misinterpretations expressed in the
comments.  To the overall viewpoint that the regulations are
inconsistent with Congress' intent to impose strict requirements on
hazardous wastes responds that the case law has been equally clear that
Congress has also limited EPA to the regulation of solid wastes -
material that has been disposed of, abandoned or thrown away.  See, AMC
I and ABR.  Citation to provisions regarding hazardous waste regulation
only begs the question as to whether material is a solid waste in the
first instance.  None of the provisions cited by comments on this rule
changes the statutory structure and the need to determine whether
material is a solid waste.  Comments are merely recycling old arguments
that have been previously rejected by the courts.  

2.  The comments are plainly incorrect that the Safe Food case requires
a determination by EPA that material will "not endanger human health or
the environment."  In the regulation challenged in Safe Food, EPA had
determined that certain recycled materials used to make zinc fertilizers
and the fertilizers themselves are not solid wastes so long as they are
not speculatively accumulated and meet certain handling, storage and
reporting conditions and (in the case of the fertilizers themselves)
have concentration levels for lead, arsenic, mercury, cadmium, chromium,
and dioxins that fall below specified thresholds.  350 F.3d at 1265.  

These conditions would mean that the recycled materials have not been
"discarded" as RCRA defines the term.  These conditions would apply to a
number of materials not produced in the fertilizer production industry,
including electric arc furnace dust generated in steel production,
commonly known by its RCRA designation "K061."  350 F.3d at 1266.  

The court rejected the argument that, as a matter of plain meaning,
recycled material destined for immediate reuse within an ongoing
industrial process is never considered "discarded," whereas material
that is transferred to another firm or industry for subsequent recycling
must always be solid wastes.  350 F.3d at 1268.  Instead, the court
determined "whether the agency's interpretation of ... 'discarded' . . .
is, reasonable and consistent with the statutory purpose," by evaluating
the validity of EPA's explanation that market participants treat the
exempted materials more like valuable products than like
negatively-valued wastes, managing them in ways inconsistent with
discard, and that the fertilizers derived from these recycled feedstocks
are chemically indistinguishable from analogous commercial products made
from virgin materials.  350 F.3d at 1269.  

The court specifically stated that it "need not consider whether a
material could be classified as a non-discard exclusively on the basis
of the market-participation theory."  The market-participation theory
was not challenged.  Thus, it left open the possibility that market
participation could, by itself, lead to classification of a material as
not being a solid waste.  Id.  

The court only determined whether the combination of market
participation and "identity" is enough to establish that the recycled
fertilizers are not "discarded."  The question, therefore, was whether
the identity principle, when used in conjunction with indicators like
market valuation and management practices, is a reasonable tool for
distinguishing products from wastes.  The court found that it is.  Id. 
Thus, the court left open issues whether market valuation or management
practices, alone, is/are reasonable to distinguish products from wastes.
 

The remainder of the opinion discusses whether EPA's analysis that the
levels of contaminants in the recycled products were "identical" to the
products made with virgin materials when contaminant levels in the
recycled products were sometimes considerably higher.  350 F.3d at
1269-72.  

The court determined that it could affirm EPA's determination if, based
on the Agency's analysis of health and environmental risks, the
differences are so slight as to be substantively meaningless.  The court
found that "the apparent differences in the EPA's exclusion ceilings and
the contaminant levels in the virgin fertilizer samples lose their
significance when put in proper perspective--namely, a perspective based
on health and environmental risks."  Those who argue that a risk
assessment is required latch on to the word "proper" to argue that a
risk assessment is always required.  The court made no such
determination.  It only decided that in this case a risk assessment
analysis was proper.  In fact for other non-dioxin contaminants the
court did not demand as detailed an analysis of how the products made
from raw materials differ from those made with recycled materials.  

3. EPA also disagrees with comments that argue the burden is on the
Agency to prove lack of necessity of hazardous waste requirements.  EPA
has determined material is not a solid waste in the first instance, for
a number of reasons all of which show that material is treated as a
commodity not as a waste.  If the material is not treated as a commodity
in the first instance, it becomes subject to RCRA.  The Agency has no
obligation to prove the need NOT to impose any particular hazardous
waste requirement, such as manifests, financial assurance, closure,
assurance of environmental protection, training of employees, and
contingency plans.  Moreover, the suggestion by comments that many
occasions of serious releases to the environment from recycling
activities occurred after RCRA and CERCLA became law does not argue for
imposing stricter hazardous waste regulations, but does argue for
enforcement of existing regulations - as well as arguing for strict
enforcement of these new regulations on the definition of solid waste. 
EPA believes that the regulations promulgated today will be no less
protective of public health and the environment that restrictive command
and control hazardous waste regulations.  

4.  EPA takes strong issue with the comments that argue that generators
do not face Superfund liability for mismanagement of materials that EPA
has by rule redefined as "commodity-like" and not wastes,  The fact is
that, if the material is mismanaged, Superfund liability does not
change.  If the original generator of the material has made reasonable
efforts to determine that the recycler(s) will recycle responsibly, we
should not be expecting those generators to be liable under CERCLA as
arrangers for disposal.  Nor does EPA believe that they would be liable
under CERCLA in any event.  Under current law, if the generator of a
material that could become a CERCLA hazardous material released to the
environment and knew or should have known that the material could be
released, the generator would still be liable as an arranger for
disposal.  

5.  EPA strongly disagrees with the comment that this rule allows
unrestricted storage on the land.  EPA has, in fact, promulgated
provisions that land storage must be contained.  There is no need to
belabor this point.  

2.2 - Other matters of consistency of regulation with court rulings and
statutory responsibilities

2.2 - Summary

EPA received several miscellaneous issues relating to consistency of the
proposed revisions with court rulings and statutory responsibilities:

(1) Commenter does not agree with EPA's statement in the 2003 proposal
that "such an on-site recycling exclusion would not be based on the
direction of the D.C. Circuit Court." 68 Fed. Reg. at 61575. Rather, the
court's decisions prescribe what recycling is clearly outside of EPA's
jurisdiction, not the limits of EPA's jurisdiction. Any confusion on
this issue ought to now be resolved by Safe Food & Fertilizer. [0091-20]
 

(2) Commenter is concerned that the current regulatory structure
presents substantial disincentives to achieving the Nation's resource
conservation and recovery goals enunciated in RCRA. 42 U.S.C. § 6902]
Careful revision of the definition of solid waste can correct this error
by conforming the regulations EPA seeks to modify in this proposal to
the policy Congress established in the Pollution Prevention Act of 1990
(42 U.S.C. § 13101 (b)): that the recycling of industrial secondary
materials be given precedence over treatment and disposal of them.  This
rulemaking presents an opportunity to correct these regulatory glitches
and create the incentives to recycle that Congress clearly intended in
these two statutes. [0093-3]

(3) Commenter requests that the final rule include a more detailed
explanation of EPA's current understanding of its statutory authority
and the statutory meaning of "discarded material" in light of the recent
court rulings. This explanation needs to go further than the one
included in the October 28,2003 preamble to the proposed rule. This
requested articulation of statutory authority should explain how each
regulatory exemption or exclusion relates to statutory authority. In
other words, for each exemption or exclusion, please indicate that is it
either: a statutory solid waste but not a regulatory solid waste, or
neither a statutory or regulatory solid waste. For example, the statute
defines sludge as a solid waste but the regulations do not regulate
characteristic sludge being reclaimed as a solid waste. The existing
regulations and the proposed amendments both place conditions and
requirements (e.g., notification) on materials that are not regulatory
solid waste; where does the authority come from to place a requirement
on the management of a material that is not a solid waste? It would
obviously have to come from the statute or it could not be enforced.
[0171-11]

(4) Commenter asserts that the preamble to the proposal suggests that
the rulemaking is a response to decisions of the U.S. Court of Appeals
for the DC Circuit.  However, the Agency fully responded to these
decisions on March 13, 2002, when the Agency removed the byproduct and
sludge provisions of the 1998 mineral processing exclusion.  67 FR
11251.  The courts did not require any further action by EPA, and the
Agency should not imply that this rulemaking is anything other than an
exercise of the Bush Administration's policy preferences. [0343-3] 

2.2 - Response

In response to several miscellaneous issues relating to consistency of
the proposed revisions with court rulings and statutory
responsibilities:

(1) The comment on EPA's language regarding on-site recycling in the
2003 proposal has been overtaken by events.  In the March 2007
supplemental proposal, EPA determined that if the generator maintains
control over the recycled hazardous secondary material (including
maintaining control by recycling the material on-site), the material is
legitimately recycled under the standards established in the proposal,
and the material is not speculatively accumulated within the meaning of
EPA's regulations, and the material is contained, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. Thus, the generator's maintaining control over, and
potential liability for, the recycling process, are among the factors
that would ensure that the hazardous secondary materials are not
discarded.  

Certainly, on-site recycling may or may not be recycling of a waste. See
API II discussion of "oil-bearing wastewater", 216 F.3d at 55-58.  In
API II the court discussed whether recycling of this wastewater was part
of production or part of waste treatment.  The court was unable to reach
a conclusion, but for in that case the fact that recycling was done
on-site and, presumably, under the control of generator were irrelevant
for purposes of determining whether material was a waste or not.  The
applicable inquiry was whether the wastewater was discarded.   For
purposes of this rule generator control, including on-site recycling,
has relevance but it is not controlling.  

The comment is correct to the extent that AMC I and ABR do not describe
the limits of EPA's jurisdiction, but only those materials, generally,
that are clearly outside of RCRA jurisdiction.  In addition, EPA agrees
with the comment's citation to Safe Food to the extent that the D.C.
Circuit cases do not limit EPA's ability to define solid wastes only to
materials recycled within an industry and, thus, materials shipped to
another industry may not be solid wastes also.  

(2) One reason EPA is issuing this rule is to encourage recycling.  It
seems likely, moreover, that all parties can agree that safe recycling
ought to be encouraged.  However, it is clear that parties have very
divergent views as to what constitutes safe recycling.  The Agency
intends by issuing this final rule it will comport with the policy of
encouraging safe recycling.  

(3) EPA agrees that the 2003 proposal lacked a carefully considered
discussion of the meaning of discard under RCRA.  The Agency believes
that the Supplemental Proposal and the final rule have remedied this
problem.  The final rule explains how the conditions and restrictions on
the handling of various materials subject to the exclusion relate to
whether the material is discarded or not.  The Agency points out that
only "discarded" material may be considered a solid waste and that the
case law states that material is a solid waste only if it is discarded. 
Any restrictions or conditions imposed by this final regulation relates
to the determination whether a material is discarded and the rulemaking
record discusses the relationship to discard for every condition or
restriction.  

(4) EPA's position is that this rulemaking was prompted by the various
decisions of the D.C. Circuit.  There is no requirement imposed by the
courts to issue this rule, nor has the Agency implied there is such a
requirement. 

2.2.1 - 2003 proposal inappropriately "parses" the court decision and is
not linked to discard

2.2.1 - Summary

Commenters assert that in the 2003 proposal, EPA improperly "parses"
prior D.C. Circuit Decisions to support its proposal. In the
redefinition of solid waste proposal, as was the case with the provision
in the Phase IV Land Disposal Restriction (LDR) Rule that was at issue
in the ABR litigation, EPA improperly parses language in a prior D.C.
Circuit decision to justify its proposed exclusion. A brief discussion
of the Phase IV Rule is instructive.

In the Phase IV LDR Rule, EPA regulated as "solid waste" and, if
exhibiting a "hazardous" waste characteristic, as "hazardous" wastes
mineral processing "secondary materials" that were "generated and
reclaimed within the primary mineral processing industry," unless
exclusionary criteria from the definition of "solid waste" were
satisfied. See 63 Fed. Reg. at 28,637-638. In particular, mineral
processing "secondary materials" that met EPA's definitions as "spent
materials," "sludges," and "by-products" were "solid" wastes when
reclaimed, unless the mineral processor stored the materials in tanks,
containers, buildings or on approved pads prior to recycling. Id. EPA
concluded that placement of these materials directly on the land prior
to recycling, regardless of how brief the land placement, would cause
the materials to become "discarded" and, as such, regulated as "solid
wastes." Id.

In promulgating this provision, EPA cited to prior D.C. Circuit
decisions as authority to conclude that the decisions "absolutely bar
the agency from treating secondary materials as 'discarded' if and only
if 'reclamation is continuous in the sense that there is no interdiction
in time - i.e., materials moving from one step of a recovery process to
another without a break in the process, as for storage.'" ABR, 208 F.3d
at 1052 (citing 63 Fed. Reg. at 28,581). Further, EPA cited to the same
decisions to assert that "continuous" meant "immediate reuse." Id.
According to the D.C. Circuit, in vacating EPA's regulation of these
recycled materials as "solid wastes":

EPA reads, or rather misreads, these passages to mean that it may treat
secondary materials as 'discarded' whenever they leave the production
process and are stored for any length of time. For one thins, "the
language of an opinion is not always to be parsed as though we were
dealing with language of a statute."

208 F.3d at 1052 (internal citations omitted).

In crafting the proposed exclusion in the redefinition of solid waste
proposal, EPA limits the exclusion to materials that "are generated and
reclaimed in a continuous process within the same industry." 68 Fed.
Reg. at 61,560. This limitation on the scope of the exclusion mirrors
language in a prior D.C. Circuit decision wherein the Court stated:

In sum, our analysis of the statute reveals clear Congressional intent
to extend EPA's authority only to materials that are truly discarded,
disposed of, thrown away, or abandoned [and] these materials have not
yet become part of the waste disposal problem; rather they are destined
for beneficial reuse or recycling in a continuous process by the
generating industry itself.

AMC, 824 F.2d at 1190, 1186. Thus, it is clear that, contrary to the
D.C. Circuit's admonition in the ABR decision, EPA again parses the
Court language to justify a proposed exclusion that runs afoul of RCRA.
EPA must comply with the plain language of the statute and only regulate
"discarded" materials.

The Court's "big picture" message to the Agency was that it had no
authority over materials until they were ready for discard, as that word
is commonly understand. The "specific" message relevant to the material
streams under litigation included acknowledgement that those particular
streams were not discarded because they were used in a continuous
process within the same generating industry.  EPA did not mean for the
Agency to assume that only those materials used in a continuous process
within the same generating industry escaped the definition of discard.

 

Commenters also note that, for the paragraph in AMC I where the court
used the oft-quoted phrase "by the generating industry itself."  824
F.2d at 1186, EPA seems to construe these few words as authority for the
broad regulatory framework of the proposed rule that excludes all
hazardous secondary materials reclaimed by any facility "within the same
industry."  However, the paragraph from the court's opinion belies EPA's
interpretation. The court said:

[I]t seems clear that EPA need not regulate "spent" materials that are
recycled and reused in an ongoing manufacturing or industrial process.11
[Footnote 11 states in part: "we fail to see how not regulating
in-process secondary materials in an on-going production process will
subvert RCRA's waste disposal management goals."]  These material have
not yet become part of the waste disposal problem; rather, they are
destined for beneficial reuse or recycling in a continuous process by
the generating industry itself.

AMC I, 824 F.2d at 1185-86. Taken as a whole, in context, and read
carefully, the court's opinion was plainly referring to the type of
immediate reuse of "in-process" materials in the generator's "on-going
production process" represented by the mineral processing operations
that served as the "factual backdrop" of the case.  There is no reason
to believe that the court intended its opinion to be broader than the
facts.  Indeed, the court said in API II, 216 F.3d at 56, that it did
not rule on any of the other factual situations presented in industry's
briefs in AMC I, and thus the court expressly declined to issue a
broader ruling.  The court has also twice warned EPA against parsing
individual words in its opinions. AMC I, 824 F.2d at 1183 n.6; ABR, 208
F.3d at 1049.  Yet EPA again falls into the trap of treating the words
"continuous process" and "within the generating industry" from the
court's opinions "as if they were statutory terms in need of a
regulatory definition."  208 F.3d at 1049. Indeed, that is exactly what
EPA has done in the proposed rule, rather than paying attention to the
court's reasons and full discussion.

Most importantly, the court in Safe Food held that material transferred
to another firm or industry may be considered "discarded," if the
material "can reasonably be considered part of the waste disposal
problem."  350 F.3d at 1266. The word "may" is also critical, because
the court held that RCRA does not compel the conclusion that such
materials are per force discarded.  EPA has discretion, provided "the
agency's interpretation of 'discarded' is permissible, that is,
reasonable and consistent with the statutory purpose." Id., citing
American Mining Congress v. EPA, 907 F.2d 1179, 1186-87 (D.C. Cir. 1990)
(AMC II) (internal ellipses and quotation marks omitted).  In the end,
in determining whether materials shipped by the producer to another
company within the same or different industry for recycling should be
considered discarded, "[t]he answer depends on the EPA's reasons."  Id.

[0086-4, 0087-5, 0093-5, 0093-13, 0102-18, 0112-2, 0119-4, 0197-2,
0211-1, 0481-25]

2.2.1 - Response

EPA generally agrees with this comment and has changed the thrust of the
October 2003 to focus on excluding materials from regulation that are
not "discarded."  As a result, in 2007 the Agency decided to restructure
the approach to revising the definition of solid waste to more directly
consider whether particular materials are not considered "discarded" and
thus are not solid and hazardous wastes subject to regulation under
Subtitle C of RCRA.  However, as expressed elsewhere in this Response to
Comment document and in the rulemaking record, there is no reason to
assume that the principles in ABR only apply to the mineral processing
industry or that all recycling activities in that industry are somehow
excluded from the definition of solid waste.  The court has said as much
by noting that some recycling in the industry is covered under RCRA and
some is not.  ABR, 208 F.3d at 1056.  In fact, EPA believes that, by
imposing particular restrictions and conditions to determine which
materials are wastes or not, the Agency has remedied the disappointment
of the court in parties presenting the details of the many processes
involved in the industry in "broad abstraction."  Moreover, as noted by
the comment on Safe Food, EPA has not limited the definition of solid
waste determination to intra-industry transfers.  

3 - Recycling Studies

3 - Summary

Commenters noted that in contrast to EPA's 2003 proposed rulemaking
concerning the definition of solid waste, the Agency this time around
has produced data on the state of the hazardous waste recycling
industry. In fact, EPA cites three reports to support its proposed
action.  These reports were generated in response to allegations in 2003
that EPA had no rational basis for its October 28, 2003 proposed
rulemaking (72 FR 14178). In 2003, the Sierra Club, among other
commenters, pointed out that EPA had not examined the potential
environmental and economic impacts of a large-scale deregulation of
hazardous waste. Id.  Thus, in response, EPA produced the following
three reports, "An Assessment of Environmental Problems Associated with
Recycling of Hazardous Secondary Materials," "An Assessment of Current
Good Practices for Recycling of Hazardous Secondary Materials" and
"Potential Effects of Market Forces on the Management of Hazardous
Recyclable Materials" (72 FR 14179). 

Commenters state that, while EPA claims that these reports "have
informed many of the Agency's policy decisions in developing this
regulatory proposal," (72 FR 14179) it is clear that EPA has ignored the
fundamental import of these studies. Commenters also assert that the
Agency seems to highlight only that data and information that would
support an effort to broaden the exclusion from the definition of solid
waste.  In addition, commenters stated that EPA's conclusions often
overreach, pushing proposed exclusions into areas beyond what can be
considered true recycling.  Finally, commenters were concerned that EPA
based its proposal on reports that are "not definitive, peer-reviewed
documents of a technical nature." 

[0548-20, 0559-6]

3 - Response

EPA disagrees with comments that state that the Agency has only
highlighted information that would support broadening an effort to
exclude hazardous secondary material from the definition of solid waste
and otherwise ignores the import of the studies.  On the contrary, EPA
presented extensive information on environmental damages that have
resulted from recycling hazardous secondary materials in the 2007
supplemental proposal (72 FR 14180 - 14182) and has used this
information in developing appropriate conditions for the exclusions in
the final rule.  

While the documents are based on publicly available information and are
not designed to be statistically representative, the information in the
reports has shown that (1) some companies, even today, fail to properly
recycle their hazardous secondary materials, resulting in hazardous
secondary materials becoming discarded and posing risk to human health
and the environment, and (2) many generators take specific actions to
ensure that their hazardous secondary materials are properly recycled. 
While EPA is unable to use the information to estimate how often these
two events occur, the information is still adequate for EPA to (1)
determine that conditions are needed to define those situations where
discard does not occur, and (2) use industry's best practices to inform
the development and definition of those conditions.

3.1 - Successful recycling study

3.1 - Summary

(1) Commenters speaking generally about the successful recycling study
stated that many of the practices mentioned in the study have been in
place in the mining and mineral processing industry and that, in another
industry, recycling is what makes the operations economically viable.
(465, 481, 506)

(2) ISRI commented that their standard, RIOS, was misidentified in the
good recycling study and is called "Recycling Industry Operating
Standard," not "Recycling Industries' Operating Standard." Likewise,
another standard of theirs is called "OSHAS 18001," not "OSHA 18001."
ISRI stated that RIOS can help facilities with meeting consumer
standards and complying with environmental and health and safety
regulation. (518)

3.1 - Response

(1) EPA agrees that it believes that many of the practices outlined in
the good practices study are in place already at many facilities,
including those in the industries mentioned. 

(2) EPA did not update the good recycling study and, therefore, did not
make the changes requested by ISRI in their comment, but appreciates the
corrections. 

3.1.1 - Scope of successful recycling study

3.1.1 - Summary

(1) The container reconditioning industry commented that they are
disappointed not to be mentioned in the study. (513)

 

(2) One other commenter had several comments about the scope of the good
practices study. They argue that the examples of "successful" recycling
practices in the study arose in direct response to the Agency's
regulatory programs under RCRA but the Agency is using their existence
to justify the removal of those regulations, "dismantling" the
protective structure and that this logic is circular. They add that the
Agency should consider that the presence of regulations and expected
audits may be the primary motivation behind the behavior of
"responsible" companies. (481)

Commenters state that the Agency assumes in its study that because some
large corporations have "corporate responsibility" programs, all
generators will manage their hazardous secondary materials in exemplary
ways despite its recognition that "the real effects of these policies
are hard to gauge." They argue that the existence of some such programs
(not quantified by Agency) does not explain why Agency thinks 100% of
secondary materials it proposes to exclude will continue to be carefully
managed once the regulatory incentives are gone and that people will be
more irresponsible, unconcerned with any penalties. (548)

Finally, they comment that it would have been useful if EPA had
researched enforcement actions taken against "less responsible"
companies. (548)

3.1.1 - Response

(1) EPA recognizes that there are examples of responsible management of
recyclable materials throughout industry and that it did not include all
possible examples of these behaviors in its study. 

(2) EPA agrees that the exact effects of corporate responsibility
programs are hard to gauge, but thinks that collectively the practices
outlined in the good recycling study were useful in informing EPA's
decisions about appropriate conditions for its exclusion. EPA does think
that looking at a company's corporate responsibility programs is a way
to gauge that company's general attitude and approach towards
environmental responsibility as a whole and can be useful in developing
a more complete picture of that company's environmental ethic and
likelihood to have environmentally responsible practices in place.

EPA addressed the behaviors of "less responsible" recyclers in its study
of environmental problems. 

3.1.2 - Methodology of successful recycling study

3.1.2 - Summary

One commenter stated that they thought it would have been useful if the
Agency had looked at less-responsible companies as well in its study of
good recycling practices to determine what role regulations play in a
company's decision to have good recycling practices and suggests that in
the absence of full Subtitle C regulation, companies will no longer
perform these practices. (548) 

3.1.2 - Response

EPA responds that it believes that the intent behind a company's
decision to have good recycling practices is not relevant to how the
good practices study was used in the development of this rulemaking. The
study was intended to help EPA determine which kinds of regulatory
requirements would be appropriate and effective conditions for its
exclusions, not to predict what behaviors would occur if all regulatory
controls were lifted. Specifically, the Agency sought the kinds of
practices a company employs to ensure the responsible management its
hazardous materials. In addition, the Agency has incorporated many of
the good practices it found as a result of this study into the
conditions of the rulemaking and, therefore, is confident that
facilities currently using these practices will continue to do so even
if they can take advantage of the exclusion from the definition of solid
waste. 

3.1.3 - Findings of successful recycling study

3.1.3 - Summary

Agrees With Study Findings

(1) Several comments stated that they agree with the study's findings
that generators do perform audits that the audits are essential for the
generator to determine if materials are actually being recycled, and
that the audits typically cover the items discussed in the study. One
commenter added that companies with good practices also often have
control mechanisms for tracking materials and another agreed with the
study's discussion of Environmental Management Systems (EMS) and stated
that they are evidence of good recycling practices. (457, 481, 507, 558)


(2) Several commenters also agreed with the study's finding that the
responsible management practices that have developed for management of
hazardous secondary materials are in part because of the incentives of
CERCLA liability. RCRA liability and concerns about corporate
responsibility also have played a role. (60, 436, 481, 507)

Disagrees With Study Findings

(3) Several commenters stated that the good recycling practices study
focused mainly on larger companies and that its findings are not
applicable to smaller companies. Specifically, the commenters stated
that smaller companies are less likely to do environmental audits of
their recyclers, to know how their material will be reclaimed, to
understand the severity of Superfund liability and balance it properly
against the costs of proper waste management, to have a public
environmental policy, or to make decisions about management of their
materials based on the value of the material rather than on the
regulatory requirements. (495, 521, 536, 564)

(4) Commenters disagreed with EPA's assumptions and representations
about what motivates generators to manage materials in one way or
another. In particular, one commenter stated that short-term cost
savings play a very large role in the decision-making process and
another argued that the value of a material is much less important than
environmental regulation, particularly for small generators. (509, 521,
532, 564)

(5) On the other hand, one commenter stated that EPA should add to its
findings that a core function of a recycling audit is the generator
examining the recycling process to ensure it is legitimate. (507)

Study Shows Why We Need Regulations

(6) Several commenters argued that the findings of the good recycling
practices study demonstrate the value and importance of the hazardous
waste regulations instituted in the early 1980s because they have
resulted in oversight and may be the primary motivator for the current
good practices illustrated in the study. Commenters specifically
mentioned the value of financial assurance at reclamation facilities and
liability and one pointed out that generators of non-hazardous waste do
not tend to conduct audits, so under the exclusions similar behavior may
occur. One commenter followed up on this point by arguing that EPA
should not, therefore, be using the good practices study as a
justification for the exclusions for materials reclaimed under the
control of the generator and for materials transferred for reclamation.
(457, 470, 479, 548, 564)

(7) In addition, one commenter stated that the argument that recyclers
manage materials responsibly because of CERCLA liability and concerns
about corporate responsibility and public relations is invalid because
if that were the case, there would never be any violations of
environmental regulations. (532)

 

Study Shows Why We Do Not Need Regulation

(8) Alternatively, commenters also argued that the findings of the good
recycling practices study demonstrate that hazardous waste regulations
are not necessary because of CERCLA liability and a reclaimer's other
concerns discussed in the study, such as corporate reputation.
Specifically, the commenters stated that permits for reclaimers,
financial assurance, and reasonable efforts are unnecessary as
conditions of the exclusion because generators already examine these
topics voluntarily in audits. One commenter stated that they were
unaware of any cases of environmental irresponsibility regarding
characteristic sludges and by-products, although they have been excluded
from the definition of solid waste since 1985, meaning the materials
covered by the exclusions should not need regulation either. (93, 465,
468, 518)

Other

(9) One commenter argued that the case study on electronics recycling in
the good practices study is not applicable to most of the waste
scenarios being impacted by the rule. (479)

(10) One commenter stated that the good practices study presented CHWMEG
as being the "answer" for how generators were going to do reasonable
efforts, but argued that this is not the case because reclaimers cannot
belong to CHWMEG. (479)

(11) One commenter, in discussing a generator's general decision about
whether to recycle or not, stated that that concerns about CERCLA and
corporate image are not what drives companies to recycle, it is
economics. (482)

3.1.3 - Response

(1) & (2) EPA appreciates the statements from commenters who agree with
the findings of the study of good recycling practices that reconfirm
some of the study's findings. 

(3) EPA agrees that the focus on larger companies is a feature of the
study and discusses it in the methodology section of the report's
introduction. Because many of the contacts for interviews for the report
came out of the public comments on the October 2003 proposed rule, much
of the information in the report came from companies large enough to
have staff responsible for submitting public comments to federal
proposed rulemakings. However, where possible and appropriate, the study
does examine the options for small businesses, as well as what small
businesses are doing that approximates the audit programs and other
practices of larger companies. The Agency did find that many small
companies are concerned with questions of liability in their hazardous
secondary materials recycling and often either belong to auditing
consortiums or already do smaller audits by mail and telephone if they
cannot afford to set up visits to the recycling facilities to examine
them in person. 

(4) EPA responds to this comment about generators' motivations by
stating that the motivations the commenter describes most likely do play
a role in some generators' decision-making, depending on the industry
and the nature of the materials managed. EPA maintains, however, that
regardless of these intents or motivations, the usefulness of this study
to the development of the rulemaking is unchanged. 

(5) EPA appreciates this suggestion and agrees that an examination of
legitimacy is a good use of an audit, but did not update the findings to
its study. 

(6) EPA responds that it does not use the good recycling practices study
as justification for removing regulation but, rather, looked to the
study to determine which conditions are the most appropriate for the
exclusion. EPA notes that, for example, financial assurance, mentioned
by the commenter as valuable, was one of the behaviors that EPA found
important and is a condition of the exclusion. 

(7) EPA disagrees that the statement that "recyclers manage materials
responsibly because of CERCLA liability and concerns about corporate
responsibility and public relations" is invalid and believes that the
existence of violations of environmental regulations by some handlers of
hazardous materials does not mean that no one behaves for the reasons
outlined in the study. 

(8) EPA does not agree that the study indicates that no regulatory
controls or conditions are needed for these materials. The purpose of
the study was not to predict how generators would act in the absence of
regulatory controls but to help determine the appropriate conditions for
its exclusion to maintain responsible management of hazardous secondary
materials. 

(9) EPA believes that although the circumstances around management of
electronics waste are not identical to many of the wastes that will be
impacted by this rulemaking, the case study is nonetheless useful as an
example of how one industry has developed best management practices for
its waste that are similar to those discussed elsewhere in the study and
has disseminated the information throughout the industry. 

(10) The study did not mean to suggest that CHWMEG was the only possible
option for all generators conducting audits on their recyclers, but
described it as an example of an organization that helps generators with
these audits. EPA believes that there are other similar consortiums and
associations that do or could perform similar functions. 

(11) EPA agrees that in some cases good practices for management of
recyclable materials are driven by the economic value of those
materials.

  

3.1.4 - Additional information not included in successful recycling
study

3.1.4 - Summary

(1) One commenter stated that retention of confirmation of receipt is
often lacking for hazardous waste, let alone recycled materials. The
commenter added that when recyclables have cash value there is a tax
incentive to for small businesses to leave the transactions off the
books. There is also an incentive when the goods to be recycled may have
been stolen. (470)

(2) One commenter stated that other increasingly stringent federal and
state regulations pertaining strictly to mining and mineral processing
operations are major factors in NMA members' operational decisions and
added that there are specific acceptance procedures for taking in
secondary materials that are part of normal routine business
transactions whether they are generated within or outside the mining and
mineral processing industry. These include testing the incoming material
for specifications and returning them if they do not meet those
specifications. (481)

Two commenters stated that their memberships with the Reusable
Industrial Packaging Association come with the requirement to abide by
several Codes of Operating Practice. As a specific example, one
commented that they comply with EPA's empty container rule, process
drums at a state-of-the-art facility with environmental controls,
including wastewater management and discharge to a POTW, test cleaned
containers before sending to customers and send those that are not
reusable, usually less than 5%, to scrap. We are not recyclers of
hazardous waste or hazardous secondary materials. The other commenter on
this issue stresses that they convey the importance of EPA's open
container rules to their customers. (533, 552)

3.1.4 - Response

(1) EPA responds that the study was not meant to capture all recycling
behaviors but merely those that result in responsible materials
management. 

(2) EPA appreciates the comments about the specifics of the mining and
mineral processing industry and membership in the Reusable Industrial
Packaging Association as they relate to the study of good recycling
practices. 

3.2 - Environmental Problems Study (only 2003 comments)

3.2 - Summary

Many comments from the October 2003 proposal referenced environmental
problems associated with hazardous secondary materials recycling.
Commenters generally requested that EPA conduct an analysis of
environmental damage from hazardous waste recycling activities or argued
that "historical" damage (pre-RCRA and/or CERCLA regulations) was
irrelevant to the proposed rulemaking.

Those commenters that asked EPA for an analysis of environmental damage
cited the following reasons for such analysis:

EPA did not evaluate the likelihood of higher or lower releases to the
environment from activities related to hazardous secondary materials
recycling.

Recycling activities that Congress sought to encourage could cause
environmental damage, negating intended benefits and increasing the cost
to taxpayers for clean-up.

A 1994 report noted that numerous NPL sites are associated with
hazardous secondary materials recycling.

Many of the first damage cases filed under RCRA's imminent and
substantial endangerment authority and CERCLA were related to hazardous
secondary materials recycling.

A deregulatory rulemaking could lead to more superfund and other
clean-up sites.

EPA has not yet used federal and state databases to gather information
about environmental problems related to recycling and the agency must do
so, and have the data reviewed by regional offices.

EPA failed to analyze the adverse human health and environmental impacts
of the proposed rule's options.

The agency must respond to various inquiries about and requests for an
analysis of environmental damage from hazardous secondary material
recycling activities.

Commenters also asked for the following types of analyses related to
potential environmental impacts associated with hazardous secondary
material recycling:

Various options proposed and the potential environmental problems
associated with them.

Potential adverse impacts: on health, safety, and the environment from
weakening the RCRA program; related to no longer requiring manifests,
RCRA storage rules, employee training for one time contingencies; only
requiring a one-time notice to states for deregulated hazardous
secondary materials; related to the enforcement and effectiveness of the
mixture and derived-from rules; and of increased traffic accidents
containing hazardous waste.

The following potential costs: incurred by state and federal
environmental agencies for compliance, enforcement, investigation and
remediation of recycling sites; increases in spill and release to the
environment; increases in human exposure to hazardous materials; and
increases in misdirected, abandoned, and lost shipments.

History of recycling operations and the record of industries likely to
take advantage of the exclusions.

Practices that led to or threatened release of hazardous substances.

The potential affect on "arranger liability" under CERCLA section 107
and increase number of taxpayer financed superfund sites.

We also received many suggestions from commenters about specific and
potential damage case sites allegedly from hazardous secondary materials
recycling.

In arguing that "historical" environmental damage was immaterial to the
proposed rulemaking, commenters made the following points:

EPA would do well to consider data on modern recycling operations rather
than to focus on incidents arising during another era of environmental
management.

Prior to the mid-1970s, there: were few, if any, legal requirements
governing management and disposal of materials; was no liability
attached to the behavior; and was an imperfect understanding of the
actual health and environmental consequences of unregulated disposal of
materials in the ground.

Historical anecdotes are simply no longer true and reflect a past era.

(0067, 0068, 0073, 0098, 0119, 0177, 0190, 0193, 0222, 0231)

 

3.2 - Response

EPA conducted and published An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials
(EPA-HQ-RCRA-2002-0031-0355) ("environmental problems study") in
response to 2003 comments and in support of the March 2007 supplement
proposal. The study, along with the Regulatory Impact Assessment
detailing costs and benefits associated with recycling, addresses
commenters' requests for analyses and concerns about potential
environmental damages at sites recycling hazardous secondary material.
We used the environmental problems study, in conjunction with the
successful recycling and market forces studies, to develop protective
restrictions and conditions to ensure that hazardous secondary material
recycled under the final exclusions are legitimately recycled and are
not discarded. We believe that the restrictions and conditions of
today's exclusions, which were developed based on the findings of the
study, are sufficient to ensure safe recycling and that only non-discard
reclamation is excluded from regulatory control. 

The goal of the environmental problems study was to identify and
characterize environmental problems that have been attributed to some
types of hazardous secondary material recycling activity that are
relevant for the purpose of this rulemaking effort. To address
commenters concerns that historic damages are irrelevant to current
practices, EPA only included cases where damages occurred after 1982
(post-RCRA and post-CERCLA implementation). We maintain that historical
recycling-related damage cases are much less relevant and instructive
than cases which have occurred within the current regulatory and
liability landscape. It is appropriate to evaluate the current situation
to make decisions about regulatory changes under consideration now
because that is the situation in which any new regulations will operate.


Also, as stated in the environmental problems study, over the course of
the study it became apparent that while the CERCLA statute and the
initial RCRA hazardous waste regulations became effective in 1980, there
was an initial “phase in” period during which industry and other
affected entities began to change their practices with regard to
hazardous material recycling, and during which federal and state
agencies were developing guidelines and procedures for implementing
these new authorities. Perhaps not surprisingly, our study identified a
number of recycling damage cases that occurred during the early 1980s
that appeared to have been caused by companies and individuals who were
not cognizant of their new responsibilities and potential liabilities
under RCRA and CERCLA. Because we believe that recycling damage cases
that have occurred within the current environmental regulatory and
liability systems are most relevant to the current rulemaking, the study
identified and described only those cases in which some form of
environmental damage appears to have occurred during or after the year
1982. We did not however, exclude cases where damages occurred both
before and after 1982.

The study identifies 208 cases in which environmental damages of some
kind occurred from some type of recycling activity and that otherwise
fit the scope of the study. The Agency believes that the occurrence of
certain types of environmental problems associated with current
recycling practices shows that discard has occurred. In particular,
instances where materials were abandoned (e.g., in warehouses) and which
required removal overseen by a government agency and expenditure of
public funds clearly demonstrate that the hazardous secondary material
was discarded. Of the 208 damage cases, 69 (33%) involve abandoned
materials. The relatively high incidence of abandoned materials likely
reflects the fact that bankruptcies or other types of business failures
were associated with 138 (66%) of the cases.

In addition, the pattern of environmental damages that resulted from the
mismanagement of recyclable materials (including contamination of soils,
groundwater, surface water and air) is a strong indication that the
hazardous secondary materials were generally not managed as valuable
commodities and were discarded. Of the 208 damage cases, 81 cases (40%)
primarily resulted from the mismanagement of recyclable hazardous
secondary materials. Mismanagement of recycling residuals was the
primary cause in 71 cases (34%). Often, in the case of mismanagement of
recycling residues, reclamation processes generated residuals in which
the toxic components of the recycled materials were separated from the
non-toxic components, and these portions of the hazardous secondary
material were then mismanaged and discarded. Examples of this include a
number of drum reconditioning facilities, where large numbers of used
drums were cleaned out to remove small amounts of remaining product such
as solvent, and these wastes were then improperly stored or disposed.

As discussed in the preamble for the final rulemaking, these findings
helped inform EPA's decision to require that the hazardous secondary
material be contained in the unit and managed in a manner that is at
least as protective as an analogous raw material (where there is an
analogous material), that the recycling residuals be properly managed,
and that the reclamation facility and any intermediate facilities have
financial assurance. Specifically, for facilities operating under the
transfer-based exclusion, sudden accidental liability coverage for
bodily injury and property damage to third parties is required for all
units, and non-sudden accidental liability coverage is required for
land-based units (see section VIII(C)(4) for a more detailed discussion
of liability coverage). We also note that facilities may be subject to
other regulations that ensure facility safety, such as OSHA requirements
and state and local requirements (see "Memorandum: Requirements that
other Regulatory Programs Would Place on Generators, Reclaimers and
Transporters of Hazardous Secondary Materials" made available in the
docket for today's final rulemaking). While EPA has not done a
definitive study of other regulatory requirements, we are reasonably
comfortable with the fact that oversight by other regulatory agencies
would significantly mitigate potential damage from the non-discarded
materials. 

Finally, the relatively small proportion of cases of damages from
on-site recycling (13 of the 208 cases (6%)) lends support for EPA's
decision to include fewer limitations on the exclusion for hazardous
secondary materials recycled under the control of the generator.

3.2.1 - Scope and methodology of environmental problems study

3.2.1 - Summary

EPA received a relatively small number of comments regarding the scope
and methodology of An Assessment of Environmental Problems Associated
with Recycling of Hazardous Secondary Materials (also referred to as
"environmental problems study"). One industry association commenter
called arbitrary EPA's decision to use 1982 as the date after which we
believe regulated generators and recyclers began acting in accordance
with RCRA, CERCLA, and other environmental programs. Damage cases prior
to 1982 were deemed "historical" and excluded from the study. Another
commenter suggested that the scope of the study too narrowly reflected
problems from scrap metal recycling and stated that the study therefore
"should not be… considered as a basis for any decision" regarding the
final rulemaking. (0481, 0436)

Regarding methodology, one federal department commented that we likely
missed relevant information by primarily conducting on-line searches for
information and not looking through paper files at state and EPA Region
offices. This commenter also suggested that additional information could
change EPA's view of recycling related damage. Additionally, the
commenter believed that a deregulatory action should not be undertaken
without first conducting an exhaustive examination of potential effects.
Another commenter suggested EPA overlooked potential sources of
information for the study, including television commentary, media
reports, books, and other reports (specifically one state report).
Finally, one commenter expressed concern that the study was not peer
reviewed. (0532, 0564)

3.2.1 - Response

EPA acknowledged in the preamble to the March 2007 supplemental proposal
that we did not search every possible information source for damage
cases for the study of environmental problems. For example, we did not
systematically survey all state environmental agencies for relevant
cases, nor did we search paper files in EPA Regional offices. We did
solicit damage cases from regional representatives and we solicited
additional cases through the public comment process. We recognize that
there are likely to be additional cases that we did not identify.
However, we have no reason to think that additional cases would
substantially change the overall picture. In fact, information submitted
to EPA does not indicate that EPA has failed to find a representative
sample of environmental damage caused by recycling activities.

While we acknowledge that we did not review all possible sources of
information for our study and generally relied on readily available
material, we did in fact rely on media reports for information and we
collaborated with regional representatives who are very knowledgeable
about the damage cases and who assisted us in fact checking and
suggesting damage cases. With respect to a commenter's suggestion that
we review the "Final Report of the Waste and Hazardous Materials
Division, Fire & Explosions Task Force," produced by Michigan DEQ, we
regret that the state has not yet made the report publicly available.
However, we note that the scope of the draft Michigan study was not
limited to hazardous secondary materials recycling operations, and shows
that accidents can and do occur in all types of manufacturing
facilities. 

Despite the fact that we did not conduct an exhaustive review of all
possible sources of damage case information, we believe that the
information obtained was comprehensive enough to accurately reflect the
general pattern of environmental damages from relevant recycling
activities. We found that the comments on the study confirm that
conclusion in that they corroborate the study. Thus we believe that
restrictions and conditions of today's exclusions, which were developed
based on the findings of the study, are sufficient to ensure safe
recycling activities. 

With respect to the comment regarding peer review, we believe that while
the study was not peer reviewed, the scope and methodology are sound, as
evidenced by the comments supporting the approach. The fact that no
commenters raised concerns with the methodology or scope caused us to
find that they were appropriate for the purpose and use of the study.
Additionally, peer review was not warranted by EPA peer-review standards
because the study is not a scientific and/or technical work product.
Rather, the study is an analysis of existing and publicly available
information compiled to provide a representative view of hazardous
secondary materials recycling. 

3.2.2 - Findings of environmental problems study

3.2.2 - Summary

EPA received many comments on the findings from An Assessment of
Environmental Problems Associated with Recycling of Hazardous Secondary
Materials (also referred to as "environmental problems study"). A number
of comments alleged that the study does not support today's exclusions.
Several commenters strongly believe that the study reflected that
recycling hazardous secondary materials is a high risk activity and thus
should remain fully regulated. Several commenters argued that the study
does not support the conditions and/or requirements of the exclusions,
such as a performance-based approach to storage and containment,
notification, requirement that material must be contained, etc. A few
commenters wrote that the study does not support the transfer-based
exclusion and these commenters collectively predicted that the exclusion
will create future damage cases. To bolster their comments, one
commenter stressed that the majority of all damage cases cited in the
study are located off-site from the facilities that generated the
hazardous secondary materials. Commenters also used the study's findings
(namely damage type, damage cause, cost of cleanup) to support their
opposition to the transfer-based exclusion. In particular, commenters
stressed the financial impact to states and communities if additional
environmental clean-ups were to result from facilities taking advantage
of the exclusions. One commenter criticized the exclusions from RCRA
since many sites in the study already manage currently exempted
materials. Finally, one commenter stated that the data in the study is
"completely irrelevant, erroneous and without basis” and stated its
support for the exclusions.

On the other hand, EPA also received responses from several commenters
stating that the study of environmental problems supports the proposed
conditions of the exclusions. While several of these commenters opposed
codification of the transfer-based exclusion and preferred to maintain
existing RCRA regulations, other commenters supported it as long as
there were requirements to ensure protection of public health and the
environment. For example, commenters responded that mismanagement of
hazardous secondary materials, residuals, and recyclable materials or
intermediaries in the damage cases clearly represented a need to have
requirements for protective management and storage, as well as a
requirement for safe residuals management. Additionally, commenters
believed in the importance of a financial assurance requirement to
protect against the damage noted in the study related to bankruptcy and
abandonment of hazardous secondary materials and residuals. A commenter
also responded that generators should assess whether the above
protections exist at reclamation facilities in order to minimize their
future liability and one commenter specifically cited support for
questions (E) and (F) discussed in the 2007 preamble for reasonable
efforts. Additionally, in response to the study, EPA received one
comment suggesting that each of the following safeguards be added to the
exclusions: tracking materials, restriction on land-based storage, and
90-day storage provisions in 40 CFR part 262 for all generators,
including those who recycle on-site.

A few commenters responded that the study does not support controls on
land-based storage of hazardous secondary materials at mining and
mineral processing facilities. They cited that only 1 of the 208 damage
cases is associated with a primary mineral processing facility. Thus,
the commenters argued that the small number of environmental problems
stemming from recycling at mining and mineral processing facilities does
not warrant the proposed regulatory oversight of the industry.

A few commenters argued that inclusion of their facility in the study,
or the inclusion of their industry representatives' facilities, was
unfounded due to one or more of the following reasons: 

Hazardous secondary materials were exempt from RCRA when environmental
problems occurred.

Environmental problems stem from historical or pre-RCRA activities.

Numerous facilities in the study shut down during the 1980s in response
to the creation of regulatory disincentives.

Environmental problems were addressed pursuant to CERCLA.

Problematic activities were clearly a result of non-compliance. 

One commenter suggested that one damage case profiled in the study "is
not a good example of a contaminated site caused by recycling." In
support of their comment, the commenter cited a Record of Decision (ROD)
which stated that the site's former foundry operations, which existed
pre-RCRA, caused soil and groundwater contamination.

Lastly, one commenter suggested that "EPA should include at least the
[summary] and [results] portions of the studies in the preamble" since
not all interested parties have internet access or time to review the
docket.

(436, 457, 459, 470, 475, 479, 480, 481, 482, 486, 502, 506, 510, 513,
520, 525, 527, 532, 533, 552, 558, 559) 

3.2.2 - Response

EPA maintains that historical recycling-related damage cases are much
less relevant and instructive than cases which have occurred within the
current regulatory and liability landscape, and several commenters
shared our belief. 

We acknowledge that the particular damage case referenced by a commenter
as "not a good example" for the study does in fact exhibit environmental
damage which can be partially attributed to foundry operations pre-1982.
However, as indicated in the damage case profile in Appendix II of the
study, the damage case was included in the study due to the following
factors, which do not involve damage associated with pre-1982
operations: abandonment of drums of spent catalyst, bankruptcy, and
business closure. As a result, we maintain that this damage case is
within the scope of the study.

While EPA agrees that the study reflects the risk and problems involved
with recycling hazardous secondary materials, we disagree with those
commenters who stated that the study does not support today's exclusions
because of the perceived risk posed by the exclusions. Instead, we agree
that the environmental problems highlighted in the study demonstrate the
need to promulgate restrictions and conditions for the exclusions (e.g.,
requirements for financial assurance, reasonable efforts, shipping
documentation, hazardous secondary materials management, exports
requirements, and speculative accumulation). We have considered comments
about the study, including a summary of damage case sites exempted from
RCRA, and EPA maintains that the restrictions and conditions finalized
with today's exclusions will address the problems identified in the
study and will limit the exclusions to materials that EPA has determined
are not discarded. (see sections VII(C) and VIII(C) of the preamble from
today's final rulemaking for a more in-depth discussion of restrictions
and conditions.) We also agree with those commenters who suggest that
generators should assess whether reclamation facilities adequately
manage hazardous secondary materials in order to mitigate the risk of
future environmental problems. Consequently, we are finalizing the
reasonable efforts condition for the transfer-based exclusion.

In response to commenters who do not support the additional exclusions
from RCRA since many sites in the study already manage currently
exempted materials. EPA acknowledges that some of the damages in the
study may have resulted from some activities that may have been covered
by various types of regulatory exclusions or exemptions. Often it is
difficult to identify the specific regulatory coverage for any one case
due to limitations in the available data. EPA also acknowledges that
some of the damages in the study may have resulted from activities that
may have been out of compliance with applicable regulations.
Nevertheless, these cases occurred within the current regulatory and
statutory environment and thus are appropriate to evaluate for
information about the kinds and causes of damages that have resulted
from hazardous secondary materials reclamation activities. Regardless of
whether any particular case may have been potentially subject to some
kind of exclusion (which may or may not have included conditions or
restrictions), or whether the damages resulted from some kind of
non-compliance, the study includes sufficient data and information to
identify the pattern of kinds and causes of damages resulting from the
relevant universe of reclamation activities. Comments on the study
corroborated the findings in that incorporating any new information
submitted and reviewing any challenges to the data used did not result
in a change to the overall picture of damages from reclamation
activities. Thus, we find that the careful identification and evaluation
of damage cases conducted in the study provides conclusive evidence of
the kinds and causes of environmental damages that must be addressed in
the exclusions in this rulemaking to ensure that they cover only
non-discard activities. EPA thus believes that the study provides us
with the information necessary to craft appropriate conditions and
restrictions for the exclusions to ensure that only non-discard
reclamation activities are excluded from the definition of solid waste.

EPA acknowledges that the environmental problems study included one
damage case from primary mineral processing and two damage cases from
secondary mineral processing. Moreover, further review of publicly
available data revealed four additional damage case profiles from
primary and secondary mineral processing facilities, which corroborates
EPA's view that the findings from the environmental problems study apply
across industries, including the mining and mineral processing
industries (see the Addendum to An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials, Appendix 1).
Of the four additional damage cases, three are primary mineral
processing facilities and one is a secondary mineral processing
facility. Improper disposal of residuals and improper management of
recyclables are the most frequently observed primary damage cause at
such facilities. The primary environmental damage types observed in the
new profiles are soil contamination, wildlife exposure, and groundwater
and surface water contamination. Thus, in summary, we note that whether
an industry has a single damage case represented in the study or
numerous damage cases, all industries are treated equally within the
final rulemaking for hazardous secondary materials generated, reclaimed,
and managed in land-based units (40 CFR 261.4(a)(23)).

We have concluded that the additional damage cases do not substantially
change the overall picture of environmental problems caused by hazardous
secondary materials recycling activities at facilities, including mining
and mineral processing facilities. We also disagree with the commenters'
assertion that restrictions on land-based storage units are not
supported by the study of environmental problems. Cumulative damage
causes from the study support the restrictions imposed by 40 CFR
261.4(a)(23) and the identification of additional mining and mineral
processing damage cases corroborates EPA's finding that no industry
should be exempt from restrictions and/or conditions due to the limited
number of damage case profiles exhibited in the environmental problems
study.

Because of the limitations of the data gathering methodology the Agency
does not believe that the results of the study can be used to draw
conclusions about the frequency or number of actual damage cases that
may exist in any particular industry. However, the data is robust enough
to reflect the existence and pattern of damages associated with the
universe of reclamation activities generally. Thus, it is appropriate to
use the damage case study to develop restrictions and conditions
identifying discard for the scope of reclaimed hazardous secondary
materials.

EPA maintains that the damage cases captured in the environmental
problems study fall within the study’s scope and, as such, are
relevant for guiding the development of today’s rulemaking. As we
discussed in the study, we are interested in whether damage may be more
or less prevalent for hazardous secondary materials that are explicitly
exempted or excluded from RCRA regulatory controls and we are less
interested in historical or pre-RCRA cases (defined in the study as
before 1982). We also indicated in the study that we are interested in
“whether or not the recycler… went out of business” and which
“government program is responsible for overseeing the cleanup of the
site,” and clearly we are interested in acts of non-compliance that
resulted in environmental damage. These points of interest, among others
cited on pages 4–5 of the study, are informative for the purpose of
this rulemaking and are within the scope of the study. Consequently, we
disagree with industry and association commenters who argued that
certain damage cases did not warrant inclusion in the Environmental
Problems Study.

Finally, as suggested by one commenter, EPA is including summaries for
the three recycling studies in the preamble for today's final
rulemaking.  

3.2.3 - Additional information for the environmental problems study

3.2.3 - Summary

EPA published An Assessment of Environmental Problems Associated with
Recycling of Hazardous Secondary Materials (also referred to as
"environmental problems study") along with the March 2007 supplemental
proposal. We requested additional information on relevant cases of
environmental problems related to recycling of hazardous secondary
material that we did not identify. Also, we specified the type of
information that is most useful to EPA. A few commenters (mostly states)
provided examples of several recycling-related environmental problems
and a few commenters suggested the review of additional, potential
damage cases.

We received a number of comments describing general types of
environmental damage related to hazardous secondary material recycling,
including the following:

Industrial wastewater pre-treatment facilities, electroplaters, and
silver recovery facilities that are unable to meet discharge
requirements, to keep up with the volume of incoming wastewater, or to
keep equipment operating effectively have illegally discharged waste,
sent hazardous wastewater to privately-owned wastewater treatment, and
abandoned vast quantities of accumulated waste.

A closed loop reclamation system using petroleum solvent leaked,
resulting in soil and ground water contamination.

Dry cleaners often use carbon filtration units to remove
perchloroethylene (PCE) from separator water before misting or
evaporating the wastewater. However, only the most effective and
properly maintained filtration system can remove the toxic
characteristic. In many cases the separator water is accumulated in open
buckets, and the cleaners do not routinely change filters or regularly
monitor their filtration units to ensure that treatment is effective.
Misting, evaporating or dumping inadequately "reclaimed" separator water
is still causing contamination at dry cleaning sites. Two recent cases
have resulted in arrests for discharging hazardous waste on site. At one
facility the soil under the mister outlet was characteristically
hazardous for PCE.

Acetone recovery facilities that claimed to recycle without prior
storage went out of business. Some soil contamination was found during
closure.

Lead recyclers melting scrap lead to make lead sinkers, lures, dive belt
weights, ship ballast and bullets under the scrap metal exclusion, and
battery reclaimers operating under the lead-acid battery exclusion, have
caused environmental damage since the enactment of RCRA, as have used
oil transporters and processors.

Attempts to recycle or remanufacture coatings (e.g. anti-fouling paint)
have been unsuccessful, leading to abandoned material and contamination.

Mismanagement is still observed for used oil recycling. Under the used
oil regulations, if characteristically hazardous used oil is disposed of
on site or stored in a land based unit, the unit becomes subject to RCRA
closure requirements. However common it is to find used oil spilled on
the land, by the time the agency samples and analyzes the soil
contaminated by the discharge, the waste has been diluted making it
impossible to determine if the oil was characteristically hazardous
prior to the discharge.

Releases from open and unlabeled containers that store "hazardous waste
feedstocks, byproducts and sludges that are reclaimed or directly used
in industrial processes." 

The main problems experienced at recycling centers have been associated
with spills, leaks, fires, and chemical reactions. Both on-site and
off-site recycling operations have failed since 1982. In addition to the
reasons cited, on-site recycling failures could be attributed to
failures in recycling technologies, processing costs, and marketability
of the end product. Acceptance of waste that is not conducive to
recycling; a lack of marketability of recycled products; a lack of
operating capitol for processing, maintenance, and waste analysis; and
disposal costs for residuals all contributed to problems at recycling
facilities.

Self-reported incidents, including leaks, spills, fires, and explosions,
at RCRA Part B permitted facilities would not have been included in
previous comments sent to EPA or included in the study because these are
not readily available in a data base.

Commenters also provided the following specific, potential additional
damage cases to be reviewed by EPA:

Carter Oil (MI)

Chemical Recovery (EQ Resource Recovery/Michigan Recovery) (MI)

Organic Chemicals (MI)

Thomas Solvents (MI)

Metal Coatings (MN)

U.S. Chemical and Plastics (OH)

Malone Services (TX)

Many Diversified Interests (Can-Am) (TX)

Waste Research & Reclamation Co. (WRR) (WI)

(462, 470, 479, 509, 564) 

3.2.3 - Response

We value commenters' general discussion of environmental problems
encountered at recycling operations. We reviewed the information
provided and found that it describes similar kinds of damages as those
in the environmental problems study. Thus, we find that the information
provided corroborates the information in and findings of the study.
Where possible, we attempted to find information about specific cases
related to the general information provided, and if that was possible,
added it to the study. (see the Addendum to An Assessment of
Environmental Problems Associated with Recycling of Hazardous Secondary
Materials, Appendix 1.) We do appreciate the general information
submitted about types of recycling and resultant damages and believe it
provides the background and context for the study and the development of
the final regulation. However, we were not able to use this more general
information in the study because the study methodology required specific
information about specific cases. The study was designed to ensure the
validity of data used by relying only on documented, verifiable
information. We do, however, believe that the general information
submitted lends further credence to the findings of the study.

Note that any facility taking advantage of today's exclusion will need
to comply with all applicable protective restrictions and conditions. 

We also appreciate the suggestion of additional damage cases to review
for the study. We reviewed the information submitted and where possible,
gathered additional information about the cases identified. In response
to these comments, we have developed and included an addendum to the
study in the docket for the final rulemaking (see the Addendum to An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials in the rulemaking docket to review new and
updated damages cases). Based on our analysis of these cases, we have:

Added one new damage case site to the study. 

Updated two existing damage case profiles with more information about
environmental problems (see Appendix 1 of the Addendum to the
environmental problems study in the rulemaking docket to review new and
updated damages cases).

Determined that three damage cases were previously included in the study
and additional information was not revealed to supplement the profiles.

Determined one damage case was previously reviewed and the damage was
deemed unrelated to recycling, and no additional information was
provided to change the prior conclusion (see Appendix 1 of the Addendum
to the environmental problems study in the rulemaking docket to review
new and updated damages cases). 

Determined that two sites proposed by commenters had damage unrelated to
recycling (see Appendix 2 of the Addendum to the environmental problems
study to see damage cases reviewed for the study, but not included in
it).

After reviewing the new information, we concluded that the new damage
cases and the supplemental information added to existing cases are
consistent with the damage cases previously cited in the study;
therefore, the additional facts do not substantially change our
understanding of hazardous secondary materials recycling damage cases or
the findings of the study.

3.3 - Market forces study

3.3 - Summary

Many commenters agreed with the underlying premise of the study that
market forces affect commercial recycling differently from how they
affect manufacturing from virgin materials, thus creating a potential
incentive for over-accumulation of hazardous secondary materials in some
circumstances. National industries can engage in practices that are
detrimental to their long-term benefit in order to reap short term
gains.  [0098-39, 0475-6, 0536-7, 0558-6, 0059-73]

One commenter provided the example of a 50,000 cubic yard pile of sludge
on a concrete pad that is only worth $100 after all the costs of
transportation and recycling are taken into account. This material does
not have sufficient value to compel the facility to expend significant
resources to manage it to prevent loss.  The only remaining incentive to
ensure safe management is one that is identical to materials that are
disposed of (i.e., the potential environmental cleanup costs of a
release, which we know historically companies have often ignored or
overlooked).  Absent appropriate management standards, companies will be
inclined to manage such materials as cheaply as possible (e.g., in
outdoor piles as opposed to in secure containers, tanks, or containment
buildings), and will not expend the kind of costs in construction of
storage facilities, maintenance, inspections, personnel training,
emergency planning, etc., that are necessary to ensure that releases do
not occur, or are cleaned up quickly once they occur.  Hence, recycling
value in its own right is not a sufficient surrogate for appropriate
management standards, and any proposal to deregulated recycling without
such standards is inadequate. [0098-39]

Another commenter presented a chart of vanadium, molybdenum and nickel
prices over 25+ years. Recyclers' revenue from sale of metals reclaimed
from spent catalyst tracks these charts. Experience shows that in low
metal markets refiners treat spent catalyst as a waste, and discard it,
often to landfills, which can be cheaper than the recyclers' treatment
fee. Indeed, during these low metals price periods (such as 1996-2002)
spent catalyst would arguably be a "solid waste" under EPA's proposal,
and experience shows that treatment fees competitive with landfills are
barely sufficient to allow catalyst reclaimers to survive. This only
emphasizes the need for careful and specific regulation to protect the
environment at such difficult economic times.  The commenter presented
the example of a major reclaimer of spent hydroprocessing catalyst which
closed down in 2005 after many years of low metals prices and process
difficulties. Thousands of tons of spent catalyst were stored in
containers and a RCRA permitted storage building. Thanks to recently
rising metals prices, the stored catalyst was transferred to another
reclaimer.  [0475-6]

One commenter argued that EPA used an erroneous argument that recycled
materials may pose a threat to human health and the environment greater
than products used in commerce.   Many products in commerce today may
pose a threat to human health and the environment if handled improperly
or released to the atmosphere, waterways, or to ground. The commenter
believed that the fact that something is being recycled does not
immediately make it more hazardous. Regulations under CWA, CAA, DOT,
TSCA, OSHA, etc. exist to deal with inherently hazardous materials.
[0204-13]

One commenter stated that as a result of the market forces study (and
other studies), EPA should also include a requirement that the generator
evaluate the financial health of the recycler before shipping a
hazardous secondary material to the recycler. The commenter believed
that by failing to specify what elements must be contained in those
audits, EPA has proposed a rule that is vague, arbitrary, capricious and
contrary to the substantial evidence that the agency itself compiled.
[0559-73]

One commenter disagreed with the study's conclusion that intra- and
inter- company recyclers have more flexibility in their waste management
decisions than commercial recyclers do. The commenter noted several
cases where a lack of flexibility could delay the shipment of excluded
material off-site, resulting in an over-accumulation at the generator
site. Once a generating company has made the commitment, especially if
it is a public commitment, to recycle its hazardous secondary material
in lieu of disposing of it, it may not be possible, due to company
politics and internal goals to switch to disposal, even if the cost for
disposal drops. Often, the policy makers within the company making the
global decision to recycle are removed from the day-to-day decisions of
the operating facility and may be unaware of the difficulties inherent
in complying with the policies.  As a consequence, the person making the
day-to-day decisions may decide to hold the material until: 1) the price
for reclamation drops, or 2) an alternative recycler is found. 

Secondly, unless a generator has a disposal option for his hazardous
secondary material "in his back pocket," it may not be easy for a
generator to immediately switch from a recycle option to a disposal
option in response to price fluctuation or loss of a recycling outlet. 
From initial contact with a disposal contractor, it may take 4-5 weeks
to get a waste approved into a treatment or disposal facility.  If the
particular customer does not have a history of working with the disposal
contractor, this time can easily stretch out to 2+ months, depending
upon the nature of the secondary material. Oftentimes the majority of
this time is required just to work out contractual arrangements.
[0482-12]

One commenter noted that EPA explains that use of economic models to
predict recycling behavior should be done with extreme caution, and then
goes on to extol the virtues of the models when used in conjunction with
"other pieces of information."  One of those other pieces of information
is the incomplete study of the records of problems with hazardous
secondary material recycling activity.  The commenter asserted that EPA
is building its case on a foundation that is incomplete at best, and
should demonstrate by example that "using economic theory to interpret
recycling behavior should be done with extreme caution." [0532-6]

One commenter notes that while the market forces report used a large
company as an example where "economies of scale" make recycling less
expensive, it has been their experience that this large company's parts
washer service is actually more expensive than the same service provided
by a small Kansas company.  There appears to be a gap between the report
and the realities of the spent solvent recycling market.  If "economies
of scale" operated as depicted in the EPA report, the micro size of the
Kansas company would mitigate against its ability to provide identical
service at less cost.  On-site reclamation is clearly superior in cost
to off-site reclamation.  The commenter noted that potential for low
cost per unit at an off-site reclaimer does not assure a facility's
financial viability nor does it guarantee a mechanism for waste removal
and cleanup should there be mismanagement of the secondary material.
[0536-7]

3.3 - Response

EPA agrees with comments that support the conclusion of the study that
market forces affect commercial recycling differently from how they
affect manufacturing from virgin materials, thus creating a potential
incentive for over-accumulation of hazardous secondary materials in some
circumstances, and appreciates the examples provided by the commenters. 
For the reasons described in the study, EPA disagrees with the comment
that stated that recycling is no different than other commercial
enterprises.  

The economic models used in the report demonstrate that different
economic incentives between the recycling of hazardous secondary
materials and manufacturing can arise due to differences in these two
business models. As opposed to manufacturing, where the cost of inputs
of either raw materials or intermediates is greater than zero and
revenue is generated primarily from the sale of the output, some models
of hazardous secondary materials recycling involve generating revenue
primarily from receipt of the hazardous secondary materials. Recyclers
of hazardous secondary materials in this situation may thus be affected
by different economic forces and incentives than are traditional
manufacturers.   

In response to the commenter who stated that as a result of the market
forces study, EPA should also include a requirement that the generator
evaluate the financial health of the recycler before shipping a
hazardous secondary material to the recycler, EPA agrees that evaluating
the financial health of a company can be useful and informative, and
encourages companies to do so, but finds that it is not an activity that
lends itself to an objective standard that would be appropriate for
regulation. Instead, EPA is requiring recyclers under the transfer-based
exclusion to have financial assurance in order to determine that
negative economic factors will not result in the hazardous secondary
materials being abandoned.

In response to the comment that disagrees with study's conclusion that
intra- and inter-company recyclers have more flexibility in their waste
management decisions than commercial recyclers do and the comment that
urges caution in the use of the study's results, EPA generally agrees
that there are more factors at work in addition to those described in
the study.  However, the Agency continues to believe that intra- and
inter-company recycling have more flexibility in waste management
decisions than a commercial recycler does. When a commercial recycler's
entire income is from accepting hazardous secondary materials for
recycling and selling recycled products, there may be no economic
alternative for it to stop recycling and continue to stay in business
when there is a downturn in the market for its product unless it can
afford the cost of a hazardous waste management permit and the cost of
becoming a hazardous waste disposal facility. This finding is supported
by the results of the damage cases, the overwhelming majority of which
were at commercial recycling facilities.

Finally, in response to the comment criticizing EPA's characterization
of a large solvent recycler as using economies of scale, EPA did not
intend to imply that this recycler always has the lowest prices, only
that its business model is based on collecting small amounts of solvent
from multiple generators.  EPA agrees with the comment that potential
for low cost per unit at an off-site reclaimer does not assure a
facility's financial viability nor does it guarantee a mechanism for
waste removal and cleanup should there be mismanagement of the secondary
material.  To avoid excluding this possible discard scenario, EPA is
requiring recyclers under the transfer-based exclusion to have financial
assurance and is requiring hazardous secondary materials generators to
verify that the recycler has notified having financial assurance as part
of the reasonable efforts condition.

4 - General comments on the 2003 proposal and comparison with the 2007
proposal (including use of NAICS to define “same industry”.)

4 - Summary

General Comments 

Some commenters expressed general support for the 2003 proposal
providing an exclusion from the definition of solid waste for hazardous
secondary materials that were generated and reclaimed in a continuous
process within the same industry (0041-1, 0049-1, 056-1, 0059-1, 0059-2,
0059-3, 0066-1, 0066-2, 0090-1, 0151-12, 0162-8, 0138-1, 0143-1, 0183-1,
0187-1, 0188-1, 0216-1, 0222-16, 0222-40). 

Some commenters opposed the 2003 proposal and suggested significant
expansion of the exclusion.  These commenters said that the Agency
should promulgate a broader inter-industry exclusion, because the
proposed exclusion did not sufficiently encourage recycling or because
it was not  related to whether hazardous secondary materials were
discarded (0162-8, 0044-1, 0044-2, 0044-3, 0044-12, 0048-9,  0054-1,
0054-2, 0064-3, 0064-15, 0071-1, 0072-1, 0072-2, 0072-5, 0072-6, 0072-8,
0072-11, 0072-14, 0072-15, 0074-32, 0079-5, 0081-2, 0081-3, 0082-8,
0082-10, 0082-12, 0083-7, 0085-1, 0087-6, 0087-9, 0089-6, 0089-7,
0091-6, 0091-10, 0091-13, 0091-14, 0091-15, 0091-37, 0091-39, 0093-9,
0093-10, 0093-18, 0093-36, 0097-1, 0097-6, 0097-10, 0099-5, 0100-1,
0101-1, 0101-5, 0101-7, 0101-9, 0101-14, 0102-7, 0102-28, 0104-15,
0106-3, 0112-1. 0112-6, 0112-8, 0112-9, 0122-8, 0122-9, 0122-10,
0122-11, 0123-1, 0123-13, 0124-4, 0124-6, 0125-2, 0125-4, 0125-6,
0127-1, 0127-3, 0127-4, 0127-6, 0129-1, 0129-4, 0129-5, 0129-9, 0129-11,
0131-1, 0131-3, 0136-2, 0137-8, 0141-1, 0145-4, 0145-5, 0145-7, 0146-2,
0146-4, 0146-5, 0146-6, 0146-8, 0147-10, 0149-19, 0149-20, 0154-5,
0154-6, 0157-2, 0157-3, 0160-1, 0160-7, 0168-2, 0169-5, 0169-9, 0176-2,
0178-1, 0179-7, 0190-2, 0197-11, 0198-1, 0198-2, 0198-3, 0199-13,
0199-15, 0207-1, 0211-2, 0212-1, 0212-2, 0215-3, 0225-19, 0349-1,
0454-1, 0524-2).  

Other  commenters opposed the 2003 proposal on the grounds that the
exclusion should be more narrow (e.g., for on-site recycling only), that
EPA had not adequately evaluated the potential risks, that the exclusion
did not contain conditions adequate to protect human health and the
environment, or that it was not related to the concept of discard
(0028-1, 0029-1, 0039-2, 0039-3, 0057-1, 0058-1, 0060-7, 0060-19,
0067-14, 0067-20, 0068-2, 0075-1, 0075-2, 0076-2, 0076-3, 0076-4,
0076-8, 0076-11, 0076-14, 0080-1, 0080-4, 0084-1, 0084-2, 0084-3,
0084-8, 0084-15, 0084-16, 0094-1, 0094-2, 0095-3, 0095-5, 0095-6,
0095-23, 0098-1, 0110-1, 0110-3, 0110-4, 0110-5, 0110-7, 0110-19,
0110-21, 0110-23, 0110-25, 0117-2, 0117-5, 0117-6, 0119-1, 0119-7,
0119-13, 0119-25, 0119-29, 0119-37, 0119-78, 0130-1, 0130-4, 0135-1,
0135-2, 0135-3, 0135-4, 0140-1, 0144-6, 0153-7, 0161-1, 0161-5, 0164-4,
0165-5, 0172-1, 0172-3, 0172-4, 0172-6, 0172-8, 0172-14, 0172-16,
0172-17, 0172-19, 0172-20, 0172-25, 0172-31, 0227-4, 0231-1, 0231-4,
0231-13, 0231-21, 0172-38, 0175-5, 0176-2, 0186-1, 0186-2, 0186-3,
0186-5, 0186-16, 0191-1, 0191-2, 0192-1, 0193-4, 0193-6, 0196-1, 0210-4,
0231-1, 0231-4, 0231-13, 0231-21, 0231-66, 0233-1, 0341-1, 0342-1,
0343-1, 0343-2, 0343-3, 0343-4).  

Some commenters expressed preferences with respect to the Agency's
proposed options 1 and 2 for the "continuous process" exclusion.  Under
option 1, hazardous secondary materials that were generated and
reclaimed in a continuous process within the same industry would be
eligible for the exclusion if the reclamation took place at a facility
that also recycled regulated hazardous wastes.  Under option 2, such
materials would not be eligible for the exclusion if the reclamation
took place at a facility that also recycled regulated hazardous wastes
(0043-7, 0044-5, 0044-7, 0048-5, 0055-1, 0061-1, 0061-2, 0065-2, 0065-3,
0065-4, 0067-14, 0068-31, 0070-8, 0077-1, 0074-21, 0083-8, 0092-10,
0095-7, 0095-8, 0095-9, 0095-13, 0095-28, 0098-3,0119-14, 0119-15, 
0120-2, 0120-3, 0120-4, 0120-6,  0140-2, 0120-7, 0138-4, 0143-9,
0146-13, 0148-1, 0148-2, 0151-10, 0151-11, 0152-13, 0152-14, 0152-15,
0153-1, 0153-2, 0153-3, 0171-2, 0175-7, 0179-10, 0182-9, 0187-2,
0194-10, 0196-3, 0199-18, 0199-19, 0203-2, 0203-14, 0204-14, 0207-3,    
0212-3, 0217-5, 0222-42, 0225-7, 0225-23, 0225-38, 0231-35, 0231-36,
0231-37, 0231-39, 0231-52). 

Other commenters addressed other specific elements of the "continuous
process" exclusion, e.g., storage time limits, recordkeeping, state
authority to determine industry classification, codification of
recycling processes (0098-11, 0098-16, 0140-15, 0153-31, 0153-32,
0213-5, 0153-11, 0182-8, 0182-17, 0185-18, 0204-2). 

Some commenters said that the March 26, 2007 supplemental proposal was a
significant improvement over the 2003 proposal (0452-3, 0458-2, 0494-2,
0527-9, 0531-2, 0526-1, 0554-1,0481-2, 0481-26, 0491-2, 0523-1). 

Use of NAICS in the 2003 proposal to define "same industry"

Many commenters on the October 2003 proposal addressed our use of NAICS
to define "same industry" or had comments on our proposal of a "same
industry" exclusion:

0034-1, 0041-2, 0043-8, 0044-8, 0048-13, 0048-4, 0052-3, 0054-3, 0060-1,
006010, 0060-11, 0060-12, 0060-13, 0060-15, 0060-16, 0060-8, 0060-9,
0061-3, 0062-4, 0062-6, 0062-7. 0062-8, 0064-2, 0065-10, 0065-9, 0067-9,
0068-24, 0068-27, 0068-28, 0068-29, 0068-30, 0068-32, 0069-6, 0070-1,
0070-2, 0072-1, 0074-17, 0074-20, 0076-5, 0077-2, 0079-1, 0079-2,
0079-6, 0082-13, 0083-11, 0083-9, 0084-14, 0084-5, 0085-1, 0085-2,
0085-3, 0086-2, 0087-4, 0089-10, 0089-11, 0089-18, 0089-9, 0090-2,
0091-11, 0091-15, 0091-17, 0091-18, 0091-19, 0091-2, 0091-21, 0091-3,
0091-38, 0092-3, 0092-9, 0093-19, 0093-20, 0093-21, 0093-22, 0093-23,
0093-35, 0093-8, 0093-9, 0095-11, 0096-1, 0096-2, 0097-8, 0098-10,
0098-12, 0098-13, 0098-14, 0098-15, 0098-17, 0098-18, 009848, 0098-6,
0098-7, 0098-8, 0098-9, 0099-2, 0099-3, 0099-4, 0100-1, 0101-2, 0102-19,
0102-2, 0102-20, 0102-21, 0102-22, 0102-23, 0102-24, 0102-3, 0102-4,
0102-5, 0104-17, 0104-18, 0104-19, 0104-2, 0106-2, 0110-20, 0112-5,
0115-7, 0117-8, 0119-17, 0119-18, 0119-19, 0119-20, 0119-21, 0119-22,
0119-23, 0119-24, 0119-26, 0119-27, 0119-28, 0122-11, 0122-12, 0122-13,
0125-5, 0126-5, 0126-7, 0127-10, 0127-11, 0129-6, 0129-7, 0129-8,
0129-9, 0130-5, 0130-6, 0130-7, 0131-2, 0136-4, 0136-5, 0137-9, 0138-11,
0138-5, 0138-6, 0138-7, 0138-8, 0138-9, 0139-5, 0140-3, 0140-4, 0140-5,
0140-6, 0142-1, 0144-5, 0145-1, 0145-3, 0145-4, 0145-6, 0146-1, 0146-10,
0146-11, 0146-12, 0146-4, 0146-9, 0147-2, 0147-5, 0147-6, 0147-7,
0147-8, 0148-3, 0148-4, 0148-6, 0149-18, 0149-21, 0149-22, 0149-23,
150-2, 150-3,152-12, 152-9, 153-4, 153-9, 154-2, 158-2, 161-2, 161-4,
163-2, 169-4, 170-2, 170-4, 170-5, 170-6, 171-10, 171-3, 171-4, 172-15,
173-11, 173-4, 173-5, 173-6, 170-7, 174-2, 174-3, 174-8, 175-10, 175-8,
176-3, 176-6, 177-5, 178-10, 178-11, 178-12, -178-13, 178-2, 178-20,
178-30, 178-5, 178-7,178-8, 178-9, 179-11, 179-12, 179-13, 179-14,
179-7, 179-9, 180-1, 180-15, 180-2, 180-3, 180-4, 180-5, 181-1, 181-2,
181-3, 181-4, 181-5, 181-6, 181-9, 182-18, 184-3, 184-4, 185-1, 185-2,
185-3, 185-4, 186-10, 186-11, 186-14, 186-15, 186-17, 186-9, 187-3,
187-4 187-5, 187-6, 190-3, 190-4, 191-3, 193-7, 197-5, 197-6, 198-4,
198-5, 198-6, 199-14, 199-16, 199-20, 199-21, 199-33, 199-37, 203-3,
203-4, 203-5, 203-6, 203-7, 204-3, 204-6, 205-2, 205-3, 206-1, 207-4,
210-5, 212-15, 212-18, 212-4, 212-5, 212-6, 216-6, 2016-9, 207-2, 207-7,
221-1, 222-1, 222-2, 222-23, 222-24, 222-25, 222-26, 222-27, 222-28,
222-29, 222-31, 222-32, 222-33, 222-34, 222-35, 222-44, 222-6, 222-7,
225-13, 225-14, 225-34, 225-4, 231-3, 231-38, 231-44, 231-46, 231-47,
231-48, 231-49, 231-50, 452-1, 463-2, 471.2-12, 472-10, 481-2, 485-4,
486-21, 491-2, 524-2, 524-8, 564-23, 564-25

4 - Response

General Comments

For the reasons explained in the March 26, 2007 supplemental proposal,
the Agency did not finalize the "continuous process" exclusion from the
2003 proposal (including the above-mentioned options 1 and 2). We
generally agree with the many commenters who said that whether materials
are recycled within the same NAICS code is not an appropriate indication
of whether they are discarded (see 57 FR 14172 at 14185). We therefore
proposed different exclusions with different management requirements and
conditions in 2007. The scope and applicability of these exclusions and
all requirements are explained in the March 26, 2007 notice (see 57 FR
14172, 14184-14196).  Some commenters on the 2003 proposal addressed
issues that are also relevant to the 2007 proposal.  These comments have
been responded to in the preamble to this final rule and elsewhere in
this response to comments document.  Other comments were specific to the
continuous process exclusion, including options 1 and 2.  Since EPA has
not adopted this exclusion, we are not addressing the merits of these
comments, except insofar as we have explained why we have adopted a
different approach. 

Use of NAICS in the 2003 proposal to define "same industry"

These comments have been addressed in our March 26, 2007 supplemental
proposal (see 57 FR  14172 at 14184). For the reasons given in the 2007
supplemental proposal, we concluded that our proposed exclusion for
"same industry" recycling did not accurately delineate EPA's RCRA
jurisdiction over hazardous secondary materials. We therefore did not
adopt that approach. 

5 - Requirements/Conditions Applicable to all Exclusions

5.1 - Speculative accumulation

5.1 - Summary

Some commenters responded to our October 2003 proposal to define
"continuous process" by using the existing speculative accumulation
standards to define the scope of the term  (0044-10, 0062-10, 0068-21,
0068-22, 0069-10, 0069-12, 0076-9, 0077-3, 0077-5, 0083-10, 0084-4,
0089-19, 0091-16, 0092-15, 0093-28, 0095-29, 0104-22, 0104-23, 0104-27,
0110-16, 0119-30, 0119-32, 0119-33, 0119-34, 0119-35, 0122-15, 0131-4,
0138-13, 0148-8, 0148-9, 0149-26, 0149-27, 0153-14, 0176-7, 0178-16,
0178-17, 0179-16, 0181-10, 0185-6, 0192-4, 0194-2, 0194-5, 0199-23,
0212-7, 0217-16, 0222-41, 0225-6, 0225-20, 0225-21, 0225-22, 0231-41,
0231-43).

Other commenters supported the application of existing speculative
accumulation requirements to generators and reclaimers under the
exclusions proposed on March 26, 2007 (0043-9, 0452-11, 0457-7, 0457-17,
0471.2-19, 0471.2-30, 0468-9, 0472-24, 0472-25, 0485-9, 0485-12,
0486-33, 0486-34, 0491-3, 0494-8, 0523-5, 0527-2, 0529-24, 0538-5,
0549-6, 0553-6, 0564-37). However, one commenter said that our proposal
did not clearly tie the prohibition on speculative accumulation to the
exclusion enjoyed by the generator (0482-16).

One commenter said that the speculative accumulation requirement, in
spite of being in place since 1985, was confusing to the regulated
community, which did not know how to demonstrate compliance (0539-7).
Other commenters said that the speculative accumulation provisions were
difficult to enforce (0462-4, 0470-5).

Another commenter suggested requiring that containers be marked with
labels showing the contents and the accumulation start date, and also
that the Agency add this requirement to 40 CFR 261.2(f) (0098-21).  Some
commenters suggested requiring generators and reclaimers to document the
amount of material in storage at any one time, or to document when
material was generated and when it was recycled (0470-53, 0119-36). 
Another commenter said that the requirement should include a
demonstration that the recycler has a market for the recycled material
if it is not returned to the generator (0482-16). 

One commenter said that the Agency should promulgate a separate
rulemaking for spent catalysts, with a specific set of conditions
(presumably including speculative accumulation) designed to address the
special properties of these wastes (0475-21). 

Some commenters said that the Agency should make provisions in the
regulations for extending the one-year limit based on unforeseen
circumstances that could prevent recycling, as when a generator needs to
make alternate arrangements when a recycler cannot accept his hazardous
secondary materials (0112-26, 0197-4, 0528-14, 0528-16). Another
commenter requested that we clarify that the variance for speculative
accumulation at 40 CFR 260.31 should be liberally interpreted and
applied to encourage recycling (0126-4).

Another commenter suggested that the Agency should consider a
"presumptively approved" variance request letter that could be filed by
an industry needing more time to accumulate materials. The variance
would be presumed approved unless a follow-up inspection showed that
recycling within a year was not feasible (0143-11).

One commenter suggested that EPA should adopt a different speculative
accumulation requirement for the primary metals and minerals industry.
The commenter suggested that materials within this industry should be
considered "in process" during the first year after their production;
only after this one-year period should materials be subject to a
speculative accumulation "clock.”  This alternative, according to the
commenter, would take into account the consideration that materials
within this industry may not be "discarded" within the normal
speculative accumulation period (0152-10, 0481-12, 0481-69, 0481-71).
Other commenters suggested longer storage periods (18 or 24 months) for
smaller generators or smaller recyclers (0204-15, 0216-3).     

  One commenter said that the normal speculative accumulation period is
not needed for on-site recycling because on-site recycling technologies
are already well-developed.  This commenter suggested a 90-day storage
period for material reclaimed at the site of the generator (0536-4,
0536-8). One commenter suggested that we should allow accumulation only
in six-month increments, beginning on the first day the material is
generated (0231-42). One commenter suggested that when materials are
transferred for reclamation, only one speculative accumulation period
should be allowed for the reclamation chain; i.e., the generator and
reclaimer would not have separate speculative accumulation periods
(0507-7, 0507-13).

 

Some commenters said that the 75% requirement meant that some material
can be accumulated at a site indefinitely (0172-23, 0186-18, 0470-48,
0470-51). Other commenters said that we should require hazardous
secondary materials to be recycled within one year from the date such
materials are generated, rather than requiring recycling within one
calendar year following January 1 (thus allowing materials received
after that date to "roll over" to the next calendar year (0231-42,
0539-7). Other commenters said we should require 100%, rather than 75%,
of hazardous secondary materials to be recycled within six months
(0231-42) or a year (0119-36).  

Another commenter said that in effect, the Agency was only adopting half
of the speculative accumulation rule, ignoring management standards
(such as the 90-day storage requirements in 40 CFR Part 262) that should
apply to generators under our exclusion (0558-26).

5.1 - Response

The Agency would like to clarify the difference between the 2003
proposal and the 2007 proposal regarding speculative accumulation. In
2003, EPA proposed that reclaimed hazardous secondary materials that
were stored in accordance with existing speculative accumulation
provisions would be considered reclaimed in a "continuous" industrial
process.  However, for the reasons explained in the preamble to the
March 26, 2007 proposal, we are not providing an exclusion for hazardous
secondary materials that are recycled in a continuous industrial
process. In the 2007 proposal, we proposed to require that generators,
intermediate facilities, and reclaimers taking advantage of the
reclamation exclusions comply with the long-standing speculative
accumulation provisions of 40 CFR 261.1(c)(8).  These provisions already
apply to almost all forms of excluded recycling;  failure to comply with
the requirements means that the material in question is not actually
being recycled and is considered a solid waste, and, if it is also a
hazardous waste, subject to all applicable Subtitle C requirements. The
use of these regulations as part of the definition of solid waste under
RCRA has been upheld by the D.C. Circuit (API II, 216 F.3d at 58-59) and
the Agency has not proposed to change these regulations in this
rulemaking. 

We do not agree with the commenter who said that this proposal did not
clearly tie the prohibition on speculative accumulation to the exclusion
enjoyed by the generator.  This requirement was clearly specified in
proposed 40 CFR 261.2(a)(2)(ii), 40 CFR 261.4(a)(23)(iii), and 40 CFR
261.4(a)(24)(i), and in the corresponding provisions of this final rule.


We do not agree that the speculative accumulation provisions are
confusing or difficult to enforce.  After evaluating the comments that
suggested additional labeling, marking, or demonstrations of markets for
the materials, we have concluded that the existing provisions of 40 CFR
261.1(c)(8) are already adequate for enforcement purposes.  These
provisions require persons to demonstrate that the material is
potentially recyclable, has a feasible means of being recycled within
the required time, and that the amount of material that is recycled or
transferred equals 75% of the material accumulated at the beginning of
the calendar year.  We believe that further exact specifications as to
how hazardous secondary materials should be marked or labeled, or their
potential marketability, are unnecessary, either in 40 CFR 261.1(c)(8)
or in 261.2(f). Requirements of such specificity are not needed to
demonstrate lack of discard.  

With respect to a situation mentioned by one commenter (the processing
of spent catalyst at a refinery) we note that the Agency is planning to
propose (in a separate rulemaking) to amend its hazardous waste
regulations to conditionally exclude from the definition of solid waste
spent hydrotreating and hydrorefining catalysts generated in the
petroleum refining industry when these hazardous secondary materials are
reclaimed (see entry in the Introduction to the Fall 2007 Regulatory
Plan, 72 FR 69940, December 10, 2007). Spent hydrotreating and
hydrorefining catalysts generated in the petroleum refining industry are
routinely recycled by regenerating the catalyst so that it may be used
again as a catalyst. When regeneration is no longer possible, these
spent catalysts are either treated and disposed of as listed hazardous
wastes or sent to RCRA-permitted reclamation facilities, where metals,
such as vanadium, molybdenum, cobalt, and nickel are reclaimed from the
spent catalysts.

EPA originally added spent hydrotreating and hydrorefining catalysts
(waste codes K171 and K172) to the list of RCRA hazardous wastes found
in 40 CFR 261.31 on the basis of toxicity (i.e., these materials were
shown to pose unacceptable risk to human health and the environment when
mismanaged) (63 FR 42110, August 6, 1998). In addition, EPA based its
decision to list these materials as hazardous due to the fact that these
spent catalysts can at times exhibit pyrophoric or self-heating
properties. 	

It is largely because of these pyrophoric properties that EPA is
considering a separate proposal to conditionally exempt these catalysts
from hazardous waste regulation. This future proposal will allow the
agency to consider and seek comment on specific conditions to address
the pyrophoric properties of these hazardous secondary materials,
particularly during transportation and storage prior to reclamation, in
order for the Agency to determine that they are not being discarded. As
a result of this separate effort, these spent catalysts will not be
eligible for the exclusions in this rule.  Once EPA has proposed a
conditional exclusion specifically for these spent catalysts, and after
consideration of public comments, EPA will either finalize a conditional
exclusion specific to these spent catalysts or may decide that the
conditions being promulgated in this final rule are fully adequate for
the management of these spent catalysts when recycled, and therefore
would remove the restriction preventing these spent catalysts from being
eligible for these exclusions.

In response to those commenters who suggested providing for situations
where hazardous secondary materials cannot be accumulated due to
unforeseen circumstances such as a reclaimer's inability to accept the
materials, we urge generators to plan for such situations by having
alternate recyclers in mind.  We note that hazardous secondary material
that is transferred off-site for reclamation but is subsequently
rejected by the reclaimer for any reason is not a solid waste if the
hazardous secondary material generator accumulates the material,
reclaims it, or sends it to another reclamation facility, in compliance
with the conditions of the exclusion in this final rule, including
speculative accumulation and reasonable efforts. Some of these
commenters may have been unaware that there is a variance provision in
40 CFR 260.30(a) that allows facilities to extend speculative
accumulation times if they can demonstrate that sufficient amounts of
the material can be recycled or transferred for recycling in the
following year.  This application can be renewed annually. 

We do not agree with the commenter who suggested that we institute a
"presumptively approved" variance procedure, because we believe that the
existing provisions are adequate to allow extension of speculative
accumulation times and that regulatory authorities should have a chance
to approve such extensions in advance, in order to avoid discard. 
Similarly, in response to the commenter who suggested we clarify that
existing provisions should be "liberally applied,” we have no reason
to believe that this provision is being interpreted unreasonably by
regulatory authorities. 

In response to the commenters who suggested different speculative
accumulation requirements for the primary metals and mineral industry,
or for smaller generators or recyclers, we note that such comments are
outside the scope of this rulemaking, because we did not propose such
changes in our March 26, 2007 notice.  In addition, we believe that the
existing variance provision at 40 CFR 260.30(a) is adequate to meet the
needs of facilities who may need more accumulation time, and is
preferable to a separate rulemaking for these facilities.  

In response to other commenters who suggested shorter speculative
accumulation times, or requiring greater amounts of hazardous secondary
materials to be recycled within the speculative accumulation period, we
also note that these changes were not proposed in the March 26, 2007
proposal and thus are outside the scope of this rulemaking.  The same is
true of suggestions that only one speculative accumulation period should
be allowed when a material is transferred for recycling. 

In response to the commenter who mentioned storage standards for
generators, such standards are addressed in sections XVI and XVII of the
preamble of this rule, and in the relevant portions of this response to
comments document.  We do not agree with the commenter's apparent
implication that generators are required to comply with the requirements
of 40 CFR Part 262 before the expiration of the speculative accumulation
period in 40 CFR 262.1(c)(8).  

5.2 - Notification

5.2 - Summary

Summary of comments that supported one-time notification:

GENERAL SUPPORT: Many commenters supported, or did not object to,
requiring a one-time notification for facilities claiming the proposed
exclusions. [0043, 0060, 0061, 0068, 0069, 0085, 0090, 0091, 0092, 0093,
0095, 0096, 0098, 0104, 0110, 0112, 0119, 0122, 0148, 0153, 0161, 0165,
0167, 0172, 0177, 0182, 0188, 0194, 0204, 0210, 0211, 0212, 0217, 0219,
0222, 0452, 0456, 0457, 0458, 0460, 0463, 0467, 0470, 0471.2, 0472,
0475, 0476, 0482, 0485, 0486, 0488, 0489, 0491, 0494, 0495, 0506, 0507,
0516, 0521, 0527, 0529, 0530, 0531, 0538, 0539, 0541, 0543, 0549, 0558,
0559, 0563, 0564]

ENABLES ENFORCEMENT: Several commenters argued that notification is
important because it provides information to regulatory agencies on who
will be using the exclusions in order to evaluate compliance with the
conditions of the exclusions and the legitimacy criteria. One commenter
stated that without strong notification, documentation and
recordkeeping, enforcement will be weak and impossible to support and
that the mere threat of enforcement is not sufficient to ensure
compliance; there must be some mechanism for the government to track
compliance. One commenter said, absent notification, ensuring compliance
with the terms of the exclusion is, at best, highly resource-intensive,
and may prove to be completely infeasible. Another commenter argued
that, with notification, regulatory agencies retain their ability to
adequately protect the public and to compel any necessary cleanup or
correction of violations. Still another commenter argued that if
recovery operations are exempted and not required to notify and track
their activities, the state will have little means to determine where
inspection is warranted unless there is a reportable release or
newsworthy accident. Commenters believed notification is essential to
the EPA's (and the states') ability to ensure that sham recycling,
unsafe reclamation activities, and other illegitimate practices are not
occurring. Another commenter argued that EPA must not consider the
proposed notification and recordkeeping provisions as overly burdensome,
given the potential costs of mismanagement of the excluded materials.
Moreover, the lack of notification would create a situation where more
abandoned, contaminated sites could occur, with no one to be held liable
or responsible for their cleanup. One commenter also argued that
notification was essential to level the playing field by ensuring that
there are consequences for facilities improperly invoking the exclusion
or applying the legitimacy criteria, so that they do not attain any
competitive advantage over those in compliance. This commenter also
argued that, without notification, the regulatory authorities would have
no record of the receiving facility and as such would not be able to
verify that the generating facility has sent the hazardous secondary
material to an appropriate recycling facility. One commenter noted that
proper notification is particularly important for materials that cross
state boundaries to enable states to be able to weed out sham
operations. A second commenter further believed that notifications
listing the generating, intermediate and destination facilities need to
be submitted to all applicable states where the waste would move to. If
the states do not have the ability to review this information, it will
be impossible to verify compliance and document any benefits. One state
commenter presently requires a similar one-page notification for
generators that treat their own waste on-site and has received very
little negative feedback on this issue. [0043, 0068, 0092, 0104, 0110,
0119, 0148, 0153, 0165, 0167, 0177, 0182, 0188, 0210, 0212, 0219, 0457,
0470, 0482, 0491, 0521, 0527, 0530, 0531, 0558] 

CONFIRMS REGULATORY STATUS: Commenters stated that, with notification,
the fact that a facility has filed for such an exemption would put
regulators on notice of the intent to manage materials under this
exemption. This would also allow receiving facilities to confirm the
generating facility has properly filed the notification required to
qualify for the exemption and vice versa. Furthermore, one commenter
believed that if EPA did not require notification, there would be no
means for a regulator to refute the claim of a generator that hazardous
waste stored on-site at any given time is destined for recycling and
thus excluded from regulation. This could lead to companies accumulating
large amounts of hazardous waste on-site under the guise of recycling
the waste at some undefined time. [0148, 0210, 0222, 0471.2]

COMPILES MEANINGUFL INFORMATION: Commenters supported notification
because it would allow regulatory authorities to compile meaningful
information regarding the recycling of hazardous secondary materials and
to disseminate that information to the regulated community and the
interested public. One commenter argued that public disclosure is an
important part of ensuring that generators and reclaimers are meeting
the requirements of this conditional exclusion and that there is a
mechanism for the regulatory agencies and the public to review
activities on a regular basis. One commenter noted that, currently, only
sketchy information exists regarding the types and amounts of hazardous
secondary materials that are being diverted from waste management to
resource recovery and this lack of information may actually be impeding
the public's understanding and acceptance of legitimate recycling. This
commenter further notes that all too often it is only the horror stories
regarding recycling that are told and that it would be difficult to
change attitudes or public opinion without information with which to
support such a change. One commenter also believed notification was
needed to enable evaluation of the successes and failures of the
proposed rule and to track any reduction of persistent, bioaccumulative
and toxic constituents. [0068, 0092, 0104, 0153, 0210, 0219, 0470, 0475,
0491] 

ENCOURAGES FURTHER RECYCLING: Commenters also said notification would
provide crucial information to industry on recycling opportunities and
success stories and that this information could be used by industry to
research and find uses for their hazardous secondary materials. One
state commenter said the information could potentially facilitate
recycling if available in a database which industry could go to in order
to obtain information on recyclers and those generating recyclable
materials. An additional benefit for industry deals with providing an
assurance that the waste is being managed properly, so that the
generators and reclaimers involved can be less concerned that they may
be subject to an enforcement action when one of the recyclers fails to
comply with the exclusion. Therefore, more rigorous notification and
recordkeeping requirements would provide some handlers with a greater
comfort level in relinquishing the hazardous secondary material from
their control for reclamation or additional processing to a saleable
product. Another commenter stated that notification can save advertising
dollars for businesses wanting to take certain wastes off-site and waste
disposal costs for waste generators and would help build recycling
infrastructure. This commenter also believed that the lack of
notification requirements is the reason universal waste handlers are
difficult to identify and why more people do not take advantage of the
reduced regulatory requirements for universal waste. One state commenter
said that notification also provides the regulatory agency with a
database of locations that could benefit from technical assistance,
pollution prevention and networking opportunities.  [0068, 0104, 0110,
0210, 0530] 

ONE-TIME NOTIFICATION IS ADEQUATE: Some commenters agreed that the
one-time notification is appropriate and argued that more detailed
recordkeeping and reporting are not necessary for regulatory purposes.
Commenters believe the notification represents a reasonable compromise
between EPA's desire to increase recycling and provide assurance of
environmental protection. One commenter considered it essential that the
implementation elements that accompany the final rule are consistent
with recognition that excluded materials are not to be regulated as
"solid waste" and with the mutual goals of promoting increased recycling
and removing regulatory obstacles posed by the current regulatory
system. One commenter asked EPA to consider the potential burden impact
of cumulative notification, recordkeeping and reporting requirements on
small businesses, particularly for small businesses where the cumulative
burden and impact is disproportionately greater because the reporting or
notification obligations are triggered by individual shifts in the
secondary materials under consideration, as these facilities typically
have a diverse and varying product mix. [0090, 0093, 0096, 0112, 0222,
0471.2, 0549] 

ONE-TIME NOTIFICATION MUST BE EXPANDED:  Some commenters believed that
the notification and recordkeeping requirements in the March 2007
proposal were insufficient for agencies to evaluate compliance and
ensure hazardous secondary materials are managed properly in order to
maintain adequate environmental protection. Some state commenters said
support and adoption of the exclusions was contingent on strong
notification and recordkeeping requirements. These commenters (along
with other comments summarized in section 7.6.3 periodic reports) argued
for periodic renotification and expanded notification requirements. A
few commenters argued that the one-time notification for generators who
ship hazardous secondary materials off-site should not be exactly the
same as that for generators who recycle on-site. [0043, 0068, 0069,
0092, 0104, 0161, 0172, 0217, 0457, 0460, 0470, 0475, 0488, 0489, 0495,
0521, 0530, 0543, 0558, 0559, 0563] 

NOTIFICATION SHOULD BE CONDITION OF EXCLUSION: Some commenters supported
making notification a condition of obtaining the exclusion; that is, a
company that fails to properly notify (whether it recycles on-site or
off-site) would lose the exclusion and must manage its hazardous
secondary materials as hazardous waste. One commenter considered
notification to be the cornerstone to effective oversight because it
would alert the state of the existence of potentially regulated
materials, and thus notification must be a condition of the exclusion. A
second commenter argued that, without conditioning the exclusion on
notification, there is little incentive for the generator to perform
what may seem like inconsequential paperwork; however, without
notification, the regulators won't know about recycling activities and
thus cannot evaluate compliance. Another commenter argued that since the
information provided in the notification is critical to enabling an
environmental authority to determine whether a material is discarded, a
recycling activity is a sham, or speculative accumulation is occurring,
etc., the failure of a generator and recycler to provide such notice
should be considered a strong indication that these entities are unaware
of or trying to circumvent the regulatory requirements which govern
their activities. In either case, this commenter believed that these
oversights should be regarded as more serious than a simple reporting
error and that failure to comply with the notification requirement
should not only constitute a violation of RCRA (as EPA proposed), but it
should also remove the excluded status of the waste until the violation
is resolved. Others commenters argued that, by not making notification a
condition of the exclusion, EPA is essentially creating an incentive for
generators not to notify because a generator who submits the
notification knows he will become subject to some EPA and state
oversight, but a generator who does not notify gains the advantage of
avoiding government scrutiny, while merely running the risk -if
discovered- of being cited for a RCRA violation. Another commenter
argued that failure to submit the notification is not merely a paperwork
violation of RCRA, but is failure to satisfy the statutory prerequisite
to lawful conduct under Section 3010 of RCRA, which provides that "no
identified or listed hazardous waste subject to this subchapter may be
transported, treated, stored, or disposed of unless notification has
been given as required under this subsection." This commenter further
argued that, consistent with this statutory scheme, the generator
notification of hazardous materials to be recycled- which are hazardous
wastes if not properly recycled without discard- must be a condition of
the exclusion. Still other commenters agreed with EPA that notification
should not be a condition of the exclusion and that failure to comply
should not affect the status of the waste. One commenter asked what the
status of the hazardous secondary material is when a generator or
reclaimer files a late notification of its recycling activities. [0457,
0482, 0491, 0495, 0516, 0521, 0529, 0538, 0539, 0543, 0558] 

WHICH FACILITIES MUST NOTIFY:  Some commenters believed that every
facility that generates hazardous secondary material and plans to
recycle them, on-site or off-site, under the proposed exemption should
be required to file a one-time notification. One state commenter argued
that states need to understand which facilities are taking advantage of
the exclusion because the exclusion may result in previous hazardous
waste generators becoming facilities that no longer generate hazardous
waste. The exclusion may also reduce the generator category of those
facilities. One commenter expressed concern over their ability to
protect the public health, safety and well-being of their citizens and
to protect and enhance the quality of their environment if the
notification in the final rule does not cover reclaimers. Some
commenters argued that generators and reclaimers should both be required
to notify since regulatory agencies must monitor the entire recycling
process, not just the generator's half. One commenter said EPA may want
to consider a notification threshold similar to the 100kg threshold for
hazardous waste CESQGs. Having a hazardous secondary material threshold
that matches the hazardous waste program would make it easy to remember
and comply with and thus lessen the burden on implementers.  A CESQG may
not bother to recycle or send material to a reclaimer if they consider
notification a burden since they are not subject to current federal
hazardous waste notification requirements. Thus, requiring generators of
small quantities of hazardous secondary materials to notify is more
stringent than hazardous waste regulations and may be contrary to the
intent of the hazardous secondary material program. One commenter
believed that if every secondary precious metal refiner were required to
provide a one-time notification to an appropriate agency, and then to
establish legitimacy to that agency, the industry as a whole would
benefit. One commenter, who urged EPA to allow brokers under the
proposed rule, supported requiring brokers to provide notification to
EPA of their activities, similar to the proposed notification required
for generators and reclaimers. [0068, 0069, 0091, 0110, 0122, 0172,
0210, 0211, 0222, 0471.2, 0495, 0515, 0526, 0539] 

WHICH MATERIALS REQUIRE NOTIFICATION: Some commenters believed that
effective oversight requires that regulatory authorities be made aware
of, not only those materials which have previously been subject to
regulation, but also of new hazardous secondary materials which never
had been subject to RCRA Subtitle C. A few commenters noted the proposed
notification provision states that generators of secondary materials
that have been 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, and
that this language could be misinterpreted to mean that a company
producing a newly generated waste after the rule becomes effective would
not be required to notify. This result would seriously weaken the
notification provision and hinder the ability of enforcement agencies to
determine which facilities might be managing hazardous secondary
materials under the exclusion. Some commenters urged that any
notification requirement only apply to new recycling activities after
the effective date of the rule. One commenter said the potential exists
that the universe of designated facilities could increase greatly and
thus argued that new reclamation facilities may pop up and market their
services before regulators are able to check them out and that this
could lead to increased mismanagement of hazardous secondary materials.
Furthermore, commenters argued that if existing exclusions, that do not
now require notification, are replaced by new exclusions (as EPA
proposed in October 2003), future reliance on that exclusion for those
same materials should not trigger the new notification requirements if
the rule change is to be wholly deregulatory. Other commenters requested
clarification that the one-time notification requirements would not
apply with respect to materials already excluded under one or more of
the existing exclusions. [0070, 0091, 0093, 0098, 0204, 0231, 0462,
0463, 0470, 0506, 0516]

CONSISTENCY WITH OTHER EXCLUSIONS: One commenter, despite having no
major objection to the one-time notification, said it was not clear that
such notification is necessary and that it is generally inconsistent
with the approach used for other existing exclusions (e.g., notification
is not required for the exclusion located at 40 CFR 261.4(a)(8), also
known as the 'closed loop recycling exclusion'). Commenters agreed that
having a notification requirement in the proposed rule is advisable,
since this rule will be giving a blanket exemption for several
categories of waste. [0194, 0472, 0486] 

SPECIFIC CHANGES TO NOTIFICATION REGULATORY LANGUAGE: One commenter
noted that, as stated in the March 2007 proposal on page 14187, the
notification requirement is not specified within the exclusion in 261.2
but rather is specified in 40 CFR 260.42. Because EPA notes specifically
that failure to notify is an enforceable action, this commenter strongly
suggested the compliance requirement be specifically noted in 261.2, for
example, using language such as "see also notification requirements
specified in 40 CFR 260.42." Another commenter suggested putting the
notification requirements directly into 261.2(a)(2)(ii) since it was a
condition of the exclusion, or perhaps combine it with the notification
provision in 261.4(a)(23)(iv). One commenter noted that, in the preamble
to the March 2007 proposed rule, EPA regards notification as a
requirement, not a condition of the exclusions, yet in the proposed
regulatory language, notification appears to be listed as a condition of
the exclusions. [0492, 0506, 0521] 

Summary of comments that opposed one-time notification:

GENERAL OPPOSITION: Many commenters opposed requiring a one-time
notification for facilities claiming the proposed exclusions. [0048,
0062, 0074, 0083, 0093, 0102, 0106, 0125, 0131, 0149, 0152, 0158, 0174,
0179, 0184, 0186, 0197, 0199, 0203, 0439, 0442, 0458, 0468, 0469, 0473,
0481, 0492, 0518, 0520, 0523, 0526, 0528, 0534]

EPA LACKS AUTHORITY TO REQUIRE NOTIFICATION: Commenters argued that EPA
lacks authority to require notification because the Court has held these
materials to be not solid wastes, and thus these materials are outside
of EPA's authority. EPA's authority to regulate discarded materials does
not include the authority to impose RCRA regulatory requirements on
these (or any other) undiscarded materials. Some commenters said, while
EPA may define characteristics of materials and their handling that make
them discarded or not discarded, specific regulatory requirements such
as reporting and recordkeeping are not relevant to defining discard, and
thus may be imposed only after EPA has defined a material as discarded.
Specifically, one commenter does not believe that EPA's stated authority
to impose notification under RCRA 3007 is relevant; RCRA 3007 provides,
in relevant part, that: "any person who generates, stores, treats,
transports, disposes of, or otherwise handles or has hazardous wastes
shall, upon request of any officer, employee or representative of the
Environmental Protection Agency…furnish information relating to such
wastes..." This commenter believed that, in the present instance, the
materials at issue are not being "discarded" and, therefore, are not
wastes, so this statutory basis for requiring notification is not
applicable. Another commenter said that, although RCRA 3007 authority is
broad, it does have some limits, and does not provide EPA authority to
impose regular reporting and recordkeeping requirements on materials
that may become solid wastes at some point in the future. EPA would not
be able to impose similar notification requirements on commercial
chemical products, virgin materials, and other raw materials or
ingredients at a facility, even if they inevitably become solid wastes.
Some commenters said this analysis may be different in the case of a
broad exclusion for inter-industry reclamation. There, EPA may have at
least some discretion to find discard, and consequently some discretion
to impose administrative requirements, such as notification
requirements. One commenter believed EPA would only have the authority
to require this information pursuant to 40 CFR 261.2(f) in the case of
an individual enforcement action. Another commenter said it is not
intuitive that a generator who reclaims his secondary material on-site
should notify some hazardous waste government agency of his activity.
[0048, 0074, 0093, 0112, 0125, 0152, 0179, 0186, 0199, 0222, 0225, 0458,
0468, 0469, 0471.2, 0473, 0476, 0481, 0518, 0520, 0526, 0528] 

INCREASES PAPERWORK BURDEN: Some commenters believed notification to be
inconsistent with the proposal's overall objective and would not be
deregulatory in nature. These commenters argued that additional
paperwork burden would deter facilities from using the exclusion and
would therefore discourage legitimate recycling. One commenter argued
that the proposed paperwork provisions were not consistent with EPA's
stated commitment to "minimizing recordkeeping and reporting
requirements" and that the fact that existing exclusions have proven
effective without similar paperwork burdens establishes a clear 'floor'
for appropriately minimizing recordkeeping and reporting. Commenters
also believed notification to be inconsistent with the 2006 RCRA Burden
Reduction Initiative, which eliminated requirements for recyclers to
provide notifications under 40 CFR 268.7(b) and for generators under 40
CFR 268.9(d). Moreover, one commenter said that, to the extent state
agencies regarded such requirements as crucial to their programs, they
could still impose such requirements under their own authorities.
Another commenter argued that EPA has dramatically underestimated the
amount of time and effort that would be required for facilities to
determine whether they are subject to the notification requirement
because many facilities recycle a large number of materials. One
commenter expressed concern that small businesses do not have sufficient
staff to undertake new paperwork requirements. Another commenter said it
was unlikely they would utilize the proposed exemptions because the
burden/costs to notify regulators and maintain records for each
applicable waste stream and recycler would outweigh the overall benefits
to be gained. One commenter urged EPA to be mindful that facilities
considered under RCRA to be conditionally exempt small quantity
generators (CESQGs) generally have no federal notice or recordkeeping
requirements, thus if EPA finalizes the one-time notification
requirement, the agency will be imposing more burdensome requirements
than the current RCRA regulatory system. Another commenter believed the
manner in which the proposal is worded would result in a number of
different problems in determining when a notification would be needed,
particularly if EPA deletes existing exclusions, such as the closed-loop
exemption (as EPA proposed in October 2003). For example, existing
excluded material would not need a notification, while newly excluded
material would need a notification. This commenter argued that, over
time, there would be numerous classes of non-waste materials with
respect to notification and that this would be tedious and confusing to
track. [0062, 0074, 0102, 0152, 0179, 0184, 0439, 0442, 0458, 0468,
0481] 

INCONSISTENT WITH SELF-IMPLEMENTATION AND EXISTING EXCLUSIONS:
Commenters supported self-implementation without prior agency
notification, review and approval for exclusions, consistent with the
existing conditional exclusions provided under 40 CFR 261.4. These
commenters believed that RCRA's current self-implementing approach,
sufficient to protect human health and the environment for existing
exclusions, should be used for future exclusions and that EPA should not
finalize any notification or recordkeeping burden over and above what
already exists for exempted material. Other commenters argued that EPA
has not provided any rationale why a notification is needed given that
no such notice is required for any other material subject to an existing
conditional exclusion. One commenter stated that EPA's claim that
notification is needed for purposes of oversight seems to be without
merit, since notification would not be required for materials that were
previously excluded from regulation under other provisions or, as EPA's
proposed language suggests, for newly generated materials as well
because: 1) they will not be "previously regulated"; 2) will likely not
be evaluated under the hazardous waste characteristics (which apply only
to solid wastes); and 3) future generators will have no obvious way to
determine whether their materials would have been classified solid
wastes under regulations that are deleted (as EPA proposed in October
2003). [0093, 0102, 0131, 0149, 0152, 0174, 0179, 0184, 0197, 0199,
0203, 0468, 0473, 0486, 0492, 0526, 0528] 

NOTIFICATION NOT NECESSARY: Some commenters argued that notification is
not necessary since those claiming the exclusion could, when challenged,
produce appropriate documentation that they meet the terms of the
claimed exclusion under 40 CFR 261.2(f) and that this would be
sufficient. Maintaining documentation on-site, as one commenter argued,
eliminates the need for the overseeing agency to establish special
controls regarding submission and public distribution of information,
particularly that which is confidential and correctly places the burden
upon the generator to maintain such information. This commenter noted
that there are significant penalties in place for not maintaining
appropriate documentation and thus sufficient incentive exists to manage
the materials appropriately and to document the exclusion under the
current statutory structure. Another commenter noted that under 40 CFR
268.7(a)(7), generators are required to develop a one-time notification
to be maintained in their files for wastes that are generated and
subsequently exempted/excluded from the definition of solid and
hazardous wastes and thus an additional notification requirement is not
necessary. One commenter believed notification is not necessary given
current reporting requirements and would be duplicative and burdensome
since the RCRA Biennial Hazardous Waste Reports would already provide
this information. Furthermore, basic facility information will continue
to be collected under the EPA Toxic Release Inventory (TRI) program,
specifically Section 8 of TRI - source reduction and recycling
activities. This commenter argued that EPA already has sources in place
that can be used to extrapolate this type of information and it would
serve no administrative or environmental purpose to require additional
information in a notification. [0083, 0131, 0158, 0199, 0203, 0439,
0442, 0458, 0468, 0486, 0520, 0523, 0526] 

IF FINALIZED, NOTIFICATION SHOULD BE KEPT TO A MINIMUM: Some commenters,
although not convinced of EPA's authority, necessity of notification or
that the one-time notice is relevant to defining discard, would not
necessarily object to a one-time notification. Commenters urged EPA to
keep the notification and recordkeeping requirements as simple as
possible to avoid discouraging legitimate recycling. If notification is
necessary, EPA should make the requirement simple, one-time, and
applicable only to spent materials, listed sludges and listed byproducts
newly excluded by this rulemaking in order to avoid confusion with
existing exemptions and exclusions. One commenter continued that EPA
should not evolve the notification requirement into a paperwork morass
of requiring periodic updates based on changes in recycling operations.
Another commenter believed the requirement should only contain the basic
information as proposed and should not be overly prescriptive and that,
in particular, the use of Form 8700-12 is unnecessary and would require
revisions to the form. One commenter said at most, for conditionally
exempt and small quantity generators, EPA only should require an
exemption certification be kept at the location where the material is
recycled and that any required notification or certification form be
published in the final rule in compliance with the Paperwork Reduction
Act. Another commenter believed the notification represented a
reasonable compromise between EPA's desire to increase recycling and
provide assurance of environmental protection. If EPA does finalize the
one-time notification requirement, commenters strongly supported EPA's
proposal that "failure to comply with the [notification] requirement
would constitute a violation of RCRA, but would not affect the excluded
status of the waste." [0074, 0083, 0093, 0112, 0149, 0158, 0458, 0468,
0473, 0476, 0481, 0492, 0523, 0534] 

5.2 - Response

We agree with the majority of commenters who support notification as a
means to enable regulatory authorities to monitor compliance of
facilities claiming the exclusions. We also agree that notification
will: 1) confirm the status of hazardous secondary materials and reduce
regulatory confusion, particularly with facilities managing multiple
hazardous secondary materials and hazardous wastes; 2) allow regulatory
authorities to compile, analyze and disseminate information regarding
hazardous secondary materials recycling; 3) encourage further increases
in recycling as generators and reclaimers can use the notification data
to identify recycling opportunities and regulatory authorities can
leverage notification data to target outreach and technical assistance;
and 4) enable regulatory authorities to measure success of the
rulemaking and evaluate effectiveness of program activities. EPA is,
therefore, finalizing the notification requirement for all facilities
who manage hazardous secondary materials under the final rule.

We considered, and respond below, to the arguments presented by those
who opposed notification, the majority of which objected on the basis
that: 1) EPA lacks authority to require notification for hazardous
secondary materials that are not solid wastes; 2) notification would
increase burden on facilities; 3) notification is inconsistent with
current self-implementing exclusions; and 4) EPA has not demonstrated a
clear need for notification or how it would result in any administrative
or environmental value. 

EPA'S AUTHORITY TO REQUIRE NOTIFICATION: We believe our authority to
require notification is inherent in our authority to determine whether a
material is discarded, and we consider notification to be the minimum
information needed to enable credible evaluation of the status of
hazardous secondary materials under section 3007 of RCRA and to ensure
that the terms of the exclusions are being met by generators and
reclaimers. EPA further believes that RCRA section 3007 allows us to
gather information about any material that we have reason to believe may
be a solid waste and possibly a hazardous waste within the meaning of
RCRA section 1004(5). 

Under RCRA section 3007(a), EPA has the authority to gain access and
gather information for the purpose of developing, or assisting in the
development of, any regulation or enforcing the provisions of RCRA. 
RCRA section 3007(a) requires that "any person who generates, stores,
treats, transports, disposes of, or otherwise handles hazardous wastes"
to provide EPA access and furnish information "relating to such wastes."
EPA believes that this language allows it to gather information with
regard to any material that the Agency has reason to believe may be a
solid waste and possibly a hazardous waste within the meaning of RCRA
section 1004(5). Section 2002 also gives EPA authority to issue
regulations necessary to carry out the purposes of RCRA.  

This is a long-standing position that EPA first set forth in 1980 in 40
CFR 261.1(b)(2)(i). This provision of the Subtitle C regulations states
that for purposes of exercising section 3007 authority, the scope of
such authority is not limited to those solid wastes which have been
already identified or listed as hazardous waste.  Instead, EPA has the
authority to gather information concerning a material whenever it has
reason to believe that the waste may be a solid waste and possibly a
hazardous waste as defined under RCRA section 1004(5) of RCRA. EPA has
explained this position in the May 19, 1980, hazardous waste
identification and listing rule (45 FR 33084, 33090) and amendments to
the definition of solid waste on January 4, 1985 (50 FR 614, 627). Given
that the hazardous secondary materials covered by the final rule's
exclusions are used, spent materials and by-products and sludges that
have previously been listed by the Agency, as hazardous wastes, it is
obvious that, absent appropriate recycling and management, these
materials would be solid and hazardous wastes.  Thus, it is appropriate
for the Agency to gather information to ensure that these materials are
managed in such a way that they are not wastes.

In a related matter, the United States Court of Appeals for the Seventh
Circuit, in a warrant case, upheld the Agency's broad reading of section
3007(a) and specifically rejected the view that this section could be
limited to those wastes designated as hazardous under Agency
regulations.  In National-Standard Co. v. Adamkus, 881 F.2d 352 (7th
Cir. 1989), the court held that section 3007(a) "provides EPA with a
broad mandate for enforcing the national policy of treating, storing,
and disposing of hazardous wastes" and "empowers the agency to enforce
the entire RCRA scheme, not just a particular provision." The court
compared section 3007(a) with other provisions of RCRA and specially
noted that "Congress significantly chose the broad, general term
'hazardous waste' defined in section 6903(5) . . . rather than
'hazardous waste identified or listed under [Subtitle C of RCRA],'
employed in other provisions," such as RCRA's permitting provisions
under section 3004(a).  881 F.2d at 360.1 The court stated that the very
limited view of section 3007, advocated by the defendant, would
"emasculate EPA's ability to pursue the broad remedial goals of RCRA."  
Id.  

NOTIFICATION AS REQUIREMENT, NOT CONDITION OF EXCLUSION: In evaluating
this issue, EPA considered the intent of the notification, which is to
provide basic information to regulatory agencies about who will be
managing hazardous secondary materials under the exclusions. This basic
information enables regulatory agencies to administer oversight and set
enforcement priorities, but does not allow regulatory agencies to
directly determine that hazardous secondary materials were discarded. In
other words, a generator or reclaimer could fail to notify yet still be
legitimately recycling their hazardous secondary materials according to
the conditions of the exclusion. EPA therefore considers it appropriate
to regard the notification as a requirement under the authority of RCRA
section 3007, and not a condition of the exclusions. We further believe
that existing penalties for violations provide sufficient incentive to
facilities to comply with the notification requirement. We also note
that Section 3010 of RCRA which provides for "identified or listed
hazardous waste[s]" does not apply in this case, since the final rule
concerns hazardous secondary materials which are not solid and hazardous
wastes. In response to one commenter who asked what the status of the
materials are when a generator files a late notification, since
notification is a requirement, and not a condition of the exclusion, if
a generator fails to file the proper paperwork, the status of his
materials are not affected provided he is complying with the conditions
of the exclusions. The generator, however, may be subject to penalties
for violating the notification requirement.

ADDITIONAL BURDEN: We designed the notification requirement in the final
rule to enable effective compliance monitoring while keeping additional
burden to facilities at a minimum. Specifically:

Notifications are submitted on a per facility basis. In other words,
each facility need only use one notification form to list all of the
hazardous secondary materials to be managed under the exclusion (i.e.,
facilities need not file separate notifications for each hazardous
secondary material, thus keeping burden to a minimum).

We clarified in preamble and regulatory language that hazardous
secondary material generators, tolling contractors, toll manufacturers,
intermediate facilities and reclaimers managing hazardous secondary
materials under the final rule are required to submit a notification
prior to operating under this exclusion and every two years thereafter.
We believe the specificity in the language serves to reduce regulatory
uncertainty, and associated burden, of determining who notifies for what
materials.

We require only essential information that we consider to be what
responsible companies would maintain as part of routine business
information and avoided requiring information that would be complex or
difficult to collect (such as a description of the reclamation process).
We believe the brief list of data elements required in the notification
will not pose an undue burden to facilities.

We require type of hazardous secondary materials to be reported as the
hazardous waste code that would apply if the hazardous secondary
materials were managed as hazardous waste. This reduces burden because
facilities are already familiar with hazardous waste codes under RCRA
and also avoids the need to collect potentially confidential
information.

We are requiring facilities to submit the notification using the RCRA
Subtitle C Site Identification Form in response to comments that
expressed strong support for using this form because it was already
familiar to the regulated community and thus would be less burdensome to
implement. 

We do not agree with commenters who believe the notification requirement
is inconsistent with the RCRA Burden Reduction Initiative, since that
initiative sought to eliminate duplicative or unnecessary paperwork
requirements. The notification requirement will be used for multiple
purposes, most importantly to enable credible and effective compliance
monitoring of facilities with the conditions and restrictions of the
final rule, and thus is neither duplicative nor unnecessary. 

In response to one commenter who said states could impose requirements
under their own authorities and, thus, notification is not needed, we
believe this approach would result in differing notification
requirements between states and would unnecessarily increase complexity
in terms of compiling and disseminating information. This approach would
also hinder efforts of regulatory authorities to monitor compliance of
facilities that transport hazardous secondary materials out of state,
since there would be no national repository of notification information.
The notification requirement provides regulators with essential,
standardized and electronically accessible information regarding all
facilities who manage hazardous secondary materials nationwide. 

Regarding the comment that conditionally exempt small quantity
generators (CESQGs) generally have no recordkeeping requirements, we do
not anticipate many of these facilities would choose to manage their
materials under the final rule and thus their regulatory requirements
will not change. 

NECESSITY OF NOTIFICATION: We believe notification must be submitted to
the regulatory authorities in order to enable compliance monitoring. If,
as some commenters argued, the information was instead maintained in the
facility's files, regulatory authorities would have no way of knowing
who was managing hazardous secondary materials and thus would be
severely limited in their ability to monitor compliance. We agree that
the significant penalties in place provide sufficient incentive to
document the exclusion; however, this incentive only exists if the
regulatory authorities are aware of the facility's operations in the
first place. We believe, in the absence of notification, facilities
could easily evade oversight due to a lack of information available to
regulators, especially 'new' facilities that have not managed hazardous
secondary materials under previous Subtitle C regulation. Furthermore,
maintaining documentation or notification at the facility would preclude
regulatory authorities from compiling, analyzing, and disseminating
information on hazardous secondary materials recycling.

We do not consider notification to be duplicative of the RCRA Biennial
Hazardous Waste Report because the Biennial Report is only required for
large quantity generators managing hazardous waste and thus facilities
managing hazardous secondary materials under the exclusions are not
required to report these materials. Moreover, TRI is focused on a
limited number of chemicals and thus the data is not consistent with
what is required in the notification.

Lastly, in response to comments that believed the notification would
serve no administrative or environmental purpose, please see section
5.2.1 of this document for details on how EPA plans to use each data
element in the notification.

SCOPE OF NOTIFICATION: Both commenters who supported and opposed the
notification requirement discussed the scope of the notification; some
commenters argued that notification should be kept to a minimum so as
not to discourage entities from taking advantage of the exclusion to
recycle hazardous secondary materials and, on the other hand, some
commenters urged EPA to expand the notification requirements to maintain
adequate environmental protection. EPA considered both arguments and
decided to expand the notification requirement to include additional
information and periodic renotification; however, EPA has taken care to
construct the requirement to keep additional burden to a minimum (as
bulleted above) and thus does not consider the notification requirement
to pose an undue burden or serve as a disincentive for facilities
seeking to claim the exclusions. Please see sections 5.2.1, 5.2.2,
5.2.3, 5.2.4, 5.2.5 and 7.6.3 of this document for a more detailed
discussion regarding EPA's rationale for these changes. 

CONSISTENCY WITH EXISTING EXCLUSIONS: We disagree with commenters who
argue that EPA should not require notification based on the fact that
existing exclusions under 40 CFR 261.4 do not require notification. We
note that many of the existing exclusions are narrow in scope, excluding
very specific types of materials (e.g., spent sulfuric acid used to
produce virgin sulfuric acid) or specific recycling processes (e.g.,
closed loop recycling) from the definition of solid waste. On the other
hand, the final rule is broad in scope covering many categories of
materials; therefore, we believe notification is necessary to provide
regulators essential information on the many types of materials and
reclamation processes that are eligible for, and can operate under, the
exclusion in order to enable effective oversight. We also further note
that EPA has required conditions for exclusions where it deems it
necessary to do so in order to protect human health and the environment,
such as, placing limits on speculative accumulation and requiring use of
drip pads for reclaiming wastewaters from wood preserving solutions.
Furthermore, EPA currently requires notification for spent materials
generated and recovered within the primary mineral processing industry
(261.4(a)(17)) and for hazardous secondary materials used to make zinc
micronutrient fertilizers (261.4(a)(20)).

WHICH FACILITIES MUST NOTIFY: We agree with commenters who believed that
every facility that generates, reclaims or otherwise manages any amount
of hazardous secondary materials should be required to file a
notification. We believe this is necessary in order to enable regulatory
authorities to monitor compliance with all facilities who claim the
exclusions.

WHICH MATERIALS REQUIRE NOTIFICATION: Facilities must submit
notification if they will manage hazardous secondary materials under the
final rule, including hazardous secondary materials that were previously
regulated as hazardous wastes under Subtitle C and 'new' hazardous
secondary materials that occur after the effective date of the rule and
thus were not previously subject to Subtitle C. Moreover, we confirm
that materials already excluded from the definition of solid wastes
under an existing exclusion will not need to notify since the
requirement only applies to facilities managing hazardous secondary
materials under 40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24) and (25).  We
have corrected the regulatory language in the final rule to reflect both
of the above points.

SPECIFIC CHANGES TO NOTIFICATION REGULATORY LANGUAGE: In response to
comments, we have revised the notification requirement by including it
in 40 CFR 260.42 and incorporating it by reference into each of the
exclusions. We believe this both appropriately highlights the
notification requirement and sufficiently separates the notification as
a requirement, and not a condition of the exclusions.

5.2.1 - Notification requirements

5.2.1 - Summary

MAINTAIN NOTIFICATION REQUIREMENTS AS PROPOSED:  Some commenters
supported the notification requirements as proposed in October 2003 and
March 2007. Commenters believed that the one-time notification form
provides the regulatory agencies with sufficient information concerning
the recycling of these materials. One commenter believed the amount of
information strikes an appropriate balance between providing basic
information to regulatory agencies as to who will be managing secondary
materials under the exclusions and the need to avoid creating an
unreasonable burden on the regulated community. Other commenters
considered that the information required to generate these notifications
would typically be available from standard business records and thus
would impose minimal burden. One commenter further concurred with the
statement from EPA's October 2003 proposal preamble that "this is a
reasonable requirement of those who will find advantage in the
regulatory exclusion…" and believe this would continue to be the case
even with expanded notification and reporting. Some commenters argued
that these records and reports would be critical to the monitoring and
enforcement programs and in measuring the overall success of the
rulemaking. One commenter believed if states do not have the ability to
review the information, verifying compliance will be impossible. Some
commenters did not support expanding the notification to include
additional data elements. Commenters believed that additional
recordkeeping requirements are not needed to effectively manage the
hazardous secondary material to be recycled and could discourage
recycling. Another commenter argued that additional information would
not be essential to defining discard, or even essential to "proper
oversight," but would be akin to imposing new regulatory mandates. Other
commenters believed additional notification requirements would add
unnecessary burden to both EPA and industry and would serve no
regulatory purpose. Some commenters urged EPA to keep the one-time
notification as simple as possible. Some commenters argued that if EPA
is interested in collecting additional information, then EPA should use
the biennial report or a survey for that purpose, but only then after
justifying the need for such information. [0062, 0068, 0074, 0083, 0098,
0138, 0210, 0461, 0467, 0471.2, 0472, 0473, 0476, 0481, 0486, 0491,
0492, 0529, 0534] 

DO NOT ADD CERTAIN DATA ELEMENTS: One commenter did not consider it
necessary to collect information on the estimated annual volume of the
materials because there is no valid regulatory purpose served by
requiring this information and the generator's initial estimate may well
be a very soft "guesstimate." Additionally, given the nature of
specialty batch chemical manufacturing, it would not be possible for a
facility to project with any accuracy the nature or number of recycling
opportunities in the course of a year. This commenter also urged EPA to
recognize that it is inappropriate to consider requiring the generating
facility to disclose projected volumes to be shipped to particular
manufacturers because information on manufacturing relationships and the
types of products produced is closely guarded and is often subject to a
contractual confidentiality obligation. One commenter believed that
requiring identification of the reclamation facility is reasonable, but
that no other data elements should be included because much of the
information requested is beyond the generator's reasonable knowledge.
Some commenters noted that detailed characterization of the reclamation
process is often considered confidential business information by the
reclaimer and could be interpreted as a requirement to perform detailed
and costly analytical testing of the materials without any commensurate
environmental benefit. Commenters also argued that detailed
characterization is not appropriate for the notification as the facility
could potentially manage many different hazardous secondary materials
from multiple generators and this information would be burdensome to
include and would require the submittal of a new notice each time a new
material is reclaimed. Another commenter believed the requirement to
provide information on the materials storage at the generating facility
is burdensome and also not necessary in light of the existing legitimacy
criterion that recycled materials be handled in a manner similar to
analogous materials. Another commenter urged EPA not to expand the scope
or frequency of the notification requirements. One commenter opposed
requiring the generator to identify the reclamation facility, not only
because it would be duplicative of the reclaimer requirement, but also
because it could require the generator to submit another "one-time"
notification each time it selects a new reclaimer to recycled its
material. One commenter said the notification requirement under this
regulation should not request any specific information about the
excluded materials and should focus only the initial information and
updates needed to correctly identify the facility, the site owner and
the site operator. Additionally, another commenter did not believe the
notification should apply to the type of on-site transportation being
discussed because there is really no need for the EPA to know, via
notification, when such containers are being used any more than when a
container of products or co-products is being used. [0074, 0222, 0458,
0471.2, 0472, 0476, 0482, 0486, 0558]

EXPAND NOTIFICATION REQUIREMENTS: Some commenters believed that
additional notification elements are necessary. Many of these commenters
believed the notification and recordkeeping requirements, as proposed,
are inadequate and believed that additional information is absolutely
essential to adequately inform the public and to facilitate proper
government oversight. Some commenters believed that additional
information is necessary for the regulatory authorities to ensure that
these secondary materials are legitimately recycled and to enable
compliance monitoring with the conditions of the exclusion, especially
in regards to out-of-state facilities. Furthermore, one commenter argued
that, without adequate notification, regulatory agencies would be
rendered blind in determining whether the rule is being complied with
making the system particularly vulnerable to abuse when hazardous
secondary materials are transported across state lines. Another
commenter argued that one aspect of legitimate hazardous secondary
material recycling that is unique from normal manufacturing is that the
recycler often receives money to obtain his process inputs instead of
having to purchase the inputs and therefore may realize a monetary gain
without producing or selling the product. This aspect could entice a
person to disregard the law and engage in sham recycling and therefore,
this commenter believed it is important for the overseeing agency to be
aware of the recycling facilities in its state to protect against sham
recycling. This can be accomplished by having the generator provide the
name and address of his recycler. Another commenter believed that
additional notification elements are necessary in order to verify
compliance and to help identify potential liable persons who generate
and/or accept for recycling hazardous secondary materials and have
released these materials into the environment. One commenter believed
that additional information would also provide a cursory check on
whether the generator conducted the required due diligence audit of the
reclaimer, since the information should be readily available from that
audit. If the notification appears to have incomplete or suspect
information on the recycling process, EPA and the state would have an
early warning and could prioritize the generator for inspection.
Commenters also argued that additional information should be readily
available from routine business records, Material Safety Data Sheets
(MSDS) and provisions of the OSHA Hazard Communication Standard. [0043,
0065, 0067, 0068, 0069, 0076, 0092, 0095, 0098, 0104, 0110, 0119, 0140,
0148, 0153, 0165, 0177, 0178, 0182, 0185, 0207, 0217, 0219, 0231, 0457,
0460, 0462, 0470, 0475, 0482, 0489, 0495, 0507, 0516, 0527, 0530, 0531,
0538, 0543, 0544, 0548, 0558, 0559, 0563] 

ADDITIONAL DATA ELEMENTS: In addition to those data elements that EPA
proposed to be included in the notification, commenters supported adding
the following data elements to the notification:

Quantity/volume of each hazardous secondary material generated and
reclaimed [0067, 0095, 0110, 0119, 0153, 0185, 0231, 0482, 0489, 0527,
0530, 0543, 0558, 0559, 0563]

Industry that generated/reclaimed the material (applicable 4-digit
NAICS) [0065, 0067, 0068, 0069, 0092]

Destinations of shipments; name, address, and EPA ID number of all
reclamation facilities; commenters argued that EPA and the states must
be able to connect the generator's excluded materials with the
reclamation facility. [0065, 0067, 0068,  0069, 0092, 0095, 0098, 0104,
0119, 0140, 0182, 0185, 0217, 0219, 0231, 0458, 0462, 0470, 0472, 0475,
0482, 0486, 0489, 0495, 0516, 0530, 0543, 0558, 0559, 0563]

Description of reclamation processes and equipment used; some commenters
believed this was important to allow authorities to determine whether
the recycling activity is a sham. A basic description could include the
thermal, chemical and/or physical process steps and the type of
equipment used for processing. [0065, 0067, 0068, 0110, 0119, 0153,
0178, 0457, 0462, 0470, 0482, 0489, 0538, 0543, 0558, 0559] 

Intended use and products produced from the hazardous secondary material
[0065, 0095, 0119, 0470, 0475, 0482, 0530, 0558, 0563]

Nature of the hazardous constituents in the material [0119, 0475, 0527]

When the reclamation was completed [0119] 

Amount of residuals generated and how these were managed [0119, 0543]

Storage times, storage units and management of hazardous secondary
materials (e.g., container, tanks, land-based units); commenters
believed this would allow EPA and states to properly identify the
relevant storage units when overseeing compliance. [0231, 0462, 0470,
0482, 0489, 0507, 0558, 0559, 0563]

Description of hazardous secondary materials [0217, 0460, 0475, 0482,
0516, 0527, 0558] 

Process that generated hazardous secondary materials [0470, 0558] 

Detailed characterization of the material, waste codes that would be
apply in absence of the exclusion; one commenter argued this information
is needed to ensure proper disposal of any residuals generated in order
to comply with land disposal regulations. [0119, 0460, 0495, 0543, 0559,
0563]

Closure plan and cost estimates for closure (for reclaimers) [0470,
0543]

Financial assurance documentation (for reclaimers) [0462, 0470]

Test data/process knowledge/MSDS data [0043] 

Documentation of how the material qualifies for the exclusion [0076,
0119, 0482, 0495]

What exclusion the facility is claiming [0471.2]

Use of a broker/middleman [0104] 

Owner/operator [0110]

Detailed information/certification that hazardous secondary materials
meet legitimacy criteria; one commenter said this requirement should be
self-implementing whereby EPA would have a reasonable period of time to
review the notification documentation for sufficiency. Other commenters
said this would ensure the generator, regulators and the public can
review this critical condition of the exclusion and the analysis
performed. [0065, 0119, 0148, 0207, 0475, 0507, 0544]

Acknowledgement of consent from receiving party; one commenter argued
that this is necessary because the receiving party must bear some
responsibility to properly reuse or reclaim the waste. [0119]

Universal ID number used to uniquely identify corporate entities [0231]

Shipping information/DOT placards [0475, 0558]

Reasonable efforts questions [0531]

ADDITIONAL COMMENTS ON NOTIFICATION: Commenters submitted the following
additional comments regarding notification.

1.	Notification should not be submitted for each specific type of
material being recycled and a single notification would suffice. One
commenter said it is not clear whether a reclamation facility must make
(a) one notification for the facility; (b) notification for each
generator which sends material to the facility; or (c) notification for
each waste stream received from a generator. This commenter argued that
multiple notifications for each generator or waste stream would be
extremely onerous and inconsistent with the objective of streamlining
the regulatory process to encourage additional reclamation and thus
requested the rule expressly state that a reclamation facility must
submit one notification on behalf of the facility. Another commenter
argued that separate forms are necessary so that the primary
representations made about each party are the responsibility of each
party. Another commenter said one notification should be able to be
utilized for multiple generators. [0069, 0070, 0093, 0441, 0507] 

2.	Notification should be submitted to the administering agency of both
the generator's and the reclaimer's states. This would help inspectors
determine whether the excluded hazardous secondary materials were sent
off-site for legitimate recycling and would be valuable to generators
that want to confirm their own compliance with the exclusion. [0140,
0210, 0530]

3.	The reclamation facility should notify the regulatory agency when the
recycling ceases to allow the agency to inspect the facility in a timely
manner to ensure that all secondary materials have been either recycled
or removed from the location. This will allow the regulatory agency to
take advantage of any financial assurance mechanism that the facility
may have in place if any remediation is required. [0531, 0543]

4.	Require notification for reclaimers and generators. To monitor this
exclusion, the regulatory agency needs to be informed of the entire
recycling process, not just the generator's half. [0065, 0068, 0069,
0153, 0475, 0543]

5.	Require notification each time a new hazardous secondary material is
to be recycled. [0177]

6.	Require a time limit to submit notifications. [0470] 

7.	In the March 2007 supplemental proposal, 40 CFR 260.42 reads "…A
revised notice must be sent…or change in the type of material
generated…," one commenter believed "generated" should be replaced
with the term "recycled" to better reflect the intent of the proposal.
[0491]

8.	One commenter recommends deleting the language "that has previously
been subject to regulation as hazardous wastes" from the proposed 40 CFR
260.42, 40 CFR 261.4(a)(23)(iv) and (a)(24)(iii) because this commenter
expects that regulatory agencies would like to receive notification with
regard to wastes that may be generated in the future and that have never
been subject to regulation as hazardous wastes. [0491]

9.	One commenter requested clarification of the portion of the text
where EPA states that if the hazardous secondary materials "were not
managed pursuant to these restrictions, they would not be excluded [and
they would] be considered solid and hazardous wastes…from the time
they were generated." This commenter requested clarification whether
notification as a requirement was considered a "restriction" as used in
the sentence above. [0491] 

10.	One commenter further argued that the notification is extremely
general and broad in nature, requiring only a description of the "types"
of secondary materials that would be subject to the exclusion. The
notification is not specific to each hazardous waste stream and is not
required when a new hazardous waste is generated, therefore, the
generator can simply argue that the new hazardous waste conforms to the
same general "type" and therefore notice was not required. [0119] 

5.2.1 - Response

MAINTAIN/EXPAND NOTIFICATION REQUIREMENTS: In EPA's October 2003
proposal and March 2007 supplemental proposal, the notification
requirement contained basically the same data elements: name, address
and EPA ID number of the facility, name and number of a contact person,
type of hazardous secondary materials managed under the exclusion and
when the hazardous secondary material would begin to be managed (EPA
proposed including NAICS code in 2003). However, we recognize
commenter's concerns that these elements may be inadequate for
monitoring compliance with the exclusions. We also recognize that
regulatory authorities have limited resources to expend on compliance
monitoring and that the limited data elements in the proposed
notification would not allow EPA and states to determine inspection
priorities. Therefore, after carefully considering these comments, we
believe the notification requirement reflects the minimum amount of
information needed to identify which facilities will be managing
hazardous secondary materials under the final rule in order to enable
regulatory agencies to administer oversight to ensure that hazardous
secondary materials are reclaimed and not discarded. We also intend to
use this information to meet other objectives, such as assisting
generators with performing reasonable efforts, targeting state and
government programs to achieve further increases in safe hazardous waste
recycling, compiling credible information about hazardous waste
recycling, measuring impacts of the rulemaking, and identifying
necessary changes to the final regulations to improve effectiveness. We
consider the information we are requiring in the notification under the
final rule to reflect what responsible companies would routinely collect
as part of their normal business operations. For example, responsible
companies track quantities of valuable commodities that are managed
on-site or shipped off-site and, thus, we believe reporting quantities
of hazardous secondary materials managed in the notification will not
present an undue burden. We also note that under the final rule, we are
requiring facilities to use the Subtitle C Site Identification Form,
which is already familiar to the regulated community and will enable
electronic reporting and, thus, will keep additional burden to a
minimum.

ADDITIONAL DATA ELEMENTS: Several commenters supported requiring
additional data elements, the result of which is a long list of
suggested notification requirements, as documented above. In addition,
other commenters opposed including certain elements. After carefully
considering the comments, we believe the notification requirement
reflects the minimum amount of information needed to identify which
facilities will be managing hazardous secondary materials under the
final rule in order to enable regulatory agencies to administer
oversight to ensure that hazardous secondary materials are reclaimed and
not discarded. The table below includes what data elements we are
requiring in the notification and how each will be used:

EPA Rationale for Notification Requirements

We are requiring…	This will be used to…

Name, address or EPA ID number (if applicable)	Ensure that states know
which facilities are operating under the exclusion to enable compliance
monitoring, thereby addressing a major concern discussed in comments

Identify potential reclaimers (via RCRAInfo) for generators interested
in recycling

Name and telephone number of a contact person	Contact the facility, if
needed, in regards to the notification.

NAICS code 	NAICS code coupled with the type of HSM (reported as
hazardous waste code) allows EPA and states to identify and target waste
streams for compliance monitoring.

Enables EPA and states to target specific industries for future
programmatic efforts (e.g., compliance assistance, training, guidance).

Whether the HSM will be managed under the transfer-based or
generator-controlled exclusion	Alert EPA and the states to what
exclusion, and thus what conditions, a facility is complying with in
order to enable compliance monitoring.

Whether the reclaimer or intermediate facility has financial assurance
Support generators’ reasonable efforts inquiries (via RCRA Info) of
whether reclaimers have notified EPA of their excluded status and if
they have financial assurance

When the facility expects to begin managing HSM	Provide flexibility to
facilities submitting notification while allowing regulatory authorities
to determine, at any given time, which facilities are actually managing
HSM and therefore warrant compliance monitoring.

A list of hazardous secondary materials (HSM) that will be managed
according to the exclusion	Allow for prioritizing compliance monitoring
based on type and diversity of hazardous secondary material (e.g., a
facility managing 10 different HSM may warrant greater oversight than a
facility managing 1 type of HSM).

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Whether the HSM will be managed in a land-based unit	Allow for
prioritizing compliance monitoring based on use of land-based units
since they inherently pose more risk than non-land based units.

The quantity of HSM to be managed annually	Allow for prioritizing
compliance monitoring based on quantity of HSM managed (e.g., a facility
managing 10,000 tons of HSM may warrant greater oversight than a
facility managing 10 tons of HSM)

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Certification signed and dated by an authorized representative of the
facility	Ensure accountability for accuracy of notification data.

Provide adequate assurance for generators who must rely on notification
data to perform reasonable efforts



We did not include many of the additional data elements suggested by
commenters for the following reasons:

Some commenters' suggestions were inconsistent with the basic intent of
the notification to identify who is managing hazardous secondary
materials under the exclusion. Notification is not intended to allow
regulatory authorities to directly determine discard, but rather
identify facilities that require compliance monitoring to ensure
hazardous secondary materials are not discarded.  Furthermore, some data
elements are inconsistent with the principle of self-implementation of
the exclusions; for example, generators are not required to obtain
'approval' from the regulatory authority prior to operating under the
exclusion and thus submission of detailed paperwork, such as description
of reclamation process, legitimacy determinations or documentation of
reasonable efforts, is unwarranted.

Some suggestions related to conditions that were not necessary to define
discard of hazardous secondary materials. For example, we are not
requiring waste characterization or waste analysis plans under the final
rule. We agree that most responsible reclaimers likely test shipments of
hazardous secondary materials in order to maintain integrity of the
reclamation process; however, universally requiring all reclaimers to
systematically characterize hazardous secondary materials is not
necessary to defining discard under the final rule.

Some information we believe is more appropriately documented and
maintained at the facility. For example, some commenters suggested
adding a requirement that generators indicate the identity of the
reclaimer receiving their hazardous secondary materials for reclamation;
however, under the transfer-based exclusion, this information is already
documented as part of the requirement for hazardous secondary material
generators to keep records of all off-site shipments. Furthermore,
requiring facilities to identify their reclamation facility would
increase reporting burden as facilities would have to submit another
notification each time a new reclaimer is selected.

Some information could be considered sensitive or confidential business
information (such as description of reclamation process, products
produced or storage times) as this type of information would
unnecessarily complicate, and increase the burden for, the notification
requirement.

Some information could be leveraged from other elements in the
notification, for example, description of the hazardous secondary
material and nature of the constituents can be inferred from the type of
hazardous secondary material (reported as the hazardous waste codes that
would apply if the material was managed as hazardous waste) and the
industry that generated the material (reported as NAICS code).

Other information was considered too difficult to implement, such as
when the reclamation was completed. Since many reclaimers would process
hazardous secondary materials from multiple hazardous secondary material
generators, it would be unreasonable to request an exact date when a
certain material from a certain generator was reclaimed.

Some data elements would be captured under RCRA Subtitle C. For example,
if the residuals from reclamation were solid and hazardous wastes,
facilities would have to comply with applicable reporting and
recordkeeping requirements under the hazardous waste regulations.

ADDITIONAL COMMENTS ON NOTIFICATION:

1.	Generators, reclaimers and intermediate facilities are required to
notify on a per facility basis. In other words, facilities managing
hazardous secondary materials will need to submit a notification in
accordance with the exclusion. One notification cannot cover two or more
facilities. Furthermore, each facility need only use one notification to
list all of the hazardous secondary materials to be managed under the
exclusion (i.e., facilities need not file separate notifications for
each hazardous secondary material). Generators are not required to list
the receiving facility and reclaimers are not required to list the
generating facility, thus there is no need to file separate notification
for each facility which hazardous secondary material was either sent to
or received from.

2.	EPA is requiring notifications to be submitted using EPA Form
8700-12, which will enable all notification information to be stored in
EPA's RCRAInfo database and all state agencies to have access to
notifications from facilities across the country.

3.	We agree with commenters who believed the reclamation facility should
notify the regulatory agency when recycling ceases. We are therefore
requiring facilities that stop managing hazardous secondary materials in
accordance with the exclusion, to notify the Regional Administrator
using the same EPA Form 8700-12. Notification in this instance serves
two objectives: (1) it allows states to follow up with the facility to
verify that the hazardous secondary material has not been discarded; and
(2) it maintains the usability of the database to enable states to
monitor compliance and, for the transfer-based exclusion, to assist
generators with performing reasonable efforts on potential reclaimers.
We consider a facility to have ‘stopped’ managing hazardous
secondary materials when a facility no longer generates, manages and/or
reclaims hazardous secondary materials under the exclusion and does not
expect to manage any amount of hazardous secondary material under the
exclusion for at least one year. This includes if the facility chooses
to manage the hazardous secondary materials as hazardous waste or the
facility chooses to temporarily suspend management of hazardous
secondary materials and does not expect to manage any amount of
hazardous secondary materials for at least one year. For example, a
facility that has previously notified it is managing hazardous secondary
materials under the exclusion, but then subsequently chooses to stop
managing all hazardous secondary materials for a period of at least one
year, must notify the Regional Administrator. However, if this same
facility only stopped managing one type of hazardous secondary material
(but continued to manage another type of hazardous secondary material
under the exclusion) it would not need to notify, and could just update
its list of hazardous secondary materials during the next periodic
renotification submitted every two years. Additionally, if a reclaimer
or intermediate facility managing hazardous secondary materials under
the transfer-based exclusion requests release of financial assurance
under 40 CFR 261 Subpart H, it is clear the facility has ‘stopped’
managing hazardous secondary materials. The facility must, therefore,
notify the Regional Administrator (for additional clarification,
notification does not ‘trigger’ the process for releasing financial
assurance; instead, a facility wishing to be released from financial
assurance obligations must notify it has ‘stopped’ managing
hazardous secondary materials). Of course, a facility could certainly
choose to begin managing hazardous secondary materials again and would
simply have to submit a notification in compliance with 40 CFR 260.42.

4.	All facilities managing hazardous secondary materials under the final
rule, including generators and reclaimers, are required to submit a
notification pursuant to 40 CFR 260.42.

5.	We require facilities to re-notify every two years and thus, EPA and
the states will receive periodic updates on the types of hazardous
secondary material, including new types of material, to be managed under
the exclusions.

6.	We are requiring time limits for submitting notifications in order to
reduce regulatory uncertainty. A facility must: 1) submit an initial
notification prior to operating under the exclusion; 2) submit a
renotification by March 1 of each even numbered year; and 3) submit a
renotification within 30 days of ceasing management of hazardous
secondary materials.

7.	We have modified the language in 40 CFR 260.42 to require
notification for "hazardous secondary materials that will be managed
according to the exclusion." 

8.	We have deleted the language "that has previously been subject to
regulation as hazardous wastes" from the final rule in order to clarify
that all facilities managing excluded hazardous secondary material must
submit a notification.

9.	We clarify that facilities managing hazardous secondary materials
must submit a notification under the final rule. We note that the
requirement to provide this notification is not a condition of the
exclusion. Thus, failure to comply with the requirement constitutes a
violation of RCRA, but does not affect the excluded status of the
hazardous secondary materials. 

10.	We have further defined "type" of hazardous secondary material in
the final rule to mean the hazardous waste code that would apply if the
materials were managed as hazardous wastes. We believe this
clarification will reduce regulatory uncertainty, ensure consistent and
standardized reporting, and reduce overall burden on facilities, since
this better aligns with how hazardous wastes are currently reported.

5.2.2 - Format of notification and use of Subtitle C Site Identification
form

5.2.2 - Summary

GENERAL SUPPORT FOR USING SITE ID FORM: Several commenters supported
using the Subtitle C Site Identification Form for the notification
requirement. Additionally, one commenter said all of the states
responding to their survey responded positively to using the Site ID
form for the notification. [0447, 0457, 0460, 0461, 0463, 0470, 0471.2,
0472, 0476, 0486, 0489, 0491, 0507, 0509, 0515, 0521, 0527, 0529, 0530,
0538, 0539, 0543, 0549, 0558, 0559, 0563]

USING SITE ID FORM REDUCES BURDEN: A few commenters supported using the
existing Site ID Form because it is already very familiar to the
regulated community. Some of the notification elements (e.g., name,
address, and certification) already exist on the form and thus will
reduce the incremental recordkeeping burden associated with this
requirement. Furthermore, this form is available on-line and can be
filled out on-line as well. One commenter noted that in addition to
already containing much of the information requested as part of the
proposed one-time notification, mechanisms for addressing any potential
claims of confidentiality (CBI), the need for any subsequent
renotification, and signatory requirements are already addressed in the
form and its instructions. One commenter noted that developing a new
form would require taxpayer dollars for a form that captures the same
information as the existing Site ID form. One commenter said EPA should
add the notification requirements to existing recordkeeping mandates
such as the Site ID form, or as a supplement to Biennial/Annual
Hazardous Waste reporting requirements that apply to large quantity
generators. [0447, 0467, 0471.2, 0476, 0479, 0491, 0515, 0539, 0543] 

SITE ID FORM PROVIDES CONSISTENT DATA: Some commenters believed the use
of the Site ID form will also allow EPA to more easily retrieve the
information, since it will reside in a data management system and is
available to all of the states and EPA. One commenter strongly supported
using the Site ID form because it would establish a uniform basis for
collection of this information and would also enable EPA and the states
to enter this information into the RCRAInfo data management system, so
that it would be readily available and would not be submitted on a form
that would end up collecting dust in file cabinet. Moreover, one
commenter said that standardized forms need to be adopted rather than
allow submission of a letter in order to assure that all required
information is provided in a format that provides national consistency
and lends itself to analysis. Another commenter said use of data
management systems is absolutely necessary for EPA and state regulatory
agencies to adequately monitor the recycling efforts and results (or
lack thereof) at commercial recycling facilities. One commenter said it
was critical that data be easily accessible to the public and that use
of electronic reporting and standardized forms must be mandated to
permit the data to be made available to the public via the internet.
Other commenters stated that interstate transfers of potential hazardous
secondary materials are very common and that standardized notification
information would facilitate data management and make the data easier to
share between states for compliance evaluation. Some commenters believed
the form would be an appropriate document for notifying the Agency since
it is already used for various other excluded materials such as used oil
and universal waste. Another commenter believed the Site ID form is
appropriate, especially in anticipation of the change in generator
status that may result from the use of the exclusions. [0457, 0460,
0471.2, 0515, 0521, 0527, 0559]

SITE ID FORM MUST BE REVISED: Some commenters supported revising and
reissuing the Site ID form. One commenter recommended EPA revise the
form by adding a box to be checked by the facility that would indicate
that the facility is relying on one of the "under the control of the
generator" exemptions for generation and management of excluded
secondary materials. Other commenters stated the form should be modified
to make clear that the material is a "hazardous secondary material,"
rather than a solid or hazardous waste. This section could be added to
expand the Waste Activity portion of the form, which beings on the
second page. One commenter said the Site ID form would capture the name,
address, and EPA ID number of the generator or reclaimer and the name
and phone number of a contact person on the first page of the form. The
last page of the form currently includes a certification statement and
signatory opportunity that encompasses all of the information provided
within the form and thus, this commenter did not recommend any
additional special requirement regarding authorized representative
signature. One commenter urged EPA to work with state agencies to
develop a standard revision that will be used by all regulatory
authorities, thus significantly reducing the burdens on generators with
facilities in multiple states. Another commenter cautioned EPA that
there is a clear delineation between what is appropriate to be collected
on the Site ID form versus what is collected on a report. The Site ID
form is a mechanism for facilities to indicate what activities they
conduct and what materials they are managing, not a narrative of
management practices or collection of numeric data. Some commenters also
noted that EPA would have to revise the RCRAInfo system to collect the
notification data. One commenter requested EPA include "HSM
Recycler/Reclaimer" as a universe-type in the database so that once
notification is made, there is record of these facilities. One commenter
also proposed that the hazardous secondary material activity section
include the following fields:

-	Use the same check box format used in the other sections to capture
hazardous secondary material activity (e.g., generator, recycler);

-	Start and end dates of the hazardous secondary material management.
End date would be supplied in subsequent notifications when the facility
notifies they have changed the type of hazardous secondary material that
is managed or when they cease to manage hazardous secondary material;

-	A field or fields to identify the types of hazardous secondary
materials being managed, which this commenter suggested to categorize in
a manner similar to how hazardous wastes are categorized by form codes
and coded in the RCRA Biennial Report. This could be reported using
check boxes or having the facility fill in the appropriate code.

Furthermore, if a facility does not have an EPA ID number, completing
and submitting the Site ID form would accomplish this task. The EPA ID
number is the key field in RCRAInfo that links all data and assignment
is required before any information about a facility can be entered. 

[0463, 0471.2, 0472, 0476, 0486, 0489, 0515, 0559]

SUPPORT ELECTRONIC SUBMISSION: Commenters believed that electronic
submission should be allowed if EPA/state is equipped and some
commenters suggested filing electronically through the Central Data
Exchange (CDX) that EPA has already established for such environmental
reports. States could then pull the information from the CDX for their
data management systems. Another commenter supported the option of
electronic notification which is more efficient and cost effective for
both the facilities and the receiving agency; however, this commenter
reminded EPA that many small facilities lack sophisticated electronic
communication systems and thus EPA should retain the option to provide
paper notifications. Still another commenter stated that the
notification should be incorporated into both EPA's ECHO reporting
system for each and every generator, otherwise notification to the
public will be useless. [0068, 0098, 0153, 0185, 0458, 0470, 0471.2,
0512, 0515, 0558, 0564]

2003 COMMENTS: To reduce burden of the notification, some commenters
recommended that EPA develop a standardized, on-line form to ensure
uniform receipt of information by the states. Upon completion, the form
would be printed out, signed and mailed, or EPA could institute an
electronic signature protocol, allowing submission online. EPA should
also establish an electronic national database of hazardous secondary
material reclaimers pursuant to the exclusion. One commenter noted that
if EPA were to implement a simple form, the paperwork burden could be
kept to a minimum; this commenter presently requires a one-page
notification for generators that treat their own waste on-site and has
received very little negative feedback on this issue. Another commenter
said that separate forms are necessary so that the primary
representations made about each party are the responsibility of each
party. In order to document that this requirement is fulfilled, one
commenter said it would be appropriate to require that such
notifications be sent by certified mail or some other mode of delivery
that provides return documentation of receipt. [0068, 0069, 0077, 0098,
0131, 0153, 0177, 0185, 0222]

OPPOSE USING SITE ID FORM: A few commenters opposed using the Site ID
form for the notification. One commenter did not believe the Site ID
form should be used for the one-time notification because the form was
specifically designed for hazardous wastes and therefore is not
appropriate for hazardous secondary materials. This commenter wanted to
emphasize the importance of establishing clear separation between the
hazardous waste regulatory program and excluded secondary materials. One
commenter believed EPA would have to revise the form and therefore use
of the form should not be required. This commenter argued that the more
prescriptive the requirement, the farther the rule would move away from
serving to define discard (or its absence) and the closer it would move
toward becoming modified RCRA regulatory standards. One commenter
supported the idea of a new and distinct form developed specifically for
recycling notification requirements because this would allow all
generator and recycler information to be on one form and in one
location. This commenter noted that the Site ID form is used in many
situations involving minor changes to facility information and that the
number of routinely submitted Site ID forms is somewhat overwhelming;
recycling notifications could be easily missed by the Agency.
Additionally, the existing form does not provide for information from
two different facilities, in this case, the generator and the reclaimer,
on the same form. [0458, 0473, 0492, 0531]

5.2.2 - Response

In our October 2003 proposal, EPA included in the docket a simple
example form that could be used for collecting notification data. Based
on comments received on the 2003 proposal, EPA, in its March 2007
supplemental proposal, asked for comment on potentially using the
Subtitle C Site Identification Form for the notification.

EPA agrees with the vast majority of commenters who support use of the
Site ID form and is, therefore, requiring hazardous secondary material
generators, tolling contractors, toll manufacturers, reclaimers and
intermediate facilities managing hazardous secondary materials to use
the Site ID form (EPA Form 8700-12) when notifying in accordance with
the final rule. We believe that the Site ID form will provide
standardized, electronically-accessible data, while minimizing the
collection burden because many facilities notifying under the final rule
are already familiar with the form and will not need to invest resources
in learning a new form and process. EPA also agrees with commenters who
stated that the form is appropriate for the final rule, since it already
collects information on other types of exempt recycling activities. 

We plan to work with states to modify the current Site ID form in order
to accommodate the notification requirement for the final rule. The
specific changes will be vetted and reviewed through the Information
Collection Request (ICR) process for revising the form. 

EPA encourages electronic submission of the form if the facility and
state can support the ability to do so. We also note that EPA's ECHO
reporting system uses data from EPA's RCRAInfo system, which will be the
national repository for the notification data.

Commenters who opposed use of the Site ID form argued two main points:
1) that the form traditionally captures hazardous waste activities and
thus was not appropriate for hazardous secondary materials; 2) revisions
to the form would be necessary and thus would impact the current Site ID
form and process. For the first argument, EPA will consider how to
clearly label and separate hazardous secondary material activity on the
Site ID form so as not to be confused with hazardous waste activity. For
the second argument, we believe the costs of revising the existing Site
ID form and process to incorporate the notification for hazardous
secondary materials are far less than the costs of creating a new form
and process that the regulated community and states would need to adopt.
We also believe it will be less burdensome for states to process one
type of form (the Site ID form) than to have to process two different
forms. 

5.2.3 - Requirement that the notification be signed by an authorized
representative

5.2.3 - Summary

SUPPORT SIGNATURE REQUIREMENT FOR NOTIFICATION: Several commenters
supported a requirement for the notification to be signed and certified
by an authorized official. Some commenters said this would serve to
ensure accuracy and accountability of the notification. Commenters also
argued that signature by a responsible corporate official at both the
generating and receiving facilities would provide documentation that
both parties accept and understand their responsibility under penalty of
law. One commenter said the notifications should be signed by a company
officer who has been authorized by the company to sign such documents
and under a statement that references penalties for making false
statements. This commenter also argued the notification must be
resubmitted upon any change in ownership to ensure that, if enforcement
is necessary, the responsible party cannot claim it was unaware of the
hazardous waste status of the original generated material, or the
conditions under which the exclusion applies. Some commenters did not
object to having an authorized representative sign the notification, as
long as EPA is clear that the identity of the appropriate representative
should be decided by the generator, and should generally be the person
at the facility that is most familiar with the material being
transferred. One commenter argued that EPA should require that the
notification be signed by an official company representative stating
that they have audited the reclamation facility and made reasonable
efforts to ensure the reclaimer is handling the material in a manner
that is protective of human health and the environment and meets the
legitimacy requirements. Still another commenter argued that reclaimers
need to sign and certify that the hazardous secondary material, once
reclaimed, will meet the legitimacy criteria, be stored in a sound
manner and will not be speculatively accumulated. This commenter also
supported incorporating the certification into EPA Form 8700-12. [0061,
0068, 0092, 0098, 0119, 0148, 0153, 0182, 0185, 0210, 0231, 0460, 0462,
0470, 0472, 0475, 0485, 0486, 0495, 0507, 0527, 0538, 0543, 0549, 0559]

OPPOSE SIGNATURE REQUIREMENT FOR NOTIFICATION: Some commenters did not
support requiring a responsible official to sign the notification. A few
commenters argued that this requirement is unnecessary, burdensome and
would be administrative overkill. Another commenter saw no reason to go
beyond the facility staff level to an upper management person and that
this was yet another example of how there is never enough assurance.
Some commenters noted that this is not required for other conditional
exclusions. One commenter noted that this is not required if other
conditional exclusion unnecessarily involve corporate resources in
routine operations. [0070, 0093, 0102, 0138, 0506]

5.2.3 - Response

EPA agrees with the majority of commenters and, in the final rule, is
requiring the certification in the notification to be signed and dated
by an authorized representative of the facility. Since we are also
requiring use of the RCRA Subtitle C Site Identification Form for the
notification, we have chosen to require the certification already
contained in this form. 

We believe it is important that an authorized representative certify to
the notification's accuracy because the data contained in the
notification will be used for a variety of uses, such as to prioritize
compliance monitoring, to assist generators with performing reasonable
efforts, and to compile information on hazardous secondary materials
recycled under the rule. Since this information will be
electronically-accessed and used by EPA, states, the regulated
community, and the public, we believe requiring an authorized
representative to sign the notification will provide adequate assurance
of the validity of the data. We note that EPA has traditionally required
certifications for reports submitted to regulatory authorities, such as
is currently required for biennial reporting and annual reports for
exporters.

We are not requiring notifications to be submitted in the event of a
change in ownership because we do not require facilities to identify
ownership under the notification requirement. We also note that under
the final rule, notifications must be submitted every two years and,
thus, certifications will be renewed every two years as well. 

We are also not further defining "authorized representative" so as to
allow facilities the flexibility to determine the appropriate staff
level for signing and certifying the notification form.

Some commenters suggested we require generators and reclaimers to
certify they have met certain conditions, such as reasonable efforts;
however, we believe this would be unnecessary, since any facility that
notifies it is managing hazardous secondary materials is in fact
notifying it is complying, or will comply, with the conditions of the
exclusions. Additionally, we decided not to combine the reasonable
efforts certification requirement with the notification certification
because the consequences for failing to certify reasonable efforts (as a
condition of the exclusion) and failing to submit notification (as a
requirement of the exclusion) are not the same. If a facility fails to
certify reasonable efforts, the excluded status of its materials may
potentially be lost; however, if a facility fails to submit a
notification, although in violation of the notification requirement, the
excluded status of its materials would not be lost provided it is
complying with the conditions of the exclusion. Therefore, to avoid
potential ambiguities with enforcement when a facility fails to notify,
we determined it was best not to include the reasonable efforts
certification as part of the notification. Furthermore, since we are
requiring use of the existing Site ID form and the form's existing
certification language, we believed it would be easier to adopt the
certification as is, without modifications, in order to reduce confusion
for the regulated community already familiar with the certification
language.

5.2.4 - Maintain notification at facility rather than submitting to
regulatory authority

5.2.4 - Summary

Summary of comments that supported maintaining notification at facility
rather than submitting to the implementing agency:

Only a few commenters specifically commented on this issue, with some in
favor of requiring facilities to maintain the notification on-site in
order to reduce paperwork burden, particularly for generators with small
volume streams, and to remain consistent with the Paperwork Reduction
Act. One commenter noted that maintaining notification at the facility
would eliminate the need for the overseeing agency to establish special
controls regarding the submission, maintenance and public distribution
of such information, particularly that which is confidential. These
commenters argued that the notification could be available for
inspection or review upon request by the implementing authority. [0061,
0062, 0442, 0492, 0523]

Some commenters further argued that under the current RCRA regulations,
no overseeing agency notification, review or approval is required in
order to claim a self-implementing exclusion. Furthermore, one commenter
noted that one-time land disposal restriction notices under 40 CFR
268.7(a)(7) are kept on file by the generator and not submitted to the
regulatory authority and another commenter believed that this
268.7(a)(7) requirement would already apply to facilities claiming the
proposed exclusions. Some commenters argued that, pursuant to 40 CFR
261.2(f), the burden of proof has always been on the facility to
demonstrate that a material is excluded (e.g., facilities claiming the
closed loop exclusion must maintain documentation showing that only tank
storage was involved and the entire process was closed). Therefore,
these commenters believed there is already sufficient incentive to
document the exclusion under the current regulatory structure. [0199,
0439, 0442, 0471.2, 0523]

Summary of comments that opposed maintaining notification at facility
rather than submitting to the implementing agency:

Many commenters supported a requirement that facilities submit a
notification to the regulatory authorities rather than maintaining the
notification at the facility. These commenters argued that submitting
the notification would enable EPA and state officials to monitor
compliance with the exclusions and to make publicly available
information about the materials and quantity of materials being managed.
A few commenters believed that public disclosure is an important part of
ensuring that generators and reclaimers are meeting the requirements of
the exclusions and to ensure a mechanism for the regulatory agencies and
the public to review activities on a regular basis. One state commenter
argued the importance of submitting a notification so that agencies have
access to information provided by out-of-state generators or reclaimers
that are sending to or receiving hazardous secondary material from
facilities in their own state. [0231, 0470, 0475, see also commenters
who supported notification in section 5.2].

In addition to submitting a notification to the implementing agency, a
couple of commenters supported an additional requirement to retain a
copy of the notification at the facility site in order to assist RCRA
inspectors in verifying that the materials are excluded. [0182, 0231]

5.2.4 - Response

We agree with commenters who support notification in order to provide
basic information to regulators about who will be managing hazardous
secondary materials under the exclusion. We believe notification is
necessary to enable regulatory authorities to monitor compliance with
the conditions of the exclusion and thus reduce risk of environmental
damage resulting from abuse of the final rule. Conversely, a requirement
to maintain notification at the facility would preclude regulatory
authorities from easily identifying which facilities are operating under
the exclusion. Without this information, regulatory authorities would be
severely limited in their ability to oversee and monitor compliance with
the exclusions, which could result in adverse impacts to human health
and the environment from mismanagement of hazardous secondary materials.
Therefore, we are retaining the requirement that the notification be
submitted to the regulatory authority.

However, we are not adding a requirement for the notification to be
maintained at the generating facility. Although many facilities may
choose to maintain copies of their notification, such as in support of
40 CFR 261.2(f), we feel a regulatory requirement is unnecessary since
the facility is already required to submit the information to the
regulatory authority.

We are also not convinced by arguments that maintaining notification at
the facility will reduce burden for facilities because, whether the
notice is kept in the facility's files or submitted to the regulatory
authority, the facility would still need to document the information
required in the notification. Furthermore, we believe that by leveraging
the existing RCRA Subtitle C Site Identification Form and process for
the notification we have kept additional burden to a minimum.

Additionally, we note that EPA currently requires notification under
some 261.4 exclusions, such as for spent materials generated and
recovered within the primary mineral processing industry (261.4(a)(17))
and for hazardous secondary materials used to make zinc micronutrient
fertilizers (261.4(a)(20)) and thus we do not agree with commenters who
feel the notification requirement is inconsistent with existing solid
waste exclusion requirements.

5.2.5 - Require renotification if any of the information in the original
notice changes

5.2.5 - Summary

Summary of comments that supported requiring renotification in the event
of a change:

GENERAL SUPPORT: Of those who commented on this issue, a large majority
of commenters (including over 13 states) supported requiring
renotification in the event of a change to the information included in
the original notice. A couple of commenters further argued for
renotification whenever a change occurs to the recycling process or to
the hazardous secondary materials being recycled. Moreover, a few
commenters supported renotification in the event of changes to the
facility name, address or ownership, each time a new hazardous secondary
material is reclaimed under the exclusion, when such a material is no
longer recycled, or changes in recycler. Additionally, one commenter
believed that generators claiming the exclusion should be required to
notify implementer agencies of their change in generator status as a
result of the exclusion. One commenter also supported requiring revised
notification for changes in generator ownership or description of
excluded material being reclaimed. [0068, 0069, 0092, 0095, 0098, 0104,
0110, 0119, 0140, 0153, 0161, 0177, 0182, 0185, 0217, 0219, 0231, 0470,
0495, 0515, 0530, 0538, 0543, 0559]

ENSURES INFORMATION REMAINS MEANINGFUL: Some commenters argued that
renotification is important because it ensures that the information the
overseeing agency maintains, compiles, and utilizes remains meaningful,
therefore allowing state agencies to better monitor excluded activities
and verify compliance of those who generate and/or accept excluded
hazardous secondary materials within the terms of the exclusion.
Furthermore, one commenter believed that in most cases the generators
would normally keep this type of information as part of its operation
and, therefore, does not believe additional notification requirements,
such as revised notices in the event of a change, would create an
unreasonable burden. [0104, 0140, 0185, 0219]

NEED PERIODIC RENOTIFICATION: Furthermore, one commenter argued that
despite (other existing regulatory) requirements to re-notify upon
process changes, many generators fail to re-notify and that this would
be remedied by requiring annual notification. Related to this point, one
commenter felt the requirement to update notifications in the event of a
change actually creates some uncertainty when generators have to
determine, for example, whether their hazardous secondary material has
changed enough to warrant a revised notice, as well as problems with
missed filings and outdated information. Instead, this commenter
believed that generators would benefit from a clear requirement to file
an annual report. [0521, 0558, see also commenters who supported
periodic reports in section 7.6.3]

TIMEFRAME FOR RENOTIFICATION: One commenter said that the generator
needs to submit the renotification to the overseeing agency within
thirty days of changing certain information. [0104]

Summary of comments that opposed requiring renotification in the event
of a change:

GENERAL OPPOSITION: A few commenters opposed requiring renotification in
the event of a change to the information included in the original
notice. [0061, 0199, 0222, 0471.2]

EPA LACKS AUTHORITY: Some commenters believed that EPA lacked authority
under RCRA to require this level of reporting for hazardous secondary
materials because they are not solid wastes, and are thus exempted from
regulation. One commenter noted that EPA has repeatedly confirmed that
it does not have jurisdiction over recycling activities and that, in the
proposal, does not offer rationale for changing that position. Some
commenters further argued that renotification seemed inconsistent with
the existing self-implementing exclusions under 40 CFR 261.4 (which
these commenters noted do not require notification) and with the
comparable fuels exemption (which requires one-time notification only).
[0070, 0102, 0222, 0471.2, see also commenters who opposed notification
in section 5.2]

INCREASES BURDEN: Commenters also argued that requiring renotification
ran contrary to the RCRA burden reduction rulemaking (which eliminates
several existing RCRA reporting and recordkeeping requirements that were
deemed unnecessary, burdensome and duplicative). Some of these
commenters argued that renotification would increase burden over the
one-time notification and may "[trigger] a level of paperwork
requirements that actually exceeded those presently required for
off-site hazardous waste shipments," and would, therefore, act as a
disincentive for facilities to utilize the exclusion. A few commenters
believed there was no value in requiring renotification and that EPA did
not provide any specific rationale for how this information is necessary
and appropriate from an administrative perspective. [0061, 0199, 0222,
0471.2]

DIFFICULTY WITH SPECIFIC DATA ELEMENTS: Additionally, one commenter
argued that, since the notifications will be facility-specific and
site-specific, it is hard to understand how a revised notice would be
appropriate if the "location" of the generating facility changed. If an
exemption is to be claimed for the first time at a new location, then
that submission is an original notification. This commenter also argued
that submission of information on a change in ownership of the facility
for this particular purpose is not relevant to the terms for claiming
the exemption and would be redundant with the submission of that
information on multiple other forms that these facilities ordinarily
file with EPA and authorized states. [0222]

One commenter argued that requiring renotification "if the type of
excluded material were to change" would place an unjustified and
disproportionate burden on specialty batch chemical manufacturers since
these manufacturers routinely make multiple products at a time in small
batches which change frequently in response to customer demands. In many
instances, these same manufacturers would also be precluded from
providing the level of detail discussed in the proposal due to
confidentiality agreements with their customers and, even in instances
where they are not affirmatively bound by a confidentiality agreement,
the highly competitive nature of the specialty batch chemical
manufacturing industry is likely to cause companies to conclude that it
is preferable to forgo the recycling opportunity than to publicly make
available to their competitors highly sensitive information that
effectively identifies their routine products, frequency and level of
production, customer relationships, as well as new product lines.
Another commenter requested that EPA not require updates any time a new
secondary material or waste stream is generated or recycled at the same
facility. [0222, 0447, 0471.2]

MAINTAIN DOCUMENTATION ON-SITE: One commenter believed that a facility
would maintain this documentation on-site as standard practice and
therefore could provide the information upon request without incurring
additional reporting burden [0061]

5.2.5 - Response

SUPPORT RENOTIFICATION: We agree with the majority of commenters who
supported renotification in order to provide regulatory authorities with
meaningful information that is critical to adequately monitor compliance
with the exclusions. We have therefore finalized a requirement under 40
CFR 260.42 that requires hazardous secondary material generators,
reclaimers and intermediate facilities to re-notify by March 1st of each
even numbered year (see section 7.6.3 for more information). 

As summarized above, some commenters argued that facilities should
re-notify whenever a change occurs to the recycling process, identity of
reclaimer, or ownership; each time a new hazardous secondary material is
reclaimed under the exclusion; when such a material is no longer
recycled; and, for changes in generator status as a result of our
exclusion. Since we are not requiring detailed process information,
identity of reclaimer and ownership information in our notification (see
section 5.2.1 for more information), we are therefore not requiring this
information to be updated. We agree with commenters who believe that
facilities should re-notify when they are no longer reclaiming any
amount of hazardous secondary material because this will enable
regulatory authorities to follow-up and ensure that hazardous secondary
materials were not discarded. We are not, however, requiring facilities
to re-notify if their generator status changes as a result of our
exclusion because we believe this requirement to be specific to
hazardous waste generation and thus outside the scope of our rulemaking.

We understand commenters who argued that often times facilities fail to
re-notify in the event of a change (even when required to do so) and
that this may be a result of uncertainty of 'how much of a change'
requires renotification. We believe we have resolved this issue with the
requirement to re-notify every two years. We believe this approach will
ensure the information provided to and used by regulatory authorities
remains meaningful and enables them to adequately monitor compliance of
the facilities with the exclusion. For example, a regulatory authority
will be alerted to potential 'outdated' information by simply noting if
the facility submitted a notification on-time or not.

TIMEFRAME FOR RENOTIFICATION: We are requiring time limits for
submitting notifications in order to reduce regulatory uncertainty. A
facility must: 1) submit an initial notification prior to operating
under the exclusion; 2) submit a renotification by March 1 of each even
numbered year; and 3) submit a renotification within 30 days of ceasing
management of hazardous secondary materials.

 

EPA'S AUTHORITY: We disagree with commenters who argue that EPA lacks
authority to require "this level of reporting for hazardous secondary
materials." We believe our authority to request such information is
inherent in our authority to determine whether a material is discarded.
We consider the notification to contain the minimum information needed
to enable credible evaluation of the status of hazardous secondary
materials under section 3007 of RCRA and to ensure the terms of the
exclusions are being met by generators and reclaimers. Furthermore, we
believe it is appropriate to place the responsibility for submitting and
maintaining updated information with the hazardous secondary material
generators, reclaimers, and intermediate facilities that use the
exclusions.

We also strongly disagree with the commenter who notes that EPA has
"repeatedly confirmed that it does not have jurisdiction over recycling
activities." EPA not only maintains authority over, but currently
regulates as solid and hazardous waste, certain types of recycling
involving reclamation, use constituting disposal, burning for energy
recovery and recycling of inherently-waste like materials. Furthermore,
our rulemaking defines discard in terms of certain restrictions and
conditions that a facility chooses to meet; in no way does this
rulemaking automatically exclude all reclamation activities. We have
been clear that we consider reclaimed hazardous secondary materials that
do not meet the terms of the exclusions to be solid and hazardous waste
and therefore subject to hazardous waste regulation.

We also disagree with commenters who argue that notification is
inconsistent with the existing exclusions of 261.4. Currently, we
require persons to submit notice when claiming the exclusion for spent
materials generated and recovered within the primary mineral processing
industry (261.4(a)(17)) and for hazardous secondary materials used to
make zinc micronutrient fertilizers (261.4(a)(20)). Furthermore, we
disagree with commenters who feel we should maintain consistency with
past rulemakings despite awareness of more effective courses of action.

ADDITIONAL BURDEN: We do not believe the validity of arguments that
renotification would increase burden to the point of discouraging
facilities from using the exclusions. EPA has chosen to use the Site ID
form for the notification because it is standardized,
electronically-accessible, and familiar to the regulated community and,
therefore, will assist facilities by reducing the overall time and
effort required to report the information. Currently, large quantity
generators on average spend $485 a year on biennial reporting under full
Subtitle C regulation, whereas under the final rule, an initial
notification is estimated to be less than a third of that cost, with
subsequent notifications costing even less. 

DIFFICULTY WITH SPECIFIC DATA ELEMENTS: We agree with the commenter who
noted that if the "location" of the generating facility changed, it
would require a separate notification specific to the new site. We are,
therefore, requiring a facility's "address" (which could change in terms
of street name, but not necessarily 'location'). We are also not
requiring ownership information to be provided in the notification and,
thus, are not requiring renotification of this information. 

Regarding comments specific to batch chemical manufacturers, we have
further clarified in our rulemaking that "type of excluded material" is
reported as the EPA hazardous waste code that would apply if the
hazardous secondary materials were managed as hazardous waste. We
believe this approach will succeed in capturing a reasonable amount of
detail on the hazardous secondary materials that we wouldn't necessarily
expect to change month-to-month (e.g., we believe that hazardous
secondary materials reported as hazardous waste codes are likely to
change less frequently than if we required facilities to report a
narrative description or a list of concentrations of hazardous
constituents). We also believe the information we are requiring in the
notification would not, on the whole, be considered confidential
business information, or at least would not cause any facility,
including batch chemical manufacturers, more difficulty than they
already face when providing similar biennial report information under
the current hazardous waste regulations.

MAINTAIN DOCUMENTATION ON-SITE: We do agree with the commenter who
believed that facilities would maintain this documentation on-site as
standard practice, but we do not agree that simply providing the
information upon request is sufficient. The information in the
notification is critical for regulatory authorities to monitor
compliance to ensure hazardous secondary materials are not discarded and
renotification is the only way to maintain the credibility of that
information so it can serve its purpose. 

5.3 - Definitions of terms

5.3 - Summary

Some commenters asked that EPA provide a definition of "hazardous
secondary materials" or "secondary materials" to clarify which materials
are eligible for the exclusions in this rule (0083-12, 0083-24, 0083-25,
0442-2, 0488-9, 0492-16, 0500-3, 0506-6, 0506-19, 0557-2, 0557-3 ). Some
commenters expressed concern that characteristic sludges and by-products
or Bevill-exempt wastes might be considered hazardous secondary
materials (0442-2, 0506-19, 0557-3). One commenter preferred the term
"material" (0492-16).  Another commenter suggested a definition that
read "materials that are managed in a protective manner and that are
legitimately reclaimed, including spent solvents” (0550-3). 

Some commenters objected to the Agency's use of the phrase "hazardous"
to describe the materials excluded in this rule (0481-55, 0492-16). One
commenter said that only listed or characteristic wastes can be
"hazardous" under RCRA, so EPA's terminology is confusing (0492-16).
Another commenter suggested deleting this phrase from the entire
preamble and rule, because these materials are not wastes, hence they
cannot be "hazardous" (0481-55).

Some commenters also asked that we provide a definition of "recycled"
and "reclaimed" (0488-11, 0500-3).   

One commenter said that EPA should better define the phrase "under the
control of the generator". This phrase parallels one in the definition
of satellite accumulation units at 40 CFR 262.34(c), where such units
are defined to be "under the control of the operator of the process
generating the waste.”  This definition, according to the commenter,
has led to varying state interpretations (0525-2).  

Another commenter said that our definition of "generator" was too broad
because it could include "co-generators" (0543-63).  

5.3 - Response

EPA agrees that its terminology in the proposed preamble and rule may
have been somewhat confusing, and that a definition of "hazardous
secondary material" would add clarity.  For this reason, we have added
such a definition to 40 CFR 260.10 in this final rule.  Pursuant to this
definition, "hazardous secondary material means a secondary material
(e.g., spent material, by-product, or sludge) that, when discarded,
would be identified as hazardous waste under 40 CFR Part 261.” We
believe that this definition will best avoid confusion about possible
alternative meanings of "hazardous".  We note that our definition is
intentionally broad to capture the appropriate universe of materials. 
However, the term is only used in the RCRA regulations in today’s
exclusions, together with other defining terms and provisions that
identify what materials are covered by the exclusions. Other provisions
that do not use the term are not affected. The regulatory status of
these materials is clearly explained in Section XI of the preamble to
this final rule. We also are not adopting the suggestion that the phrase
"hazardous secondary materials" should include any materials that are
protectively managed and legitimately reclaimed. This definition would
broaden the scope of the exclusions beyond what we proposed, for
example, to include burning for energy recovery and use constituting
disposal. Also the terms of the exclusions include these concepts but
define them more explicitly so that they are usable and implementable.  


In response to those commenters who suggested adding definitions of
"recycled" and "reclaimed,” we note that "reclamation" (a subset of
"recycling") is already defined at 40 CFR 261.1(c)(4), and further
discussed in the preamble to the March 26, 2007 supplemental proposal
(see 57 FR  14173).  We believe that these terms are sufficiently
defined here, and that regulatory authorities and the regulated
community are sufficiently familiar with these concepts. Therefore, we
are not adding additional definitions. 

In response to the commenter who compared our definition of "under the
control of the generator" with that used in the definition of satellite
accumulation units, EPA does not see these two definitions as analogous.
 The phrase "under the control of the generator" is defined in a highly
specific manner in 40 CFR 260.10, with descriptions of the three
subcategories of the exclusion. We believe that this definition is
sufficiently specific and clear so as not to result in the kind of
variable interpretations the commenter fears. However, we also note that
some authorized states have RCRA requirements that are more stringent
than the corresponding federal requirements. Therefore, the possibility
of varying state requirements cannot be entirely avoided. 

In response to the commenter who expressed concern about co-generators,
we note that this final rule contains a definition of "hazardous
secondary material generator" in §260.10. "Hazardous secondary material
generator means any person whose act or process produces hazardous
secondary material at the generating facility. A facility that collects
hazardous secondary materials that has been discarded by other persons
is not the hazardous secondary material generator."  These definitions
apply to all of the exclusions promulgated today. We note that in the
typical "co-generator" situation, generators may contract with a second
company to collect hazardous secondary materials at the generating
facility, after which the hazardous secondary materials are subsequently
reclaimed at the facility of the second company. In that situation, the
hazardous secondary materials would no longer be considered "under the
control of the generator" because the materials are not reclaimed at the
generating facility, by the generating company, or under a tolling
contract. The materials should instead be managed under the exclusion
for materials transferred for reclamation. 

We have also amended the existing definition of "facility" in §260.10
to include a reference to management of hazardous secondary materials.
Therefore, any references to "facilities" or "units"  in today's rule
also refers to facilities or units managing hazardous secondary
materials excluded under this rule. 

6 - Exclusion for hazardous secondary materials that are legitimately
reclaimed under the control of the generator: general support or
opposition

6 - Summary

Many commenters who addressed this issue generally supported the
exclusion proposed in our March 26, 2007 proposal (0092-8, 0471.1-2,
0471.2-2, 0471.2-5, 0471.2-7, 0471.2-11, 0471.2-12, 0471.2-15, 0467-2,
0472-9, 0472-19, 0476-18, 0485-3, 0486-20, 0487-4, 0534-9, 0555.-9).  

Some commenters did not support the proposed exclusion (0558-1, 0480-3).

6 - Response

For the reasons explained in the preamble of this final rule, the Agency
is finalizing its exclusion as proposed on March 26, 2007, with certain
modifications.

6.1 - Hazardous secondary materials generated and reclaimed at the
generating facility

6.1 - Summary

Commenters who addressed this exclusion generally supported it (0048-6,
0058-1, 0065-5, 0067-8, 0067-10, 0068-19, 0068-25, 0072-12, 0074-7,
0074-18, 0076-4, 0076-5, 0083-6, 0084-7, 0091-20, 0093-27, 0095-6,
0095-24, 0097-9, 0098-19, 0101-11, 0104-20, 0110-24, 0119-16, 0122-14,
0124-7, 0129-19, 0130-3, 0130-12, 0131-3, 0135-4, 0138-10, 0140-7,
0144-5, 0147-3, 0147-8, 0148-5, 0152-6, 0152-12, 0153-4, 0158-5, 0162-1,
0164-2, 0167-4, 0173-5, 0177-7, 0179-15, 0180-6, 0181-7, 0182-11,
0185-5, 0194-8, 0199-22, 0203-9, 0205-3, 0210-12,  0210-3, 0217-14,
0219-6, 0222-39, 0225-5, 0225-15, 0225-35, 0452-7, 0468-4, 0468-22,
0470-4, 0470-8, 0471.1-4, 0471.2-10, 0471.2-29, 0471.2-30, 0475-14,
0475-16, 0478-9, 0489-1, 0495-2, 0518-5, 0528-13, 0536-8, 0537-13,
0538-13, 0541-1, 0543-2, 0563-2). They agreed with EPA that hazardous
secondary materials reclaimed by a generator at its facility are
unlikely to be discarded because the materials will be managed and
monitored by a single entity who is familiar with both the generation
and recycling of the hazardous secondary materials (0043-1, 0093-27,
0104-20, 0130-3, 0140-7, 0152-6, 0153-5, 0153-10, 0153-12, 0180-6,
0210-1, 0219-6).  Several commenters also agreed with EPA that
environmental risks were lessened if the hazardous secondary materials
were not transported off-site (0153-12, 0177-7, 0180-6, 0210-1, 0219-6),
 and that fewer liability questions would arise in the case of accidents
or mismanagement (0043-1, 0093-27, 0104-20, 0130-3, 0152-6, 0210-1,
0219-6).   

A few commenters did not support this exclusion (0153-13, 0231-51,
0558-5). One of these commenters believed that on-site recycling was no
less damaging to the environment than off-site recycling (0153-13).
Another said that EPA had failed to provide any data that supported its
assumptions about the benefits of an exclusion for on-site recycling,
and that such an exclusion could create large, unregulated facilities
that threaten the environment. The increased likelihood of mixing
different waste streams would also increase the risks involved,
according to this commenter (0231-51). 

Another commenter said that EPA should only allow the on-site exclusion
for hazardous secondary materials that are directly reused in the
generator's ongoing production process (e.g., reclamation of
lead-containing slag in a mineral processing operation). However, an
on-site exclusion should not be allowed for hazardous secondary
materials that are reclaimed in a unit that is separate and distinct
from the generator's production activities (e.g., reclamation of spent
solvents from equipment cleaning). This commenter believed that in the
direct reuse scenario, the generator would be more likely to recycle the
materials in a manner that did not contaminate its own production
processes.  In the solvent reclamation scenario, discard would be more
likely, especially when the generator would thereby avoid the cost of
proper recycling or disposal (0558-5). 

One commenter said that the Agency should not allow on-site recyclers to
sell reclaimed material to off-site users, because generators would be
more sensitive about how much hazardous material they purchased if their
disposal options were limited (0210-11).  

6.1 - Response

After evaluating these comments, the Agency has decided to retain an
exclusion for hazardous secondary materials that are generated and
reclaimed at the generating facility, with the requirements specified in
this final rule (prohibition of speculative accumulation, notification,
containment, and legitimacy ). Since the October 2003 proposal, we have
conducted a study entitled Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials.    EPA does
not agree with the commenters who said that that on-site recycling is no
less damaging to the environment than off-site recycling, or that an
exclusion for on-site recycling will lead to damage to the environment.
In general, environmental risks may be lessened when hazardous secondary
materials are not transported off-site.   

In our March 26, 2007 proposal, we noted that only 6% of the cases
examined in our Assessment of Environmental Problems were determined to
be from on-site recycling. The Agency solicited comment on whether this
small percentage was due to on-site recycling occurring at fewer
facilities or whether environmental problems from on-site recycling were
not as well documented or were more difficult to identify given the
scope and methodology of the study.  EPA is aware that environmental
damage can occur as a result of on-site recycling. However, in response
to our solicitation of comment, we received no information indicating
that on-site recycling is inherently as likely to cause environmental
damage as other kinds of recycling. Nor does the Agency have data that
would lead us to conclude that an exclusion for on-site recycling would
lead to increased mixing of different waste streams.  We also do not
have information that would justify granting an exclusion only for
on-site recycling that involves reuse or reclamation in the production
process.  The cases in our Assessment of Environmental Problems do not
lead to the conclusion that discard is more likely if hazardous
secondary materials are reclaimed in a unit that is separate from the
generator's production activities. 

The Agency also does not agree that generators of hazardous secondary
materials that are reclaimed on-site should be prohibited from
subsequently  selling the reclaimed materials to off-site users. There
is no reason to believe that sales of such products would generally
involve discard, unless the recycling was not legitimate or unless the
products were used in a manner constituting disposal or burned for
energy recovery. Under these scenarios, the materials would not be
eligible for the generator-controlled exclusion; thus it is not
necessary to further limit the exclusion in this way.  However, if
reclaimed hazardous secondary material is sent off-site for further
reclamation, it would normally have to be managed according to the
conditions of the transfer-based exclusion in 40 CFR 261.4(a)(24),
unless it were eligible for the same-company or tolling exclusion.   

6.1.1 - Should facilities under separate ownership but located at the
same site be included within this proposed exclusion?

6.1.1 - Summary

INDUSTRIAL PARKS

Commenter reaction was mixed concerning an exclusion for facilities
located at the same site, but under separate ownership (i.e., co-located
facilities where the generator does not own all the contiguous
property).   Some commenters opposed such an exclusion because they
believed that this scenario is not compatible with generator control
(0457-2, 0470-10, 0475-14 , 0475-16, 0539-5, 0563-2). They argued that
unrelated companies would not be as likely to have knowledge of each
other's operations and hazardous secondary materials. One commenter
argued that additional controls were necessary, such as financial
assurance for the reclaimer and reasonable efforts on the part of the
generator (conditions that EPA had proposed for the transfer-based
exclusion).  An example of on-site recycling which this  commenter
believed should be subject to additional controls was a reclaimer owning
1 acre of land at a refinery and processing spent catalyst at the site
(0475-15).  Another commenter said that facilities under separate
ownership should be included within the proposed exclusion only if they
utilize a common accounting and inventory system and if a single point
of control is designated (0479-18).

Other commenters supported an exclusion for such facilities (0461-1,
0463-3, 0468-5, 0468-22, 0471.2-33, 0472-12, 0474-1, 0476-3, 0476-19,
0481-7, 0481-53, 0485-6, 0486-22, 0491-17, 0507-6, 0511-3, 0535-6,
0549-2). These commenters generally said that the exclusion should be
allowed if different companies are co-located, even if the generator
does not own the all of the  contiguous property, and that such an
exclusion would encourage recycling.  One commenter said that even under
our proposal, facilities under separate ownership, but located at the
same site, would be eligible for the exclusion if the generator owned
the entire site. This exclusion would be convenient for automotive
suppliers and vendors who are sometimes located on the property of
automotive manufacturers (0476-3).  Other commenters mentioned a 
variety of scenarios which they argued should be eligible for the
exclusion. Some commenters described integrated chemical manufacturing
operations with co-located facilities that are owned by different
entities because of corporate sales, mergers and acquisitions (0472-12,
0485-6, 0486-22). Other commenters mentioned situations where a tenant
generates hazardous secondary materials which are then recycled on-site
by another company who is the landlord, or vice versa (0481-53, 0535-6).
Similarly, coke and tar plants at iron and steel facilities are
sometimes owned by electric utilities (0463-3). Some operations
mentioned by commenters may have been prospective rather than actual.

  

One commenter said that whether reclamation occurred "under the control
of the generator" should not matter if the material was not discarded
(0549-2).   

ON-SITE CONTRACTORS 

Some commenters supported our statement that "under the control of the
generator" should include situations where a generator contracts with a
different company to reclaim hazardous secondary materials at the
generator's facility.  These commenters said that the generator in this
scenario retains effective control or the contractor often has special
expertise in recycling (0468-5, 0471.2-33, 0558-18). Another commenter
supported such an exclusion because government agencies may generate
hazardous secondary materials that are then reclaimed on-site by
contractors (0461-1).  Still another commenter noted that at some steel
plants, spent pickle liquor is reclaimed on-site by a company that is
different from the company operating the steel plant. Sometimes the
company recycling the spent pickle liquor receives materials from
off-site companies as well. 

However, another commenter suggested that if a contractor enters a site
to reclaim hazardous secondary materials generated at that site, he
should meet standards for recordkeeping, storage, trained personnel,
disposal of residuals, and should have financial assurance for
facilities and equipment at the site. The generator should also conduct
reasonable efforts on the contractor, who should be audited (0507-6,
0507-12).  

6.1.1 - Response

INDUSTRIAL PARKS

After evaluating these comments, EPA has decided to finalize this
provision essentially as proposed and to limit the exclusion to
hazardous secondary materials that are generated and legitimately
reclaimed by the hazardous secondary material generator at the
generating facility (i.e., all contiguous property owned, leased, or
otherwise controlled by the hazardous secondary material generator). The
exclusion would thus not cover "industrial parks" where the hazardous
secondary material generator does not own or operate the contiguous
property. With respect to particular situations described by the
commenters, we agree that at least some of these situations are not
necessarily incompatible with generator control.  In addition, the
commenter is correct who said that facilities under separate ownership,
but located at the same site, would be eligible for the exclusion if the
generator owned the entire site.  However, the commenters generally did
not specifically state whether the generator or the reclaimer owned the
site or describe the kinds of recycling that are conducted in these
situations (e.g., facilities located at automotive sites, integrated
chemical manufacturing operations, coke or tar plants at steel mills,
land-lord-tenant relationships). For this reason, the Agency does not
have sufficient information about these situations to determine if there
is a single entity who remains in control of the hazardous secondary
material throughout the reclamation process. Therefore, EPA believes
that such situations may be more appropriately addressed under the
exclusion for hazardous secondary materials transferred for reclamation
(40 CFR 261.4(a)(24)) or under the case-by-case non-waste determination
procedures finalized today in §260.30.  In any event, facilities that
are uncertain about their eligibility for the generator-controlled
exclusion should contact the appropriate regulatory authorities for
assistance. 

Although we agree with the commenter who said that hazardous secondary
materials are not necessarily discarded when they leave the control of
the generator, we believe that the conditions of the transfer-based
exclusion are necessary to determine that such materials have not in
fact been discarded.  Additional conditions such as a common inventory
and accounting system were not proposed under either the
generator-controlled or the transfer-based exclusion and the Agency does
not believe they are essential to determine whether hazardous secondary
materials have been discarded. 

With respect to a situation mentioned by one commenter (the processing
of spent catalyst at a refinery) we note that the Agency is planning to
propose (in a separate rulemaking) to amend its hazardous waste
regulations to conditionally exclude from the definition of solid waste
spent hydrotreating and hydrorefining catalysts generated in the
petroleum refining industry when these hazardous secondary materials are
reclaimed (see entry in the Introduction to the Fall 2007 Regulatory
Plan, 72 FR 69940, December 10, 2007). Spent hydrotreating and
hydrorefining catalysts generated in the petroleum refining industry are
routinely recycled by regenerating the catalyst so that it may be used
again as a catalyst. When regeneration is no longer possible, these
spent catalysts are either treated and disposed of as listed hazardous
wastes or sent to RCRA-permitted reclamation facilities, where metals,
such as vanadium, molybdenum, cobalt, and nickel are reclaimed from the
spent catalysts.

EPA originally added spent hydrotreating and hydrorefining catalysts
(waste codes K171 and K172) to the list of RCRA hazardous wastes found
in 40 CFR 261.31 on the basis of toxicity (i.e., these materials were
shown to pose unacceptable risk to human health and the environment when
mismanaged) (63 FR 42110, August 6, 1998). In addition, EPA based its
decision to list these materials as hazardous due to the fact that these
spent catalysts can at times exhibit pyrophoric or self-heating
properties. 	

It is largely because of these pyrophoric properties that EPA is
considering a separate proposal to conditionally exempt these catalysts
from hazardous waste regulation. This future proposal will allow the
agency to consider and seek comment on specific conditions to address
the pyrophoric properties of these hazardous secondary materials,
particularly during transportation and storage prior to reclamation, in
order for the Agency to determine that they are not being discarded. As
a result of this separate effort, these spent catalysts will not be
eligible for the exclusions in this rule.  Once EPA has proposed a
conditional exclusion specifically for these spent catalysts, and after
consideration of public comments, EPA will either finalize a conditional
exclusion specific to these spent catalysts or may decide that the
conditions being promulgated in this final rule are fully adequate for
the management of these spent catalysts when recycled, and therefore
would remove the restriction preventing these spent catalysts from being
eligible for these exclusions.

ON-SITE CONTRACTORS

Hazardous secondary materials are eligible for the generator-controlled
exclusion if the generator contracts with a different company to recycle
the hazardous secondary material at the generator’s site. Thus, if a
government agency generated hazardous secondary materials that were
subsequently reclaimed at its facility by a contractor, the materials
would be eligible for the generator-controlled exclusion.  Similarly,
spent pickle liquor recycled at a steel mill is eligible for the
generator-controlled exclusion when the generator (the steel mill) has
contracted with another company to reclaim this material at the
generator's facility.  However, spent pickle liquor that was received
from an off-site steel mill and then recycled by this company would be
eligible only for the transfer-based exclusion.  

The Agency does not believe that additional conditions (such as those
required under the transfer-based exclusion) are necessary when a
hazardous secondary materials generator contracts with another company
to recycle the materials at the generator's facility. In this situation,
the materials are unlikely to be discarded because the generator will be
able to control the materials, monitor the recycling at the site and
will be familiar with the materials and the reclamation process. In
addition, liability will be maintained and is clearly identifiable in
the case of accident or mismanagement.  The requirements for containment
and notification, as well as the prohibition on speculative
accumulation, are sufficient to show that the hazardous secondary
materials have not been discarded.  

6.1.2 - Other definitions which might be equally compatible with
generator control as the definitions proposed in today's notice

6.1.2 - Summary

OWNED OR OPERATED  

Some commenters pointed out that a facility that generates hazardous
secondary materials may lease or operate, rather than own, the property
where it conducts operations. In those instances, our proposed
definition of "generating facility" would not cover such arrangements
(0471.2-32, 0481-6, 0481-52, 0491-16, 0516-5).  One of these commenters
suggested that the Agency revise its definition of "generating facility"
to include all contiguous property "owned or operated" by the generator
(0481-52).  

  

One commenter stated that facilities under separate ownership cannot be
"located at the same site," since the facilities would be separate
"persons," and thereby separate generators, and as such must be regarded
as separate sites. (0516-4)

6.1.2 - Response

OWNED OR OPERATED

EPA agrees with the commenters who said that a facility generating
hazardous secondary materials may lease rather than own the property
where it conducts operations, and that our proposed definition of
"generating facility" would not cover such arrangements.  Under these
arrangements, hazardous secondary materials will be controlled, managed,
and monitored by a single entity who is familiar with the materials.  In
addition, liability will be maintained and is clearly identifiable in
the case of accident or mismanagement.  The Agency agrees that such
arrangements should be eligible for the generator-controlled exclusion. 
EPA has therefore changed the definition of "generating facility" in 40
CFR 260.10 to read "all contiguous property owned, leased, or otherwise
controlled by the hazardous secondary material generator."

EPA does not entirely understand the commenter who said that separate
generators (i.e., different companies) cannot be located on the same
site; our  proposed rule did not contain a definition of "site." 
Presumably the commenter meant that the current definition of "on-site"
in 40 CFR 260.10  implies that the entire site must be owned by the same
person.  However, our proposed definition did not contain the phrase
"on-site." In any event, this final rule contains a definition in 40 CFR
260.10 of "generating facility," which is "all contiguous property
owned, leased, or otherwise controlled by the hazardous secondary
material generator." "Hazardous secondary material generator" (also
contained in the above definition) means “any person whose act or
process produces hazardous secondary material at the generating
facility. A facility that collects hazardous secondary materials that
has been discarded by other persons is not the hazardous secondary
material generator.” This definition applies to all of the exclusions
promulgated in this rule. We note that generators sometimes contract
with a second company to collect hazardous secondary materials at the
generating facility, after which the hazardous secondary materials are
subsequently reclaimed at the facility of the second company. In that
situation, the hazardous secondary materials would no longer be
considered "under the control of the generator" because the materials
are not reclaimed at the generating facility. The materials should
instead be managed under the exclusion for materials transferred for
reclamation. 

We have also amended the existing definition of "facility" in §260.10
to include a reference to management of hazardous secondary materials.
Therefore, any references to "facilities" or "units" of a facility in
this rule also refers to facilities or units managing hazardous
secondary materials excluded under this rule. 

6.2 - Hazardous secondary materials generated and reclaimed by the same
company

6.2 - Summary

GENERAL SUPPORT OR OPPOSITION

Many commenters supported this exclusion.  These commenters generally
said that hazardous secondary materials sent from one company's facility
to another facility owned by the same company remained under the control
of the generating company (0043-2, 0044-6, 0055-3, 0064-8, 0064-9,
0064-10, 0067-3, 0067-8, 0067-10, 0068-25, 0074-9, 0074-19, 0083-6,
0093-27, 0101-5, 0152-2, 0152-5, 0152-6, 0152-7, 0152-12, 0153-5,
0153-9, 0158-2, 0203-9, 0225-15, 0225-36, 0452-7, 0468-4, 0468-22,
0471.1-4, 0471.2-29, 0471.2-34, 0478-9, 0481-8, , 0485-5, 0481-55,
0511-4, 0535-7, 0563-2). According to many of these commenters, if a
generator sends materials to a reclaimer that is part of the same
corporate structure, the generator is likely to be familiar with the
recycling and materials management processes employed by the reclaimer.
In addition, questions regarding liability and responsibility for such
hazardous secondary materials are likely to be clearer. 

One commenter asked the Agency to broaden this exclusion to include
material generated and reclaimed by the same generator at non-contiguous
facilities owned by the generator and transported between the facilities
by either the generator or a contract carrier (0535-7). This commenter
may also have been referring to the exclusion for hazardous secondary
materials generated and reclaimed at the generating facility.  

Other commenters stated that when hazardous secondary materials are
generated and transported off-site for reclamation, additional controls
were needed to avoid discard and protect human health and the
environment even in the case of intra-company recycling (0538-13,
0541-2, 0558-19, 0559-37, 0559-41, 0559-100).  One commenter suggested
additional tracking, notification and recordkeeping requirements for any
hazardous secondary materials transported off-site (0541-2).  

CERTIFICATION

Some commenters argued that no certification should be necessary when
hazardous secondary materials are sent between the same or related
companies because generator knowledge of the materials or the potential
CERCLA liability should suffice to ensure safe and legitimate recycling
(0467-3, 0476-4, 0496-1, 0526-8, 0526-9, 0528-13). One commenter said
that a certification requirement was redundant because under 40 CFR
261.2(f), the generator already has the burden of proof for documenting
that material is not regulated (0491-17).  One commenter argued that all
qualifying hazardous secondary materials should be eligible for the
exclusion even if the generator did not retain ownership of the
materials (0463-4).  

Still other commenters disagreed with our proposed requirement for
certifying that the generator and reclaimer of hazardous secondary
materials were under the same ownership and that the owner corporation
must acknowledge responsibility for the safe management of the hazardous
secondary materials.  Some of these commenters said that under existing
corporate law, parent companies do not (and sometimes cannot) assume
legal liability for their subsidiaries (0471.2-36, 0472-14, 0476-4,
0481-57, 0496-2, 0537-16). EPA's proposed certification requirement
regarding the owner company would therefore have little legal effect and
could actually discourage same-company recycling (0535-8).  Some
commenters said that the proposed requirement that the hazardous
secondary materials be generated and reclaimed by the same "person"
under 40 CFR 260.10 was not appropriate because a corporation and its
affiliates or subsidiaries are legally distinct and not the same "person
(0471.2-36, 0476-4, 0472-13, 0472-15, 0486-6, 0486-23, 0486-25, 0496-1).
    

Some of these commenters suggested that either the generator or the
reclaimer should acknowledge responsibility for properly managing the
hazardous secondary material, not a third-party owner corporation
(0471.2-36, 0476-4, 0481-9, 0496-2, 0535-8). 

Some commenters  suggested that the Agency require that the hazardous
secondary material be generated and reclaimed by the same "person,” a
"related party,” a subsidiary,  or by an "affiliated company" (0476-4,
0481-56, 0481-58, 0485-5,) ;  "related party" would be defined as in
terms of majority ownership or a joint venture (0476-4). Other
commenters suggested that we refer to "related facilities"(0492-17) or
"entities" (0442-3, 0442-11) rather than "companies.” Some other
commenters suggested that we focus on the concept of "common control" or
"common ownership" (0471.2-35, 0472-15, 0482-10, 0486-6, 0471.2-35,
0492-17, 0496-1, 0496-3, ) or that we include a definition of
"same-company" (0457-3). 

Other commenters supported a certification provision, but suggested
alternative or additional provisions.  Some commenters suggested that
the certification should be submitted to a regulatory agency (0470-11,
0543-59), or that it should include the addresses of the companies whose
names are inserted (0470-11) or more information about the reclamation
facility(0543-2).   Another commenter said that the generator
certification should be codified in the regulations and signed by a
responsible official of the recycling company (0457-3). One commenter
stated that reclamation companies should be required to be United States
corporations (0543-2).  

One commenter said that the regulation should allow a one-time
certification to be stored electronically by the generator ((0486-24).
Another commenter was concerned about situations where the generator and
recycler are located in different states, stating that states might not
be able to determine if the materials were handled as commodities in
those situations (0489-2). 

Some commenters appeared to  believe that the "same-company"
certification must be performed each time a shipment of excluded
hazardous secondary material occurred (0471.2 36, 0472-14, 0486-24,
0492-18).  

GOVERNMENT AGENCIES AND UNIVERSITIES

Some commenters requested that EPA clarify whether two government
agencies (such as the Department of Defense and the Department of
Energy) would be considered the same "person" under 40 CFR 260.10,
especially if hazardous secondary materials are generated by one agency
and reclaimed by another (0461-2, 0466-1, 0466-2).  In response, we note
that for purposes of RCRA, the federal government is not a single
"person"; rather, each agency or department would be considered a
separate "person." We also note that under today's final rule, a federal
agency that is a generating facility does not normally have the power to
direct the policies of another federal agency that is a reclaiming
facility, nor is there a "person" under §260.10 who directs the routine
policies of both facilities. In certain situations, the parties involved
may wish to apply for a case-by-case non-waste determination under 40
CFR 260.30, as appropriate, or use the transfer-based exclusion. 

Other commenters requested that EPA clarify whether the same-company
exclusion extends to hazardous secondary materials that are generated
and reclaimed at different facilities, when both facilities are owned by
the same government agency or university, but may be operated by a
contractor (0442-3, 0466-1, 0466-2). In some of these situations, the
same contractor operates both the generating facility and the recycling
facility, but, in other situations, the generating facility and the
reclaiming facility are operated by different contractors.

One commenter said that the potential for Superfund liability was not an
incentive for government agencies to handle their hazardous secondary
materials appropriately, because EPA does not effectively enforce
Superfund against other federal agencies.  This commenter said that DOD
and DOE should therefore not be eligible for the same-company exclusion
(0559-100).   

6.2 - Response

GENERAL SUPPORT OR OPPOSITION

For the reasons explained in the preamble to today's rule, the Agency
has decided to retain "same-company" recycling under the exclusion for
hazardous secondary materials legitimately reclaimed under the control
of the generator.  In response to commenters who suggested additional
notification and recordkeeping requirements, we note that the Agency has
revised our proposed requirements for notification for all exclusions
promulgated in this rule, as well as adding certification requirements.
These revisions are discussed in the preamble to this rule. Our response
to other suggestions for additional requirements for this exclusion is
found in this section of the response to comments document or in section
6.6. However, in general, after reviewing comments, we find that our
proposed rationale for the “same-company” exclusion still holds.    


In response to the commenter who suggested broadening the exclusion to
non-contiguous facilities owned by the generator, we note that under the
proposal and today's rule, hazardous secondary materials that are
generated and reclaimed by the same company would be excluded even when
generated and reclaimed at different locations.   

CERTIFICATION

After evaluating these comments, EPA does not agree with the commenters
who argued that a certification requirement is not needed. We note that
the purpose of the certification is not to directly ensure proper and
legitimate recycling (as many of these commenters believed) but to
clarify responsibility for the hazardous secondary materials and to
ensure and demonstrate that the hazardous secondary materials are not
discarded and are within the terms of the generator-controlled
exclusion. In response to the commenter who said that the burden of
proof under 40 CFR 261.2(f) was sufficient, we note that regulatory
authorities will sometimes wish to ascertain whether a facility is
operating within the exclusion even in the absence of an enforcement
context. In addition, certification provides a measure of accountability
by the company and ensures that the parameters of the exclusion are
known and understood.  

We also do not agree with the commenter who suggested that any hazardous
secondary material being recycled should be eligible for this exclusion,
even if the generator does not retain ownership or control.  In those
situations, we believe the conditions of the transfer-based exclusion
are necessary to demonstrate that the material has not been discarded. 

	

For the reasons stated above, we are retaining a certification
requirement for this exclusion.  However, the Agency has also decided
that its proposed certification language should be revised to avoid
confusion and to ensure more effective generator control. We have
therefore revised our proposed regulatory definition for this exclusion
to refer to "facilities" rather than companies. Under the definition
finalized today at 40 CFR 260.10, the reclaiming facility must be
"controlled" by the generating facility or by a person (under §260.10)
who controls both the generating facility and the reclaiming facility.
"Control," for purposes of this exclusion, means "the power to direct
the policies of the facility, whether by the ownership of stock, voting
rights, or otherwise, except that contractors who operate facilities on
behalf of a different person shall not be deemed to "control" such
facilities (see §260.10). Our final certification language requires the
generating facility to certify that it controls the reclaiming facility,
or that the generating facility and the reclaiming facility are under
common control. In addition, the generator must certify that either the
generating facility or the reclaiming facility acknowledges full
responsibility for the proper management of the hazardous secondary
materials. To avoid confusion, we have also amended the definition of
"facility" at 40 CFR 260.10 to include facilities which manage hazardous
secondary materials. Therefore, any reference to "facilities" in this
rule also includes facilities which manage materials excluded under the
regulations promulgated today. 

	

EPA believes that this revised language more appropriately reflects the
concept of "generator control" that underlies the exclusions at 40 CFR
261.2(a)(ii) and 261.4(a)(23). Requiring that a generating facility
control the reclaiming facility, or that both be under common control,
ensures that there is a close ongoing relationship between the generator
and reclaimer and that the two facilities are more likely to be familiar
with each others' waste management practices, thereby minimizing the
possibility of discard. In addition, common liability is clear. If there
is no such relationship, the two facilities should not be eligible for
this exclusion and the use of the transfer-based exclusion would be more
appropriate. In addition, requiring the hazardous secondary material
generator to certify that either the generating facility or the
reclaiming facility acknowledges responsibility for the safe management
of hazardous secondary materials ensures that the responsibility rests
with the party most capable of assuming such responsibility. 

We do not agree with those commenters who suggested that this exclusion
be allowed when the generator and reclaimer are "related" or
"affiliated" because these terms are not sufficiently precise to provide
guidance to the regulated community. They do not appropriately identify
facilities with the kind of relationship that we consider to be
“generator-controlled.” We also do not agree that the exclusion
should depend on ownership or the presence of a joint venture, rather
than "control." We believe that “control” is the important
characteristic of the relationship that we are defining and is more
likely to minimize the possibility of discard. 

For the commenter who had concerns about situations where the generating
facility and the reclaiming facility are located in different states,
the Agency anticipates that regulatory authorities will consult
notifications and renotifications if they have concerns about whether a
facility is entitled to an exclusion. The regulatory authority would
then examine the addresses contained in the notification, after which it
would request further information from the facility about any other
facilities involved in the relevant transaction.  If this inquiry does
not satisfy the concern, the state could request additional information
from the state in which the other facility is located.  The state could
also consult any certifications located in the facility’s business
records.  These measures will enable states to keep track of situations
where facilities are located in different states. 

We are not requiring the certification to be submitted to a regulatory
agency because the  notification for this exclusion (which must be
submitted already) includes the exclusion applicable to the facility. 
The regulatory authority may then, if appropriate, investigate further
(as described above) if it wishes to evaluate whether a particular
generator and reclaimer are under common control.  Similarly, the
notifications contain contact information about generators and
reclaimers, so that neither addresses or additional information about
reclaimers is necessary for the certification; again, regulatory
authorities may follow up with a particular facility if they have
concerns.  We expect that the certifications will be signed by staff who
are familiar with whether the generator and reclaimer are under common
control.  However, since the certification need not be submitted to
regulatory authorities and is not subject to routine evaluation by
multiple personnel, there is no need for the degree of quality assurance
implied by requiring the certification to be signed by officials of a
particular level.     

In response to the commenter who mentioned electronic storage of the
certifications, we note that nothing in the regulations (in which the
certification requirement is already codified) prohibits such storage. 
It is not necessary to state specifically in the regulations that
electronic storage is allowed. 

In response to the commenter who said that reclaimers should be required
to be United States corporations, we note that the generator-controlled
exclusion is not available if hazardous secondary materials are exported
for reclamation;  in these situations the transfer-based exclusion must
be used, with its requirements for export notice and consent. However,
foreign-owned corporations are eligible for the generator-controlled
exclusion if they meet the criteria specified in 40 CFR 260.10.  There
is no reason to distinguish between United States corporations and
foreign-owned corporations if the latter are eligible for the on-site,
same-company, or tolling  exclusion and are subject to U.S. laws and
regulations for their activities.   

We also note that the certification is not required to be performed
every time a shipment of hazardous secondary material occurs.  Instead,
we anticipate that the certification will be performed when a hazardous
secondary material begins to be managed under this exclusion, after
which it will be retained at the generator's facility. 

GOVERNMENT AGENCIES AND UNIVERSITIES

In those situations where the generating facility and the reclaiming
facility are both owned by the same government agency or university, the
two facilities would be under common control because the agency or
university in question has the power to direct the policies of both the
generating facility and the reclaiming facility. Under this scenario,
both facilities would therefore be eligible for the same-company
exclusion, even if operated by different contractors. However, if the
generating facility and the reclaiming facility were each owned by a
separate government agency or university, they would not be eligible for
this exclusion even if both facilities were operated by the same
contractor, because the element of common control would be lacking. We
have revised the certification language of 40 CFR 260.10 to reflect this
approach. The parties involved may apply for a case-by-case non-waste
determination under 40 CFR 260.30, as appropriate, or use the
transfer-based exclusion.

In response to the comment concerning EPA enforcement of Superfund
against federal agencies, we note that under CERCLA section 120, "each
department, agency and instrumentality of the United States … shall be
subject to, and comply with, this chapter in the same manner and to the
same extent, both procedurally and substantively, as any nongovernmental
entity…" Thus, there is no difference between federal agencies and
private entities with respect to the incentives provided by Superfund to
comply with the provisions of this rule. 

6.3 - Hazardous secondary materials generated and reclaimed under a
tolling contract

6.3 - Summary

GENERAL SUPPORT/EXPAND TOLLING EXCLUSION 

Many commenters supported the general concept of an exclusion for
hazardous secondary materials generated pursuant to tolling contracts
(0065-11, 0090-3, 0090-4, 0096-2, 0096-3, 0222-3, 0222-17, 0222-18,
0222-19, 0222-20, 0222-21, 0222-22, 0222-30, 0222-36, 0222-37, 0222-38,
0222-39, 0349-2, 0451-2, 0452-8, 0467-4, 0468-4, 0468-22, 0471.1-3,
0471.2-3, 0471.2-9, 0471.2-13, 0471.2-17, 0471.2-18, 0471.2-20,
0471.2-22, 0471.2-23, 0471.2-24, 0471.2-28, 0478-9, 0485-7, 0523-2,
0529-7, 0555-10).  

Some commenters urged EPA to expand the tolling exclusion to other types
of contractual arrangements (0452-6, 0452-29, 0458-11, 0461-6, 0492-20,
0493-11, 0553-3).  A few commenters said that the exclusion should be
allowed for any contract between a generator and a reclaimer where the
generator was willing to retain ownership of and/or responsibility for
the hazardous secondary materials (0491-15, 0491-20, 0500-2, 0529-9).
Other commenters mentioned specific contractual situations in which they
argued the hazardous secondary materials in question were clearly
handled as a commodity and discard was therefore highly unlikely. One
example given was a facility that reclaims metals from electric arc
furnace dust and then sends the metals back to steel mills to be reused
(0452-9, 0529-8). Other examples were a facility that takes spent copper
etchant from manufacturers of printed wiring boards and uses the
material to make new copper compounds, or returns of solder dross as for
reclamation (0458-11). Another example provided was a cooperative
recycling venture supported by similar entities that reclaimed virtually
identical materials such as paints or solvents (0523-3). Still another
example was a facility that collects used paint purge solvent from auto
body paint operations, reclaims it, and sells regenerated solvent back
to the auto body facility (0549-3, 0555-5).  A final example was use and
reuse of shop towels (0493-11, 0493-15). 

Other commenters said that the Agency should not expand the proposed
tolling exclusion because in other situations, the generator could not
ensure that the hazardous secondary material was not discarded (0470-13,
0495-17, 0516-6, 0543-4).

One commenter suggested that the Agency should allow transfer and
consolidation points under the tolling exclusion, while requiring that
this activity be performed by registered waste transporters and for no
longer than 10 days (0553-11). 

OPPOSE/ADDITIONAL CONDITIONS

Some commenters stated that tolling arrangements are incompatible with
"generator control" and are best regulated under additional conditions
or under the proposed exclusion for materials that were transferred for
legitimate reclamation (0457-4, 0457-12, 0462-28, 0470-13, 0475-16,
0479-8, 0495-17, 0495-4, 0509-2, 0509-21, 0516-6, 0530-5, 0538-15,
0539-6, 0541-2, 0543-3, 0548-12, 0548-23, 0548-24, 0558-20, 0558-21,
0558-22, 0559-44, 0559-45, 0559-46).  They argued that requirements such
as notification, certification, reasonable efforts (by generators) or
financial assurance (for reclaimers) were necessary to avoid discard in
the case of off-site reclamation.  One commenter suggested that tolling
contractors should be required to submit contemporaneous records and
reports to the regulatory authorities, along with a description of the
hazardous secondary material to be recycled (0559-70).  

Some of the commenters argued that the physical generator of the
hazardous secondary material (in this case, the toll manufacturer)
retains legal liability for the material (0482-13, 0548-24, 0558-21,
0559-44).  Some commenters said that if the toll manufacturer improperly
disposed of the waste, the tolling contractor would likely argue that
the toll manufacturer acted outside the scope of the agreement and that
liability stays solely with the toll manufacturer (0558-21, 0559-44).
Alternatively, tolling contracts could contain special clauses that
effectively nullified control by the tolling contractor (0558-21). One
commenter said that the tolling exclusion could encourage sham recycling
when the hazardous secondary material only had value to the tolling
contractor for energy recovery (0558-22).  This commenter suggested that
a standard tolling contract should be developed by trade associations
and submitted to EPA for review through a petition process (0558-23).
One commenter said that tolling agreements should be exempted from
regulation for a term of three years, after which the exemption must  be
renewed (0470-13). Another commenter said that tolling contracts should
not be eligible for an exclusion because the tolling contractor might
employ such contracts to lower costs, and he will not be able to ensure
that the toll manufacturer can properly manage the hazardous secondary
material.  This commenter also said that allowing exclusions for tolling
arrangements could discourage on-site recycling (0509-21, 0509-2). 
However, another commenter said that tolling would not offer financial
benefits to generators because on-site reclamation was less expensive,
and that such an exclusion could discourage attempts to reduce costs of
product and waste management (0536-6, 0536-9).

Some commenters expressed concern about situations in which the tolling
contractor was unable or unwilling to recycle the hazardous secondary
material received from the toll manufacturer (0482-10, 0482-13, 0479-8,
0516-6).  Another commenter said that states would not be able to
determine whether the generator or recycler was managing the material as
a valuable commodity when the other party to the transaction was located
in another state (0489-3).    

One commenter said that sometimes the toll manufacturer makes the
product specified in the contract by using ingredients bought on the
market, rather than ingredients obtained from the tolling contractor. 
According to this commenter, there would therefore be no legitimate
interest in recycling the hazardous secondary materials generated by the
production of the specialty chemical. This commenter also stated that if
the tolling contractor did not have the capacity to manufacture the
specified product itself, it would be unlikely to have the capacity to
reclaim the hazardous secondary material generated from the manufacture
(0482-13).

One commenter (0479-8, 0479-17) stated that our proposed tolling
exclusion was ill-conceived and that EPA should provide more flexibility
between the generator and reclaimer in deciding who controls different
aspects of the disposition of the excluded material after the production
of the recycled (sic) product has taken place.  The commenter then asked
a series of questions about various hypothetical situations which could
arise under a tolling arrangement.  These questions were difficult to
interpret because the commenter used different terms ("first
generator,” "generator,” and "reclaimer") than those used in our
proposal (toll contractor" and "batch manufacturer"). The commenter also
referred to the "recycled product,” when the product manufactured
pursuant to a tolling contract is not "recycled"; it is  made from
virgin materials, not secondary materials. Following is our best
interpretation of this commenters' questions: 

The proposed exclusion appears to address only the product. Could all
the by-products and residuals be returned to the tolling contractor,
assuming he were to recycle them? What if the toll manufacturer
purchases the recycled material for resale, or reclaims it himself? 
What if the toll manufacturer is operating under a variance from the
definition of solid waste? Can the tolling contractor then assign his
generator status to the toll manufacturer? If he does, would he need to
audit the toll manufacturer? Would not a variance procedure be a better
solution than our tolling exclusion? What if the tolling contractor
recycles hazardous secondary materials and then accumulates waste
residuals for disposal? Would it need a RCRA storage permit after 90
days?  What if the tolling contractor stored excluded materials for
longer than the speculative accumulation period?  What would be the date
of generation? After one year, would the toll manufacturer have an
additional 90 days to dispose of the material?  What if the toll
manufacturer had a RCRA storage permit?  

One commenter enquired whether a tolling contractor which ordinarily
recycled spent solvent on-site pursuant to a closed-loop exclusion under
40 CFR 261.4(a)(8) would lose that exclusion if it recycled spent
solvent received from a toll manufacturer located off-site (0516-3).   

TERMS USED IN TOLLING EXCLUSION

A few commenters said that the term "tolling contractor" was confusing
and that we should clarify whether it referred to the entity contracting
for the tolling or to the entity actually performing the recycling under
contract (0472-16, 0486-26).  Another commenter suggested replacing the
term "tolling contractor" with "generator" (0492-19).  Another commenter
suggested that we replace the term "batch manufacturer" with "toll
manufacturer." This commenter stated that "batch manufacturer" was too
broad and generally referred to a facility which engages in a distinct,
short production campaign, not necessarily tied to a two-party
contractual agreement. "Toll manufacturer," this commenter stated, is a
subset of batch manufacturers and generally refers to a party which
undertakes manufacturing pursuant to a contract with a tolling
contractor, such as the arrangement we proposed. This commenter also
requested that EPA clarify that the "product" required to be produced
under a tolling contract can include intermediates, as well as final
products, and that materials used in toll manufacturing were sometimes
specialty chemicals or intermediates that could not be described as "raw
materials," as would be required under our proposal. They suggested that
we use the term "specified materials" instead (0471.2-13, 0471.2-21). 

6.3 - Response

GENERAL SUPPORT/EXPAND TOLLING EXCLUSION

After considering these comments, the Agency has decided to retain the
tolling exclusion, but not to broaden its scope. The exclusion will
therefore be limited to situations where a tolling contractor contracts
with a toll manufacturer to make a product from specified virgin
materials.  The Agency does not agree with those commenters who urged
that we should allow the generator-controlled exclusion for any
hazardous secondary materials generated under a contract between a
generator and a reclaimer. We believe that the exclusion should be
limited to the types of tolling arrangements specified in 40 CFR 260.10.
When hazardous secondary materials are transferred off-site for
reclamation in the absence of these arrangements, there is, in general,
less likelihood of generator control and  more likelihood of discard, in
the absence of conditions that ensure the hazardous secondary materials
will be handled as valuable products. In these situations, additional
requirements are needed for the Agency to determine that no discard has
occurred. Conversely, in the specific situations included in the
generator-controlled exclusion (on-site, same-company, and tolling
reclamation), we believe that the generator is much more likely to be
familiar with the reclaimer and to have powerful incentives to see that
the hazardous secondary materials are reclaimed properly and
legitimately. In these cases, the requirements that we have finalized
today (notification, compliance with speculative accumulation limits,
containment, and legitimacy) are sufficient for the Agency to determine
that such hazardous secondary materials are not discarded. These
requirements may not be sufficient in the case of unrelated generators
and reclaimers who have a non-tolling type of contract. 

In response to those commenters who described specific types of
contractual arrangements that should be eligible for the
generator-controlled exclusion, we note that facilities operating under
such arrangements may apply for a non-waste determination under
§260.30, as appropriate. In some cases, commenters did not include
enough detail about the contracts to enable the Agency to draft
appropriate regulatory language. In other cases, the arrangement
suggested was industry-specific and the conditions or requirements
suggested by the commenters were not appropriate for an exclusion
covering many different types of facilities. We believe that such
arrangements are best evaluated on a case-by-case basis by the
regulatory authority, possibly under 40 CFR 260.30, to determine their
eligibility for exclusion. Alternatively, they may be managed under the
transfer-based exclusion in this final rule.

In response to the commenter who suggested allowing 10-day storage at
transfer and consolidation points under the tolling exclusion, as well
as requiring waste transporters to be registered, we note that this
final rule does not prohibit such storage of hazardous secondary
materials managed under the generator-controlled exclusion.  With
respect to registration of transporters (which we did not propose) we
note that all transporters must comply with applicable DOT requirements.
 

OPPOSE/ADDITIONAL CONDITIONS

We do not agree with those commenters who said that tolling contracts
are not compatible with "generator control." The typical tolling
contract contains detailed specifications about the product to be
manufactured, including the management of any hazardous secondary
materials that are generated and returned to the tolling contractor for
reclamation. In addition, the tolling contractor will enter into a
tolling contract with such requirements only if it has decided that the
economic benefit from such recycling is justified. For these reasons, we
do not believe that tolling arrangements should be subject to the
conditions applicable to the transfer-based exclusion, other than the
notification requirement.   

However, to clarify the requirements for tolling contracts under today's
rule, and to assist regulatory authorities in determining whether a
facility is eligible for an exclusion under a tolling contract, EPA has
added a certification requirement to the definition of hazardous
secondary material generated and reclaimed under the control of the
generator in §260.10 of the final rule. This provision would require
the tolling contractor to certify that it has a written contract with
the toll manufacturer to manufacture a product or intermediate which is
made from virgin materials specified by the tolling contractor, and that
the tolling contractor will reclaim the hazardous secondary materials
generated during the course of this manufacture. The tolling contractor
must also certify that it retains ownership of, and responsibility for,
the hazardous secondary materials that are generated during the course
of the manufacture, including any releases of hazardous secondary
materials that occur during the manufacturing process. 

In response to the commenter who suggested submission of contemporaneous
records and a description of recycled materials to the regulatory
authorities, we note that under this rule, tolling contractors and  toll
manufacturers must submit notifications and renotifications to such
authorities under 40 CFR 260.42.  These notifications contain
information about the hazardous secondary materials to be recycled,
along with contact information.  The notifications allow the regulatory
authority to investigate further if appropriate to evaluate whether the
facility in question complying with the exclusion.  Therefore, we
believe that additional reporting is unnecessary.  

Concerning the comments about legal liability for releases at the toll
manufacturer facility, we note that we have added a certification
requirement for the tolling contractor, as described above, including a
certification that the tolling contractor retains responsibility for any
releases of hazardous secondary materials that occur during the
manufacturing process.  It is correct that the toll manufacturer rather
than the toll contractor is the actual physical generator of the
hazardous secondary material to be recycled.  However, the Agency does
not believe that indemnification agreements between the toll contractor
and the toll manufacturer are inconsistent with the concept of generator
control, as long as the toll contractor arranges for appropriate
management of the hazardous secondary materials that are generated. 
Also, in order to be eligible, any indemnification agreements may not
contradict the terms of the certification that specify responsibility.  

Nor does the Agency agree that the tolling exclusion could encourage
sham recycling when the hazardous secondary material only had value to
the tolling contractor for energy recovery.  In the first place, the
activity of burning for energy recovery is not eligible for the
exclusions in this rule.  In the second place, tolling exclusions must
meet the legitimacy criteria specified in 40 CFR 260.43; EPA has no
reason to believe that sham recycling is more likely under the tolling
exclusion than for other forms of recycling.  We also do not agree that
entering into such agreements to lower costs is a reason to bar tolling
arrangements from an exclusion; and we have no data that would indicate
that the existence of a tolling exclusion would discourage on-site
recycling. We see no reason to conclude that a generator of hazardous
secondary material would choose a tolling exclusion if an on-site
exclusion were feasible, or vice-versa, as some commenters suggested. 
We would expect that generators would enter tolling arrangements in
situations where on-site recycling was not practicable because of
temporary capacity limitations or because the toll manufacturer had
specialized expertise needed for the manufacturing.  We also have no
information indicating that a tolling exclusion would discourage
attempts to reduce product or waste management costs.  We believe that
generators of hazardous secondary materials are the best judges of which
exclusion meets their economic and technical needs, assuming they are
eligible.  

In response to the commenters who expressed concern about situations in
which the tolling contractor was unable or unwilling to recycle the
hazardous secondary material received from the toll manufacturer, we
note any such material is subject to the speculative accumulation
provisions of 40 CFR 261.1(c)(8).  If the tolling contractor fails to
comply with that provision, the excluded material becomes a solid and
hazardous waste, subject to full Subtitle C requirements. Similarly, if
either the toll manufacturer or the tolling contractor decides to
dispose of the hazardous secondary material rather than recycle it, the
exclusion would no longer apply and the material would have to be
managed under the RCRA hazardous waste requirements.  The notifications
and renotifications submitted by the tolling contractors and toll
manufacturers will allow the regulatory authorities to follow up in
cases where they have concern about whether a particular facility is
eligible for the exclusion.  

We do not agree with the commenter who said that states would not be
able to determine whether the generator or recycler was managing the
excluded material as a valuable commodity when the other party to the
transaction was located in another state.  The Agency anticipates that
regulatory authorities will consult notifications and renotifications if
they have concerns about whether a facility is entitled to an exclusion.
 The regulatory authority would then examine the addresses contained in
the notification to ascertain the location of the tolling contractor or
toll manufacturer, after which it would request further information from
the facility about the other facility involved in the transaction.  If
this inquiry does not satisfy the concern, the state could request
additional information from the state in which the other facility is
located.  The state could also consult any certifications located in the
facility’s business records. These measures will enable states to keep
track of situations where generators and reclaimers are located in
different states. 

In response to the suggestion for developing a standard tolling contract
to be approved by EPA, the Agency does not believe that a standard
contract would be sufficiently flexible to address all the
facility-specific circumstances and contingencies that must always be
considered when business contracts are prepared. Revising the standard
contract in the inevitable event of changing business practices would
also be impracticable.  Nor do we agree that allowing tolling agreements
only for a limited period, such as three years, is necessary.  We
believe that the information submitted in the notifications and
renotifications required under 40 CFR 260.42 and the certifications
required under 40 CFR 260.10 will allow regulatory authorities to
investigate whenever they have concerns about a particular tolling
arrangement. Such a case-by-case approach is preferable to standard
contract or a blanket time restriction.  

We do not agree with the commenter who said that there would be no
legitimate interest in recycling hazardous secondary materials generated
through a tolling contract if the toll manufacturer bought ingredients
on the open market instead of obtaining them from the tolling
contractor. The tolling contractor could still have the desire and the
means to recycle the hazardous secondary material, even if it did not
supply the toll manufacturer with the ingredients.    Similarly, we do
not agree with the comment that the tolling contractor is unlikely to
have the capacity to recycle a hazardous secondary material generated
from a manufacturing process unless it had the capacity to conduct the
manufacturing process itself. Generally, manufacturing a product and
recycling residues from the manufacture of that product are different
operations conducted in different types of units.  It is quite possible
that either party may have capacity or a shortfall in capacity for
either operation.  At times the incapacity to conduct the manufacturing
is temporary, and the hazardous secondary material can still be
reclaimed at the tolling contractor's facility, if not immediately.  At
other times the hazardous secondary material in question may be one that
presents various opportunities for recycling, such as a solvent.  

In response to the commenter with a series of questions about
hypothetical scenarios under a tolling arrangement, we note that
facilities desiring answers to such questions should consult the
appropriate regulatory authorities so that all appropriate site-specific
circumstances can be considered and any more stringent state
requirements can be taken into account.  Following is a general response
based on our best interpretation of this commenter's questions: 

Proposal addresses the product, rather than the byproducts or residuals:
the commenter is incorrect. The tolling exclusion is designed to address
primarily the management of residuals from the manufacture of the
product, which is not made from secondary materials and is not
regulated.  Under the tolling exclusion, the residues from the
manufacturing process, if they are hazardous secondary materials, are
returned to the tolling contractor.  

The toll manufacturer purchases the recycled material for resale, or
reclaims it himself - we assume that the commenter is referring to the
hazardous secondary material generated during the manufacturing process.
 Under this final rule, the tolling contractor must certify that it will
reclaim these hazardous secondary materials.  If the toll manufacturer
were to resell the materials, or reclaim them himself, they would no
longer be eligible for the tolling exclusion.  

What if the toll manufacturer is operating under a variance from the
definition of solid waste that allows him to reclaim the hazardous
secondary material himself?  Can the tolling contractor then assign his
generator status to the toll manufacturer? If he does, would he need to
audit the toll manufacturer? Would not a variance procedure be a better
solution than our tolling exclusion?   We are not certain which variance
the commenter is referring to - it may be the proposed variance under 40
CFR 260.30(f) for material that is generated and reclaimed under the
control of the generator.  This proposed case-by-case determination was
not finalized in this rule. If the toll manufacturer is operating under
another variance under 40 CFR 260.30, the facility should contact the
appropriate regulatory authority to ascertain the interaction (if any)
between the variance and the tolling exclusion, or whether the facility
can choose between the variance and the exclusion.  For example, the
state is most likely to be the authority which issued the variance;
therefore, any questions concerning the variance should be directed to
the state. We do not believe that a variance process is preferable to a
self-implementing exclusion for a tolling arrangement, because the
requirements of the tolling exclusion are relatively simple and would
not require a case-by-case determination.  

What if the tolling contractor recycles the hazardous secondary
materials and then accumulates waste residuals for disposal from this
recycling?  Would it need a RCRA storage permit after 90 days?  
Materials destined for disposal are not eligible for the exclusions in
this rule.  Any residuals generated by the tolling contractor that are
destined for disposal would be subject to a hazardous waste
determination.  If they were classified as hazardous waste, the existing
generator requirements would apply, including the 90-day accumulation
period under 40 CFR 262.34.  After that period, waste would be subject
to requirements for the storage and disposal of hazardous waste.   

What if the tolling contractor stores the excluded hazardous secondary
material for longer than the speculative accumulation period?  What
would be the date of generation? Would the tolling contractor have an
additional 90 days to dispose of the material? What if the tolling
contractor has a RCRA storage permit?   If a tolling contractor stores
the excluded hazardous secondary material received from the toll
manufacturer, the speculative accumulation requirements of 40 CFR
261.1(c)(8) would apply.  If the speculative accumulation period is
exceeded, the tolling contractor would generally not have another 90
days to accumulate the waste because it is not the physical generator of
the waste. We are unclear what the commenter means by "date of
generation.” If he is asking when the speculative accumulation period
starts, it begins when the tolling contractor receives the excluded
material from the toll manufacturer. If the tolling contractor has a
RCRA storage permit, it should contact the permitting authority to
ascertain the applicable requirements.  

In response to the commenter who asked whether a tolling contractor
would lose a previous 40 CFR 261.4(a)(8) closed-loop exclusion (for
materials generated and reclaimed in the closed-loop) if  he received
recyclable spent solvent from an offsite toll manufacturer, we note that
facilities wishing to inquire about their eligibility for specific
exclusions should consult the appropriate regulatory authorities, so
that site-specific factors or more stringent state requirements can be
taken into account.  However, we also note that under this rule, the
contractor with a closed-loop exclusion will now be eligible for the
exclusion for hazardous secondary materials generated and reclaimed at
the generating facility. Materials received from another company would
not fit within these exclusions, but might fit within the tolling
exclusion if the restrictions of the exclusion are met.  

TERMS USED IN THE EXCLUSION

The Agency does not agree that the term "toll contractor" is confusing,
or that it should be replaced with the term "generator.”  We believe
the certification language that we have added to 40 CFR 260.10 of this
rule makes it clear that the term refers to the entity contracting to
have manufacturing conducted and subsequently performing the recycling
of residuals pursuant to the tolling contract.  The term "generator" is
not appropriate because it is much less specific and could be
interpreted to refer to the toll manufacturer, since its operations
actually create the residue.   

The Agency agrees that the suggested term "toll manufacturer" is more
accurate and has revised the definition in §260.10 accordingly. EPA
also agrees that a product produced under a tolling contract can be an
intermediate or a final product and has revised the definition in
§260.10 to refer to "production of a product or intermediate." Finally,
the Agency agrees that the term "raw materials" may not be accurate, but
prefers to use the term "virgin materials" instead of "specified
materials," because we believe that term encompasses specialty chemicals
and intermediates without also including spent or secondary materials,
which are not included in our definition of toll manufacturing.

 

6.4 - Management requirements for hazardous secondary materials managed
under the control of the generator

6.4 - Summary

JURISDICTION OVER LAND-BASED STORAGE UNITS 

Some commenters asserted that the Agency has no jurisdiction over
land-based production units in the mineral processing industry, or over
other generator-controlled storage involving recycling (0549-1, 0549-3,
0465-1, 0468-9, 0472-17, 0481-31,0481-34, 0481-30, 0481-39, 0481-40,
0481-42, 0481-44, 0537-6). Therefore, according to these commenters, EPA
cannot legally require containment for these units. Another commenter
said that the Agency has improperly excluded materials that should be
regulated and that the exclusions are inconsistent with decisions of the
D.C. Circuit. These cases show that EPA's exemption for materials that
will be recycled is statutorily impermissible or, at a minimum, entirely
unreasonable (0559-29).  

STANDARDS FOR LAND-BASED STORAGE UNITS

Most commenters who addressed the storage issue did not appear to
distinguish between land-based units under the generator-controlled
exclusion and those under the exclusion for hazardous secondary
materials transferred for reclamation; presumably, they wanted the same
conditions for both. 

Many commenters were opposed to allowing any land-based storage without
RCRA Part B permits or requirements similar to those found in such 
permits, such as recordkeeping, siting requirements, technical,  design,
and operating  requirements, compatibility of materials, engineered
liner systems, secondary containment, leak detection measures, public
notice, inventory tracking and control, training, regular inspections,
soil or groundwater monitoring, corrective action, and/or financial
assurance (0092-16, 0098-36, 0457-15, 0457-46, 0470-5, 0470-7, 0479-14,
0479-16, 0479-21, 0479-37, 0482-3, 0482-13, 0482-14, 0488-19, 0489-4,
0489-5, 0489-17, 0490-2, 0495-14, 0501-3, 0507-3, 0507-5, 0507-11,
0531-7, 0532-7,  0538-14, 0539-4, 0539-8, 0543-1, 0543-5, 0543-6,
0543-56, 0562-1, 0562-4, 0563-6, 0558-0558-4, 0558-15, 0558-17, 0559-47,
0559-48, 0559-49, 0559-50, 0559-52, 0559-53, 0559-54, 0559-56, 0559-83).
Some commenters said that temporary land storage should be allowed for
recyclers (0208-3, 0536-10). 

    One commenter said that generators should be required to maintain
the recyclability of their wastes (through storage methods). This
commenter also suggested requiring that generators store and recycle
material in equipment that is designed to prevent unauthorized releases
to the environment, inspected and maintained at necessary intervals, and
designed and operated to minimize the time the material is staged or
stored before recycling (0509-4).

Some commenters suggested technology-based standards for containment and
monitoring, and that generators be allowed to choose technology-based
standards for land-based units, with some generators choosing synthetic
liners and other choosing monitoring systems at the unit boundary, as
appropriate (0482-3, 0558-17).

One commenter said that no free liquids should be managed in land-based
units, and that surface impoundments and waste piles should only be
allowed in narrowly defined areas of the country (0538-14). Another
commenter said that the Agency should require at least a single liner
for land-based units or specify a maximum permeability for a clay liner
(0539-8).    One commenter said that land-based storage requirements for
hazardous secondary materials should be based on those developed for PCB
bulk product wastes under 40 CFR 761.65, since the risks posed by both
of these types of materials are similar (0521-6). 

One commenter said that storage conditions for generators should be
limited to secondary containment and management to prevent contamination
of stormwater (0458-29).  

One commenter suggested prohibiting recycling activities in land-based
units (0551-2). However, one commenter said that EPA should institute a
procedure for facilities to demonstrate that land-based storage is
appropriate and legitimate, based on the specific properties of the
hazardous secondary material (0544-2, 0544-3).

Some commenters suggested that EPA should provide a specific definition
of "contained" in the final rule (0476-6, 0488-12, 0489-8, 0516-1,
0536-4, 0538-14, 0521-6, 0562-1). Other commenters agreed with the
Agency's proposed approach of not requiring specific performance
standards for land-based storage units.  These commenters generally
believed that the "contained" requirement should be determined on a
case-by-case basis, taking into consideration local conditions and
specific measures employed by the facility (0461-7, 0463-5, 0463-6,
0466-5, 0481-48). 

One commenter said that our proposed "contained" requirement was
unnecessary because units with unacceptable risks of releases could be
addressed through CERCLA and similar remedial authorities in most states
(0459-4).

A few commenters suggested that hazardous secondary materials managed in
units complying with state regulatory programs to address releases
should be considered contained (0465-1, 0481-5, 0481-49, 0526-11,
0528-8). Another commenter said that the Agency should recognize in its
regulations that the "contained" requirement does not apply when an
authorized state has adopted its own RCRA determination about "discard"
from a land-based production unit (0528-8). 

One commenter said that EPA should substitute the term "stored" for
"managed" in both the generator-controlled and transfer-based
exclusions, to avoid the inference that land-based production operations
were regulated (0481-35, 0481-37, 0481-39).    

DEFINITION OF "LAND-BASED UNIT"

EPA received several comments expressing confusion over our proposed
definition of "land-based unit." We proposed land-based unit to mean "a
landfill, surface impoundment, waste pile, injection well, land
treatment facility, salt dome formation, salt bed formation, or
underground mine or cave." Commenters noted that including
"landfills,” injection wells,” and "land treatment facilities" was
not necessary for the proposed exclusion, since these management units
are clearly inappropriate for hazardous secondary materials that are
reclaimed (0465-1, 0538-14). Furthermore, some commenters also noted
that Subtitle C defines these terms waste-centrically (i.e., as a unit
that handles "waste" in one way or another) (0465-1, 0490-1). This could
create confusion because a hazardous secondary material would not, by
definition, be "managed" (or "stored") in one of these "waste" units. 

One commenter suggested adding drip pads and other units such as
concrete decks to EPA's proposed definition (0470-6).  Other commenters
objected to EPA's reference in the proposed preamble to "sumps" as
examples of surface impoundments, since both of these terms are
separately defined in 40 CFR 260.10 (0472-18, 0486-7, 0486-27, 0516-7,
0491-20). 

STORAGE STANDARDS FOR NON-LAND-BASED UNITS

Some commenters said that storage standards for non-land-based units
should be similar to those required for RCRA permitted facilities. 
Standards should include routine inspections, recordkeeping, employee
training, contingency planning, public notice, tank standards with
certification, siting, corrective action, and closure requirements
(0457-6, 0479-7, 0457-15, 0479-21, 0479-37, 0482-4, 0507-3, 0551-2. 
Another commenter suggested requiring labeling, storage time limits with
documentation of accumulation start dates, closed, sturdy, leak-proof
containers, and tank standards (0462-15).  One commenter suggested
labeling and marking accumulation start dates to help with legitimacy
and speculative accumulation determinations (0563-5). Still another
commenter suggested requiring labeling and storage in sturdy, leak-proof
containers for all hazardous secondary materials, including
characteristic sludges, byproducts and feedstocks, even for SQG and
CESQG sites (0462-31).  Two commenters requested performance standards
for storage in containers and tanks for hazardous secondary materials
stored under the control of the generator (0495-22, 0507-5, 0507-11).
One commenter expressed concern that the generators eligible for our
exclusions would no longer need to comply with the emissions control
requirements of 40 CFR Subparts AA, BB, or CC. According to this
commenter, the requirements of 40 CFR Subpart DD would not be adequate
because these requirements only apply to sites considered major sources
under the Clean Air Act (0482-3). Another commenter suggested minimum
standards for tanks, containers, or buildings used as recycling units,
with certification that any recycling units meet the standards (0551-2).
Another commenter suggested requiring that tanks and containers be in
good condition, compatible with the hazardous secondary material to be
stored, secondary containment, weekly inspections, and air emissions
controls under 40 CFR Subparts AA, BB, and CC of Part 264 (0558-3,
0558-1414). Another commenter said that materials stored in
non-land-based should also have a containment requirement, partly
because of the danger of releases of volatile organic compounds
(0470-7). Another commenter suggested accumulation in DOT containers
suitable for shipment or tanks with secondary containment (0536-4). 

Other commenters supported the Agency's proposed approach of not
requiring detailed performance standards for hazardous secondary
materials stored in non-land-based units (0461-7, 0468-9, 0471.2-14,
0471.2-53, 0476-7, 0481-46, 0485-8, 0486-28, 0492-22). These commenters
often indicated that hazardous secondary materials are usually stored in
the same manner and containers as other raw materials or products, so
that there is no element of discard associated with these materials. 

RELEASES

In the March 2007 supplemental proposal, the Agency stated that
hazardous secondary materials that remain contained in a unit would
still meet the terms of the exclusion even if a release occurred, unless
the hazardous secondary materials are not managed as a valuable product,
and, as a result, a significant release from the unit takes place. If
such a significant release occurred, the hazardous secondary material
remaining in the unit may be considered a solid and hazardous waste. 

Some commenters said that the terms "significant" or "contained"  were
too subjective (0442-5, 0467-6, 0516-8, 0521-6). One commenter said the
failure to promulgate a definition of "contained" renders our exclusion
impermissibly vague and unenforceable, leaving it up to inspectors to
determine when a release is "immediately" cleaned up, or what "cleaned
up" actually means (0558-16).  Another commenter said that in addition
to the enforceability issue, the lack of a standard for containment is
inconsistent with past rulemakings for many wastes (0559-55).  

One commenter suggested an explicit statement in the rule (not just the
preamble) that the exclusion is voided with respect to materials that
are actually released into the environment (0098-4, 0470-7). One
commenter said that the Agency should recognize that "de minimis" losses
of recyclable materials do not constitute discard (0526-12), and another
commenter was concerned that our failure to define "significant"
releases could lead to covering minor releases such as evaporation
(0442-5). However, another commenter said that the term "contained"
should be defined to prohibit any release to land, water, or air
(0543-51, 0543-55). 

One commenter noted that a series of small releases from a unit could
occur over time, causing cumulative environmental harm even though no
single release was significant in terms of volume. This commenter said
that such a series of releases should generally lead to the conclusion
that the hazardous secondary material remaining in the unit was a waste
(0558-15).  One commenter said that the magnitude of a release should
have no bearing on the antecedent (sic) determination of whether
hazardous secondary material was discarded during the time such material
remained in the unit. This commenter said that a significant,
large-volume release could be a result of a catastrophic failure of the
unit. Such a failure could occur even though the reclaimer still
considered the hazardous secondary material to be a valuable product
(0476-5).  Another commenter said that a "significant" release could
occur but be completely controlled in a liner or as part of a different
recovery system; such a release would not mean that the material was not
"contained" (0481-50). Another commenter said that in cases of a single,
isolated release, the Agency should consider the totality of events and
circumstances that led to the release and what actions have been taken
to prevent further releases (0478-14). Still another commenter said that
a significant release does not mean that a secondary material is not
contained.  This commenter said that a "contained" determination should
include a consideration of all factors involved, including local
conditions and specific measures employed (0481-5).  Another commenter
asked EPA to clarify whether the loss of an exclusion because of a
release would apply to the material released to the environment, or to
the material still being stored (the commenter urged the first
interpretation) (0491-18). 

One commenter asked EPA to clarify that hazardous secondary materials
that are released and then recovered are not solid wastes (0179-31). 
Similarly, another commenter asked EPA to state that if spilled
hazardous secondary material can still be recovered from a spill cleanup
residue, the residue should be considered excluded from the definition
of solid waste. This commenter also asked whether the exclusion ceased
as soon as the facility discovers that a release has occurred, or was it
retroactive to when the release actually began (which might be difficult
for the facility to discover). The commenter also said that if a release
of hazardous secondary material contaminates environmental media, only
contaminated media that is determined to contain a hazardous waste
should be subject to regulation as a hazardous waste (0491-18).  

One commenter said that the Agency had stated that releases from a
land-based unit of a material that is not a hazardous secondary material
will not affect the storage status of that material (p. 14186, 3rd
column, para. 1).  According to this commenter, this policy would make
it difficult to address the situation where hazardous secondary
materials are stored with other materials, and a release of the mixed
materials occurs (0532-7). 

OTHER REQUIREMENTS 

Some commenters said that no reporting or recordkeeping requirements
were necessary for hazardous secondary materials reclaimed under the
control of the generator (0471.2-3, 0471.2-8, 0471.2-39, 0471.2-47,
0472-20, 0473-4, 0486-28, 0491-19, 0529-3, 0549-4). These commenters
generally said that ordinary business records were sufficient to provide
any documentation needed in connection with the exclusion, and that
additional paper work could discourage recycling. 

However, other commenters suggested recordkeeping requirements on the
nature and quantity of the hazardous secondary materials and legitimate
recycling (0507-11, 0558-8, 0559-42). One commenter believed that the
same recordkeeping requirements proposed under the transfer-based
exclusion should also apply under the generator-controlled exclusion
(0563-3).  

One of these commenters suggested a paper trail of shipping papers
signed by all three parties to each shipment of hazardous secondary
materials off the site of a generator to help prevent discard (0495-21).


Another commenter said that weekly or monthly documentation of the
amount of hazardous secondary materials accumulated and recycled, the
method of recycling, and specifications for the recycling process would
be helpful in an enforcement action (0489-8). One commenter suggested
requiring generators and recyclers to demonstrate compliance with
speculative accumulation requirements (0563-3). Still another said that
facilities storing hazardous secondary materials in land-based units
should be required to maintain an inventory of the date and amount of
materials placed in the units, to assist with legitimacy and speculative
accumulation determinations (0563-6). 

Some commenters said that no further performance-based requirements were
necessary to demonstrate absence of discard (0476-7, 0485-8, 0486-28,
0486-29, 0491-19, 0492-22, 0485-8).  However, another  commenter
suggested that EPA clarify how much hazardous secondary material must be
recycled before the materials are considered discarded, possibly by
examining the percent of material recycled in conjunction with the value
of the recyclable material. For example, a liquid waste may have several
phases, only one of which will be recycled.  Sometimes the phase
separation may be performed by an intermediate facility or a recycler
rather than a generator (0509-3). Another commenter suggested adopting
requirements of 40 CFR 262.34 for materials accumulated prior to on-site
recycling similar to the satellite accumulation provisions, with a
maximum quantity of waste and/or time and storage conditions. This
commenter also suggested changing 40 CFR 261.5 so that only treatment
residuals from on-site recycling are counted toward generator status.
According to this commenter, this could ultimately affect the amount of
waste that could be disposed of in Subtitle D landfills without meeting
40 Part 268 land disposal restriction universal treatment standards
(0470-9). 

Another commenter objected to EPA's request (on p. 14187, 2nd column of
the March 26, 2007 proposal) that anyone suggesting performance
standards for managing hazardous secondary materials should "propose" a
technical rationale for such recommendations and provide suggestions for
regulations (0532-8).

6.4 - Response

JURISDICTION OVER LAND-BASED STORAGE UNITS

Comments concerning EPA's jurisdiction over certain kinds of land-based
storage are addressed in sections 2.1.5.1, 2.1.2, and 13.1 of this
response to comments document. 

STANDARDS FOR LAND-BASED STORAGE UNITS

This rule finalizes an exclusion for hazardous secondary materials
reclaimed under the control of the generator. If managed according to
the restrictions of the exclusion, these materials are not discarded. 
For this reason, the Agency has decided not to add performance standards
or other detailed requirements for managing hazardous secondary
materials that are reclaimed under the control of the generator 
(§§261.2(a)(ii)and 261.4(a)(23)).  Such standards would not be
appropriate for materials that are managed as valuable products destined
for recycling.  

Specifying further storage standards or engineering conditions, such as
secondary containment, liners, or lead detection systems, is not needed
to determine whether hazardous secondary materials are being discarded.
The restrictions on the generator-controlled exclusion in this rule are
linked to defining the act of discard.  They do not specify a particular
technology that may not be appropriate for all generators or reclaimers.
Under today's rule, regulatory authorities can determine whether such
materials in a unit are contained by considering all site-specific
circumstances. For example, local conditions can greatly affect whether
hazardous secondary materials managed in a surface impoundment leak out
of the unit and cause damage, and, therefore, whether the materials in
the are contained. Similarly, facilities may employ such measures as
liners, leak detection measures, inventory control and tracking, control
of releases, or monitoring and inspections. Any or all of these
practices may be used to determine whether the hazardous secondary
materials are contained in the unit.  The Agency believes that this
approach is preferable to promulgating a definition of "contained" that
may not be related in all cases to whether a hazardous secondary
material is being discarded.

However, we disagree with the commenter who said that a "contained"
requirement was unnecessary because releases could be addressed through
CERCLA and similar remedial state authorities.  A hazardous secondary
material, if it is not contained and is released, has been discarded and
is a solid and hazardous waste which could pose significant
environmental harm before it could be addressed through remedial action.
 We are therefore retaining our proposed restriction that all hazardous
secondary materials generated and reclaimed under the
generator-controlled exclusion must be contained. 

We do not agree with the commenter who said that recycling in land-based
units should be prohibited.  We do not believe such recycling
constitutes discard, as long as the units are contained.  Nor do we
believe that the Agency should institute a case-by-case procedure for
the approval of land-based storage.  We believe that the notifications
submitted by generators and reclaimers are sufficient to allow
regulatory authorities to investigate facilities if they have concerns
about whether land-based storage is contained at a particular facility. 


We also do not agree with those commenters who said that hazardous
secondary materials should always be considered "contained" if they are
managed in compliance with state regulatory programs to address
releases. Because of the variety of such programs, and because the
Agency has not conducted an in-depth evaluation of such state
requirements, we are not adding a definition of "contained" that would
incorporate this suggested element. However, regulatory authorities may
consider compliance with such requirements as one of the factors in
determining whether the hazardous secondary materials are contained in
the units. In response to the commenter who mentioned state
determinations about land-based production units, we note that any
facility wishing to ascertain the regulatory status of its units should
always contact the appropriate regulatory authority. In almost all
cases, that authority will be the state where the unit is located. 

We do not agree with the commenter who suggested substituting the term
"stored" for "managed" in the generator-controlled exclusion and the
transfer-based exclusion (to avoid the inference that land-based
production operations were regulated). In addition to storage of
hazardous secondary materials in land-based units, such materials are
sometimes reclaimed in such units. However, we agree that land-based
production units are not regulated, and we have so stated in the
definition “land-based unit” at 40 CFR 260.10.  We have not changed
references to "management" of hazardous secondary materials in 40 CFR
261.4(a)((24) because some of the requirements in that section are
generally applicable to all of the activities conducted under the
exclusion, not to any particular activity such as storage.  

DEFINITION OF "LAND-BASED UNIT"

EPA agrees with the commenters who said that our definition was
confusing in its inclusion of certain units that are separately defined
or not generally associated with hazardous secondary materials
recycling. We do not agree with the commenter who suggested inclusion of
additional industry-specific units, such as drip pads or concrete decks,
because it is not possible to include all such units in our definition.
For this reason, in the final rule we have defined "land-based unit" in
40 CFR 260.10 as an area where hazardous secondary materials are placed
in or on the land before recycling.  This definition does not include
land-based production units. 

STORAGE STANDARDS FOR NON-LAND-BASED UNITS

EPA believes that detailed standards are not necessary to determine that
valuable materials destined for recycling are not discarded when managed
in non-land-based units. As with land-based units, the regulatory
authorities can identify hazardous secondary materials that have been
released from the unit and determine that the released material is
discarded on a case-by-case basis, by considering all site-specific
circumstances.

However, we also believe that to clarify this approach and facilitate
its implementation, it is appropriate to specify that hazardous
secondary materials that are generated and reclaimed under the control
of the generator and managed in non-land-based units must be contained,
similarly to such materials that are stored in land-based units. This
simply states clearly that in all cases hazardous secondary materials
must be contained to be not discarded.  We have revised the language of
40 CFR 261.4(a)(23)(i) accordingly. 

In response to those commenters who mentioned air emissions controls, we
do not believe that such standards are appropriate for hazardous
secondary materials that are not solid wastes, but rather are handled as
valuable products, Of course, facilities which manage hazardous
secondary materials may be subject to standards under the Clean Air Act
which regulates air emissions from stationary and mobile sources. 

In response to the commenters who suggested marking and labeling for
accumulation times, we note that under this exclusion facilities
managing hazardous secondary materials are subject to the speculative
accumulation provisions of 40 CFR 261.1(c)(8). We are not requiring
specific labeling or records to monitor compliance with speculative
accumulation because we believe any requirement would be duplicative of
the existing 40 CFR 261.1(c)(8), which already provides that "a material
is not accumulated speculatively, however, if the person accumulating it
can show that the material is potentially recyclable and has a feasible
means of being recycled; and that-during the calendar year (commencing
on January 1)-the amount of material that is recycled, or transferred to
a different site for recycling, equals at least 75 percent by weight or
volume of the amount of that material accumulated at the beginning of
the period." Furthermore, we did not propose any changes to the
speculative accumulation provision in our March 2007 supplemental
proposal.  We also did not propose the changes suggested by one
commenter to the existing regulatory requirements for SQG and CESQG
sites or for characteristic sludges and by-products being reclaimed. 
Such changes would therefore be outside the scope of this rulemaking. 

In response to the commenters who suggested requiring regular
inspections, we are not requiring such inspections because we believe
the restriction that hazardous secondary materials must be contained
achieves the same objective. For example, an acidic hazardous secondary
material undergoing reclamation could be stored in a tank that
experienced a failure. A facility might fail to monitor the structural
integrity of the tank, as most product tanks are monitored, or the tank
might not be constructed to contain acidic hazardous secondary
materials, causing a significant release of such materials into the
environment. The unit itself would consequently be considered a
hazardous waste management unit because the hazardous secondary
materials were not being managed as a valuable raw material,
intermediate, or product, as evidenced by the failure to monitor it for
structural integrity, resulting in the release. Thus, the unit and any
remaining waste would be subject to Subtitle C controls because the
hazardous secondary materials in the unit have been discarded and were
not contained. In addition, any of the released materials that were not
immediately recovered would also be considered discarded and, if
hazardous, subject to appropriate federal or state regulations and
applicable authorities. Thus, to be excluded from the definition of
solid waste, the facility has an obligation to manage the material as it
would any raw material, intermediate, or product because of its value.
This includes, for example, operating and maintaining storage units in
the same manner as product units. In the above example, whether by
mismanagement of the hazardous secondary materials or by storing acidic
materials in a tank not constructed to handle them or because of the
failure to monitor the structural integrity of the unit, the result is
that the unit would come under Subtitle C regulation. 

In response to those commenters who suggested contingency planning,
emergency response requirements, or standards for employee training, we
are not requiring such measures because they do not directly determine
whether a material is discarded (e.g., a generator could have a
contingency plan but still be discarding its materials). Furthermore, we
note that hazardous secondary materials excluded under today's rule may
remain subject (or become subject) to requirements under other statutory
programs. For example, generators, transporters, intermediate facilities
and reclaimers may be subject to regulations developed under:

The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA) and
the Superfund Amendments and Reauthorization Act (SARA) of 1986 which,
combined, require notification of hazardous substance releases above a
reportable quantity, emergency planning and, if applicable, MSDS and
inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370). Hazardous
secondary material generators and reclaimers meeting defined criteria
are also subject to toxic chemical release reporting (i.e., Toxics
Release Inventory (TRI) under EPCRA (40 CFR part 372). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities.  For additional useful information on these
regulatory programs, please see "Memorandum: Requirements that other
Regulatory Programs would place on Generators, Reclaimers and
Transporters of Hazardous Secondary Materials" located in the docket for
this rulemaking.

RELEASES

The Agency does not agree with those commenters who said that a more
specific definition of "contained" is necessary. Under today's rule,
members of the regulated community and regulatory authorities can
determine whether hazardous secondary materials are contained by
considering all such site-specific circumstances. For example, local
conditions can greatly affect whether hazardous secondary materials
managed in a surface impoundment leak out of the unit and cause damage,
and, therefore, whether materials in the unit are contained. Similarly,
facilities may employ such measures as liners, leak detection measures,
inventory control and tracking, control of releases, or monitoring and
inspections. Any or all of these practices may be used to determine
whether the hazardous secondary materials are contained in the unit. The
Agency believes that “contained” is actually a straightforward and
simple concept that can be applied successfully to the wide range of
materials and units covered by this exclusion.  The Agency believes that
this approach is preferable to promulgating a definition of "contained"
that may not be appropriate in all cases to determine whether a
hazardous secondary material is being discarded.

In response to the commenter who noted that this approach is
inconsistent with past rulemakings, we note that some of the waste
stream-specific storage standards mentioned by the commenter (e.g., for
spent materials generated within the mineral processing industry or for
hazardous secondary materials used to make zinc fertilizers) may not be
appropriate for some types of materials managed under an exclusion
covering a wide variety of materials.  As the commenter acknowledged,
some other exclusions promulgated by the Agency in 40 CFR 261.4(a) have 
general storage standards (e.g., "must be managed to prevent releases").
 EPA does not agree that this general standard is very different from a
requirement that hazardous secondary materials must be "contained.”
Generally, such material is "contained" if it is placed in a unit that
controls the movement of the hazardous secondary material out of the
unit and prevents the material from being released into the environment.
 This restriction supports EPA's determination that materials managed in
this manner are not discarded. 

As commenters noted, a tank or a surface impoundment in good condition
may infrequently  experience small ("de minimis") releases, a small,
isolated release, or minor evaporation resulting from normal operations
of the facility.  As another commenter noted, sometimes a material may
escape from primary containment and may be captured by secondary
containment or some other mechanism that would prevent the material from
being released to the environment. In that case, the unit would retain
its exclusion from RCRA hazardous waste regulation and the hazardous
secondary materials in the unit would still be excluded from the
definition of solid waste, even though any such materials that had been
released would be considered discarded if not immediately recovered and
would be subject to appropriate regulation. The Agency does not agree
with those commenters who said that any release whatsoever should always
invalidate the exclusion from the definition of solid waste, because
some types of releases may be consistent with managing a hazardous
secondary material as a valuable product.  One specific example of
"contained" hazardous secondary materials could be furnace bricks
collected from production units and stored on the ground in walled bins
before being used as feedstocks in the metals production process. If
there were very small releases from the walled bins due to precipitation
runoff, such releases would not cause the storage bins to be subject to
Subtitle C controls.  We agree with the commenter who said that a
"contained" determination should include a consideration of all factors
involved, including local conditions and specific measures employed. 

Several commenters asked about the regulatory status of hazardous
secondary materials remaining in a storage unit after a release from
such a unit. In the event of a release from a unit, the hazardous
secondary materials that remain in the unit may or may not meet the
terms of the exclusion. They would be considered solid wastes if they
are not managed as a valuable raw material, intermediate, or product,
and as a result, a "significant" release from the unit were to take
place. If such a significant release were to occur, the hazardous
secondary materials remaining in the unit would be considered solid and
hazardous wastes and the unit would be subject to the appropriate
hazardous waste regulations. For example, an acidic hazardous secondary
material undergoing reclamation could be stored in a tank that
experienced a failure. A facility might fail to monitor the structural
integrity of the tank, as most product tanks are monitored, or the tank
might not be constructed to contain acidic hazardous secondary
materials, causing a significant release of such materials into the
environment. The unit itself would consequently be considered a
hazardous waste management unit because the hazardous secondary
materials were not being managed as a valuable raw material,
intermediate, or product, as evidenced by the failure to monitor it for
structural integrity, resulting in the release. Thus, the unit and any
remaining waste would be subject to Subtitle C controls because the
hazardous secondary materials in the unit have been discarded and were
not contained. In addition, any of the released materials that were not
immediately recovered would also be considered discarded and, if
hazardous, subject to appropriate federal or state regulations and
applicable authorities. Thus, to be excluded from the definition of
solid waste, the facility has an obligation to manage the material as it
would any raw material, intermediate or product because of its value.
This includes, for example, operating and maintaining storage units in
the same manner as product units. In the above example, whether by
mismanagement of the hazardous secondary materials or by storing acidic
materials in a tank not constructed to handle them or because of the
failure to monitor the structural integrity of the unit, the result is
that the unit would come under Subtitle C regulation because a
significant release occurred due to failure to manage the material as a
valuable product, raw material, or intermediate.   

EPA agrees with the comment concerning small releases from a unit over
time. Thus, a "significant" release is not necessarily large in volume,
but would include an unaddressed small release from a unit that, if
allowed to continue over time, would cause significant damage. Any one
release may not be significant in terms of volume. However, if the cause
of such a release remains unaddressed and hazardous secondary materials
are managed in such a way that the release is likely to continue, the
hazardous secondary materials in the unit would not be contained. For
example, a rusting tank or containers that are deteriorating may have a
slow leak that, if unaddressed, would cause a significant environmental
impact. Similarly, a surface impoundment with a slow, unaddressed leak
to groundwater could result in significant damage. Another example would
be a large pile of lead-contaminated finely ground material without any
provisions to prevent wind dispersal of the particles. Such releases, if
unaddressed, would mean that the hazardous secondary materials remaining
in the unit were not being managed as a valuable raw material,
intermediate, or product and that the materials had been discarded. As a
result, the hazardous secondary materials in the unit would be hazardous
wastes and these units would be subject to the RCRA hazardous waste
regulations.

EPA does not agree with the commenter who said that the magnitude of a
release should have no bearing on the regulatory status of hazardous
secondary materials remaining in the unit after the release. The
magnitude of the release is one of the factors that the regulatory
authority should take into account when making this determination,
although it may not be the sole determining factor. 

In response to the commenter who asked whether the exclusion would cease
when the release was discovered or would be retroactive to when the
release actually began, the Agency believes that any loss of an
exclusion would generally date from when the release was discovered
(since it might not be possible to ascertain when the release began.) We
generally agree that hazardous secondary materials that are released,
then immediately recovered and subsequently  recycled in a timely
manner, are not solid wastes, and that only contaminated media that are
determined to contain a hazardous waste should be subject to regulation
as a hazardous waste. We do not agree with the commenter who suggested
changing our regulations to specify that any hazardous secondary
materials that are released and sent for disposal are discarded.  Such a
change is not necessary because the exclusions in this rule only apply
to hazardous secondary materials that are reclaimed.  We do not
understand the commenter who quoted the Agency as stating (on p. 14186,
3rd column, para 1) that releases from a unit of a material that is not
a hazardous secondary material will not affect the storage status of
that material.  The Agency agrees with the commenter that a release of
hazardous secondary materials mixed with other materials should be
considered a release of the hazardous secondary materials.    

OTHER REQUIREMENTS

The Agency does not agree with the commenter who suggested that all
recordkeeping requirements under the transfer-based exclusion should
also apply to the generator-controlled exclusion.  We believe that these
requirements are not appropriate for situations where the generator
retains control over, and responsibility for, the hazardous secondary
materials that are reclaimed at its facility, by the same company, or
through a tolling contract.  In these cases, the recordkeeping is not
necessary to demonstrate lack of discard. For the same reason, we
disagree with the commenters who suggested a paper trail of shipping
papers or documentation about the nature and quantity of hazardous
secondary materials and legitimate recycling.  In response to commenters
arguing that no reporting or recordkeeping is necessary, we note that
the notifications and renotifications submitted by generators and
reclaimers under this exclusion are necessary to provide effective
oversight for the exclusion.  

Regarding the comments concerning documentation of accumulation times,
inventories, and demonstration of compliance with speculative
accumulation requirements, we are not adopting these suggestions because
they would duplicate existing 40 CFR 261.1(c)(8), which already provides
that "a material is not accumulated speculatively, however, if the
person accumulating it can show that the material is potentially
recyclable and has a feasible means of being recycled; and that-during
the calendar year (commencing on January 1)-the amount of material that
is recycled, or transferred to a different site for recycling, equals at
least 75 percent by weight or volume of the amount of that material
accumulated at the beginning of the period."  Concerning the comment
requesting documentation of the recycling method and specifications for
the recycling process, we are not imposing these requirements because
they are not directly related to a determination of discard.  In
addition, regulatory authorities can use the notifications and
renotifications submitted by generators and reclaimers to contact
particular facilities if the authorities need such information. 

In response to the commenter who suggested that the Agency clarify how
much hazardous secondary material must be recycled before the material
is considered discarded (e.g., when a liquid waste undergoes phase
separation), we note that such determinations must necessarily be made
on a case-by-case basis by using the legitimacy provisions of 40  CFR
260.43. If the recycling is not legitimate, the material is discarded. 
In response to the commenter who suggested imposing the generator
requirements of 40 CFR 262.34 for materials accumulated before on-site
recycling, we do not believe that these requirements are appropriate for
hazardous secondary materials that are handled as valuable products that
are destined for recycling. We also did not propose to change the
requirements at 40 CFR 261.5 for conditionally exempt small quantity
generators, as suggested by this commenter. Such changes would therefore
be outside the scope of this rulemaking. 

In response to the commenter who objected to EPA's request for
"proposals" of technical rationales, the commenter has misinterpreted
the Agency's suggestion.  EPA was requesting that commenters who
submitted suggestions for additional management requirements accompany
these suggestions with technical rationales for the suggestions. In this
way, the Agency can more effectively evaluate the suggestions, decide
whether to adopt them, and respond to comments.   

6.5 - Enforcement of the exclusion for hazardous secondary materials
managed under the control of the generator

6.5 - Summary

Some commenters said that RCRA enforcement action should not be
retroactively applied to entities that manage hazardous secondary
materials in good faith, after which the materials are subsequently
mishandled, either because of a minor violation by the generator or
violations by subsequent handlers (0048-7, 0458-33, 0481-113, 0529-6).
Another commenter, however, said that violations of the conditions or
restrictions of the exclusions should lead to hazardous secondary
materials being considered solid and hazardous wastes from the time they
were generated or from the time the violation occurred (0457-14). Some
commenters asked EPA to clarify its enforcement policy for "downstream"
mismanagement of recycled materials (0069-1, 0457-14), or expressed
concern that such mismanagement would be difficult to enforce (0092-1). 
  

Some commenters said that any enforcement action or loss of an exclusion
should be based on violations causing actual environmental harm or
threat, rather than paperwork violations (0458-33, 0467-15, 0491-11,
0491-12, 0491-14). 

One commenter requested that the Agency clarify its application of
enforcement discretion to  speculative accumulation and the requirement
that land-based units be contained (0467-15). 

One commenter asked the Agency to clarify its policy regarding the
burden of proof in an enforcement action (0069-1). Another commenter
objected to our statement in the October 2003 proposal that in the case
of an enforcement action, a respondent who claimed that a material was
excluded had the burden of proof to demonstrate that the material had
been managed in a manner that maintained the exclusion. According to
this commenter, if the Agency concludes that a material has been
discarded, EPA has the burden of proving this in the context of an
enforcement action. (0197-17).

One commenter stated that the standards applicable to the
generator-controlled exclusion, principally speculative accumulation,
would be "standards the facility imposed upon itself" (57 FR 14188).
According to this commenter, the potential for litigation concerning
speculative accumulation, releases, and other issues would be great
(0532-9). 

Some commenters expressed concern about the ability of regulatory
authorities to determine eligibility for, or compliance with, the
exclusions in this final rule.  Some commenters expressed concern about
reduced oversight making prevention of releases more difficult (0462-11,
0462-13, 0530-4). One commenter objected because the rule places no
limits on the number of times the material can be moved, or geographical
limitations on how far the material can be transported (0130-8). Some
commenters said that it might not be possible to track the whereabouts
of hazardous secondary materials (0076-7, 0084-8, 0130-8, 0186-13,
0213-1, 0530-4, 0536-1). Other commenters expressed doubt that
regulatory authorities would be able to ascertain whether recyclers were
qualified (0171-12, 0186-13).  

Still another commenter said that EPA should explicitly state that
agencies have authority to inspect and verify that facilities meet the
conditions of the exclusions (0470-5). Another commenter said that the
Agency should clearly specify that all releases of hazardous secondary
materials are subject to RCRA regulations (0538-10). 

One commenter stated that states did not have sufficient numbers of
enforcement personnel to provide oversight of hazardous waste
facilities, let alone facilities that would be excluded under this rule.
 This commenter was also dubious about the value of self-implementation
of the exclusions (0564-3, 0564-9, 0564-16). Another commenter urged
environmental authorities to be as diligent in their compliance
inspections of recyclers as they are for commercial TSDFs (0457-36).

6.5 - Response

In response to those commenters who addressed our enforcement criteria,
especially for retrospective liability, we note that the criteria are
explained in sections VII, VIII, and IX of the preamble of this final
rule. Specifically, we note that hazardous secondary materials
transferred to a third party for the purpose of reclamation are excluded
from RCRA Subtitle C regulation under certain conditions and
restrictions. If a hazardous secondary material generator fails to meet
any of the above-described conditions and restrictions that are
applicable to the generator, then the hazardous secondary materials
would be considered discarded by the generator and would be subject to
the RCRA Subtitle C requirements from the point at which such material
was generated. This approach is long-standing EPA policy, which we did
not propose to amend in our March 26, 2007 supplemental proposal.  In
addition, if a reclaimer or an intermediate facility failed to meet the
conditions, then the hazardous secondary materials would be considered
discarded by the reclaimer or intermediate facility and would be subject
to RCRA Subtitle C requirements from the point at which the reclaimer or
intermediate facility failed to meet a condition or restriction, thereby
discarding the material.  However, we also note that the failure of the
reclaimer or intermediate facility to meet the conditions or
restrictions of the exclusion does not mean that the hazardous secondary
material was considered waste when handled by the generator, as long as
the generator can adequately demonstrate that it has met its
obligations, including the obligation under 40 CFR 261.4(a)(24)(v)(B) to
make reasonable efforts to ensure that the hazardous secondary material
will be recycled legitimately and properly managed. A hazardous
secondary material generator that met its reasonable efforts obligations
could, in good faith, ship its excluded materials to a reclamation
facility or intermediate facility where, due to circumstances beyond its
control, they were released and caused environmental problems at that
facility. In such situations, and where the generator's decision to ship
to that reclaimer or intermediate facility is based on an objectively
reasonable belief that the hazardous secondary materials would be
reclaimed legitimately and otherwise managed in a manner consistent with
this regulation, the generator would not have violated the terms of the
exclusion.

The Agency notes that such determinations would only be for the purposes
of determining compliance with the exclusions in this final rule and
would not affect liability under CERCLA. For further discussions of
liability under RCRA and CERCLA, see sections 7.8 and 10.3 of this
response to comments document.  

EPA strongly disagrees with those commenters who suggested that any
enforcement action or loss of an exclusion should be based on violations
causing actual environmental harm or threat, rather than paperwork
violations.  We note that the requirement to provide notifications is
not a condition of the exclusions. Thus, failure to comply with this
requirement does not affect the excluded status of the hazardous
secondary materials. However, violations of other recordkeeping
requirements may endanger the status of the exclusion, and failure to
submit a required notification may subject the respondent to an
enforcement action as a violation of RCRA. In our view, these
requirements are necessary to demonstrate lack of discard, and failure
to comply with these provisions constitutes a potential threat to the
environment.  Without these requirements, regulatory authorities and the
regulated community would not be able to assure themselves of the status
and whereabouts of hazardous secondary materials and there would be a
greater possibility of releases.  

In response to the commenter who asked that we clarify our enforcement
discretion policy with respect to releases and violations of the
speculative accumulation requirements, we note that under the Agency's 
enforcement discretion policy, all enforcement actions are taken on a
case-by-case basis after taking into account all circumstances that are
relevant to the particular facility.  All generators, reclaimers and
intermediate facilities should make every attempt to comply with the
containment requirement and the speculative accumulation provisions.  If
a facility needs additional time to accumulate hazardous secondary
materials, the owner or operator may apply for a variance under 40 CFR
260.30(a). 

	In response to the commenter who objected to our statement in the
October 2003 proposal regarding the burden of proof in an enforcement
action, we note that the applicable burdens of proof and evidentiary
standards in EPA's administrative cases are discussed in In Re: General
Motors Automotive - North America, 13 E.A.B, _________, slip opinion pp.
70-74 (EAB 6/20/08)(found at the EAB's website: epa.gov/eab). That
discussion also notes that "parties claiming the benefits of an
exception to a broad remedial statutory or regulatory scheme have the
burden of proof…. to show that they meet the terms of the
exception.” Further, EPA's regulations at 40 CFR 261.2(f) provide that
the person claiming an exclusion must provide appropriate documentation
to demonstrate that he meets the conditions of the exclusion or
exemption.  If EPA initiates an enforcement action, the burden is on the
Agency to prove by a preponderance of the evidence that the respondent
has committed a violation, or (in the case of a criminal action) that
the defendant is guilty beyond a reasonable doubt.  

We disagree with the commenter who said that the requirements for the
generator-controlled exclusion were "self-imposed" and would lead to
litigation. The exclusions are self-implementing, but the standards
themselves have been developed by EPA, and, in the case of containment
and speculative accumulation (mentioned by the commenter) are concepts
that have been part of the RCRA regulatory program for many years.  

In response to the commenters who expressed concern about the ability of
regulatory authorities to oversee compliance and eligibility, we believe
that the notification, renotification and recordkeeping requirements in
this rule are completely adequate for this purpose.  These requirements
are discussed in detail in Sections VII and VIII of the preamble to this
rule, and in the relevant sections of this response to comments
document.  We note that the agency has expanded recordkeeping
requirements from the March 26, 2007 supplemental proposal to include
periodic renotification, confirmations of receipt, documentation and
certification of reasonable efforts, and annual reports for hazardous
secondary material exported for reclamation.  We have also added a
certification requirement for "same company" under the
generator-controlled exclusion.  We consider these requirements to be
sufficient to allow regulatory authorities to determine that hazardous
secondary materials have not been discarded and managed in a manner
protective of human health and the environment.  

With these requirements in place, it is not necessary to place limits on
the number of times a material can be moved, or place geographical
limitations on transport.  The requirements will enable regulatory
authorities to track the whereabouts of hazardous secondary materials
and to determine, if appropriate, whether recyclers are qualified.  

Nor does the Agency agree that it is necessary to explicitly state in
the regulations that agencies have the authority to inspect and verify
that facilities meet the conditions of the exclusion.  We believe that
existing authorities such as RCRA section 3007 are adequate for this
purpose. In response to the commenter who suggested that we state that
releases are subject to full Subtitle C regulation, we note that the
subject of releases is covered in detail in sections VII and VIII of the
preamble to this final rule, as well as in the relevant portions of this
response to comments document.  

In response to the commenter who expressed doubts about
self-implementation and said that states did not have sufficient
enforcement personnel to enforce this rule, the Agency has full
confidence in the willingness and ability of states to enforce the
requirements of the exclusions in this final rule.  In addition,
assistance from EPA is available under many circumstances.   

7 - Conditional exclusion for hazardous secondary materials that are
transferred for the purpose of reclamation ("broader exclusion")

7.1 - Purpose and intent of proposed exclusion

7.1 - Summary

The commenter stated that some recycling practices may bear more
resemblance to waste management and the hazardous secondary materials
should therefore remain regulated as wastes.  A common example is the
distillation of solvents from off-site sources.  The Agency is proposing
to deregulate a specific subset of these materials that are recycled by
being reclaimed, but the proposal is biased against smaller businesses
that do not have specialized resources to support such activity or
coordination within similar industry. [0215]

7.1 - Response

EPA agrees that facilitating access for smaller companies to the
recycling exclusion when possible is an important objective.  As a
result, in the 2007 supplemental proposal and the final rule, EPA
included provisions such as not requiring reasonable efforts when
hazardous secondary material is sent to a RCRA-permitted facility and
allowing the use of intermediate facilities that would help facilitate
small companies' participation in the exclusions while still
appropriately defining when a material is not discarded and therefore
not a solid waste.

7.1.1 - Support for broader exclusion

7.1.1 - Summary

Many commenters on both the October 2003 proposal and the March 2007
supplemental proposal supported a broad option under which hazardous
secondary materials generated and subsequently transferred to another
company or person for the purpose of reclamation would be excluded from
the definition of solid waste upon certain conditions being met
("transfer-based exclusion"). Commenters on the 2007 proposal commended
EPA for its significant departure from the "same industry" scheme
proposed in 2003 by proposing this transfer-based exclusion. As the
Agency notes, this exclusion reflects "how successful third-party
recycling currently operates" and will promote legitimate recycling
across many industries. Commenters also provide examples of recycling
opportunities, including sending solvents to a paint manufacturer or
other facility for recycling, the recycling of gold-bearing secondary
materials at nearby facilities, the recycling of electric arc furnace
dust, recycling of electroplating dust, recycling foundry sand,
recovering vanadium from spent catalyst, reuse of acidic materials and
other hazardous secondary materials at phosphate fertilizer production
facilities, recycling spent pickle liquor, recycling electroplating
waste and spent echants, and metals recycling. In some cases commenters
provided draft regulatory text.  Such an exclusion would also (1)
promote the concept of industrial ecology, where waste products from one
process serve as feedstock to another process, (2) help accomplish EPA's
long term 2020 vision of the RCRA program, (3) promote the Resource
Conservation Challenge, (4) encourage by-product synergy, (5) benefit
small businesses, and (6) reduce manpower costs spent determining
whether a particular load is waste or not.  In some cases, commenters
supported EPA addressing the exclusions in a incremental fashion.
[0043-12, 0048-10, 0052-2, 0053-1, 0060-2, 0060-11, 0067-17, 0060-18,
0062-1, 0072-10, 0072-17, 0074-5, 0074-6, 0074-7, 0074-12, 0074-14,
0081-1, 0081-4, 0081-5, 0081-6, 0081-9,  0082-3, 0083-5, 0085-12,
0085-14, 0087-10, 0089-15, 0090-6, 0091-34, 0091-37, 0093-40, 0093-52,
0096-5, 0097-19, 0097-20, 0100-3, 0101-8, 0101-10, 0101-11, 0102-39,
0104-16, 0106-1, 0112-3, 0112-7, 0112-13, 0112-14, 0112-32, 0122-2,
0122-3, 0122-6, 0123-3, 0127-2, 0127-5, 0127-7, 0127-16, 0127-19,
0127-20, 0129-2, 0129-13, 0131-2, 0136-3, 0137-2, 0137-3, 0138-3,
0138-26, 0138-28, 0138-29, 0139-1, 0139-2, 0139-3, 0141-3, 0145-5,
0145-9, 0145-10, 146-7, 0146-15, 0147-1, 0147-10, 0149-3, 0149-7,
0149-30, 0149-31, 0152-5, 0154-1, 0154-3, 0154-4, 0155-2, 0157-1,
0160-4, 0162-3, 0168-3, 0168-7, 0168-8, 0168-9, 0168-10,  0168-11,
0169-1, 0169-2, 0169-3, 0169-6, 0169-10, 0169-12, 0169-14, 0170-1, 0170-
5, 0170-6, 0174-1, 0174-7, 0178-2, 0178-30, 0179-8, 0179-23, 0179-24,
0179-25, 0179-26, 0180-12, 0180-13, 0184-1, 0184-2, 0184-9, 0185-17,
0194-1, 0197-7, 0199-2, 0199-5, 0199-16, 0199-17, 0199-32, 0199-37,
0203-17, 0203-24, 0205-1, 0207-4, 0207-6, 0207-7, 0207-8, 0208-1,
0211-3, 0211-4, 0211-5, 0211-7, 0212-15, 0217-4, 0217-23, 0221-2,
0222-4, 0222-9, 0222-12, 0222-14, 0222-43, 0225-1, 0225-2, 0225-16,
0225-17, 0225-32, 0232-1, 0436-4, 0458-10, 0458-36, 0460-2, 0464-3,
0467-8, 0468-10, 0471.1-5, 0471.2-54, 0472-24, 0472-25, 0476-8, 0478-6,
0485-10, 0486-33, 0487-4, 0492-46, 0494-7, 0510-1, 0517-2, 0518-6,
0524-10, 0527-3, 0529-10, 0529-11, 0534-9, 0534-14, 0536-3, 0536-11,
0536-12, 0545-4, 0551-4]  

7.1.1 - Response

EPA appreciates the comments in support of a broad option under which
hazardous secondary materials generated and subsequently transferred to
another company or person for the purpose of reclamation are excluded
from the definition of solid waste upon certain conditions being met
("transfer-based exclusion"). EPA believes that this exclusion will
encourage the recycling of hazardous secondary materials and reduce
unnecessary regulatory compliance costs to industry, while still
maintaining protection of human health and the environment. After
considering the entire rulemaking record, including comments submitted
by the public, the Agency continues to believe that this exclusion is a
workable, common-sense approach to meeting these objectives; is well
supported by the record for this rulemaking, including the recycling
studies that EPA has conducted; and, in important ways, reflects current
good industry practices that are used by responsible generators for
recycling hazardous secondary materials.

7.1.1.1 - Additional conditions needed to support the broad exclusion

7.1.1.1 - Summary

Many commenters indicated that they would support a broad option to
exclude hazardous secondary materials generated and subsequently
transferred to another company or person for the purpose of reclamation,
but only if certain conditions were met.  Commenters believe that there
is a middle road that can be taken with a rule that incorporates some of
the limitations and concepts from the lead proposed rule, but does not
go so far as to deregulate all materials, especially for those practices
that are outside the scope of the lead proposed rule.  If EPA believes
that a spent material should be removed from the family of "solid
wastes" or "hazardous wastes" when sent to metals reclamation, then such
a change should occur on a case-by-case basis, and EPA should use as a
starting point those regulatory controls previously found to be needed
in light of the unique properties of the waste in question. In the
process of this review, EPA should consider all the potential
consequences of deregulation of the activity. By loosening those
safeguards to the level of protection most appropriate to material not
destined for disposal, we could encourage greater recycling while still
ensuring safety. EPA has to preserve at least some elements of the
current regulatory system which tracks these materials: (1) ensuring
they are legitimately recycled, (2) discouraging mismanagement of these
materials, (3) demonstrating attainment of purported recycling goals,
and (4) maintaining protection of human health and the environment. 
Since the proposed rule will allow the treatment of hazardous wastes
with little or no community or regulatory oversight or review, some
quality assurance standard should be provided.  The Agency should review
its own requirements for such RCRA activity and place similar
requirements on these secondary recycling facilities, even if not
subject to prior review.

Examples of conditions suggested include:

- Legitimacy criteria;

- Prohibition against speculative accumulation;

- An initial notification of an entity's intent to claim the exclusion;

- Recordkeeping and documentation of all secondary materials processed
on- or off-site, maintained for 3 years;

- Recordkeeping and reporting requirements similar to those found in 40
CFR Part 262, Subpart D for generators of recyclable materials and 40
C.F.R. Part 264, Subpart E for facilities receiving recyclable
materials;

- Use of a 'recyclable material" manifest consistent with Department of
Transportation shipping and labeling requirements for off-site
shipments;

- Development and maintenance of an operationing plan describing and
documenting compliance with legitimacy criteria and incorporating a
contingency plan and emergency response procedures comparable to those
required under 40 C.F.R. Part 264, Subpart B; 

- Labeling, and waste analysis plans;

- Minimum standards for management and storage of recyclable materials
and recycled products in a manner to minimize releases of hazardous
constituents into the environment; including containment standards for
tanks and containers;

- Financial assurance.

[0072-7, 0091-35, 0101-6, 0104-1, 0119-57, 0125-3, 0144-8,  0144-10,
0146-14, 0146-16, 0146-17, 0153-29, 0172-10, 0172-40,  0178-15, 0475-17,
0475-41, 0484-28, 0484-32, 0543-1, 0543-7, 0543-12, 0544-4, 0558-24]

One commenter noted that, as much as it makes sense that a material has
not been discarded if it is being put to beneficial re-use, there have
been situations that serve as examples of EPA's concern regarding
blanket deregulation of recyclable materials.  They cited the example of
a company that did recycle, but also polluted its site with a wide
variety of chemicals in the process. The commenter expressed a  need to
find the middle ground where "generators" are encouraged to recycle
on-site or off, within industry or without; while maintaining regulatory
authority over the real potential source of pollution ..... the
recycling operation/location itself. The commenter was in favor of
excluding materials destined for recycling from the definition of solid
waste as that will encourage legitimate recycling, but was not in favor
of that deregulation extending to any process that recycles hazardous
materials other than in a completely closed system. There is a caveat in
every environmental statute that basically says, "If no rule covers
something we feel is a substantial risk to the environment, we still
have authority to act." Somehow or another, there IS a way to deregulate
the "generators" and maintain regulatory authority over receiving
facilities. It's not the substance that pollutes, it's the people who
handle it improperly.

[0035-1]

Commenters also suggested that EPA redefine "solid waste" by defining
what is not a solid waste using the following definition:

Recyclable materials that are managed in an environmentally sound manner
and are legitimately and beneficially recycled in a process that (1)
produces a product for use or sale in commerce, or (2) produces a
valuable material for further use as a feedstock in a manufacturing
process, are not solid wastes.

The commenter believes it would be reasonable to base a conditional
exclusion on conformance with this definition plus environmentally sound
management conditions. 

[0091-35, 0107-2]

7.1.1.1 - Response

EPA agrees that conditions are needed for a broad provision to exclude
hazardous secondary materials generated and subsequently transferred to
another company or person for the purpose of reclamation
("transfer-based" exclusion).   As discussed in Section V of the
preamble to the final rule and elsewhere in this response to comments
document, the conditions and restrictions to the transfer-based
exclusion in the final rule ensure that it is appropriately focused on
hazardous secondary materials that are not discarded.

7.1.1.2 - Additional conditions are not needed for broader exclusion

7.1.1.2 - Summary

Some commenters supported a broad provision to exclude hazardous
secondary materials generated and subsequently transferred to another
company or person for the purpose of reclamation, but would not support
additional conditions.  More thorough characterization of secondary
materials, beyond those deemed necessary by the recycler to manage their
processes in conformance with the legitimacy criteria would add
unnecessary costs to recycling.  Additional requirements regarding
transportation records are redundant as there are DOT requirements for
transportation of hazardous materials.  Furthermore, residuals from the
reclamation of secondary materials should not be considered hazardous
waste unless they are listed or characteristic waste.  More detailed
record keeping or storage safeguards are unnecessary because the
legitimacy criteria already prohibit the handling of secondary material
in a sloppy manner.  Abuse of this prohibition would subject the handler
to RCRA enforcement.  In order to not undercut the effectiveness of this
proposal, EPA should seek to impose only those regulations necessary to
maintain environmental protections.

[0093-54, 0138-32, 0225-18, 0458-31, 0468-23, 0481-40]

7.1.1.2 - Response

EPA believes that certain conditions are needed for transfer-based
exclusion for hazardous secondary materials generated and subsequently
transferred to another company or person for the purpose of reclamation
("transfer-based" exclusion).   As discussed in Section V of the
preamble to the final rule and elsewhere in this response to comment
document, the conditions and restrictions included in the transfer-based
exclusion in the final rule are designed to ensure that it is
appropriately focused on hazardous secondary materials that are not
discarded, and the appropriateness of the conditions and restrictions
for this purpose is supported by the record for this rulemaking.

7.1.2 - Opposition to broader exclusion

7.1.2 - Summary

Many commenters on both the October 2003 proposal and the March 2007
supplemental proposal opposed a broad option under which hazardous
secondary materials generated and subsequently transferred to another
company or person for the purpose of reclamation would be excluded from
the definition of solid waste upon certain conditions being met
("transfer-based exclusion").   Commenters believe that this type of
exemption would remove the safeguards required by RCRA for the proper
management of hazardous wastes, would result in an increase in "sham
recycling," and ultimately would result in an increase in the potential
for releases of hazardous wastes to the environment resulting from
improper storage practices and a lack of adequate tracking of shipments.
 Commenters argued that this would allow material to move in and out of
the hazardous waste management system depending on what any person
handling the material decided to do with it and would potentially result
in environmental mismanagement throughout the country.  

Commenters also assert that eliminating the RCRA requirements through a
broader exemption for all legitimate reclamation may create incentives
for new companies to enter the market that are not subject to the same
regulatory standards, thus raising the potential for releases to the
environment and the creation of new Superfund sites. New reclamation
facilities may pop up and market their services before regulators are
able to check them out. Generators will assume they are acceptable,
based on their past experiences with heavily regulated facilities; but
the reality will have shifted and their assumptions will no longer be
valid. In fact, this scenario has played itself out multiple times in
the past, as new wastes fall under regulatory scrutiny. Good examples
are electronic scrap, fluorescent lamps and oil filters. As these wastes
came under regulatory scrutiny, recycling companies jumped in to fill
the demand for services. Some of those were shams. 

Commenters believe that the storage of wastes prior to recycling
presents many if not all of the same risks and hazards as storage prior
to disposal does.  With the possible exception of its recycling value,
the fact that a given drum of hazardous waste is going to be recycled
does not in itself reduce the likelihood that the drum is going to
become damaged or leak, or be involved in a fire, explosion, or other
mishap.  Nor does it reduce the need for the personnel handling the
material to be properly trained so as to safely handle the material and
prevent releases.  Any change in RCRA that is aimed at encouraging
recycling and that does not address this reality is not adequately
protective, and is therefore unacceptable. Materials that pose risks to
health are regulated by the Environmental Protection Agency and by
states. Redefining hazardous materials does not change their
carcinogenic, mutagenic, neurotoxic or other poisonous properties.
Commenters ask that in an environment of increasing threats to public
safety from individuals or organizations that knowingly seek to do harm
to Americans, do we really want to lose track of 650 million tons of
poisons? At what disadvantage does this leave our first responders in an
emergency situation? How much time would be lost in the event of a
spill, explosion, or other incident trying to identify materials if this
measure were to be enacted? Transporting "excluded" wastes increases
risks to every community. Americans are safer when officials know what
dangerous substances are in the environment, and where they are, and
when.

Commenters noted that a generator's RCRA "cradle to grave"
responsibility needs to be maintained. Deregulating recycling in an
across-the-board way ignores the fundamental purpose of RCRA as a
preventative regulation. Under a broad exclusion, all of the up-front
protective standards of RCRA are lost, leaving only emergency response
and cleanup authorities should a spill or release occur. This changes
RCRA from a preventive, pro-active rule to a remedial, reactionary one. 
It is a necessary assurance that the generator will make certain that
the waste is being legitimately recycled. Materials should not be
excluded from US EPA's jurisdiction simply because someone claims that
they will be recycled. The fact that materials are transferred by the
generator to another person or company for reclamation demonstrates that
subsequent activities are more likely to involve some level of discard,
given that the generator has relinquished control of the hazardous
secondary material, and additional conditions are needed for the Agency
to determine that these materials are not being discarded.  With no base
in primary manufacturing, commercial recyclers may have few employees
and shallow or no roots in the community. They are often small in size,
with little in fixed facilities and capital investment. Therefore, they
are easily abandoned in favor of new locations. If not subject to
permitting, with associated design and operating standards and financial
assurances, or at least periodic inspection, the probability is
relatively high that such facilities will become tomorrow's Superfund
sites. There are several examples of these nationwide.

Commenters also expressed concern that state agencies charged with
enforcing use of a broader exclusion would have to deal with monitoring
a much larger universe of excluded facilities for compliance and would
have less information about those facilities’ activities since, as
proposed, they would not have to submit records to the agencies about
their recycling activities (except for the initial or amended
notifications); e.g. no copies of shipping manifests.  State agencies
would have only the information in the notifications to assist their
inspection targeting strategies.  Such a broader exclusion would place a
much greater resource burden on state agencies. 

Commenters also note that EPA's recycling studies speak directly to the
issue of whether off-site recycling is inherently more dangerous than
recycling conducted on-site. EPA states that one of the questions it
examined in the study was whether there were any significant differences
in the frequency, type or causes of environmental damage when recycling
was conducted on-site, as compared to off-site. The evidence is
unequivocal.  Of the 208 damage cases, 91% involved off-site recycling,
and only 6% of the damage cases involved wholly on-site recycling. 

This significant difference in the record of commercial recycling
facilities versus on-site recyclers should have stopped EPA in its
tracks from lessening regulatory requirements applicable to off-site
hazardous waste recyclers.  In fact, the assessment is a clear signal
that current regulations are not stringent enough. 130 of the 208 sites
involve recycling activities currently exempted in 40 CFR Part 261. This
number is conservative, because detailed information was not available
for each damage case. At the very least, 60% of the damage cases
identified by EPA resulted from recycling activities that EPA has
already exempted from subtitle C requirements.  If more information were
available, the percentage would likely increase substantially.  In fact,
if one counts 24 additional cases where information indicates that
exempted recycling was likely taking place, the total would approach 80%
of the entire list of damage cases.  EPA should therefore question the
safety of the existing recycling exemptions.  If these exemptions are
not working as EPA intended, EPA must reexamine the present course of
this supplemental proposal, whose broad exclusions from the definition
solid waste promise only to make matters worse.

Commenters also noted that examples of "successful recycling practices"
in EPA's studies arose in direct response to the Agency's regulatory
programs under RCRA.  As EPA observes, "The Agency has long heard from
various representatives of industry and other stakeholders that
management of hazardous secondary materials has changed and improved
since the inception of RCRA hazardous waste regulations in the early
1980s and that these hazardous secondary materials are being managed
much more carefully than they were historically." (72 FR 14179) The
commenters state that the Agency ultimately uses the results of its
studies of successful recycling practices to justify their broad
deregulation, seemingly oblivious of (or unconcerned about) the circular
nature of the underlying 'logic' and the deep irony inherent in the
decisions it produces.   In a single sweep, EPA links the current
"careful" management of hazardous secondary materials to its RCRA
regulatory program while admitting that these materials were managed
less carefully prior to the inception of RCRA rules. EPA then relies
upon the success of its RCRA regulatory regime to justify its
dismantling, apparently content to believe that because some large
corporations now have "corporate responsibility" programs, all
generators will mange their hazardous secondary materials in exemplary
ways.  The Agency seems comfortable with this belief despite the fact
that it found "the real effects of these corporate policies are hard to
gauge."  (72 FR 14179)   The commenters state that EPA must explain and
fully justify in factual terms its basis for concluding that eliminating
RCRA controls over broad categories of secondary hazardous materials
will not result in a reversion to the conditions that existing prior to
the development of a comprehensive regulatory scheme that governed the
disposition of these materials.  The fact that some companies (EPA has
made no effort to quantify how many) have corporate responsibility
programs does not explain why the Agency should expect that 100 percent,
or even most of the secondary materials it proposes to exclude from RCRA
will continue to be carefully managed once the regulatory incentives
that are credited with causing that behavior no longer exist.  In fact,
the people or entities who might have been most inclined to be
irresponsible in the past will now be free to be even more
irresponsible, with no concern about penalties.

[0065-8, 0068-16, 0073-2, 0073-6, 0073-10, 0092-7, 0098-37, 0098-38,
0098-40, 0098-41, 0109-2, 0109-4, 0109-5, 0109-8, 0130-12, 0140-13,
0144-2, 0148-16, 0148-17, 0153-28, 0164-3, 0172-39, 0176-8, 0182-10,
0210-7, 0457-16,  0462-8, 0470-14, 0470-15, 0479-3, 0479-11, 0479-15,
0480-3, 0482-2, 0484-20, 0495-3, 0495-11, 0521-5, 0541-1, 0541-2, 
0548-21, 0559-11, 0559-13, 0562-2, 0563-7, 0564-13, 0564-27]

7.1.2 - Response

While EPA agrees that the information in the recycling studies indicate
that, absent regulatory controls, hazardous secondary materials sent to
a third party for recycling can become the cause of environmental
damages, EPA disagrees that the exclusion in the final rule for these
materials fails to address this concern.  

The conditions and restrictions included in the transfer-based exclusion
are adequate to appropriately exclude only those materials that are not
discarded.  For hazardous secondary materials transferred to another
party for reclamation, the fact that the generator is required to make
reasonable efforts to ensure that its hazardous secondary materials are
properly and legitimately reclaimed demonstrates that the generator is
not simply disposing of the material, but instead is taking
responsibility that the hazardous secondary materials will be recycled.
In addition, by maintaining a record of each shipment and a confirmation
of receipt, the generator demonstrates that it continues to take
responsibility for knowing the ultimate disposition of its hazardous
secondary materials and ensuring that they are properly recycled.
Furthermore, by obtaining financial assurance, the reclamation facility
demonstrates that it has also taken on the responsibility to ensure that
the hazardous secondary materials will not be abandoned in the event
that circumstances make it impossible for the facility to reclaim the
hazardous secondary materials. For further discussion of how these and
other restrictions and/or conditions of the exclusions are linked to
defining when hazardous secondary materials are not discarded, see
section V of the final rule preamble, as well as sections VII-IX and
sections XVI-XVIII. Support for the Agency's determination regarding
which materials are not discarded is found throughout the rulemaking
record in this proceeding. 

The restrictions and the conditions EPA is finalizing today are designed
to define which reclaimed hazardous secondary materials are not
discarded and hence are not solid waste. 

EPA disagrees with comments that characterize the final rule as relying
on "corporate responsibility" to ensure properly recycling of hazardous
secondary material.   While the successful recycling study was useful in
providing information on  actions that some generators currently take -
such as auditing the reclamation facility - to ensure their material is
safely recycled, EPA does not assume that these actions will always be
taken absent regulation.  That is why provisions such as the reasonable
efforts requirement are explicit conditions of the rule.

Furthermore, hazardous secondary materials excluded under today's rule
may remain subject (or become subject) to requirements under other
statutory programs. For example, hazardous secondary material
generators, transporters, intermediate facilities and reclaimers may be
subject to regulations developed under:

- The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

- The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

- The Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA)
and the Superfund Amendments and Reauthorization Act (SARA) of 1986
which, combined, require notification of hazardous substance releases
above a reportable quantity, emergency planning and, if applicable, MSDS
and inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370).
Hazardous secondary material generators and reclaimers meeting defined
criteria are also subject to toxic chemical release reporting (i.e.,
Toxics Release Inventory (TRI) under EPCRA (40 CFR part 372)). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities alongside of RCRA. For more useful
information on these regulatory programs, please see "Memorandum:
Requirements that other Regulatory Programs would place on Generators,
Reclaimers and Transporters of Hazardous Secondary Materials" located in
the docket for this rulemaking.

EPA acknowledges that some of the damages in the study may have resulted
from some activities that may have been covered by various types of
regulatory exclusions or exemptions.  EPA recognizes the commenters’
point that past damages that may have occurred under current recycling
exclusions could raise concerns about additional exclusions. However,
the Agency believes that careful evaluation of damage cases conducted in
the study provides conclusive evidence of the kinds and causes of
environmental damages that must be addressed in the exclusions in this
rulemaking to ensure that they cover only non-discard activities. EPA
thus believes that the study provides us with the information necessary
to craft appropriate conditions and restrictions for the exclusions to
ensure that only non-discard reclamation activities are excluded from
the definition of solid waste.

7.1.2.1 - Additional information needed to evaluate broader exclusion

7.1.2.1 - Summary

Some commenters on the 2003 proposal urged EPA to provide additional
information on the potential broad option that hazardous secondary
materials generated and subsequently transferred to another company or
person for the purpose of reclamation be excluded from the definition of
solid waste upon certain conditions being met ("transfer-based
exclusion").  Commenters recommended that EPA conduct a more thorough
analysis of the various options proposed, particularly with respect to
potential adverse impacts on health, safety, and the environment as well
as the additional costs that will be incurred by state RCRA programs. 
Commenters noted that without a more detailed analysis, they are unable
to adequately judge the rationality of the distinction between intra and
inter industry recycling, and whether a broader exclusion may be
warranted to encourage more recycling. Commenters requested that EPA
conduct stakeholder discussions and develop a supplemental proposal for
public comment based on an adequate administrative record.  Commenters
stated that EPA has a responsibility to provide enough information in
the rulemaking to support their claim of safety, and so that a
reasonable person can fully participate during the comment period.

Finally, one commenter noted that they were (at the time of their
comment) awaiting a response from the EPA on a Freedom of Information
Act request dated January 23, 2004. Under this request they specifically
asked for all information relevant to this rulemaking on environmental
damage caused from the use of recovered materials between industries, as
well as from the use of raw materials; all information on the known
harms from contaminants in recovered materials; and information on all
consumer products that would be made from recovered materials under this
rule.  

[0067-2, 0080-3, 0119-56, 0141-4, 0193-5, 0227-1]

7.1.2.1 - Response

EPA acknowledges the public comments to the October 2003 proposal that
requested addition information on a potential broad option under which
hazardous secondary materials generated and subsequently transferred to
another company or person for the purpose of reclamation would be
excluded from the definition of solid waste upon certain conditions
being met ("transfer-based exclusion"). In light of these comments on
the October 2003 proposal, and in deliberating on how to proceed with
this rulemaking effort, the Agency decided that additional information
on hazardous secondary material recycling would benefit the regulatory
decision-making process, and would provide the Agency and stakeholders
with a clearer picture of the hazardous secondary material recycling
industry in this country. 

Accordingly, in support of the 2007 supplemental proposal , the Agency
examined three basic issues that we believed and that commenters
suggested were of particular importance to informing this rulemaking
effort:

(1) How do responsible generators and recyclers of hazardous secondary
materials ensure that recycling is done in an environmentally safe
manner?

(2) To what extent have hazardous secondary material recycling practices
resulted in environmental problems in recent years, and why?

(3) Are there certain economic forces or incentives specific to
hazardous secondary material recycling that can explain why
environmental problems can sometimes originate from such recycling
activities? 

Reports documenting studies addressing these questions are available in
the docket for this rulemaking, under the following titles:

- An Assessment of Good Current Practices for Recycling of Hazardous
Secondary Materials (EPA-HQ-RCRA-2002-0031-0354 ) ("successful recycling
study")

- An Assessment of Environmental Problems Associated With Recycling of
Hazardous Secondary Materials (EPA-HQ-RCRA-2002-0031-0355)
("environmental problems study")

- A Study of Potential Effects of Market Forces on the Management of
Hazardous Secondary Materials Intended for Recycling
(EPA-HQ-RCRA-2002-0031-0358) ("market forces study")

The results of these three studies have informed and supported EPA's
decision making in today's final rule. 

The successful recycling study has provided information to the Agency
that has helped us determine what types of restrictions and conditions
would be appropriate for hazardous secondary materials sent for
reclamation to determine that they are handled as commodities rather
than wastes. EPA found that responsible recycling practices used by
generators and recyclers to manage hazardous secondary materials fall
into two general categories. The first category includes the audit
activities and inquiries performed by a generator of a hazardous
secondary material to determine whether the entity to which it is
sending such material is equipped to responsibly manage it without the
risk of releases or other environmental damage. These recycling and
waste audits of other companies' facilities are a key component of many
of the transactions in the hazardous secondary materials market. The
second category of responsible recycling practices consists of the
control practices that ensure responsible management of any given
shipment of hazardous secondary material, such as the contracts under
which the transaction takes place and the recordkeeping systems in place
that can inform a generator that its hazardous secondary material has
been properly managed.  These findings helped inform EPA's decision to
include a condition regarding hazardous secondary material generator
conduct of reasonable efforts to ensure its materials are properly and
legitimately recycled, and to identify certain recordkeeping practices
that indicate that discard is not taking place.

The goal of the environmental problems study was to identify and
characterize environmental problems that have been attributed to some
types of hazardous secondary material recycling activity that are
relevant for the purpose of this rulemaking effort. To address
commenters concerns that historic damages are irrelevant to current
practices, EPA only included cases where damages occurred after 1982
(post-RCRA and -CERCLA implementation). The study identifies 208 cases
in which environmental damages of some kind occurred from some type of
recycling activity and that otherwise fit the scope of the study (as
described further in the study). The Agency believes that the occurrence
of certain types of environmental problems associated with current
recycling practices shows that discard has occurred. In particular,
instances where materials were abandoned (e.g., in warehouses) and which
required removal overseen by a government agency and expenditure of
public funds clearly demonstrate that the hazardous secondary material
was discarded. Of the 208 damage cases, 69 (33%) involve abandoned
materials. The relatively high incidence of abandoned materials likely
reflects the fact that bankruptcies or other types of business failures
were associated with 138 (66%) of the cases.

In addition, the pattern of environmental damages that resulted from the
mismanagement of recyclable materials (including contamination of soils,
groundwater, surface water and air) is a strong indication that the
hazardous secondary materials were generally not managed as valuable
commodities and were discarded. Of the 208 damage cases, 81 cases (40%)
primarily resulted from the mismanagement of recyclable hazardous
secondary materials. Mismanagement of recycling residuals was the
primary cause in 71 cases (34%). Often, in the case of mismanagement of
recycling residues, reclamation processes generated residuals in which
the toxic components of the recycled materials were separated from the
non-toxic components, and these portions of the hazardous secondary
material were then mismanaged and discarded. Examples of this include a
number of drum reconditioning facilities, where large numbers of used
drums were cleaned out to remove small amounts of remaining product such
as solvent, and these wastes were then improperly stored or disposed.

These findings helped inform EPA's decision to require that the
hazardous secondary material be contained in the unit and managed in a
manner that is at least as protective as an analogous raw material
(where there is an analogous material),  that the recycling residuals be
properly managed, and that the reclamation facility and any intermediate
facilities have financial assurance. In addition, the relatively small
proportion of cases of damages from on-site recycling (13 of the 208
cases (6%)) lends support for EPA's decision to include fewer
limitations on the exclusion for hazardous secondary materials recycled
under the control of the generator.

The market forces study uses accepted economic theory to describe how
various market incentives can influence a firm's decision-making process
when the recycling of hazardous secondary materials is involved. This
study helps explain some of the possible fundamental economic drivers of
both successful and unsuccessful recycling practices, which, in turn,
helped the Agency to design the exclusions in the final rule. As pointed
out by some commenters to the October 2003 proposed rule and confirmed
in the study, the economic forces shaping the behavior of firms that
recycle hazardous secondary materials are often different from those at
play in manufacturing processes using virgin materials. The market
forces study uses economic theory to provide information on how certain
characteristics can influence three different recycling models to
encourage or discourage an optimal outcome. The three recycling models
examined are: (1) commercial recycling, where the primary business of
the firms is recycling hazardous secondary materials that are accepted
for recycling from off-site industrial sources (which usually pay a
fee); (2) industrial intra-company recycling, where firms generate
hazardous secondary materials as by-products of their main production
processes and recycle the hazardous secondary materials to produce
products for sale or for their own reuse in production; and (3)
industrial inter-company recycling, where firms whose primary business
is not recycling either use or recycle hazardous secondary materials
obtained from other firms, with the objective of reducing the cost of
their production inputs. The report looks at how the outcome from each
model is potentially affected by three market characteristics: (1) value
of the recycled product, (2) price stability of recycling output or
inputs, and (3) net worth of the firm.

While an individual firm's decision-making process is based on many
factors and attempting to extrapolate a firm's likely behavior from a
few factors is a simplification, when used in conjunction with other
pieces of information, the economic theory provides a useful
understanding of the economic factors influencing the behavior of firms
that recycle hazardous secondary materials.

For example, according to the market forces study, the industrial intra-
and inter-company recyclers have more flexibility in adjusting to
unstable recycling markets (e.g., during price fluctuations, these
companies can more easily switch from recycling to disposal or from
recycled inputs to virgin inputs). Therefore, they would be expected to
be less likely to have environmental problems from over-accumulated
materials. On the other hand, certain specific types of commercial
recycling, where the product has low value, the prices are unstable,
and/or the firm has a low net worth, could be more susceptible to
environmental problems from over-accumulation of hazardous secondary
materials, especially when compared to recycling by a well-capitalized
firm that yields a product with high value. In both cases, these
predicted outcomes appear to be supported by the results of the
environmental problems study, which show the majority of problems occur
at off-site commercial recyclers. 

However, as shown by the study of successful recycling practices,
generators who might otherwise be at risk for a large liability from
poorly managed recycling at other companies have addressed this issue by
carefully examining the recyclers to which they send their hazardous
secondary materials to ensure that they are technically and financially
capable of performing the recycling. In addition, we have seen that
successful recyclers (both commercial and industrial) have often taken
advantage of mechanisms, such as long-term contracts to help stabilize
price fluctuations, and allow recyclers to plan their operations better.


The 2007 proposal provided public notice and opportunity to comment on
these studies and on the conditions EPA determined would be appropriate
to address the issues raised by these studies.  The record for the final
rule supports the conditions and restrictions that allow EPA to
appropriately define when hazardous secondary material reclamation does
not result in discard.

Finally, EPA notes that according to Agency records, the Freedom Of
Information Act (FOIA) request from Safe Food and Fertilizer concerning
"Recycling of Hazardous Waste"  was withdrawn and it was closed on May
19, 2004.

7.2 - Scope and applicability of proposed conditional exclusion

7.2 - Summary

EPA received several miscellaneous comments on the scope and
applicability of the proposed broad option under which hazardous
secondary materials generated and subsequently transferred to another
company or person for the purpose of reclamation would be excluded from
the definition of solid waste upon certain conditions being met
("transfer-based exclusion").

(1)  One commenter requested that RCRA permitted facilities that also
meet all of the requirements for the exclusion should be able to process
both excluded and regulated hazardous secondary materials, and that RCRA
Permitted facilities should be able to manage both excluded materials
and non-excluded through the same units, as long as the excluded
hazardous secondary material is handled, stored, and reclaimed in a
manner that meets the full requirements for the exclusion. [507-40,
507-42]

(2) One commenter said that dealerships often send materials off-site
for recycling through other than tolling agreements.  These include used
solvents, paints, batteries, scrap metals, oils, etc.  The commenter
suggests that the transfer-based exclusion for these activities would
provide little if any regulatory benefit to small quantity and
conditionally exempt generators, especially given the significant
additional compliance responsibilities that must be met to qualify for
the exclusion.   These responsibilities include significant mandates for
recordkeeping and due diligence.   Consequently, the commenter suggests
that this proposed conditional exclusion is unlikely to encourage small
quantity and conditionally exempt facilities to engage in additional
recycling.

[0523-9]

(3) One commenter does not support using the legitimacy criteria as a
sole basis for a "broader exclusion." [0217-22]

(4) One commenter noted that EPA's preamble to the proposed regulations
makes a distinction between "restrictions" - which are also referred to
as "pre-conditions" - and "conditions" for the exclusion.  72 FR 14188
col 3.  The preamble does not explain what the difference between these
terms is, and in fact indicates that both restrictions and conditions
will be enforced in the same way.  72 FR 14197 col 1 ("If a generator
fails to meet any of the above-described conditions or restrictions on
the management of hazardous secondary materials that are applicable to
the generator, then the materials would be considered discarded by the
generator and would be subject to RCRA subtitle C regulations …").  In
the absence of any explanation in the preamble for this distinction, the
commenter assert they were unable to effectively comment on whether the
difference is significant.  However, if EPA means basically the same
thing, the comment urged for the sake of clarity that the preamble to
the final rule simply refer to "conditions" that apply to the generator
for this exclusion. [558-25]

7.2 - Response

In response to miscellaneous comments on the scope and applicability of
the proposed transfer-based exclusion:

(1) EPA agrees that RCRA permitted facilities that also meet all of the
requirements for the exclusion should be able to process both excluded
and regulated hazardous secondary materials, and that RCRA permitted
facilities should be able to manage both excluded materials and
non-excluded through the same units (if allowed under the RCRA permit),
as long as the excluded hazardous secondary material is handled, stored,
and reclaimed in a manner that meets the full requirements for the
exclusion.  Nothing in the final rule precludes this from occurring.

(2) EPA's goal is to encourage small businesses to participate in the
final rule exclusions to the extent practicable, and has included
provisions in the final rule that help do so, including allowing
intermediate facilities to participate in the transfer-based exclusion,
and to waive the reasonable efforts requirements when hazardous
secondary material is sent to a RCRA permitted facility for recycling.

(3) EPA agrees that additional conditions beyond legitimacy are needed
for the transfer-based exclusion and has included such conditions in the
final rule.

(4) EPA appreciates the comment on the difficultly in distinguishing
between "restrictions" - which are also referred to as "pre-conditions"
- and "conditions" for the exclusion. (72 FR 14188).  The Agency has
attempted to be clearer in the use of terms for the final rule.

7.3 - Brokers, intermediate facilities, and multiple reclaimers

7.3 - Summary

BROKERS AND INTERMEDIATE FACILITIES 

In its March 2007 supplemental proposal, EPA requested comment on a
restriction in the proposed transfer-based exclusion for hazardous
secondary materials transferred for reclamation, Under the proposed
restriction, such materials would have to be transferred directly from
the generator to the reclaimer and not be handled by anyone other than a
transporter.

EPA received many comments on this provision. Some commenters supported
the provision as proposed because they were concerned that if hazardous
secondary materials were transferred to a "middleman," the generator
would not have a reasonable understanding of who would reclaim the
hazardous secondary materials and how they would be managed and
reclaimed. If the generator was unable to ascertain whether the
hazardous secondary materials in question could be properly and
legitimately recycled, the materials should be considered discarded
(0110-17, 0217-15, 0457-18, 0463-7, 0485-11, 0488-10, 0495-6 0521-11,
0521-12, 0531-10,  0538-16, 0538-18, 0548-12, 0549-7, 0564-28). 

Other commenters objected to this proposed limitation (0104-24, 0104-27,
0162-2, 0458-36, 0468-10, 0468-11, 0473-8, 0492-28, 0503-2, 0507-8,
0507-17, 0518-9, 0526,-16, 0529-25, 0534-5, 0534-13, 0534-14). They
argued that many persons who generate smaller quantities of hazardous
secondary materials need help in consolidating shipments to make
transportation and reclamation economically feasible (0139-4, 0215-4,
0216-4, 0452-12, 0458-12, 0467-12, 0472-26, 0478-10, 0486-8, 0491-21,
0507-14, 0529-25, 0534-15, 0553-4). Some of these commenters also argued
that intermediate facilities provided valuable assistance to generators
by helping them properly transport, package, and store material, and by
helping them find responsible reclaimers (0081-7, 0083-10, 0097-12,
0149-25, 0179-17, 0460-3, 0468-23, 0479-25, 0482-17, 0503-4, 0503-5,
0503-6, 0503-7, 0507-14, 0511-5, 0518-8, 0550-1, 0558-28).  These
commenters believed that EPA's proposed limitation could discourage
reclamation by persons who generate smaller quantities of hazardous
secondary materials. One commenter noted that its industry is unlikely
to use intermediaries (0131-5).  A commenter also asked EPA to clarify
the status of brokers who arrange for reclamation without actually
taking possession of the hazardous secondary material (0081-7).

Most of the commenters who suggested that intermediate facilities be
eligible for the exclusion also suggested conditions for these
facilities. One commenter said that the generator should be required to
select the reclaimer through a contract (0503-3). Another commenter
suggested requiring the generator to specify contractually where the
material is to go for reclamation and within what period of time (the
commenter suggested limiting the period to 90-180 days), and requiring
the intermediate facility to certify to the generator that the material
was in fact sent to the reclamation facility and on what date.  This
commenter also suggested that intermediate facilities should be required
to provide to reclaimers contact information for each generator whose
material was consolidated for shipment to the reclaimer.  The reclaimer
should then be required to keep this information for three years
(0452-13. 0452-14, 0452-17).  One commenter also said that intermediate
facilities should be required to demonstrate when the hazardous
secondary materials are received and when they were shipped to the
reclaimer (0482-17). Another commenter suggested allowing the use of
intermediate facilities where they can certify that they are using a
specific reclaimer that meets the conditions of the exclusion (0491-21).
 Another commenter said that generators should be required to obtain
confirmation of receipt from recyclers (0529-25).  

Some commenters supported notification on the part of intermediate
facilities (0526-16, 0458-36). One commenter suggested that generators
should be required to ascertain from brokers who will ultimately reclaim
the materials and how the materials will be reclaimed (0526-16).  Some
commenters said that generators should be required to perform reasonable
efforts on intermediate facilities (0452-13, 0472-26, 0473-8, 0492-28,
0503-3, 0534-15, 0538-16, 0558-28). One commenter said that reasonable
efforts should not be necessary if the intermediate facility had a RCRA
permit or if hazardous secondary materials were stored for less than 10
days (0558-29). Another commenter suggested that intermediate facilities
should be subject to financial assurance requirements (0553-4).  

One commenter  argued that intermediate facilities should be required to
have a RCRA Part B permit or interim status (0558-28). Another commenter
said that use of intermediate facilities should be allowed only when
such facilities are part of the same company as the reclaimer (0507-14).

Another commenter said that holding time for intermediate facilities
should be limited to 10 days and that transporters should be licensed
hazardous waste haulers (0553-4). One commenter suggested that hazardous
secondary materials sent to intermediate facilities should remain
containerized during shipment (0452-31).

Another commenter suggested ensuring that different generators'
hazardous secondary materials are not commingled, requiring intermediate
facilities to help generators comply with applicable transportation
requirements, and requiring intermediate facilities to provide for
transportation (0503-3).  

Two commenters asked the Agency to clarify that materials could be
transported between generators and reclaimers by multiple carriers or by
third party carriers, rather than by transporters owned and operated by
one of the parties to the transaction (0081-7, 0491-21). 

One commenter asked that we clarify that residuals from reclamation 
sent for disposal may be handled by persons other than the generator,
reclaimer, or transporter, and that the eligibility of the residuals
being reclaimed would not be affected (0492-28). This commenter also
asked the Agency to clarify the status of regenerated spent catalyst
that may be used by a facility other than the generator.     

MULTIPLE RECLAIMERS

	Some commenters said that because reclamation sometimes involves
multiple steps, the Agency should allow multi-step reclamation under the
exclusion (0204-1, 0475-22, 0491-30). Another commenter said that
multiple reclamations steps are more likely to involve discard, and that
these scenarios should be handled under the non-waste determination
process or through a specific exclusion under 261.4(a) (0470-28).
Another commenter expressed concern that regulatory authorities would
not be able to track hazardous secondary materials that are reclaimed in
such a manner, and that the materials would lose value as they moved
through various reclamation processes (0543-15). 

7.3 - Response

BROKERS AND INTERMEDIATE FACILITIES 

After evaluating these comments, the Agency has decided that
intermediate facilities storing hazardous secondary materials should be
eligible for the exclusion at 40 CFR 261.4(a)(24) under certain
conditions. We believe that such facilities make it easier for
generators that generate smaller quantities of hazardous secondary
materials to send these materials for reclamation.  We also believe that
storage at such facilities under the restrictions and conditions of 40
CFR 261.4(a)(24) is  completely consistent with not discarding the
materials by ensuring they are reclaimed and the restrictions and
conditions are met. Including intermediate facilities ensures that
hazardous secondary materials generators who need to consolidate
materials to make reclamation more affordable and practical may take
advantage of the exclusion for their materials that are not discarded,
as is ensured by the fact that they meet our conditions and
requirements. To this end, we have added a new definition of
"intermediate facility" to 40 CFR 260.10 and we have added language to
40 CFR 261.4(a)(24) addressing these facilities.  

Under today's rule, an intermediate facility is a facility that stores
hazardous secondary materials for more than 10 days, other than a
generator or reclaimer of such materials. If an intermediate facility
treats the hazardous secondary materials or commingles it with other
hazardous secondary materials or with hazardous waste, it would not be
eligible as an "intermediate facility" as defined in §260.10 under
today's regulation. In response to the commenter who asked about the
status of brokers, we note that this rule does not address such persons.
A "broker" is  commonly understood to mean a person who helps arrange
for the transfer of hazardous waste or hazardous secondary material, but
does not take possession of the material or manage it in any way. 
Brokers that never take possession of hazardous secondary materials
would not have been affected under the supplemental proposal, nor are
they affected by today's rule.

The Agency agrees with those commenters who suggested contracts between
generators and intermediate facilities, and also with those who
suggested that generators be required to select the ultimate reclaimer
and be aware of how the hazardous secondary materials are ultimately
reclaimed.  To that end, this final rule requires the hazardous
secondary material generator to make contractual arrangements with the
intermediate facility to ensure that the hazardous secondary material is
sent to the reclamation facility identified by the hazardous secondary
material generator. The rule also states that intermediate facilities,
as well as reclaimers, must send confirmations of receipt for all
off-site shipments of hazardous secondary materials to the hazardous
secondary material generator. Confirmations of receipt must include the
name and address of the reclaimer or intermediate facility, the type and
quantity of hazardous secondary materials received and the date on which
the hazardous secondary materials were received.  Generators,
intermediate facilities, and reclaimers must maintain records for three
years of all shipments received or sent off-site. Such records must
contain the name of the transporter and date of the shipment, the name
and address of the hazardous secondary material generator and of any
reclaimer or intermediate facility from which hazardous secondary
materials were received, the type and quantity of hazardous secondary
material in the shipment, and the names and addresses of any subsequent
reclaimers or intermediate facilities if the hazardous secondary
materials were sent off-site. 

We do not agree with the commenter who requested that contracts between
generators and intermediate facilities should specify that hazardous
secondary materials accumulated by the latter should be sent for
reclamation within a certain time period.  We believe that the
applicable speculative accumulation requirements of 261.1(c)(8) are
sufficient to demonstrate that hazardous secondary materials sent to
intermediate facilities are not discarded. Nor is the Agency requiring
that the intermediate facility certify or demonstrate to the generator
that materials were sent to reclamation, or that a specific reclaimer
was used that met the conditions of the exclusion.   We believe that the
contracts between the generator and the intermediate facility (which
require the generator to ensure that the hazardous secondary material is
sent to a reclamation facility identified by the generator) and
confirmations of receipt by both the intermediate facility and the
reclaimer are sufficient to allow the hazardous secondary materials
generator to know the whereabouts of his hazardous secondary materials,
so that he can be sure that they are not discarded. We also do not agree
with the commenter who suggested requiring intermediate facilities to
provide to reclaimers contact information about generators consolidating
shipments.  We note that generators, intermediate facilities and
reclaimers must keep records for three years of all shipments of
hazardous secondary materials received or sent off-site, including the
names and addresses of generators from which the materials were
received.  If a reclaimer has concerns about particular generators, he
may contact the intermediate facility as appropriate. We do not believe
that requiring intermediate facilities to contact reclaimers is
generally necessary.  

We also agree that intermediate facilities should be subject to
notification requirements, for all the same reasons as reclaimers. 
Under 40 CFR 260.42, intermediate facilities must submit the same
notification required of generators and reclaimers of hazardous
secondary materials transferred for reclamation.  

In addition, the Agency believes that generators should perform
reasonable efforts on intermediate facilities to demonstrate lack of
discard, for the same reasons that they should perform such efforts on
reclaimers. Therefore, under 40 CFR 261.4(a)(24)(v)(B)of today's rule,
generators must also perform appropriate reasonable efforts on the
intermediate facility, as well as the reclamation facility, and
generators are responsible for the ultimate selection of any
intermediate facilities and the reclamation facility. 

These requirements will ensure that the intermediate facility is
handling the hazardous secondary materials as a commodity. However, as
with reclaimers, the generator does not have to perform reasonable
efforts on intermediate facilities that have RCRA Part B permits or
interim status. 

 The Agency notes that in some cases, the intermediate facility performs
the activities associated with generator reasonable efforts to ensure
that the reclaimer will properly and legitimately recycle the hazardous
secondary materials. These activities may include facility inspections
and preparation of audits. In those cases, the generator must carefully
review such information to ensure that any information provided is
credible. The generator may use information about a recycler that is
gathered and provided by the intermediate facility in conducting its
reasonable efforts  in the same way the generator may use information
from any third party.   

For the same reasons that apply to reclaimers, this rule also requires
intermediate facilities to comply with the applicable requirements of 
40 CFR 261.4(a)(24)(v), including recordkeeping, storage of excluded
materials, financial assurance, and speculative accumulation. The Agency
believes that these conditions are fully sufficient to ensure that
hazardous secondary materials stored at intermediate facilities are
handled as valuable products and not discarded. 

We do not agree with the commenter who said that intermediate facilities
should be required to have RCRA permits or interim status. We do not
believe that full Subtitle C requirements are necessary to demonstrate
lack of discard for reclaimed hazardous secondary materials.  Nor do we
agree with the commenter who suggested that the use of intermediate
facilities should be allowed only when such facilities are part of the
same company as the reclaimer. We believe that such a requirement  is
unnecessary to demonstrate lack of discard, and that independently owned
and operated intermediate facilities are fully capable of managing
hazardous secondary materials appropriately under the provisions of the
transfer-based exclusion. 

 

We do not agree with the commenter who suggested that intermediate
facilities be limited to 10 days holding time.  We believe that the
applicable speculative accumulation provisions are sufficient to
demonstrate lack of discard and ensure that hazardous secondary
materials are not subject to excessive accumulation before they are sent
to reclaimers.  In addition,  under this final rule (see 40 CFR
261.4(a)(24)(ii)), if hazardous secondary materials are stored in
transit for 10  days or less at a transfer facility, the transit is not
subject to the requirements applicable to intermediate facilities under
the transfer-based exclusion. Instead, it must only be packaged and
transported in accordance with applicable DOT requirements. The Agency
considers hazardous secondary materials stored by transfer facilities
for short periods of time to be in transit, similar to hazardous waste
stored by similar facilities for the same time period. They are
therefore not discarded. We have revised the existing definition of
"transfer facility" at 40 CFR 260.10 to clarify that such facilities may
store hazardous secondary materials as well as hazardous waste. The
generator need not perform reasonable efforts on such facilities, nor
must such facilities comply with the requirements applicable to
reclaimers of hazardous secondary materials under 40 CFR
261.4(a)(24)(v).  

In response to the commenter who suggested that intermediate facilities
be required to arrange transportation and to help generators with
transport requirements, we do not believe it is appropriate to specify
which activities must be contracted for between the generator and
reclaimer, apart from the contractual requirements in this rule.  We
believe that such services are more practicably arranged on a
case-specific basis. In response to the commenter who suggested that
hazardous secondary materials should remain containerized during
shipment to an intermediate facility, we also believe that this measure
should be arranged on a case-by-case basis between the generator and the
intermediate facility, and is not generically appropriate for materials
that are handled as valuable products.  In addition, applicable DOT
shipping requirements may pertain to these materials.  For these
reasons, we also do not agree with the commenter who suggested that
transporters of hazardous secondary materials to and from intermediate
facilities should be licensed hazardous waste haulers. 

In response to the commenters who asked about the status of third party
carriers or multiple carriers, we note that such carriers may transport
hazardous secondary materials between  generators, intermediate
facilities, and reclaimers; there is no requirement that such materials
be transported in a truck owned by the generator or reclaimer, or that
only one carrier may be used. In addition, hazardous secondary materials
at transfer facilities may be repackaged from one container to another
(e.g., the materials may be consolidated from smaller to larger
containers) or transferred to different vehicles for shipment (see 45 FR
86966, December 31, 1980). However, different hazardous secondary
materials may not be mixed together. This is the same line that
distinguishes, for hazardous wastes, in-transit activities, appropriate
for transfer facilities, from more substantial management appropriately
conducted at intermediate facilities or reclaimers.  In addition, if
there is a release of the hazardous secondary materials at the transfer
facility that is not cleaned up immediately, such materials become solid
waste, and, if they exhibit a hazardous characteristic or are
specifically listed by EPA, a hazardous waste as well. Depending on the
nature of the release, the hazardous secondary materials remaining in
the unit could also become a solid and hazardous waste subject to
Subtitle C regulation (for a discussion of when such units are
considered "contained," see section XVI of this preamble). 

In response to the commenter who asked whether residuals sent for
disposal would affect the status of residuals sent for reclamation, we
note that such disposal would not affect the regulatory status of
residuals sent for reclamation, which would still be eligible for the
exclusion. With respect to the regulatory status of spent catalysts sent
for regeneration, we note that the Agency is planning to propose (in a
separate rulemaking) to amend its hazardous waste regulations to
conditionally exclude from the definition of solid waste spent
hydrotreating and hydrorefining catalysts generated in the petroleum
refining industry when these hazardous secondary materials are reclaimed
(see entry in the Introduction to the Fall 2007 Regulatory Plan, 72 FR
69940, December 10, 2007). Spent hydrotreating and hydrorefining
catalysts generated in the petroleum refining industry are routinely
recycled by regenerating the catalyst so that it may be used again as a
catalyst. When regeneration is no longer possible, these spent catalysts
are either treated and disposed of as listed hazardous wastes or sent to
RCRA-permitted reclamation facilities, where metals, such as vanadium,
molybdenum, cobalt, and nickel are reclaimed from the spent catalysts.

EPA originally added spent hydrotreating and hydrorefining catalysts
(waste codes K171 and K172) to the list of RCRA hazardous wastes found
in 40 CFR 261.31 on the basis of toxicity (i.e., these materials were
shown to pose unacceptable risk to human health and the environment when
mismanaged) (63 FR 42110, August 6, 1998). In addition, EPA based its
decision to list these materials as hazardous due to the fact that these
spent catalysts can at times exhibit pyrophoric or self-heating
properties. 	

It is largely because of these pyrophoric properties that EPA is
considering a separate proposal to conditionally exempt these catalysts
from hazardous waste regulation. This future proposal will allow the
agency to consider and seek comment on specific conditions to address
the pyrophoric properties of these hazardous secondary materials,
particularly during transportation and storage prior to reclamation, in
order for the Agency to determine that they are not being discarded. As
a result of this separate effort, these spent catalysts will not be
eligible for the exclusions in this rule.  Once EPA has proposed a
conditional exclusion specifically for these spent catalysts, and after
consideration of public comments, EPA will either finalize a conditional
exclusion specific to these spent catalysts or may decide that the
conditions being promulgated in this final rule are fully adequate for
the management of these spent catalysts when recycled, and therefore
would remove the restriction preventing these spent catalysts from being
eligible for these exclusions.

MULTIPLE RECLAIMERS

	In response to the comments about multiple reclaimers, the Agency
believes that hazardous secondary materials that undergo multiple
reclamation steps should be eligible for the exclusions in this final
rule, under the same conditions that apply to generators, intermediate
facilities, and reclaimers under the transfer-based exclusion.  As long
as all applicable requirements and conditions for generators,
intermediate facilities, and reclaimers are met, it is not necessary to
allow such reclamation only on a case-by-case basis, or to institute a
separate rulemaking to address such situations. We believe that
multi-step reclamation is not an indication of discard.  We also do not
agree with the commenter who expressed concern about tracking such
materials; the notifications, confirmations of receipt, and
recordkeeping requirements of this rule are sufficient to allow
generators to know the whereabouts of their hazardous secondary
materials so that they can be sure that such materials are not
discarded.  Nor do we have any information indicating that hazardous
secondary materials lose value when multiple reclamation steps occur. 

7.4 - Conditions Specific for Generators

7.4.1 - Reasonable efforts condition

7.4.1 - Summary

Under the transfer-based exclusion in the March 2007 supplemental
proposal, EPA proposed that generators sending hazardous secondary
materials to recyclers not operating under RCRA Part B permits or
interim status standards must make reasonable efforts to ensure their
materials are safely and legitimately recycled. As proposed, the
standard for what constituted "reasonable efforts" was a general
standard, rather than a more specific standard with clearly stated
requirements. We also specified that a "generator may use any credible
evidence available, including information gathered by the generator,
provided by the reclaimer, and/or provided by a third party." 

A preamble discussion of reasonable efforts requested comment on a
variety of issues associated with the condition, including whether to:
codify the reasonable efforts condition, include specific questions
defining the standard for reasonable efforts (six questions, (A) – (F)
were discussed), incorporate the requirements for legitimate recycling
(40 CFR 260.43) within the condition, require documentation and
certification that the condition is satisfied, and require periodic
updates of reasonable efforts. As a result, we received many comments on
this proposed condition, many of which were conditionally supportive of
the proposal provided EPA made certain changes and/or clarifications.
Many of these commenters also expressed a first preference for not
codifying this condition. (For more information about the specific
components of reasonable efforts that we requested comment on, please
refer to subsequent sections of the response to comments document.) 

The majority of commenters supported the reasonable efforts condition
and the following are commenters' statements of support:

Reasonable efforts is "one of the most critical conditions" for the
transfer-based exclusion.

The condition is essential for determining whether hazardous secondary
materials will be legitimately recycled.

"EPA has appropriately recognized the substantial efforts of many
companies to minimize the prospect of environmental problems (and
possible future CERCLA liability) by performing 'due diligence' needed
to ensure that their materials are sent to legitimate and reputable
recyclers. "If a generator cannot obtain the information necessary to
evaluate a reclamation facility, then the generator should not be doing
business with that facility.

Requiring reasonable efforts by generators to ensure their materials are
safely and legitimately recycled "is consistent with good business
[practices because] generators need to know that they are dealing with
reputable reclaimers."

The "proposed condition [reflects] the methods reputable generators now
use to maintain their commitment to sound environmental stewardship and
to minimize their potential regulatory and liability exposures."

The condition is supported by the good recycling practices study.

The "safe harbor" of reasonable efforts is a "fair and reasonable
position."

Do not use the term "due diligence" because commenters believe this term
is a legal term that has specific and unintended legal connotations
different from what EPA means. Instead, call it "appropriate inquiry." 

Requiring reasonable efforts will allow the generator to confirm that
reclaimers have supplied correct information in one-time notification.

The reasonable efforts condition and the export requirements are
sufficient to ensure exports to foreign countries will be legitimately
recycled and not discarded.

Many commenters’ support was contingent on a variety of conditions.
Supportive commenters' suggestions were very diverse and included: 

Codify condition as proposed.

Codify condition without questions because: generators already have
audit processes and should use them to satisfy reasonable efforts,
including, for example environmental, health, safety and Responsible
Care criteria; suggestions the condition with questions would make the
requirement inflexible and costly; the condition with questions is
unnecessary due to existing liability incentives and adequate
environmental safeguards, and will present too high of a barrier for
entry. Instead, consider creating "concise guidance." 

Codify condition without questions, but include: documentation,
certification, and/or periodic update requirements.

Codify with questions (A) - (F) (or some variation of those questions,
additional questions, or commenter provided questions) to: minimize
confusion; create a uniform standard for evaluation; make it easier for
regulators to enforce the condition; define the minimum standard for
"reasonable efforts"; establish regulatory certainty; provide a "safe
harbor" regarding generators liability for discard; make the regulations
complete and do not rely on future guidance which is not easily
accessible and "many times [is] not consistent with a reading of the
regulation itself"; provide clear guidance for small quantity generators
(SQGs) making reasonable efforts because many do not currently audit
facilities, rely on brokers and transporters for cost and other
information to choose reclamation facilities, and need a way to compare
recyclers. 

Codify with questions and include: documentation and/or certification; a
requirement to make reasonable efforts answers available to regulatory
authorities when requested; and a provision allowing generators to
choose not to use Questions (A) - (F) and not have "safe harbor." One
commenter also specified that documentation should be included as a
condition for meeting reasonable efforts. 

Codify with questions (A) - (F), but not as condition of reasonable
efforts. 

Support "certain minimal, objective criteria addressing EPA's legitimate
concerns about the reclaimer," such as a "simple checklist of four
questions" (as proposed by the commenter); However, these commenters are
concerned new requirements would be unnecessary given existing market
and economic forces, including CERCLA liability, yet worried that
"reasonable efforts" and "any credible evidence" is amorphous and
without regulatory certainty.

Define "reasonable efforts" and/or provide explicit requirements because
"[the] term 'reasonable efforts' is entirely too vague." 

Delete or define "reasonable efforts" because the term is too
subjective. 

Define terms like "reasonable efforts" and "credible evidence." One
commenter stated that the three recycling studies support a need to more
clearly define these terms, and EPA has a responsibility to define them
based on the findings from the three recycling studies.

Support without regulatory requirements that define "reasonable
efforts." Instead, prefer to allow generators flexibility with defining
the term.

Apply reasonable efforts to brokers and consolidators, e.g. all
intermediate facilities.

Modify reasonable efforts such that the condition requires that material
"will be recycled" and not use "intends to be recycled."

Support only if a specific audit format is not required.

Allow for the use of "any credible evidence," including audits from a
third party or parent company.

Require generators to have experts (engineers and scientists either on
staff or hired) conduct audits. One commenter stated that if generators
have an increased awareness about their liability and they have an
incentive to manage liability, "then clearly it is reasonable to expect
the generators to be responsible for performing technically defensible
audits."  

Allow flexibility regarding who must perform audits.

Codify "that the compliance obligations of generators and reclaimers are
independent of each other."

Codify the condition only if it has "an objective standard providing an
adequate 'safe harbor' for generators." As it is, the condition is too
subjective and does not provide the necessary regulatory certainty.

Support only if "liability shielding is provided to generators
completing the suggested due diligence requirements [e.g., 'a simple
checklist' of questions proposed by the commenter]."

Codify that generators satisfying reasonable efforts are relieved of
future liability concerns.

Address situations where the generator fails to correctly determine a
reclaimer is conducting sham recycling operations that also cause
environmental damage.  

Do not include provisions severing RCRA and CERCLA liability. 

A smaller number of commenters supported the reasonable efforts
condition as proposed (without questions in the regulatory text)
stating:

Do not add requirements to the condition for defining "reasonable
efforts." Instead, allow generators the flexibility to define it.

If the final condition is more prescriptive, then generators: will be
forced to change their existing audits; will not take advantage of the
exclusion; and will find that the barriers to enter recycling markets
will be too high.

Several commenters opposed the reasonable efforts condition for various
reasons, some of which included opposition to the transfer-based
condition. These commenters stated that:

Sophisticated generators may be able to make reasonable efforts, but
many generators are not sophisticated enough, and do not have enough
resources or knowledge.

SQGs cannot afford to make reasonable efforts, are "unlikely to have the
staff or expertise to fully evaluate a recycling process or the
facility's financial status," currently rely on state regulatory
authorities to let them know which facilities are legitimately recycling
via the permitting process, are susceptible to scams, and are unlikely
to evaluate overseas recycling facilities.

Generators currently rely on regulators for assurance that a recycler is
acceptable, e.g., they use permitted facilities.

Generators want the cheapest disposal option and are not likely to make
careful reasonable efforts.

Even generators who want to "do the right thing" by recycling their
material could be easily fooled into sending it to an unpermitted sham
recycler.

Relying on the RCRA Subtitle C permitting process is preferable to
allowing generators to make reasonable efforts because permitted
facilities have certain safeguards and regulatory oversight not provided
by the transfer-based exclusion.

The condition is inconsistent with CERCLA and RCRA cradle-to-grave
liability and this exclusion will "undermine secure waste." This
condition also incorrectly relieves generators from RCRA liability and
increases the potential for future CERCLA sites.

Reasonable efforts requirement does away with how generators currently
make decisions about recycling facilities based on: liability of
mismanagement; cost and resources available to the generator; perception
of the recycler; importance of the hazardous secondary materials to a
generator's process; final disposal of materials. The commenter argued
that generators should continue to exercise free choice with selecting
recyclers, including being liable under RCRA for risky decisions. Also,
regulatory authorities should only have to analyze whether materials
were ultimately recycled and disposed of safely; not evaluate whether
reasonable efforts requirement were satisfied.

One standard cannot be appropriate for all facilities. For example, one
standard would not be applicable to a large industry with highly toxic
material and to a SQG with barely ignitable material.

One commenter stated "EPA is attempting to abdicate its statutory
responsibility for [SQGs]" and "[just] because one is a [SQG] is no
excuse for hazardous waste non-compliance,"  based on EPA's explanation
for allowing generators to avoid the reasonable efforts condition when
sending materials to a RCRA Part B permitted reclamation facility or one
operating under interim status standards. 

 

Additionally, many commenters opposed the condition due to a perceived
increased burden and they stated that:

They support the concept of reasonable efforts, but it should not be
codified.

Generators already make reasonable efforts and/or audit so a requirement
is not necessary.

The condition is "redundant given RCRA's self implementation
provisions."

CERCLA liability already forces generators to manage their liability, so
reasonable efforts are unnecessary.

The condition is unnecessary and redundant with the legitimacy criteria.

The condition mitigates incentives to recycle because it is costly and
generators do not have the resources to conduct audits.

There is no one-size-fits-all approach with recycling; therefore, one
condition for all hazardous secondary materials recycling is not
appropriate. 

Commenters feared EPA would craft an approach exceeding the need for a
specific industry; for example, an industry that is not particularly
risky.

Shifting the burden of auditing facilities from inspectors to generators
is not appropriate.

Generators should not be required to "police" recycling facilities
because they do not have the same resources or authority that EPA has to
audit these facilities. They also do not have the same audit priorities
as EPA either.

The condition will not relieve generators from state or CERCLA
liability, but they may presume that it does.

The condition will be difficult for states to enforce.

Due to a lack of clarity, there is a great potential for long
enforcement proceedings.

There is a need to better define "properly manage" [residuals from
recycling]. Currently the definition is too uncertain creating
difficulties for generators to satisfy the condition. 

Reclaimers will find it time consuming to respond to multiple generator
inquiries.

(225, 442, 447, 452, 457, 458, 460, 461, 462, 463, 464, 466, 468, 470,
471.2, 472, 474, 475, 476, 478, 479, 481, 482, 485, 486, 489, 491, 492,
495, 500, 501, 507, 509, 519, 521, 525, 526, 527, 528, 529, 531, 532,
534, 538, 539, 543, 545, 548, 549, 558, 559, 562, 564)

7.4.1 - Response

Today's final rule requires generators to make reasonable efforts to
ensure their hazardous secondary materials are properly and legitimately
recycled before shipping or otherwise transferring them to a reclamation
facility or any intermediate facility. This condition effectively
requires generators to perform a type of environmental "due diligence"
on a reclaimer or any intermediate facility to ensure those facilities
intend to properly manage the hazardous secondary materials as
commodities and legitimately recycle rather than discard them. We
believe this condition reflects the existing best practices of many
responsible generators who audit and assess recyclers to maintain their
commitment to sound environmental stewardship, minimize their potential
regulatory and liability exposures, and make decisions about with whom
they should do business. We do not agree that by requiring the
reasonable efforts condition we are shifting the burden of performing
audits from inspectors to generators.  The reasonable efforts condition
allows generators to ensure that hazardous secondary material will not
be discarded when transferred to a reclamation or intermediate facility.
Consequently, a generator must play a role in determining that a
reclamation or intermediate facility will safely and legitimately manage
and reclaim materials. We do not agree that generators will
“inspect” facilities and we note that inspectors from regulatory
authorities will continue to inspect facilities as necessary. 

We also maintain this condition is supported by our study of good
recycling practices, which quotes one large recycling and disposal
vendor as stating with respect to its new customers, that 60% of the
large customers and 30%-50% of the smaller customers now perform audits
on them. Under current practices, such audits can involve a site visit
to the recycling facility and an examination of factors such as the
company's finances, technical capability, environmental compliance
record, and/or housekeeping practices. Through codification of this
condition, we want to reinforce this best practice among all generators
who use the transfer-based exclusion to send hazardous secondary
materials to reclamation and intermediate facilities. We believe this
condition is critical for generators who currently may not evaluate
reclaimers and intermediate facilities because this condition will
provide these generators with a framework for making reasonable efforts
to ensure their hazardous secondary materials are properly managed and
recycled, and not discarded. Based on our findings from the successful
recycling study and from comments we received, we understand that the
reasonable efforts condition is similar to current audit practices and
should in no way inhibit a generator's continuation of current
evaluations or limit a generator's ability to audit facilities.

Currently, under 40 CFR part 262, a generator must make a hazardous
waste determination and, thus, already has an obligation to determine
whether its waste is subject to regulation as a hazardous waste. EPA
believes it is necessary for generators to make a parallel reasonable
efforts determination under 40 CFR 261.4(a)(24) to ensure hazardous
secondary materials are not solid wastes because they are destined for
reclamation and are not discarded. A reasonable efforts inquiry by the
hazardous secondary material generator ensures that the reclaimer
intends to recycle the hazardous secondary material legitimately
pursuant to 40 CFR 260.43 and not discard it, and that the reclaimer or
any intermediate facility will manage the hazardous secondary materials
in compliance with 40 CFR 261.4(a)(24)(vi). While we understand a
commenter's concern that a generator should evaluate whether its
materials "will be recycled," as opposed to whether the reclaimer
“intends” to recycle its materials, we believe the final reasonable
efforts condition, along with other conditions and requirements for
facilities taking advantage of the transfer-based exclusion, will ensure
that materials are safely and legitimately recycled and not discarded.

The reasonable efforts condition for generators applies when hazardous
secondary materials are transferred to intermediate facilities (as
defined in 40 CFR 260.10) and reclamation facilities operating without a
RCRA Part B permit or under interim status standards that address
management of the hazardous secondary materials in question. 

If the permit or interim status addresses the units being used to manage
the hazardous secondary materials, we do not require generators to
conduct reasonable efforts because a Part B permit or the interim status
standards provide sufficient assurance to generators that the hazardous
secondary materials will be well managed and the reclamation facility
complies with financial assurance requirements. RCRA permitted or
interim status facilities where the permit or interim status standards
extend to the management of hazardous secondary materials are already
subject to stringent design and operating standards. Similarly, these
facilities must demonstrate financial assurance and are subject to
corrective action requirements to address any potential environmental
problems. If any generator, including a small quantity generator, cannot
meet the reasonable efforts condition, it would have the option of
continuing to send its hazardous secondary materials to a RCRA permitted
facility under the transfer-based exclusion. Not requiring reasonable
efforts for generators that transfer hazardous secondary materials to
these RCRA permitted or interim status recycling or intermediate
facilities would likely be of particular benefit to relatively smaller
volume generators who may not have the resources to satisfy this
condition. Regarding the comment that EPA is abdicating statutory
responsibility for SQGs, EPA finds the commenter's argument confusing
and emphasizes that all facilities regardless of size will operate under
the same requirements for this exclusion. 

Of course, if a permitted facility later modifies its permit terms in a
way that the permit no longer extends to the management of the hazardous
secondary materials, the generator would need to perform reasonable
efforts in accordance with this exclusion. EPA recommends that any
generator of hazardous secondary materials transferring its  materials
to a permitted facility for reclamation request that it be placed on the
facility mailing list, so they can then receive any notices of changes
to the permit status of the reclaimer or intermediate facility (see 40
CFR 270.42 and 40 CFR 124.10).

In contrast, if the permit or interim status standards do not address
the reclaimed hazardous secondary materials, the same level of assurance
is not guaranteed. Therefore, if a reclamation or intermediate facility
only has a RCRA permit or complies with interim status standards for
another on-site operation unrelated to the reclaimed hazardous secondary
materials, then the hazardous secondary material generator is required
to make a reasonable efforts inquiry of the facility as if it were a
non-permitted facility. 

EPA believes a generator should be allowed to use any credible evidence
available in making reasonable efforts, including information gathered
by the generator, provided by the reclaimer or intermediate facility,
and/or provided by a third party, in lieu of personally performing an
assessment. For example, the hazardous secondary material generator
might hire an independent auditor to review the operations, produce
audit reports as a consortium of generators, or rely on an assessment of
a recycler or intermediate facility by a parent corporation or trade
association that is used by several generating facilities. In fact, EPA
believes many reputable third-party auditors, parent companies, and
trade associations already assemble the types of credible evidence
needed by a generator to satisfy the reasonable efforts condition. EPA
would encourage this type of pooling of information to reduce the burden
on generators related to cost and time limits, and to take advantage of
specialized technical expertise. Pooling audits would also minimize the
number of reasonable efforts inquiries that reclaimers receive from
generators.

After evaluating comments, EPA agrees an objective minimum standard is
appropriate and necessary for hazardous secondary material generators to
determine they have fulfilled the reasonable efforts condition. We also
believe this standard is essential for generators that may not currently
evaluate facilities recycling their hazardous secondary materials. We
believe that without such a standard, both generators and the regulatory
agencies would experience difficulty in determining whether the
condition is met. However, in defining the standard, it would in no way
limit a generator's ability to tailor and enhance its reasonable efforts
inquiry to evaluate a particular industry or recycler. (For more
information on EPA's decision to define a standard for reasonable
efforts, please refer to a subsequent section entitled "Questions that
reasonable efforts must address at a minimum.")

We also agree with the commenters who stated that the six questions from
the preamble to the March 2007 supplemental proposal define questions
that, at a minimum, reasonable efforts should address and serve as a
minimum objective standard. Therefore, we are codifying them, with
modifications.  One modification, as noted in an earlier section of this
document, pertains to the inclusion of intermediate facilities in the
transfer-based exclusion.  Another modification, discussed in more
detail in subsequent sections, involves combining two questions into a
single question related to legitimacy requirements and reasonable
efforts. Finally, for each of the questions, we have added regulatory
language that specifies the types of information the generator may rely
on in performing reasonable efforts.

We strongly believe any generator who takes advantage of today's
transfer-based exclusion must be able to answer all reasonable efforts
questions affirmatively for each reclamation facility (and intermediate
facility, if such hazardous secondary materials are sent to such a
facility) in order to demonstrate that its hazardous secondary materials
will be properly and legitimately recycled and not discarded. The burden
associated with satisfying the reasonable efforts condition is minimal
and appropriate to ensure that no discard has occurred. We believe
generators know their hazardous secondary material well and are experts
at how to manage it; therefore, we believe generators are capable of
working with reclaimers to answer a clearly defined set of questions and
also note that the questions are crafted to facilitate objective
inquiry. The study of good recycling practices shows that generators can
and do use similar evaluations for selecting reclaimers, and the
reasonable efforts condition allows generators great flexibility in
meeting the condition. In EPA's view, a generator who is unable to
satisfy the reasonable efforts condition has not demonstrated that its
hazardous secondary materials are not discarded when recycled. The
hazardous secondary materials would thus be ineligible for today's
transfer-based exclusion.

Of course, a generator could choose to seek additional information or
ask additional questions to determine if its hazardous secondary
materials will not be discarded due to concerns about CERCLA liability.
One example of additional information that many responsible generators
currently seek from recyclers, but that EPA is not including in today's
final rule, is information about a reclamation facility's financial
health. Based on EPA's study of good recycling practices and comments on
the proposed rule, we know responsible generators often inquire about a
reclamation facility's financial health. These inquiries can include
reviews of liability insurance coverage, company annual reports,
bankruptcy filings, investments in capital improvements, markets for
recycled products, and business reports, such as Dun & Bradstreet
reports. EPA believes evaluating the financial health of a company can
benefit a generator's reasonable efforts inquiry of a reclamation or
intermediate facility and encourages generators to do so, although we
acknowledge that it is not an activity lending itself to an objective
standard that would be appropriate for regulation. Instead, EPA is
requiring that, under the transfer-based exclusion and reasonable
efforts condition, reclamation and intermediate facilities have
financial assurance and generators affirm that facilities recycling
their hazardous secondary materials have notified the appropriate
authorities and the financial assurance condition is satisfied. 

EPA disagrees that the reasonable efforts condition is unnecessary in
light of economic forces or CERCLA liability, which may also motivate
some generators to evaluate recyclers. We proposed the reasonable
efforts condition as a way for hazardous secondary material generators
to determine and to demonstrate they are not discarding the hazardous
secondary materials when sending them to a third party for reclamation.
The language of the condition is intended to capture within the
regulatory text how many responsible generators currently inquire and
make decisions about recycling of hazardous secondary materials and how
generators manage potential liability and regulatory non-compliance
risks. Several commenters suggested that not all generators currently
audit or evaluate reclamation facilities despite having economic
interests and existing liability concerns. Analysis of the study of
environmental damage also suggests CERCLA liability alone is not enough
to prevent damage and increased generator inquiry of reclamation
facilities may help avoid future cases of abandonment or discard,
residuals mismanagement, sham recycling, and improper management of
hazardous secondary materials and recycled products. 

By proposing the reasonable efforts condition, EPA intended to maintain
RCRA liability for any discarded hazardous secondary materials. The
final condition clearly holds a generator accountable for determining
that its hazardous secondary materials will not be discarded at a
reclamation facility or any intermediate facility prior to transferring
such materials to the facility. If a generator does not meet the
condition, then the generator's hazardous secondary materials are
discarded and would not be eligible for the transfer-based exclusion,
and would be considered by EPA to be hazardous waste subject to RCRA
Subtitle C controls from the point of generation. 

The condition does clearly intend, however, that if the hazardous
secondary materials generator has satisfied the reasonable efforts
condition and discard subsequently occurs while the hazardous secondary
materials are under the control of the reclamation or intermediate
facility, then the reclamation or intermediate facility is liable under
RCRA. EPA acknowledges meeting this condition will not affect CERCLA
liability. (see section XIII of the preamble for today's rulemaking for
more information on CERCLA liability.) 

We recognize commenters' concern that in order to satisfy the reasonable
efforts condition and be released from RCRA liability, hazardous
secondary material generators could be tempted into making incomplete
evaluations of reclamation and intermediate facilities. EPA believes
that codifying an objective reasonable efforts standard that all
generators must meet in order to satisfy the condition will alleviate
this concern. (see section VIII.C. of the preamble for today's
rulemaking for more discussion). We also believe specifying a standard
that hazardous secondary material generators must satisfy will assist
both regulatory agencies and the regulated community in determining
whether the condition of the exclusion has been met or violated.

EPA agrees with the commenters who stated that determining whether a
recycling activity is legitimate is a sound practice many responsible
generators already employ as a way to manage their potential liability.
The reasonable efforts condition is intended to assist generators in
determining that their chosen reclamation facilities will properly and
legitimately recycle the generators' hazardous secondary materials and
that the materials will not be discarded. Consequently, EPA strongly
believes the reasonable efforts condition must contain a provision that
explicitly refers generators to their obligation to ensure their
hazardous secondary materials are legitimately reclaimed. Including
legitimacy as part of the reasonable efforts condition means that if the
generator made reasonable efforts to ensure that its hazardous secondary
materials are legitimately recycled in a way that satisfies this
condition and, subsequently, the reclamation facility fails to recycle
the materials legitimately, the reclamation facility, not the generator,
becomes liable for violating RCRA (see section VIII(E) of the preamble
for today's rulemaking for more information).

EPA agrees with the comments requiring generators to conduct specific
periodic reasonable efforts updates is critical for ensuring reclamation
and intermediate facilities continue to properly and legitimately
recycle their hazardous secondary materials into the future. We believe
if a hazardous secondary material generator evaluated a reclamation
facility (or an intermediate facility if hazardous secondary material is
sent to such a facility) only once before the initial transfer of
hazardous secondary materials for recycling, it would not provide
adequate assurance to regulators that hazardous secondary material
generators have met the reasonable efforts condition to ensure discard
will not occur 5, 10, or 20 years into the future. We understand
generators often evaluate recyclers or intermediate facilities on a
recurring schedule determined by the generator's particular interests,
concerns, and experience. However, EPA believes hazardous secondary
material generators are also interested in having regulatory certainty
regarding the time frame for which reasonable efforts must be conducted,
rather than a completely discretionary "generator decides" approach,
which will present many disagreements and challenges as to what a
"reasonable" schedule is. We are also aware that many generators do not
currently conduct reasonable efforts, let alone re-evaluate such
facilities over time. For these reasons, we are requiring generators to
update their reasonable efforts evaluation at least every three years,
at a minimum. Based on public comments, this appears to represent
general industry practice and to be within the average time frame for
those generators who currently conduct environmental audits of
facilities to which they send their hazardous secondary materials. 

After evaluating the comments, EPA has concluded it is important for
hazardous secondary material generators to produce documentation to
demonstrate that the reasonable efforts condition has been met prior to
transferring hazardous secondary materials to a reclamation and/or
intermediate facility. We believe this requirement helps generators
support their position that hazardous secondary materials have not been
discarded and helps regulators determine whether a generator has
satisfied this condition. Since updates of reasonable efforts are
required at a minimum of every three years, EPA believes such generators
should maintain documentation for a minimum of three years to show this
requirement has been satisfied. 

We understand audits and evaluations of reclamation facilities are not
always kept on-site and may be maintained at a generator's headquarters
or at another off-site location. For this reason, EPA is requiring
documentation must made available upon request by a regulatory authority
within 72 hours, or within a longer period of time as specified by the
regulatory authority. We understand that in the age of
near-instantaneous communication, a hazardous secondary material
generator performing reasonable efforts prior to transferring hazardous
secondary materials should be able to retrieve documentation with
relative ease. We also note that time frames for producing documentation
are generally determined by regulatory authorities on a case-by-case
basis and time frames are clearly outlined by authorities within RCRA
Section 3007 information request letters.

7.4.1.1 - Questions that reasonable efforts must address at a minimum

7.4.1.1 - Summary

As part of the March 2007 supplemental proposal, EPA proposed that
generators who send hazardous secondary materials to recyclers not
operating under RCRA Part B permits or interim status standards must
make reasonable efforts to ensure their materials are safely and
legitimately recycled. This was proposed as a condition of the
transfer-based exclusion. While a standard for what constituted
"reasonable efforts" was not specifically defined in regulatory text, we
suggested and asked for comment on the idea that including an objective
standard could provide generators and overseeing agencies with more
regulatory certainty. We also specified that a "generator may use any
credible evidence available, including information gathered by the
generator, provided by the reclaimer, and/or provided by a third party."


A preamble discussion of the reasonable efforts provision requested
comment on a variety of issues associated with the condition, including
whether to codify a standard for reasonable efforts. (For more
information about other subjects that EPA requested comment on, and that
pertain to reasonable efforts, please refer to subsequent sections of
the response to comments document.) EPA discussed six questions ((A) -
(F)) and asked commenters to respond to whether: any or all questions
are appropriate for the generator to answer in making reasonable
efforts; EPA should require all questions be answered (A) - (F) or only
(A) and (F); all generators should be required to answer the questions;
the questions could be more objective and still provide the necessary
information; and additional information should be required for making a
reasonable efforts determination.

We received many responses from commenters about what questions, at a
minimum, define reasonable efforts and whether to include any or all of
the six questions discussed in preamble, and/or include additional
questions. While a majority of commenters expressed support for the
proposed reasonable efforts condition, we received conflicting comments
on whether to establish a minimum standard for reasonable efforts, which
commenters generally characterized as questions (A) - (F) and/or an
audit. (For more information about comments related to generator audits,
please refer to a latter section of this document, entitled "Scope of a
typical audit.")

Many commenters that supported establishing a minimum standard for
reasonable efforts believed questions (A) - (F) were appropriate,
comprehensive, and "[represent] a reasonable compromise between desired
objectivity and necessary subjectivity." A few commenters stated it
should not be difficult for generators to address all six questions, in
part because generators already possess or obtain similar information
during current and existing audit or evaluation practices. One commenter
noted that treatment, storage and disposal facilities (TSDFs) often have
information in audit guides or on their websites for prospective
customers.

Several commenters believed incorporating the six questions into the
regulatory text is beneficial for informing what is sufficient for
compliance purposes, making reasonable efforts more enforceable, and for
providing regulatory certainty to generators. Specificity, according to
one commenter, is necessary for clarifying how a generator must verify
hazardous secondary materials are managed appropriately and to assist
with documenting reasonable efforts. Another commenter stated defining a
minimum standard still allows generators the opportunity to expand on
reasonable efforts, and therefore does not limit a generator's
flexibility with satisfying the condition. Yet, one supportive commenter
stated the questions do not indicate how far a generator has to go to
satisfy reasonable efforts, and feared that without greater specificity,
an inspector or judiciary will shape reasonable efforts into multiple
standards. A few commenters believed codifying the questions was
important because it is better to have complete regulations than
additional guidance in the future that may get lost or neglected because
it is not in the regulations. We also heard from commenters that a
generator's ability to compile information may be a function of its
sophistication and codifying questions will help guide their effort. For
example, commenters were concerned that small quantity generators (SQGs)
typically rely on cost information from brokers and transporters to pick
recyclers; currently cannot produce information that the legitimacy
requirements are met; and rarely conduct audits or evaluations. These
commenters generally believed a minimum standard would be important for
SQGs who do not have the time and resources to conduct detailed audits
and who otherwise cannot effectively interpret and compare information
that is not standardized. Finally, a few commenters supported codifying
the six questions provided they act as an alternative to a perceived
audit requirement. (We presume one commenter who advocated that the
"seven audit requirements" should be added to regulations was in fact
referring to the six questions, (A) - (F).) 

Some commenters who supported codifying the six questions also advocated
including additional questions or requiring supplemental information for
reasonable efforts. Their suggested additions include: where feasible,
conducting a site visit; including all of the questions associated with
the proposed legitimacy criteria in 40 CFR 261.2(g); adding language to
questions (D) and/or (E) that asks "how well the reclaimer is meeting
the legitimacy criteria"; determining whether a reclaimer's financial
assurance instruments are adequate; conducting a financial assessment of
a reclaimer or of its financial viability, which could include
purchasing a Dunn & Bradstreet report or other financial data report;
assessing storage and handling practices at a reclamation facility; and
verifying that a reclaimer has appropriate insurance. A few commenters
stressed that the studies EPA conducted and discussed in the 2007
supplemental proposal support and indicate that a financial assessment
of a reclaimer is important. One commenter also suggested the following
supplemental questions be included in reasonable efforts:

Is the processing and pollution control equipment satisfactory and
suitable?

Does the product contain significant concentrations or significantly
elevated concentrations of hazardous constituents, or exhibit a
hazardous characteristic, not found in analogous products?

Does the recycling facility have issues with neighbors regarding odors
or emissions, and is the facility in a location consistent with local
land use?

Does the reclaimer manage the material as a valuable commodity? Does a
market exist for the product, and does inventory move through the
facility frequently enough to demonstrate the existence of a market?

Several commenters supported including questions for reasonable efforts
and/or providing a minimum standard for the condition in the regulatory
text, but provided alternatives to EPA's questions (A) - (F). One
commenter suggested a generator could review the compliance status of a
facility through EPA's ECHO website or use a simple checklist of
questions that could be completed by the reclaimer and returned to the
generator. This commenter did not suggest questions though and specified
that the checklist should not be codified. Another commenter suggested
replacing questions (A) - (F) with a pared down checklist of questions
which included whether: the reclaimer has notified authorities of their
exclusion and has financial assurance, and whether the recyclable
material provides a useful contribution and produces a valuable product
or intermediate. One commenter supported codifying all of the questions
except question (C), which focused on the compliance history of a
reclaimer. One commenter believed that reasonable efforts may be
improved as a condition if the questions are specific to the type of
hazardous secondary material being recycled. This commenter also felt a
list of questions (specific to a material) might support SQGs and
medium-size generators that are unfamiliar with hazardous waste
management or make an auditor look more closely at how materials are
managed and processed, especially when paired with documentation and
certification requirements. Another commenter proposed pre-transfer and
post-transfer questions and suggested they could provide more regulatory
clarity and equivalent environmental effectiveness. This alternative to
reasonable efforts included: verifying that a reclaimer filed
appropriate notifications and has correct permits; requiring a summary
of reclaimer's process and products or intermediates, and how a
generator's materials contribute to the process or product; and
reclaimers providing a report to generators with: date, name and amount
of secondary material received and reclaimed and a confirmation of no
speculative accumulation. A few commenters suggested EPA provide
examples or non-regulatory guidance for conducting reasonable efforts,
and seemed to support some form of pre-determined questions not codified
within the regulations. Finally, several commenters stated that if a
minimum standard for reasonable efforts was adopted, it should not be
prescriptive and/or it should function as a "safe harbor" from
regulatory liability.  

Many commenters did not support establishing a minimum standard for
reasonable efforts. A number of these commenters discussed their
opposition in terms of conducting audits, and felt strongly that audits
were not appropriate for reasonable efforts and could compromise
confidentiality, among other things. (For more information about
comments related to reasonable efforts and audit practices, please refer
to a latter section of this document, entitled "Scope of a typical
audit.'") Some of commenters who did not support a minimum standard for
reasonable efforts stressed that they already audit reclamation
facilities and have their own evaluation procedures. Some commenters
also stated generators would have to change their existing audit
procedures or not be able to take advantage of the exclusion (with its
reasonable efforts condition). A few commenters also advocated that
generators should be allowed the flexibility to conduct their own audits
and any reasonable efforts questions should just be guidance. For
example, one commenter suggested that it already conducts financial
assessments and uses Responsible Care criteria for evaluating
facilities. Some argued that generator audits "will most often go beyond
the proposed requirements" and that generators are "uniquely positioned
to determine the proper inquiry of any given reclaimer." Other
commenters argued against a minimum standard for the following reasons:
it would be redundant and overly burdensome with current RCRA and CERCLA
requirements; it would be unnecessary in light of legitimacy factors;
new generators would find high barriers to entry for taking advantage of
the exclusion and a prescriptive standard would provide a disincentive
to recycle; market and economic forces already provide powerful
incentives to ensure materials are properly reclaimed; it creates
additional regulatory burden and increases compliance costs; generator
flexibility for conducting reasonable efforts would be limited;
recycling is too case-specific for one standard; reasonable efforts
makes determining legitimacy "a generator managed responsibility"; and
answering the six questions would require too much subjectivity. One
commenter also stressed that because the proposed regulatory language
for reasonable efforts is subjective, the strength of the condition is
its flexibility; therefore, creating a standard would limit generator
flexibility. Similarly, some commenters argued that the current scope of
reasonable efforts is sufficient to evaluate whether a reclaimer meets
its obligations. Several commenters felt EPA could provide additional
technical guidance, training, or compliance information about reasonable
efforts without codifying a standard. Lastly, one commenter opposed
codifying a minimum standard for reasonable efforts because they did not
support the reasonable efforts condition, or the transfer-based
exclusion in general, because they believed it was not protective
enough.

(0447, 0457, 0458, 0460, 0462, 0468, 0470, 0471.2, 0472, 0474, 0475,
0476, 0478, 0479, 0481, 0482, 0485, 0486, 0489, 0491, 0492, 0507, 0509,
0512, 0516, 0527, 0529, 0539, 0543, 0549, 0558, 0559, 0563, 0564) 

7.4.1.1 - Response

After evaluating these comments, EPA finds that including an objective
minimum standard in the regulatory text of the reasonable efforts
provision is appropriate and necessary for hazardous secondary material
generators to determine they have fulfilled the reasonable efforts
condition. We believe that without such a standard, both generators and
the regulatory agencies would experience greater difficulty in
determining whether this condition is met. However, in defining the
standard, it would in no way limit a generator's ability to tailor and
enhance its reasonable efforts inquiry to evaluate a particular industry
or recycler. 

We also agree with the commenters who stated that the six questions
included in the preamble to the March 2007 supplemental proposal serve
as an appropriate minimum objective standard for the reasonable efforts
provision. Therefore, we have included these questions, in a somewhat
modified form, in the regulatory text of the final rule. The final rule
includes five questions, numbered 1 through 5.  These five questions
address the same issues as the six questions identified as questions A
through F and discussed in the 2007 proposal, but have been improved and
clarified based on commenter input. (For more information specific to
questions (A) - (F) and how the final questions (1) – (5) have been
modified from them, please refer to latter sections of this document
that pertain to the individual questions.) We strongly believe any
generator who takes advantage of today's transfer-based exclusion must
be able to answer questions (1) - (5) affirmatively for each reclamation
facility (and intermediate facility, if such hazardous secondary
materials are sent to such a facility) in order to determine and
demonstrate that its hazardous secondary materials will be properly and
legitimately recycled and not discarded. EPA finds that a generator who
is unable to satisfy the final reasonable efforts condition has not
ensured and demonstrated that its hazardous secondary materials are not
discarded when recycled. The hazardous secondary materials would thus be
ineligible for today's transfer-based exclusion.

We agree with commenters, who supported incorporating the six questions
into regulations for the following reasons: 

A clear and objective standard is beneficial for informing what is
sufficient for compliance purposes, makes reasonable efforts more
enforceable, and provides regulatory certainty to generators. Specific
questions clarify how a generator must verify their hazardous secondary
materials are managed appropriately and will assist them with
documenting reasonable efforts (a requirement of the final reasonable
efforts condition). 

Defining a minimum standard allows generators the opportunity to further
develop and expand on reasonable efforts and does not limit a
generator's flexibility to satisfy the condition. 

Codifying the questions and having more detailed regulatory language
defining reasonable efforts is preferable to additional, non-regulatory
guidance, which we understand can become detached from regulations over
time, and therefore, may be less useful for supporting compliance
objectives.

The standard will help guide generators with making reasonable efforts
and this could be particularly valuable for small quantity generators
and other generators with limited time and resources, without existing
knowledge of how regulations currently apply to their circumstances, and
that do not already conduct audits or evaluations of reclamation
facilities.  

Codifying the questions is preferable to requiring a generator audit of
reclamation facilities for the following reasons: we understand that not
all generators currently conduct audits, audits can require considerable
resources, the scope of a typical audit can be much greater than our
definition of "reasonable efforts," and generators have concerns
regarding confidentially of audits. (For more information regarding
audits and reasonable efforts, please refer to a latter section of this
document, entitled "Scope of a typical audit.")

The legitimacy factors, as codified in 40 CFR 260.43 must be clearly
captured within reasonable efforts, which is why question (1) of the
final rule replaces questions (D) and (E) from the March 2007
supplemental proposal. (For more information about the legitimacy
requirement and reasonable efforts, please refer to a latter section of
this document entitled, "Relationship between reasonable efforts and
legitimacy")

A minimum standard for reasonable efforts does function as a "safe
harbor" from RCRA regulatory liability. EPA intends that if the
hazardous secondary material generator has satisfied the reasonable
efforts condition and discard subsequently occurs while the materials
were under the control of the reclamation or intermediate facility, then
the reclamation or intermediate facility, not the generator, would be
liable under RCRA. We believe this concept is sufficiently clear in the
regulation that we do not need to discuss it separately within 40 CFR
261.4(a)(24)(v)(B). We also acknowledge that meeting this condition will
not affect CERCLA liability.

With respect to including additional questions or requiring supplemental
information for reasonable efforts, we believe that:

The codified reasonable efforts standard supports and allows for a site
visit as necessary, but we are not requiring it within the condition.

While evaluating the financial health of a company (including insurance
mechanisms) can be valuable, and we encourage companies to do so, we do
not believe it is an activity that lends itself to an objective standard
that would be workable in a solid waste identification regulation. 

It is critical for generators to know that reclamation facilities have
financial assurance, which is why we are codifying question (2) of
reasonable efforts which refers to a facility's obligation to have
financial assurance. However, we do not think it is feasible or
appropriate for a generator to determine whether a reclaimer has
"adequate" financial assurance. Instead, we are requiring generators to
confirm that a facility recycling their hazardous secondary materials
(and any intermediate facility) has notified the appropriate authorities
that the reclaimer’s requirement to have adequate financial assurance
has been satisfied.

Questions (4) and (5), which we are codifying, address commenter concern
about processing and pollution control equipment and storage and
handling practices at a reclamation facility. 

Question (1), as revised in the final rule to address the legitimacy
factors of 40 CFR 260.43, addresses commenter concern about: whether a
product contains significant concentrations or significantly elevated
concentrations of hazardous constituents, or exhibits a hazardous
characteristic, not found in analogous products, and whether the
reclaimer manages material as a valuable commodity and a market exists
for the product. 

Regarding the suggestion that a question be added about inventory
turnover, we think this is already addressed by final question (1),
which directs generators to determine the recycling activity is
legitimate pursuant to 40 CFR 260.43. The legitimacy requirements, which
are codified in 40 CFR 260.43 in today's final rulemaking, include a
provision requiring that the recycling activity produce a valuable
product or intermediate. Therefore, we believe that whether there is a
market for inventory of recycled products, i.e. whether the products are
valuable, is already included within reasonable efforts.

While the relations that a reclamation facility has with its neighbors
and community are critical for its long-term success in the neighborhood
and community, and EPA would not dissuade a generator from evaluating
such criteria, we do not believe it is necessary for a generator to
specifically explore issues related to odors or local land uses to
determine whether hazardous secondary materials will be safely and
legitimately reclaimed and not discarded. However, we believe a
reclamation facility that produces emissions should be evaluated during
a reasonable efforts inquiry under questions (3), (4), and (5) because
emissions could be an indication of discard.

We disagree with commenters on several points:

We believe affirmatively answering questions (1) - (5) included in the
final regulatory text clearly defines the generator requirements for
satisfying reasonable efforts and we find these questions, in
conjunction with the regulatory language that specifies the types of
information the generator can rely on, are objective enough to provide a
clear standard for generators and regulators alike. We believe that as
proposed, the reasonable efforts condition was too subjective and did
not provide sufficient regulatory certainty.

We understand all generators do not currently audit reclamation
facilities; therefore, we believe that it is appropriate to codify a
minimum standard for reasonable efforts to ensure hazardous secondary
materials are not discarded. Furthermore, questions (1) - (5) were
developed based on information about existing audit and evaluation
practices and we do not anticipate that generators who currently conduct
audits will have to significantly alter their existing audits procedures
in order to satisfy this condition. 

The information gathered in support of this rule indicates that the
reasonable efforts questions reflect the minimum types of questions
generators usually ask when evaluating facilities. Therefore, we believe
a generator's ability to audit facilities using their own procedures,
which may include established Responsible Care criteria, is not
diminished by the addition of the reasonable efforts questions.
Furthermore, we note that reasonable efforts does not limit a
generator's flexibility to evaluate facilities based on other additional
criteria, such as a financial assessment, as commenters argued.

We agree some generator audits "will most often go beyond the proposed
requirements" and that some generators are "uniquely positioned to
determine the proper inquiry of any given reclaimer." However, we know
from our recycling studies, as well as from commenter input, that many
generators do not evaluate facilities where they send their waste and
some are not currently aware of existing regulatory requirements, such
as legitimacy requirements. Therefore, we do not agree that all
generators will conduct adequate evaluations of facilities without
codified language specifying the requirements. We believe this condition
is necessary for all generators to ensure that hazardous secondary
materials are not discarded, particularly those generators that do not
currently evaluate facilities.

Although some generators may be motivated by existing regulations to
evaluate recyclers, we disagree that the reasonable efforts condition is
redundant and unnecessary in light of RCRA and CERCLA liability. Since
the exclusions of today's rulemaking will remove existing RCRA
requirements for recycling activities, we find that that the reasonable
efforts condition is critical to ensure that generators do not discard
their hazardous secondary materials. Additionally, several commenters
suggested that not all generators currently audit or evaluate
reclamation facilities despite having existing liability concerns.
Analysis of the environmental problems study also suggests that CERCLA
liability alone is not enough to prevent damage and discard and that
increased generator inquiry of reclamation facilities will help avoid
future cases of discard including abandonment, residuals mismanagement,
sham recycling, and improper management of hazardous secondary materials
and recycled products. 

We find that the legitimacy criteria alone (expressed in final question
(1)) are not sufficient for ensuring hazardous secondary materials will
not be discarded. For example, the criteria do not address residuals
management, compliance history (an indicator of a facility's past
behavior, and potential future behavior) or whether a facility has
equipment and trained personnel for managing and recycling materials.

Overall, we believe new generators taking advantage of the exclusion
will find reduced regulatory barriers for recycling hazardous secondary
materials and reduced regulatory costs in comparison to obtaining a RCRA
Subtitle C permit. Therefore, we do not agree that establishing a
minimum standard for reasonable efforts creates a disincentive for
recycling. 

Based on the three recycling studies published with the March 2007
supplemental proposal and commenter input, we do not believe that market
and economic forces alone will provide enough incentive to ensure
materials are properly reclaimed and not discarded.  For example,
several commenters suggested that not all generators currently evaluate
reclamation facilities despite having economic interests to do so and
existing liability concerns.

We understand a variety of recycling activities will occur under the
transfer-based exclusion and believe that questions (1) - (5) are
universal by design and are appropriate for all recycling activities. We
disagree that one standard cannot allow for all types of recycling
activities and note that reasonable efforts is not crafted for
case-specific recycling.  The questions are designed to address the core
issues that get at the heart of whether any reclaimed hazardous
secondary material is discarded and they are not specific to any
particular type of material or type of reclamation. 

Requiring that generators address the legitimacy of reclamation as part
of reasonable efforts was not intended to make determining legitimacy "a
generator managed responsibility." Revised question (1) is intended to
ensure that a generator fulfills the requirement that its hazardous
secondary material is legitimately recycled and not discarded if the
generator chooses to manage its hazardous secondary materials under the
transfer-based exclusion. In other words, inquiring about legitimacy via
reasonable efforts is a minimum requirement prior to transferring
materials to a reclamation facility so that the material is not
discarded. Since reclaimers must also be able to demonstrate that the
recycling is legitimate under 40 CFR 260.43, EPA believes generators
should be able to work with reclaimers to answer question (1) for the
purposes of satisfying the condition.

We do not agree that the reasonable efforts questions are too
subjective. In fact, by defining the minimum standard for reasonable
efforts (through questions which generators must answer affirmatively
and the language specifying the types of information the generator may
rely on), we have created an objective standard as opposed to the
subjective, unspecified regulatory language in the March 2007
supplemental proposal. In the final rule we also have made revisions to
the questions to make them more objective, and thus easier to comply
with and to implement.  (These changes are discussed in following
sections of this Response to Comments document.)  Furthermore, as
evidenced by many comments, we do not agree that maintaining the
subjectivity of the proposed reasonable efforts condition is of greater
benefit to generators than codifying an objective standard. We heard
from many commenters that regulatory certainty, which is provided by the
minimum objective standard, is of utmost importance to the regulated
community and regulatory agencies.

The reasonable efforts condition is designed so generators meet their
regulatory obligation to ensure that hazardous secondary materials are
not discarded; not necessarily to "evaluate whether the reclaimer is
meeting, or will meet, its obligations under the exclusion." 
Nonetheless, we believe that without establishing a standard for
reasonable efforts, generators will be unsure of what is required, at a
minimum, to sufficiently evaluate a reclaimer under reasonable efforts. 

With respect to a commenter's opposition to reasonable efforts (which
included broader opposition to the transfer-based exclusion) because it
is not adequately protective, we believe the established conditions for
the exclusion ensure that only generators which meet the protective
conditions and requirements are able to take advantage of the exclusion.
We believe the reasonable efforts condition is an adequate minimum
standard for ensuring that generators' hazardous secondary materials are
not discarded after being transferred to a reclamation or intermediate
facility.

EPA appreciates suggested alternatives to codifying questions for
reasonable efforts. However, we find the commenters' alternatives to be
unworkable, unnecessary, and/or inapplicable for the following reasons:

We agree that checking the compliance status of a facility, by, for
example, using EPA's ECHO website, should be an important part of
reasonable efforts. Thus, we are requiring that generators affirmatively
answer question (3). However, we disagree that only reviewing compliance
history is enough to establish that a generator has made reasonable
efforts to ensure his hazardous secondary materials will be safely and
legitimately recycled and not discarded once transferred to a third
party. We believe a generator must answer all five questions in order to
establish it made reasonable efforts to ensure materials will not be
discarded in the future.

With respect to a simple checklist that a generator can give to a
reclaimer, we believe the questions we are codifying do represent a
simplified checklist for generators. We would also like to note that
nothing in the regulations will preclude a reclamation facility from
submitting responses to the questions to a generator in support of a
generator's reasonable efforts inquiry. 

Regarding replacing questions (A) - (F) with a pared down checklist of
questions (including whether: the reclaimer has notified authorities of
their exclusion and has financial assurance, and whether the recyclable
material provides a useful contribution and produces a valuable product
or intermediate), we would like to note that these points are captured
within codified questions (1) and (2). However, we do not believe these
questions alone can show that a generator's hazardous secondary
materials are safely and legitimately recycled, and not discarded,
without also including codified questions (3), (4), and (5) in
reasonable efforts.

EPA strongly believes inquiring about a reclamation or intermediate
facility's compliance history (e.g., question (C) from the proposal, or
codified question (3)) is a fundamental reasonable efforts evaluation
that a generator must make in order to determine its hazardous secondary
materials will be recycled and not discarded.  Compliance history is one
objective indicator of a facility’s practices and can provide
invaluable information for a generator to use in conducting reasonable
efforts to ensure that their materials are safely and legitimately
recycled. 

The final codified reasonable efforts questions address the core issues
that get at the heart of whether a reclaimed hazardous secondary
material is discarded and as such are universally applicable to all
materials and reclamation activities.  They are general enough to allow
and encourage generators to apply the questions to any type of hazardous
secondary material being recycled. Therefore, we do not believe it is
necessary for EPA to specify questions for individual types of
materials. 

While we appreciate the commenter suggestion for pre-transfer and
post-transfer questions, we note that several suggested questions
overlap with the codified reasonable efforts questions (including
question (1) about legitimacy requirements) and the confirmation of
receipt requirement for the transfer-based exclusion. We also believe
that the remaining questions would pose a significant burden to
reclaimers. 

We believe codifying the questions and having more detailed regulatory
language defining reasonable efforts is preferable to additional,
non-regulatory guidance because it provides greater regulatory certainty
for both the regulated community and regulatory agencies. 

We find that a minimum standard for reasonable efforts must be
prescriptive enough to be a standard and to provide the regulated
community and regulatory agencies with regulatory certainty for
liability and enforcement purposes, but not so prescriptive as to hinder
their use in particular industries. We believe we have struck the right
balance in the design of a minimum standard by codifying questions (1) -
(5).

7.4.1.1.1 - Question (A) notification and financial assurance

7.4.1.1.1 - Summary

EPA requested comment on whether to include the following question
within the reasonable efforts condition: (A) Has the reclaimer notified
the appropriate authorities pursuant to §261.4(a)(24)(iii) and does he
have financial assurance as required under §261.4(a)(24)(v)(D)?  A
number of commenters supported including this question in reasonable
efforts. Two commenters explicitly opposed the question.

In general, supportive commenters believed the question was unambiguous
and objective, and supported a demonstration that generators have
"sufficient knowledge of the fate of the recycled material, without
burdening generators."  These commenters also suggested including the
following: generators must be required to maintain notifications and
generators should not be required to determine that financial assurance
complies with regulations. 

The two commenters in opposition to this question suggested that
recyclers would not share financial information with generators,
especially if the company is privately owned, and that "there is no
consensus for establishing financial assurance." The second commenter
did not support the overall rulemaking and believed that permitting was
the only way to assure that a facility had sufficient finances. 

(447, 457, 470, 476, 479, 507, 519, 525, 558, 559)

7.4.1.1.1 - Response

EPA agrees with the majority of commenters who supported including this
question. We believe this question is fundamental to demonstrating a
generator has made reasonable efforts to ensure hazardous secondary
materials will be recycled and not discarded. Therefore, we are
codifying a modified version of this question which focuses on whether a
reclamation or intermediate facility has notified authorities of its 
use of the transfer-based exclusion and of its compliance with the
financial assurance condition: (2) Does the publicly available
information indicate that the reclamation facility and any intermediate
facility that is used by the hazardous secondary material generator
notified the appropriate authorities of hazardous secondary materials
reclamation activities pursuant to §260.42 and have they notified the
appropriate authorities that the financial assurance condition is
satisfied per §261.4(a)(24)(vi)(F)?  In answering these questions, the
hazardous secondary material generator can rely on the available
information documenting the reclamation facility’s and any
intermediate facility’s compliance with the notification requirements
per §260.42, including the requirement in §260.42(a)(5) to notify EPA
whether the reclaimer or intermediate facility has financial assurance. 

If a reclamation facility and/or intermediate facility was found to have
failed to meet the notification requirement and the condition to have
financial assurance, then this facility would have failed to show that
it intends to recycle the hazardous secondary materials (or, in the case
of the intermediate facility, properly store the hazardous secondary
material) and not discard them. 

In response to commenters’ concerns, we note that facilities'
notifications to regulated authorities via EPA Form 8700-12 will be made
publicly available to generators through EPA's RCRA Online web site or
another successor web site, and thus will be readily available to
generators. Also, in order to make this a more objective inquiry that is
possible for generators to conduct, it is not necessary for a generator
himself to determine that a facility's financial assurance complies with
the appropriate regulations.  Generators must only verify that the
facility has notified the appropriate authorities that they are in
compliance with the financial assurance requirements. Thus the
implementing authorities may conduct oversight of the facility’s
compliance. This will also ameliorate generator concern that reclamation
or intermediate facilities may not share their financial information.
For the purposes of reasonable efforts, generators will be able to
determine that a facility has satisfied the financial assurance
condition if the reclamation or intermediate facility has submitted a
notification and attested to regulatory authorities that it satisfies
the financial assurance condition. Lastly, we address in section 7.5.3.
of this document commenter's concern regarding permitting as the only
way to determine a facility has financial assurance.

7.4.1.1.2 - Question (B) equipment and trained personnel for safe
recycling

7.4.1.1.2 - Summary

EPA requested comment on whether to include the following question
within the reasonable efforts condition: (B) Does the reclamation
facility have the equipment and trained personnel to safely recycle the
hazardous secondary material? Some commenters did not support inclusion
of this question in reasonable efforts, while others did. Two commenters
supported part of the question and opposed part of proposed question
(B). 

Commenters opposed to this question argued: generators would not receive
more meaningful responses from reclaimers than marketing literature; the
question is outside of generators' current expertise and an inquiry
would "[go] beyond what is 'reasonable'" to answer; the question was too
subjective; reclaimers are required to meet financial assurance
requirements, so the question is unnecessary; and determining whether
recycling equipment was adequate would require a third-party expert, who
is likely to be someone other than the generator's existing auditor. One
of these industry commenters did support an inquiry about trained
personnel and indicated that answering that part of the question would
be easier than inquiring about equipment.

Two states did not support this question. One believed that determining
whether personnel were properly trained would be challenging for the
average generator, but that generators could determine if reclaimers had
equipment to safely recycle materials. The other state expressed concern
that small and conditionally exempt small quantity generators (SQGs and
CESQGs) may not have the expertise, time, and inclination to answer this
question, especially when the majority of the state's SQGs and CESQGs
used recyclers located out-of-state. The commenter also noted that these
smaller generators tend to rely on government agencies and transporters
to determine which reclamation facilities to use, and that the
successful recycling study, which showed that generators' facility
audits include similar inquiries, focused on large quantity generator
companies.

Commenters in support of this question generally believed it should be
included within generators' reasonable efforts inquiries of reclamation
facilities. One commenter specified that question (B) was important
because "it raises serious questions as to whether [a] facility would be
engaged in safe recycling" if a generator found a facility to have
inadequate equipment or inadequately trained personnel. 

(0447, 0457, 0470, 0476, 0495, 0507, 0549, 0558, 0559)

7.4.1.1.2 - Response

EPA strongly believes that an inquiry of a reclamation or intermediate
facility's trained personnel and equipment is appropriate and necessary
since it informs a generator as to whether its hazardous secondary
materials will be properly and legitimately recycled. For example, if a
reclamation facility were found to have no equipment or inadequate
equipment for storing the hazardous secondary material or was found to
have personnel who have not been trained for recycling the hazardous
secondary materials, we agree with the commenter who stated it would
raise serious questions as to whether the facility would be engaged in
proper recycling or discard. Without exploring this question, we believe
that a generator cannot ascertain whether a reclamation or intermediate
facility will properly and legitimately recycle its hazardous secondary
materials. Therefore, we are codifying the following question: (4) Does
the available information indicate that the reclamation facility and any
intermediate facility that is used by the hazardous secondary material
generator have the equipment and trained personnel to safely recycle the
hazardous secondary material?  In answering this question, the generator
may rely on a description by the reclamation facility or by an
independent third party of the equipment and trained personnel to be
used to recycle the generator’s hazardous secondary material.    

In response to opposing comments, we believe this question is
sufficiently objective so that generators can make a determination about
a facility's equipment and trained personnel using a variety of
informational tools and with minimal difficulty. However, EPA agrees
with comments which pointed out that a determination of what specific
equipment and training would be appropriate to safely recycle hazardous
secondary materials may be beyond the expertise of some generators.  
Accordingly, EPA has structured this question to allow the generator to
rely on the reclamation facility to explain why its equipment and
personnel are appropriate.  Of course, the generator must have an
objectively reasonable belief based on this information that the
reclamation facility’s equipment and trained personnel are adequate
for safe recycling.  Accordingly, if the equipment and personnel
described by the reclamation facility would be, to an objective and
reasonable person, clearly inadequate for safe recycling of the
generator’s hazardous secondary material, then the generator would not
have met this condition.  However, EPA does not require or expect the
generator to have specialized knowledge or expertise of the recycling
process.

  

Of course, generators of hazardous secondary materials also are already
familiar with equipment and personnel needed to manage their hazardous
secondary materials properly at their own site. Therefore, a generator
may also choose to answer question (4) using its existing knowledge of
the physical and chemical properties of the hazardous secondary
materials, technologies involved with managing and recycling such
materials, and applicable regulations or industry standards based on the
generator’s experience producing and managing such materials. 

Generators may also, at their discretion, use relevant third party
information sources to answer questions about a facility’s equipment
and personnel, including: audit reports; information provided by
industry or waste management associations related to the reclamation or
intermediate facility; documents provided by the reclaimer or
intermediate facility; and as noted in the successful recycling study,
an evaluation by a qualified engineer.

Generators can find additional guidance about facility safety
requirements in the "Memorandum: Requirements that other Regulatory
Programs would place on Generators, Reclaimers and Transporters of
Hazardous Secondary Materials," found in the docket along with today's
final rulemaking. This memorandum has been prepared by an EPA contractor
and may be useful for generators performing a reasonable efforts
inquiry. This memorandum is meant solely for use as guidance and is not
a definitive or exhaustive list of other requirements. A hazardous
secondary material generator would be expected to consult its own
sources for any kind of definitive analysis of safety requirements.
Consulting this memorandum alone would not be dispositive regarding this
aspect of the reasonable efforts inquiry. 

We appreciate the state commenter's concern for SQGs and CESQGs, and we
acknowledge that a reasonable efforts inquiry by some generators may be
a new concept for those who currently send their hazardous waste to RCRA
Part B permitted facilities and have not evaluated those facilities in
the past. This rulemaking will not prohibit generators from continuing
to use permitted waste management facilities.  Generators who send their
hazardous secondary materials to permitted or interim status facilities
are not required to conduct a reasonable efforts inquiry.  We retained
this option specifically for generators who may, for any reason, choose
not to conduct reasonable efforts.  However, we strongly believe that a
reasonable efforts inquiry, including codified question (4), is a
necessary best practice for any generator transferring hazardous
secondary materials for reclamation under the transfer-based exclusion,
regardless of the size of the generator. We appreciate that many
generators may not have audited a reclamation or intermediate facility
in the past, and that all generators are pressed for time to implement
best practices, which is in part why the reasonable efforts condition
includes codified questions to simplify and streamline a generator's
inquiry. As explained above, there are numerous ways that generators can
affirmatively answer question (4), including approaches that can be used
by out-of-state generators.  Additionally, note that under the federal
regulations, Conditionally Exempt Small  Quantity Generators (those who
generate less than 100 kg per month of hazardous waste), are subject
only to the special requirements of 40 CFR 261.5. Thus, CESQGs would not
be required to comply with the provisions of the final transfer-based
exclusion, including the reasonable efforts provision, unless they
voluntarily chose to do so. 

7.4.1.1.3 - Question (C) compliance history

7.4.1.1.3 - Summary

In the 2007 proposal, EPA requested comment on whether to include the
following series of questions within the reasonable efforts condition:
(C) Are there any unresolved significant violations of environmental
regulations at the reclamation facility, or any formal enforcement
actions taken against the facility in the previous three years for
violations of environmental regulations? If yes, then the generator must
have credible evidence that the reclaimer will manage the materials
safely.

Some commenters, including recycling companies, a state, and an
environmental organization, supported including Question C in reasonable
efforts. A generating company and association, as well as one state, did
not support question (C). 

One commenter supporting the question reiterated that the presence of a
violation does not necessarily mean a facility would not safely recycle
hazardous secondary materials, but it might raise additional questions
for the generator to consider. The supportive state commenter asked EPA
how generators would view compliance history for a facility if a
recycler's activities were excluded and not required to be permitted.

Commenters opposed to the question made the following arguments: it is
difficult for generators to make conclusions between in-progress
enforcement actions and a facility's ability to safely recycle
materials; the question is outside of generators' current expertise and
an inquiry would "[go] beyond what is 'reasonable'" to answer; the
question is too subjective; reclaimers are required to meet financial
assurance requirements, so the question is unnecessary, the question
will significantly increase workload for state agencies; and generators
could be misled by a lack of compliance information since a recycler
operating under one of the exclusions may have a sparse compliance
history if it is not inspected nor required to comply with operating
standards. 

(447, 457, 470, 476, 489, 507, 558, 559)

7.4.1.1.3 - Response

EPA strongly believes inquiring about a reclamation or intermediate
facility's compliance history a fundamental reasonable efforts
evaluation that a generator must make to determine whether its hazardous
secondary materials will be recycled and not discarded. Therefore, we
are codifying a series of questions, which must be affirmatively
answered by the generator: (3) Does publicly available information
indicate that the reclamation facility or any intermediate facility that
is used by the hazardous secondary material generator has not had any
formal enforcement actions taken against the facility in the previous
three years for violations of the RCRA hazardous waste regulations that
constitute significant non-compliance with RCRA Subtitle C? In answering
this question, the hazardous secondary material generator can rely on
the publicly available information from EPA or the state.  If the
reclamation facility or any intermediate facility that is used by the
hazardous secondary material generator has had a formal enforcement
action taken against the facility in the previous three years for
violations of the RCRA hazardous waste regulations that constitute
significant non-compliance with RCRA Subtitle C, does the hazardous
secondary material generator have credible evidence that the facilities
will manage the hazardous secondary materials properly? In answering
this question, the hazardous secondary material generator can obtain
additional information from EPA, the state, or the facility itself that
the facility has addressed the violations, taken remedial steps to
address the violations and prevent future violations, or that the
violations are not relevant to the proper management of the hazardous
secondary materials.

Although we acknowledge that consideration of compliance data is an
imperfect tool for determining whether a recycler will properly manage
the hazardous secondary materials, we believe that publicly available
compliance data are a reasonable and important starting point for
evaluating a facility’s environmental performance and whether or not
it will discard hazardous secondary materials sent to it for
reclamation. In fact, a review of available compliance information is
exactly the most basic kind of information that anyone evaluating any
kind of company before contracting with them for any kind of work would
review as an available indicator of whether the company is likely to
fulfill its responsibilities.  Facility-specific enforcement data on
significant noncompliance, ongoing enforcement actions by both EPA and
states, and specific case information for formal enforcement actions are
readily available on EPA's public web site at http://www.epa.gov/echo. 
“Significant non-compliance” is a defined term in EPA’s compliance
and enforcement guidance, and means those persons whose violations have
caused actual exposure or a substantial likelihood of exposure to
hazardous waste or hazardous waste constituents; are chronic or
recalcitrant violators; or deviate substantially from the terms of a
permit, order, agreement or from the RCRA statutory or regulatory
requirements. In evaluating whether there has been actual or likely
exposure to hazardous waste or hazardous waste constituents, EPA and the
states consider both the environmental and human health concerns,
including the potential exposure of workers to hazardous waste or
hazardous waste constituents.  “Formal enforcement” is a written
document that mandates compliance and/or initiates a civil or
administrative process, with or without appeal rights before a trier of
fact, that results in an enforceable agreement or order and an
appropriate sanction. For EPA, formal enforcement action is a referral
to the U.S. Department of Justice for the commencement of a civil action
in the appropriate U.S. District Court, or the filing of an
administrative complaint, or the issuance of an order, requiring
compliance and a sanction. For States, formal enforcement action is a
referral to the State’s Attorney General for the commencement of a
civil or administrative action in the appropriate forum, or the filing
of an administrative complaint, or the issuance of an order, requiring
compliance and a sanction.  For both terms, see EPA’s Hazardous Waste
Civil Enforcement Response Policy (Dec. 2003) at
http://www.epa.gov/compliance/resources/policies/civil/rcra/finalerp1203
.pdf. 

We do not believe that evaluating this publicly available information,
which a generator would likely already be familiar with based on its own
regulated activities, is difficult for a generator, nor is interpreting
the data and deriving conclusions about facilities since the database
specifically notes whether a facility is alleged to be in “significant
non-compliance.”  We also note that since many states already provide
compliance information to EPA and the public through the EPA web site,
we do not believe that requiring hazardous secondary material generators
to review such information would pose a significant new burden for state
agencies.

 

While the presence of a significant violation or enforcement action does
not necessarily mean that the facility would not reclaim the hazardous
secondary materials properly, it does raise questions that we believe
the hazardous secondary material generator should investigate. That is,
if the facility was alleged to be in significant noncompliance and
formal enforcement actions were taken against the facility in the
previous three years for such non-compliance, we would expect that the
reclaimer would adequately explain to the hazardous secondary material
generator how it has resolved any issues or how the reclamation facility
will properly manage the hazardous secondary materials to avoid future
violations and/or enforcement actions. Additionally, if the generator
obtains reasonable information that the enforcement matters are
unrelated to the facility's commitment to manage the hazardous secondary
materials properly or that the violation has been corrected and the
facility is back in compliance, then that would satisfy this aspect of
the reasonable efforts determination.   The generator also may wish to
make a similar investigation of facilities designated as in significant
non-compliance by EPA or a state even if no formal enforcement action
has been taken.

Finally, we disagree with comments suggesting that the compliance
history of facilities will be less relevant in the future after
promulgation of the transfer-based exclusion because the exclusion has
requirements and conditions that implementing agencies will evaluate as
part of their oversight activities. 

7.4.1.1.4 - Question (D) recyclable material providing useful
contribution

7.4.1.1.4 - Summary

In the 2007 proposal EPA requested comment on including two questions
having to do with the legitimacy of recycling within the proposed
reasonable efforts provision. The first of these two questions was: (D)
Does the material being recycled provide a useful component that will be
reused in the product of the recycling process or aid in the recycling
process itself?

All commenters who specifically addressed this question supported
including it in reasonable efforts, and several gave us additional input
or suggestions. Two commenters suggested a similar replacement question
that they believed to be unambiguous and would ensure a generator had
"sufficient knowledge of the fate of the recycled product": "Does the
material provide a useful contribution to the recycling process or to a
product of the recycling process?" A state commenter requested that this
question be expanded to include the following, which would better define
"useful component": percent of the material that provides a useful
contribution, degree of processing necessary, and the market value of a
material's processed and unprocessed states. One commenter argued that
including this question was necessary to ensure that generators are
aware of the existing legitimacy requirements, stating that existing
legitimacy policy has been "widely misunderstood, ignored, and
unenforced." Finally, a commenter also suggested that a generator must
identify one of two ways that its hazardous secondary material
contributes to the recycling process in order to ensure legitimacy: a
material has a constituent that is reused and also appears in the
recycled product, or the material replaces a raw material in a process.
One commenter predicted that reclaimers would be unwilling to share any
financial information with generators if it could compromise reclaimer's
competitive advantage.

(447, 457, 470, 476, 507, 509, 519, 558, 559)

7.4.1.1.4 - Response

EPA agrees with commenters who support including question (D), and we
strongly believe that the reasonable efforts condition must contain a
provision that explicitly refers generators to their existing obligation
to ensure that their hazardous secondary materials are legitimately
reclaimed. Therefore, we are codifying the following within reasonable
efforts: (1) Does the available information indicate that the
reclamation process is legitimate pursuant to §260.43? In answering
this question, the hazardous secondary material generator can rely on
their existing knowledge of the physical and chemical properties of the
hazardous secondary material, as well as information from other sources
(e.g., the reclamation facility, audit reports, etc.) about the
reclamation process. (By responding to this question, the hazardous
secondary material generator has also satisfied its requirement in
§260.43(a) to be able to demonstrate that the recycling is legitimate.)

In the final rule, this question has been modified by including one
comprehensive question directly addressing the entirety of the
legitimacy determination in 40 CFR 260.43 in place of the two proposed
questions (D) and (E).  These two questions each addressed legitimacy
issues but did not refer directly to the legitimacy factors, while the
introductory text of the reasonable efforts provision did refer directly
to the entire legitimacy provision.  This change is to clear up
confusion for commenters regarding the relationship between the
reasonable efforts condition and the final legitimacy requirement at 40
CFR 260.43. For more information on the relationship between the
reasonable efforts condition and the legitimacy requirement, please
refer to the section of the Response to Comments Document titled
"Relationship between reasonable efforts and legitimacy criteria." 

In response to comments, we believe that the revised final question is
unambiguous in its meaning and think that a reclaimer, who is also
subject to the legitimacy requirement, will be willing to share
information about its determination with a generator, including
financial information that supports a determination. Since reclaimers
must also be able to demonstrate that the recycling is legitimate under
40 CFR 260.43, EPA believes that generators can work with the owner or
operator of the reclamation facility to verify that they have made a
determination that the recycling is legitimate, which would answer
question (1) for the purposes of satisfying the condition. We would
expect that a reclaimer would be willing and able to adequately explain
to the hazardous secondary material generator how the recycling activity
satisfies the legitimacy requirements pursuant to 40 CFR 260.43, such
that we would not expect that a generator would have to examine in
detail the legitimacy factors. Of course, in order to answer question
(1), a generator may also rely on its existing knowledge of the physical
and chemical properties of the hazardous secondary material. Based on
our discussions with the generating industry, we would expect that a
hazardous secondary material generator that produces and manages a
material that is more like an ingredient (i.e., a hazardous secondary
material to be recycled) than a waste to be discarded would have a good
understanding of the material’s valuable components and useful
contribution to a process.  However, if questions or concerns remain
regarding the legitimacy of the recycling activity, a generator could
request additional information on how the legitimacy condition is met.

For more information about how to define "useful component," or useful
contribution, and how to observe it in a recycling process, please refer
to chapter 9 of the Response to Comments Document and sections
pertaining to useful contribution.

In regards to financial inquiries, we note that generators are only
required to affirm that a reclamation facility has notified the
appropriate authorities that the financial assurance condition is
satisfied per 40 CFR 261.4(a)(24)(v)(B)(2).  Please see Section
7.4.1.1.1 of this Response to Comments document for more information.

7.4.1.1.5 - Question (E) recycled product generally traded commodity

7.4.1.1.5 - Summary

In the 2007 proposal, EPA requested comment on including two questions
having to do with the legitimacy of recycling within the proposed
reasonable efforts provision.  The second of these two questions was:
(E) Is the product (or intermediate) of recycling at the reclamation
facility a generally traded commodity meeting applicable specifications?
If not, is there other available information, such as sales records or
long-term contracts, demonstrating that there is a reliable market for
the product (or intermediate)? If not, then the generator must have
credible evidence that the recycling at the reclamation facility will
produce a valuable product or intermediate.

The majority of commenters supported the inclusion of this question in
reasonable efforts, but a state and a waste management company did not.

Of the commenters who supported question (E), one noted that materials
with "little or no value can result in recyclable materials being
over-accumulated and mismanaged," suggesting the importance of this
question. The commenter also highlighted that forty percent of the
damage cases in the study of environmental problems are attributable to
"mismanagement of recyclable materials." One commenter argued that
including this question was necessary to ensure that generators are
aware of the existing legitimacy requirements, stating that existing
legitimacy policy has been "widely misunderstood, ignored, and
unenforced." A few commenters suggested a similar replacement question
that they believed to be unambiguous and would ensure a generator had
"sufficient knowledge of the fate of the recycled product": "Does the
recycling process produce a valuable product or intermediate?" One
commenter predicted that reclaimers would be unwilling to share any
financial information with generators if it could compromise reclaimer's
competitive advantage. Lastly, one state requested that question (E) be
expanded to inquire about toxics-along-for-the-ride (TARs) in products
and storage before and after recycling. 

Two commenters opposed including this question in reasonable efforts.
One commenter argued that it is irrational to "believe that [generators
will make] a proper and effective determination of 'valuable product or
intermediate.'" The state commenter expressed concern that small and
small conditionally exempt quantity generators (SQGs and CESQGs) would
not have the expertise, time, and inclination to answer this question,
especially when the majority of the state's SQGs and CESQGs used
recyclers located out-of-state. The commenter also noted that these
smaller generators tend to rely on government agencies and transporters
to determine which reclamation facilities to use, and that the study of
good recycling practices, which showed that generators' facility audits
include similar inquiries, focused on large quantity generator
companies.

(447, 457, 470, 476, 479, 495, 507, 509, 519, 558, 559, 564)

7.4.1.1.5 - Response

EPA agrees with commenters who support including question (E), and we
strongly believe that the reasonable efforts condition must contain a
provision that explicitly refers generators to their existing obligation
to ensure that their hazardous secondary materials are legitimately
reclaimed. We also agree with commenters that the value of a recycled
product or intermediate is an important consideration for ensuring that
recycling activities are legitimate and do not contribute to discard and
additional damage cases in the future. Therefore, we are codifying the
following within reasonable efforts: (1) Does the available information
indicate that the reclamation process is legitimate pursuant to
§260.43? In answering this question, the hazardous secondary material
generator can rely on their existing knowledge of the physical and
chemical properties of the hazardous secondary material, as well as
information from other sources (e.g., the reclamation facility, audit
reports, etc.) about the reclamation process. (By responding to this
question, the hazardous secondary material generator has also satisfied
its requirement in §260.43(a) to be able to demonstrate that the
recycling is legitimate.)

In the final rule, this question has been modified by including one
comprehensive question directly referring to the entirety of the
legitimacy determination in 40 CFR 260.43 in place of the two proposed
questions (D) and (E).   These two questions each addressed legitimacy
issues but did not refer directly to the legitimacy factors, while the
introductory text of the proposed reasonable efforts condition did refer
directly to the entire legitimacy provision. This change is to clear up
confusion for commenters regarding the relationship between the
reasonable efforts condition and the final legitimacy requirement at 40
CFR 260.43. For more information on the relationship between the
reasonable efforts condition and the legitimacy requirement, please
refer to the section of the Response to Comments Document titled
"Relationship between reasonable efforts and legitimacy criteria." 

In response to comments, we believe that the revised final question (1)
is unambiguous in its meaning and think that a reclaimer, who is also
subject to the legitimacy requirement, will be willing to share
information about its determination with a generator, including
financial information that supports a determination. We also believe
that generators are already capable of determining that a recycled
product or intermediate is a valuable and/or generally traded commodity,
and note that this is a fundamental aspect of current requirements that
all recycling activities must be legitimate. Since reclaimers must also
be able to demonstrate that the recycling is legitimate under 40 CFR
260.43, EPA believes that generators can work with the owner or operator
of the reclamation facility to verify that they have made a
determination that the recycling is legitimate, which would answer
question (1) for the purposes of satisfying the condition. We would
expect that a reclaimer would be willing and able to adequately explain
to the hazardous secondary material generator how the recycling activity
satisfies the legitimacy requirements pursuant to 40 CFR 260.43, such
that we would not expect that a generator would have to examine in
detail the legitimacy factors.   Additionally, we note that
consideration of TARs for products and intermediates is included within
the newly codified legitimacy requirements.

We also appreciate the state commenter's concern for SQGs and CESQGs,
and we acknowledge that a reasonable efforts inquiry by some generators
may be an innovative concept for those who currently send their
hazardous waste to RCRA Part B permitted facilities and have not
evaluated those facilities in the past. This rulemaking will not
prohibit generators from continuing to use permitted waste management
facilities. Generators who choose to send their hazardous secondary
materials to permitted or interim status facilities are not required to
comply with the reasonable efforts provision. We retained this option
specifically for generators who may, for any reason, choose not to
conduct reasonable efforts. However, we strongly believe that a
reasonable efforts inquiry, including codified question (1), is a
necessary best practice for any generator transferring hazardous
secondary materials for reclamation under the transfer-based exclusion,
regardless of the size of the generator. We appreciate that many
generators may not have audited a reclamation or intermediate facility
in the past, and that all generators are pressed for time to implement
best practices, which is in part why the reasonable efforts condition
includes codified questions to simplify and streamline a generator's
inquiry.  Additionally, note that under the federal regulations,
Conditionally Exempt Small Quantity Generators (those who generate less
than 100 kg per month of hazardous waste), are subject only to the
special requirements of 40 CFR 261.5. Thus, CESQGs would not be required
to comply with the provisions of the final transfer-based exclusion,
including the reasonable efforts provision, unless they voluntarily
chose to do so. 

For more information about EPA's response on to how to define "valuable"
product or intermediate and how to observe it from a recycling process,
please refer to chapter 9 of the Response to Comments Document and
sections pertaining to valuable product or intermediate.

7.4.1.1.6 - Question (F) residuals management

7.4.1.1.6 - Summary

EPA also requested comment on whether to include the following series of
questions within the reasonable efforts condition: (F) Does the
reclamation facility have the permits required (if any) to manage the
residuals (if any) generated from reclamation of the excluded hazardous
secondary material? If not, does the reclaimer have a contract with an
appropriately permitted facility to dispose of the residuals (if any)
generated from the reclamation of the excluded hazardous secondary
material? If not, then the generator must have credible evidence that
the residuals generated from the recycling of the excluded secondary
hazardous material will be managed in a manner that is protective of
human health and the environment.

All commenters, who specifically discussed questions (A) - (F) in the
preamble, supported the inclusion of question (F), except for two. One
commenter suggested that the question was important and should be
included based on the evidence of damage from management of residuals
discussed within the study of environmental problems. A state commenter
preferred a question that asked, "how the reclaimer manages residuals."
Another state commenter asked how a generator would determine whether a
reclaimer has appropriate permits and/or manages material in a manner
that is protective of human health and the environment. One commenter
requested that EPA clarify that question (F) "would not apply to
co-product 'residuals.'"

Commenters opposed question (F) for the following reasons: the question
is outside of generators' current expertise and an inquiry would "[go]
beyond what is 'reasonable'" to answer; the question is too subjective;
reclaimers are required to meet financial assurance requirements, so the
question is unnecessary; and determining the storage and management
requirements for hazardous secondary materials is confusing.

(0447, 0452, 0457, 0470, 0476, 0479, 0489, 0507, 0558, 0559)

7.4.1.1.6 - Response

EPA agrees with the majority of commenters and strongly believes that an
inquiry of a reclamation or intermediate facility's residuals management
is appropriate and necessary since it informs a generator as to whether
its hazardous secondary materials will be properly recycled and managed,
and not discarded through the release of residuals. Consequently, we are
including the following question within the codified reasonable efforts:
(5) If residuals are generated from the reclamation of the excluded
hazardous secondary materials, does the reclamation facility have the
permits required (if any) to manage the residuals? If not, does the
reclamation facility have a contract with an appropriately permitted
facility to dispose of the residuals? If not, does the hazardous
secondary material generator have credible evidence that the residuals
will be managed in a manner that is protective of human health and the
environment?  In answering these questions, the hazardous secondary
material generator can rely on publicly available information from EPA
or the state, or information provided by the facility itself. (We
changed the final sentence regarding "credible evidence" to be a
question that must be affirmatively answered so as to be compatible with
the preceding sentences and other reasonable efforts questions). 

In response to comments, we agree with commenters who believed question
(5) was important to include within reasonable efforts in light of the
many damage cases evidenced in the study of environmental problems that
are related to mismanagement of residuals. We believe the series of
codified questions provide an objective framework for guiding generators
to make a sound decision about a facility's ability to safely manage
recycling residuals, which do not include co-products of the recycling
process. We also believe that asking a reclaimer whether it has
applicable permits for residuals and/or how residuals will be managed
are reasonable and important questions for ensuring that a generator's
hazardous secondary materials are not discarded. While we think
financial assurance is important as a default that provides funding if
an environmental problem occurs, and for ensuring funds are available if
factors outside of a reclamation facility's control (e.g., market
fluctuations) force business closure, we do not believe having financial
assurance is by itself reason enough to exclude question (5) from
reasonable efforts. We strongly believe including question (5) in
reasonable efforts supports a generator's ability to identify upfront
that discard will not occur after a generator transfers its materials. 

Generators under the transfer-based exclusion will need to know what
regulations apply to a reclamation facility's management of residuals
from recycling hazardous secondary materials and that the facility
manages residuals accordingly. For example, if residuals were a
hazardous waste, the reclaimer would have to obtain a storage permit for
the residuals if applicable. Similarly, if the residuals were excluded
from the definition of solid waste and could be recycled, then the
reclaimer (i.e., generator of the residuals) could store the residuals
for up to 12 months without a permit, and the speculative accumulation
requirements would apply. 

To satisfy reasonable efforts, generators of hazardous secondary
materials that are transferred to another facility for recycling and/or
management, including the primary generator and subsequent generators
post-recycling, will need to know what requirements apply to residuals.
For example, residuals may or may not be regulated hazardous wastes. If
a residual is a hazardous waste, generators could access information
about a facility’s permit for managing the material on EPA's public
web site at http://www.epa.gov/enviro/html/rcris (or successor web
sites) or through a state web site if such information is made publicly
available. If a residual is a non-hazardous waste, a generator could
access permit information from state agencies or a state web site if
available. A reclamation facility may also send its residuals to a waste
management facility; in which case, a generator could ask about
contracts with appropriately permitted disposal facilities. If a
reclamation facility does not have permits for managing residuals or
disposal contracts with permitted facilities, then the generator should
determine that a reclamation facility has a system in place for managing
residuals in a manner that is protective of human health and the
environment. 

We believe many generators of hazardous waste already understand and
themselves comply with requirements for residuals management; therefore,
we do not anticipate answering question (5) will pose a significant
challenge to them. We also anticipate new generators will use the same
resources available to current generators for determining applicable
regulatory requirements. We acknowledge that it is possible that some
small quantity generators may not be as familiar with the applicable
requirements. Nonetheless, we believe the requirements are clear and can
be easily interpreted by generators. We would like to note that
generators would likely receive assistance with satisfying reasonable
efforts from reclamation facilities. For example, reclamation facilities
would probably help generators understand requirements applicable to
residuals management. Furthermore, EPA and state agencies also provide
compliance assistance that can be utilized by generators. If answering
question (5) proves too burdensome for a particular generator, the
generator may opt to send their hazardous secondary materials to a RCRA
Part B permitted or interim status reclamation facility, which would
eliminate the reasonable efforts requirement altogether. (see section
VIII(C) in the preamble for today's rulemaking for more instruction
about answering question (5).)

7.4.1.2 - Reasonable efforts applies only to non-permitted facilities

7.4.1.2 - Summary

EPA proposed that generators who send hazardous secondary materials to
recyclers not operating under RCRA Part B permits or interim status
standards must make reasonable efforts to ensure their materials are
safely and legitimately recycled. As stated in the 2007 preamble, RCRA
permitted facilities and interim status facilities are already subject
to stringent design and operating standards, must demonstrate financial
assurance, are subject to corrective action requirements in the event of
environmental problems, and are typically given more thorough oversight
than facilities without RCRA Part B permits. Thus, the Agency concluded
that permitted and interim status recycling facilities would provide
generators with environmental assurances ensuring their hazardous
secondary materials sent to such a facility would not be discarded.

Several organizations, mostly from generating and recycling industries,
commented in support of not extending the reasonable efforts condition
to generators who send hazardous secondary materials to recyclers
operating under RCRA Part B permits or interim status standards. Some of
the commenters also asked for further clarification and/or suggested
changes to the regulatory text. For example, one commenter requested
that EPA explain that neither certification of reasonable efforts nor
the six questions discussed in the preamble would be applicable to a
generator sending materials to a permitted or interim status facility,
and using such a facility would "be deemed to satisfy all the conditions
set forth [under reasonable efforts]." Suggestions for changing the
regulatory language included: rewording facilities "without RCRA Part B
permits or interim status" to "not operating under a Part B permit or
interim status standards;" and including that in making reasonable
efforts, the generator may "(1) rely on a RCRA Part B permit or interim
status standards that will apply to the management of the excluded
material…; and (2) use any credible evidence available…" The
commenter of the latter suggested change emphasized that the language
may encourage "reclamation facilities with RCRA permits to extend the
permit terms, such as financial assurance for closure, to the management
of hazardous secondary materials." 

A few of the commenters explained their support for the proposed
reasonable efforts language with the following: permit provisions have
environmental safeguards in place, including operating requirements
regulatory oversight, and financial assurance; the proposed language
provides an incentive for reclamation facilities to retain Part B
permits so generators do not need to make reasonable efforts; permitted
facilities are routinely audited by regulatory agencies and inspection
records can be accessed by generators; and "additional recycling markets
for facilities without permits would also be encouraged for those
generators and reclamation facilities willing and able to satisfy the
regulatory conditions."

One commenter appeared confused by the proposed regulatory language and
commented in opposition to allowing a generator of "a recyclable
secondary material," who does not take advantage of the exclusion, to
send the material to a non-Part B permitted reclamation facility.

(0452, 0460, 0468, 0471.2, 0478, 0500, 0507, 0555, 0558)

7.4.1.2 - Response

In the final rule, the reasonable efforts condition for generators
applies to hazardous secondary materials transferred to intermediate and
reclamation facilities operating without a RCRA Part B permit, or to
facilities not under interim status standards. If the permit or interim
status standards extend to the management the hazardous secondary
materials, we do not require generators to conduct reasonable efforts
because we believe the Part B permit or the interim status standards
provide adequate assurance that the hazardous secondary materials will
be well managed and the reclamation facility must comply with financial
assurance requirements. Of course, if a permitted facility later
modifies its permit terms in a way that the permit no longer extends to
the management of the hazardous secondary materials, then the generator
would need to perform reasonable efforts in accordance with this
exclusion.

EPA appreciates commenter support for the proposed reasonable efforts
language regarding facilities having RCRA Part B permits or operating
under interim status standards. After considering comments, EPA
continues to find that a reasonable efforts condition is a necessary
part of identifying what reclaimed materials are not discarded and thus
should be excluded from the definition of hazardous waste. As confirmed
by comments, and supported by the good recycling practices study, the
environmental problems study, and the recycling markets study, a
generator’s care in choosing an appropriate recycler is necessary and
critical to ensure that his material is not discarded, and does not
become part of the waste management problem. Therefore, we are
finalizing regulatory text similar to the 2007 supplemental proposal. We
are not requiring the reasonable efforts condition (e.g.,
261.4(a)(24)(v)(B) and 261.4(a)(24)(v)(C)) for generators sending their
hazardous secondary materials to reclamation or intermediate facilities
where the management of reclaimed hazardous materials is addressed under
a RCRA Part B permit or interim status standards. This means that for
these generators certification of reasonable efforts, and the
requirement to affirmatively answer Questions 1 through 5, would not be
a condition of the exclusion. As stated above, the Agency believes
permitted and interim status recycling and intermediate facilities will
provide generators with environmental assurances (such as storage
requirements, operating standards, regulatory oversight, and financial
assurance) which ensure their hazardous secondary materials will not be
discarded. Because of the way the reasonable efforts condition is
structured, it is necessary to state that the act of identifying whether
a facility is permitted is equivalent to satisfying the reasonable
efforts condition, as suggested by a commenter, in fact a generator will
have the choice of either making reasonable efforts or sending their
materials to a permitted or interim status facility. 

Regarding suggested edits to regulatory language, we appreciate
commenter ideas for clarifying the text and as appropriate, we have
modified the final language to reflect them. As such, the final
regulatory language clearly states that the generator must make
reasonable efforts for any facility "where the management of the
hazardous secondary materials is not addressed under a RCRA Part B
permit or interim status standards." 

Without more information, we cannot conclude that this will encourage
reclamation and intermediate facilities to extend existing RCRA permits
terms to the management of hazardous secondary materials in order to
attract generators' business; but such changes to existing permits would
in fact preclude generators from needing to satisfy the reasonable
efforts condition. We acknowledge that this condition may in fact
provide an incentive for reclamation and intermediate facilities to
retain a Part B permit on behalf of their generator customers who do not
want to or cannot make reasonable efforts, such as small quantity
generators. In general, one outcome of today's exclusions from the
definition of solid waste should be an increase in markets for safe
recycling of hazardous secondary materials, regardless of whether the
increase is observed among permitted or unpermitted facilities, as
suggested by a commenter.

We would like to further clarify two points raised by commenters. The is
that generators can access inspection records for permitted and interim
status reclamation and intermediate facilities because they are
routinely audited by regulatory agencies. Reasonable efforts is a
condition of the transfer-based exclusion in part because non-permitted
and non-interim status facilities may not have as much regulatory
oversight as permitted or interim status facilities; thus generators
would not automatically have the same assurance that the hazardous
secondary materials will be well managed and not discarded. However, we
anticipate that state regulatory authorities will continue to conduct
inspections of excluded facilities and that publicly available
inspection records for those facilities will be accessible to generators
to use for their reasonable efforts analyses.

Secondly, we would like to respond to a comment that a generator who
does not take advantage of the exclusion should not be able to send
hazardous secondary materials to a non-Part B permitted or non-interim
status reclamation or intermediate facility. We agree with this
assertion and reiterate that a generator has two choices with respect to
reasonable efforts under the transfer-based exclusion: to send materials
to a facility with a RCRA Part B permit, or that is operating under
interim status standards, and avoid the reasonable efforts condition; or
to send materials to a facility without a RCRA Part B permit, or that is
not operating under interim status standards, and to make reasonable
efforts for each facility to ensure that the materials are safely
recycled and not discarded. 

7.4.1.3 - Reasonable efforts to include only questions (A) and (F)

7.4.1.3 - Summary

EPA requested comment on whether to require generators to answer only
questions (A) and (F), which are discussed in the 2007 supplemental
proposal preamble, in order to satisfy reasonable efforts. We suggested
this approach, which focuses only on the notification and financial
assurance requirements, as well as residuals management, because it was
potentially a "more bright-line" option for generators to satisfy
reasonable efforts.

We received only one comment addressing this option and the state
commenter believed that all questions (A) - (F) should be answered
instead.  (0489)

7.4.1.3 - Response

We agree with this commenter and believe that including only questions
(A) and (F) in the reasonable efforts requirement, or questions (1) and
(5) as finalized in today's rulemaking, does not sufficiently determine
whether a generator's hazardous secondary materials are not discarded at
an intermediate or reclamation facility. We believe that all questions
(1) - (5) must define reasonable efforts and our decision is based on
public comments that support defining reasonable efforts with all of the
questions and supportive information from both EPA's An Assessment of
Good Current Practices for Recycling of Hazardous Secondary Materials
(EPA-HQ-RCRA-2002-0031-0354 ) ("successful recycling study") and An
Assessment of Environmental Problems Associated With Recycling of
Hazardous Secondary Materials (EPA-HQ-RCRA-2002-0031-0355)
("environmental problems study"). We believe that only answering
questions (A) and (F) is not sufficient for generators to determine
their hazardous secondary materials will be properly and legitimately
recycled because this approach does not include important questions
about the legitimacy of a recycling activity, a facility's environmental
compliance history, and the technical capacity of a facility to recycle
hazardous secondary materials. We are convinced that all of these
questions are necessary to adequately determine that a generator is, in
fact, not discarding their hazardous secondary material.

7.4.1.4 - Relationship between reasonable efforts and legitimacy 

7.4.1.4 - Summary

In the March 2007 supplemental proposal, we proposed that in order to
take advantage of the transfer-based exclusion, a "generator must make
reasonable efforts to ensure that the reclaimer intends to legitimately
recycle the material and not discard it pursuant to the criteria in
proposed [40 CFR 261.2(g)]." We also proposed that by satisfying the
reasonable efforts condition, the generator would have also satisfied
the obligation to determine his hazardous secondary material was
legitimately recycled. Additionally, we requested comment on two more
issues: whether any or all of questions (A) - (F) are appropriate for
the generator to answer in making reasonable efforts to ensure that the
reclaimer intends to legitimately recycle the material; and whether to
keep the legitimacy determination an independent requirement for
generators. The latter request was due in part to the documentation and
certification requirements for reasonable efforts, which we pointed out
"could alter the implementation of the legitimacy determination for
materials excluded under the provision" if questions (D) and (E) about
legitimacy were incorporated in reasonable efforts. 

EPA received a variety of comments on the relationship between the
reasonable efforts condition and the requirement that hazardous
secondary materials must be legitimately recycled. We heard from many
commenters that evaluating whether a reclaimer meets the legitimacy
requirements should be part of a reasonable efforts inquiry to ensure
that a generator's hazardous secondary materials are legitimately
recycled. One commenter stated that in order for the conditional
exclusion to effectively ensure legitimate recycling, it is important to
include questions that define legitimacy within reasonable efforts. The
commenter believed this is crucial because "[for] two decades, the
legitimacy criteria in the Sylvia Lowrance [memo] have been widely
misunderstood, ignored, and unenforced." 

Supportive commenters also had numerous suggestions for improving the
reasonable efforts condition with respect to the legitimacy requirement:

Include language that states that a generator can satisfy reasonable
efforts by relying on "any credible evidence available" or by using a
facility that has a RCRA Part B permit or interim status standards that
must "apply to the management of the excluded material by the
reclamation facility." 

Include "an evaluation of how well the reclaimer is meeting the
legitimacy criteria to either [Question] D or E." 

Include questions that pertain to the "two factors that must be
considered," instead of just focusing on the two mandatory legitimacy
factors. One commenter asked that a question be added about "toxics
along for the ride" only. Other commenters wanted to include the
following two series of questions within reasonable efforts: (1) "Does
the reclaimer manage the hazardous secondary material as a valuable
commodity? Where there is an analogous raw material, does the reclaimer
manage the hazardous secondary material in a manner consistent with the
management of the raw material? Where there is no analogous raw
material, is the hazardous secondary material contained?" (2) “Does
the product of the recycling process contain significant concentrations
of any hazardous constituents in Appendix VIII of 40 CFR part 261 that
are not found in analogous products? Does the product contain
concentrations of any Appendix VIII hazardous constituent at levels that
are significantly elevated from those found in analogous products? Does
the product exhibit a hazardous characteristic that analogous products
do not exhibit?"

Some commenters argued there is a disconnect between requiring
generators to evaluate reclaimers under reasonable efforts, including
the requirements of proposed 40 CFR 261.2(g), but not requiring a
reclaimer to document legitimacy. These commenters wanted EPA to require
documentation of reasonable efforts to facilitate a generator's
reasonable efforts inquiry. One commenter believed that authorized
states would have a difficult time determining whether a generator
satisfied the reasonable efforts condition (pertaining to questions (D)
and (E)) without documentation.

Require "that the generator provide evidence that the recycler complies
with the two legitimacy criteria not mandated in this proposal," e.g.,
the "two factors to be considered."

The notification requirement should include a legitimacy determination,
which the generator should then maintain "as part of the waste
characterization records required as a condition of the exemption." We
presume that the commenter is suggesting that the generator should
maintain a copy of the reclaimer's notification, which would include a
legitimacy determination, in order to satisfy the reasonable efforts
condition. 

The reclaimer must also sign and certify to the generator that they meet
the legitimacy requirements.

"[A] generator should re-evaluate the legitimacy of the recycling
operation whenever new information becomes available."

Several commenters also argued that a legitimacy requirement should not
be a part of the reasonable efforts condition:

One commenter stated that while a hazardous secondary material generator
would need to ensure that a recycling activity being considered is
legitimate in order to protect its own liability interests, a legitimacy
determination should be entirely separate from the reasonable efforts
condition. 

Another commenter also stressed that, as a matter of good practice, many
responsible generators already ensure that they send hazardous secondary
materials to facilities engaged in legitimate recycling; therefore, a
legitimacy evaluation within reasonable efforts is unnecessary. 

One commenter said it was inappropriate and unnecessary for generators
to evaluate the "two factors to be considered" from the proposed
legitimacy requirements. They believed that generators don't typically
have expertise to make the complex technical and engineering
evaluations, particularly related to evaluations of "toxics along for
the ride."

Some commenters argued that a legitimacy determination should be
separate from the reasonable efforts condition. One commenter stated
that codifying questions about legitimacy is unnecessary because "in
order to protect its own interests, a generator will need to ensure
internally that the recycling being contemplated is legitimate,
consistent with existing guidance as proposed in the rule." Therefore,
"a legitimacy determination should be kept as an independent requirement
for generators." 

We also received several comments stating that the condition and/or the
"prescriptive approach" to reasonable efforts (e.g., questions (A) -
(F)) is redundant and unnecessary given current regulations. The
commenters generally said that "all generators are already compelled by
regulatory compliance and liability concerns to evaluate the legitimacy
of reclamation in the context of the 4 legitimacy criteria… and by
CERCLA liability concerns." One commenter also suggested that questions
(A) - (F) were "overly burdensome" since facilities already operate
under RCRA requirements, and because the commenter assumed facilities
will operate under the proposed legitimacy requirements in the future.

(468, 471.2, 472, 475, 476, 482, 486, 491, 495, 501, 507, 509, 516, 534,
538, 558, 559) 

7.4.1.4 - Response

EPA agrees with the commenters who stated that determining whether a
recycling activity is legitimate is a sound practice and, based on
comments we received, understands that many responsible generators
already use existing legitimacy policy as a way to manage their
potential liability. The reasonable efforts condition is intended to
assist generators in determining that their chosen reclamation
facilities will properly and legitimately recycle the generators'
hazardous secondary materials. Consequently, EPA strongly believes that
the reasonable efforts condition must contain a provision that
explicitly refers generators to their obligation to ensure that their
hazardous secondary materials are legitimately reclaimed. Including
legitimacy as part of the reasonable efforts condition means that if the
generator made reasonable efforts to ensure that its hazardous secondary
materials are legitimately recycled in a way that satisfies this
condition and, subsequently, the reclamation facility fails to recycle
the materials legitimately, the reclamation facility, not the generator,
becomes liable for violating RCRA. 

In the final rulemaking for reasonable efforts, we are including
commenter suggested language clarifying that RCRA Part B permits and
interim status standards must extend to the management of hazardous
secondary materials if generators are to rely on such facilities for
legitimately recycling their materials. We are also codifying question
(1), which requires a generator to affirm that a reclamation facility
legitimately recycles pursuant to 40 CFR 260.43, in order to ensure that
the entire legitimacy determination is represented in reasonable efforts
(not just the mandatory factors) and to clarify any confusion about
variations in the proposed language between proposed 261.2(g) and
questions (D) and (E). We also agree with commenters who suggested that
incorporating the legitimacy determination in reasonable efforts
guarantees that generators clearly understand their responsibility to
ensure legitimate recycling as part of determining that their hazardous
secondary materials are not discarded, as described in previous preamble
and policy statements.

EPA has the following responses to other suggestions for improving the
reasonable efforts condition with respect to the legitimacy requirement:

We believe that the requirements in 260.43 adequately ensure legitimacy
without "an evaluation of how well the reclaimer is meeting the
legitimacy factors"; therefore, we do not think it is necessary to
include that specific language within reasonable efforts. 

Since question (1) requires a generator to affirm that a reclamation
facility legitimately recycles pursuant to 40 CFR 260.43, we believe it
would be unnecessarily redundant to include separate questions that
pertain to each legitimacy factor.

We recognize that a reclaimer may document its legitimacy determination
in order to facilitate a generator's reasonable efforts inquiry of the
reclaimer. However, EPA has determined that for the purpose of
documenting the legitimacy factors in the final rule, 40 CFR 261.2(f)
applies. Section 261.2(f) states that, in the context of an enforcement
action to implement Subtitle C of RCRA, a person claiming that a
material is not a solid waste or is conditionally exempt from regulation
is responsible for showing that they meet the terms of the exclusion and
must provide appropriate documentation to show why they are eligible.
Therefore, we do not think it is also necessary to require a reclaimer
to document a legitimacy determination within the reasonable efforts
condition if it is not a requirement under 260.43.

With respect to a comment about notification, which EPA presumed to mean
a reclaimer's notification should include a legitimacy determination, we
do not believe that that information is necessary within the
notification form. Also, as stated above, EPA determined that 261.2(f)
is sufficient for documentation needs of legitimacy and meeting the
terms of this exclusion. However, we agree that if a reclaimer documents
its legitimacy determination, a generator could use that documentation
to support the generator's requirement to document it satisfied the
reasonable efforts condition.

We believe that the satisfying the final reasonable efforts condition
ensures that a generator's hazardous secondary material is legitimately
recycled and not discarded without requiring that the reclaimer certify
to the generator that they meet the legitimacy factors. However, we
agree that such a certification, if requested by a generator, could
support a generator's requirement to document that the reasonable
efforts condition has been met. 

EPA believes that requiring generators to conduct updates of reasonable
efforts is critical for ensuring that reclamation facilities continue to
properly and legitimately recycle the hazardous secondary materials into
the future. As such, we are requiring that generators update their
reasonable efforts evaluation at least every three years, at a minimum.
By specifying a time frame for periodic updates, EPA in no way intends
to limit a generator to conducting evaluations only every three years.
In fact, we acknowledge that shorter time frames could be appropriate
for certain industries. Additionally, we would expect that any hazardous
secondary material generator who has concerns about a reclamation or
intermediate facility, or who gains new knowledge of significant changes
or extraordinary situations at such facilities, would conduct reasonable
efforts regardless of the minimum required update schedule.

EPA also has the following responses for comments in opposition to
referencing the legitimacy requirement in the reasonable efforts
condition:

We recognize that many responsible generators do already ensure that
they send hazardous secondary materials to facilities engaged in
legitimate recycling, as evidenced by the successful recycling study;
however, we know that not all generators do.  Consequently, we believe
there is a need to incorporate the legitimacy requirements in reasonable
efforts to guarantee that generators clearly understand their regulatory
requirements to ensure legitimate recycling.

In answering question (1) of reasonable efforts, we anticipate that a
generator, which already has knowledge of how to safely manage its
hazardous secondary material, will verify that the reclaimer has made a
sound legitimacy determination for recycling the generator's hazardous
secondary material. EPA thinks this requirement is crucial for ensuring
that the generator's materials will be legitimately recycled and not
discarded. We believe that generators may already have staff with enough
technical and engineering knowledge to be capable of verifying a
legitimacy determination, or may employ a third party for assistance as
needed, and we anticipate that reclaimers will assist generators in
providing the information necessary to satisfy question (1) of
reasonable efforts. If a reclaimer is not meeting one or both of the
factors to be considered, then EPA would expect the generator to ask for
a demonstration of how the recycling is still legitimate under 40 CFR
260.43. 

While it is true that "in order to protect its own interests, a
generator will need to ensure internally that the recycling being
contemplated is legitimate, consistent with existing guidance as
proposed in the rule," we believe that the generator requirements must
be as clear as possible to guarantee that in fact all generators are
aware of what must be done to "protect their interests," e.g., make
certain they will not be liable for discard. Based on the environmental
problems study, we do not believe that all generators clearly understand
their responsibility to ensure their hazardous secondary materials are
legitimately recycled and not discarded. Therefore, we do not agree that
the legitimacy requirement should be completely separate from reasonable
efforts.

We disagree that the condition and/or the "prescriptive approach" to
reasonable efforts, including an affirmation of legitimate recycling, is
redundant, unnecessary, and burdensome given current and/or future
legitimacy requirements, CERCLA liability concerns, and/or RCRA
requirements. Since the exclusions of today's rulemaking will remove
existing RCRA requirements for certain recycling activities, we do not
agree that the reasonable efforts condition is redundant or unnecessary.
Additionally, we heard from commenters that not all generators currently
evaluate reclamation facilities despite having existing liability
concerns and legitimacy requirements. Analysis of the study of
environmental damage also suggests that CERCLA liability and/or
legitimacy requirements are not enough to prevent damage and that
increased generator inquiry of reclamation facilities will help avoid
future cases of abandonment or discard, residuals mismanagement, sham
recycling, and improper management of hazardous secondary materials and
recycled products. As a result, we believe that it is critical to
include question (1) in the reasonable efforts condition, which requires
a generator to affirm that a reclamation facility legitimately recycles
pursuant to 40 CFR 260.43.

7.4.1.5 - Scope of typical audit

7.4.1.5 - Summary

In the March 2007 supplemental proposal, EPA proposed the reasonable
efforts condition for generators under the transfer-based exclusion.
While describing how the condition would work in the preamble, we
described existing best practices for evaluating waste management and
reclamation facilities, and generally referred to how generators could
make reasonable efforts by auditing facilities and producing and using
audit reports. However, we did not propose auditing or producing reports
as a requirement of the condition. 

Instead, in the proposal, we discussed generator audits and requested
comments on whether: (1) generators should be able to use any credible
evidence available in making reasonable efforts, including information
gathered by the generator, provided by the reclaimer, and/or provided by
a third party, in lieu of personally performing an environmental audit;
(2) generators should be required to maintain documentation at the
generating facility, which would presumably include copies of audit
reports and/or other relevant information, showing that reasonable
efforts were made before transferring the hazardous secondary materials
to the reclamation facility; (3) we should include a question that
pertains to a financial evaluation of a reclamation facility, which we
determined would be included in a typical audit, and how such a question
might affect the scope of a typical audit. 

As noted above, we also described in the preamble our understanding of
current best audit practices, which we primarily obtained from
conducting the successful recycling study. As a result, we received many
comments in response to our discussion of generator audits. (To learn
more about commenters' input related to auditing and producing and using
audits for satisfying reasonable efforts, please refer to the following
sections within this document: "Questions that reasonable efforts must
address at a minimum," "Frequency of periodically updating reasonable
efforts," "Documentation of reasonable efforts," and "Certification of
reasonable efforts.")

Several commenters told EPA that generators currently acquire
information very similar to questions (A) - (F), if not more extensive
information, when they conduct audits, and that they have the ability to
evaluate the relevant aspects of a reclamation facility. A few
commenters also said that they audit all off-site TSDFs, including some
recycling facilities, and that audits are generally conducted by
generators, third-party auditors, or consortiums prior to sending
materials to a reclamation facility. Some commenters also stated that
audits are fairly commonplace and they support and perform audits as a
good business practice. One commenter made each of the following
statements:

"These [audit] practices and systems are an integral part of daily
operations and [ensure that materials] are recycled and not
'discarded'." 

"All off-site [TSDFs], including some recycling facilities, are audited
by an independent third party auditing firm to guard against any future
liabilities resulting from the mismanagement of the materials."

 The scope of audits is "significantly diverse," as are the findings of
audits. 

Many generators currently determine whether a reclamation facility is
acceptable if the facilities "are RCRA permitted and appear to have
reasonably sound and stable operations." 

They "use environmental, health, safety and Responsible Care criteria in
vendor selection and conduct financial assessments."

Audits are recurring, but the frequency of how often a facility is
audited will vary.

We also received several comments regarding the purpose of audits and
what is currently included within facility audits: 

"Information collected during these audits is used to establish the
legitimacy of the recycling operation(s), the ability and capacity of
the facility to properly manage the materials, and the compliance
history."

Facility audits include: "review of the facility's environmental
stewardship, regulatory compliance history, technology, and financial
stability." A financial audit is conducted annually regardless of a
facility's prior good history.

One commenter offered the following extensive list of elements that are
included within its facility audit: facility design and operations,
groundwater monitoring, training, waste analysis/manifest system,
laboratories, inspection records, secondary waste facilities in use,
contingency plan, closure assurance, liability insurance,
remediation/litigation, financial records, security, personnel safety,
housekeeping, container management, facility status changes, storage
tanks, permit status, operational changes, spills, compliance history.

The final step in an audit is to review and evaluate the audit to
determine whether waste should be sent to the facility.

One commenter described how a particular program makes both generators
and recyclers responsible for properly recycling materials: Prior to
shipping materials, a generator completes a profile describing the
material to be recycled, and sometimes a sample of the material is sent
to the recycler as well. The recycler then reviews the information and
may test the material to be sure it can be processed, and then the
generator is notified that it can ship the material.

Several commenters expressed concern that EPA would require audits under
the reasonable efforts condition for the following reasons: 

Generators, particularly those that are small and medium size, "do not
have adequate resources to audit reclaimers to the level proposed."

It is not appropriate for EPA to shift the burden of performing audits
from inspectors to generators. Generators would be willing to provide
regulatory authorities with any information necessary and authorities
would maintain the latitude to request it.

Many generators do not even leave the office to conduct audits, and
those without expertise just compare paperwork, like permits, operating
records, etc. against RCRA standards. "These general 'all-purpose'
auditors typically rely on EPA and the [states'] expertise to ensure
proper storage, handling and processing is occurring."

Reclaimers are also generators, but because they are in the waste
management industry, they cannot belong to the non-profit trade
association, CHWMEG, which provides economical facility audits for
member companies. Consequently, reclaimers will need to individually
audit facilities and they do not have the resources for that. This
particular commenter predicted that as a result, many reclaimers will
not take advantage of the exclusion.

Audits contain proprietary and confidential business information;
therefore, generators do not want to and/or cannot easily share them
with regulatory authorities. EPA would need to treat confidential audits
as confidential business information (CBI).

It will be time consuming and resource intensive for reclaimers to
coordinate with multiple generators' audit inquiries.

A commenter disagreed that trade associations could facilitate the audit
process and reduce costs through sharing audits with member companies
because currently, one association "requires that [the generator]
maintain confidentiality of the audit reports, so that entities who have
not paid for them cannot access them." The association's audit process
also does not consider disclosure to EPA or regulatory agencies and does
not support information collection for enforcement activities. 

Commenters provided the following suggestions for improving any audit
requirement if EPA finalized one for reasonable efforts:

Require that the generator performs the audit or hires qualified
staff/auditors with specific audit knowledge and experience.

Auditors should have scientific or engineering expertise so they can
assess the entire reclamation process.

The auditor should be required to certify in the audit report that the
reclaimer meets its requirements under the exclusion.

In addition to an audit ensuring that hazardous secondary materials are
actually recycled, require information on hazardous waste properties of
the hazardous secondary material and how the reclaimer protectively
manages and controls the material.

(447, 457, 458, 465, 466, 475, 479, 481, 485, 492, 500, 503, 512, 528,
549) 

7.4.1.5 - Response

We are not requiring that audits be conducted to satisfy reasonable
efforts based on the comments that EPA received regarding the scope of
typical audits, and also based on comments related to audits on the
proposed reasonable efforts condition and on the questions that define a
minimum standard for the condition. (For more information on the
referenced comments, please refer to earlier sections of this document
entitled, "Reasonable efforts condition" and "Questions that reasonable
efforts must address at a minimum.") 

From the comments, we understand that audits are diverse and run the
gamut in terms of the type of information generators seek: from minimal,
potentially unverified information collected by staff without formal
training, to highly specific, technical information gathered by expert
auditors with significant training. We are also aware that while many
generators may conduct audits as a good business practice, not all do.
As a result, we are codifying questions (1) - (5) as a minimum standard
for reasonable efforts and allowing generators to use any "credible
information" to affirmatively answer the questions. We anticipate that
generators may use audits to satisfy the condition, particularly if they
already conduct audits, and also expect that some of the following
information sources may also be used: compliance data on EPA's website,
notification information provided to EPA and authorized states,
information provided by industry or waste management associations, audit
consortiums, documents provided by the reclaimer or intermediate
facility, an expert's technical knowledge, etc. 

In response to the remaining comments: 

We agree that it is important to establish the legitimacy of the
recycling operation(s), the ability and capacity of the facility to
properly manage the materials, and the compliance history. Reasonable
efforts questions (1), (3), and (4) capture that information.

We believe that the codified reasonable efforts questions include a
review of a facility's environmental stewardship, regulatory compliance
history, and technology, and require that facilities recycling hazardous
secondary materials comply with financial assurance requirements.
However, while evaluating the financial health of a company can be
valuable, and we encourage companies to do so, we do not believe that it
is an activity that lends itself to an objective standard that would be
workable in a solid waste identification regulation. 

With respect to the extensive list of elements that were included within
a commenter's facility audit, we believe that we have designed the
reasonable efforts condition such that it includes the critical core
elements necessary to ensure that a generator's hazardous secondary
materials will be safely and legitimately recycled, and not discarded.

We agree that the final step in a reasonable efforts evaluation is to
review and evaluate the information obtained in order to determine
whether waste should be sent to the facility. That is why we are
requiring that generators document and certify their reasonable efforts
to show that they have completed this final step.

The commenter described a program that makes both generators and
recyclers responsible for properly recycling materials that is
innovative and surely supports a reasonable efforts inquiry. However, as
stated before, we believe that we have designed the reasonable efforts
condition to address only the critical core elements of a reasonable
efforts evaluation that will adequately ensure that a generator's
hazardous secondary materials will be safely and legitimately recycled,
and not discarded.

It is also our understanding that generators, particularly those that
are small and medium size, may not have resources for detailed and
elaborate facility audits, which is why we are not requiring a specific
audit format. Rather, we are requiring generators to document their
answers to the reasonable efforts questions, which we believe all
generators are capable of answering and must answer affirmatively in
order to take advantage of the exclusion.

We do not agree that by requiring the reasonable efforts condition we
are shifting the burden of performing audits from inspectors to
generators. The reasonable efforts condition allows generators to ensure
that hazardous secondary material will not be discarded when transferred
to a reclamation or intermediate facility. Consequently, a generator
must play a role in determining that a reclamation or intermediate
facility will safely and legitimately manage and reclaim materials. We
do not agree that generators will "inspect" facilities and we note that
inspectors from regulatory authorities will continue to inspect
facilities as necessary. Also, the proposed condition did not include a
provision requiring that documentation be provided to regulatory
agencies, although we agree that authorities would have likely retained
the ability to request documents. In the final rule, we are requiring
that documentation of reasonable efforts be made available upon request
to a regulatory authority within 72 hours, or within a longer period of
time as specified by the regulatory authority.

EPA does not anticipate that documentation of reasonable efforts will
require confidential or proprietary information. The questions are
sufficiently clear and cover basic information about a facility;
information should not be confidential. In any case, if the facility is
not willing to share that kind of information to respond critical core
questions about the operations, the generator will have no way of being
sure that the facility will safely and legitimately manage hazardous
secondary material and not discard it.

We recognize that reclaimers will possibly receive multiple reasonable
efforts inquiries from generators, but we do not believe that this will
pose an undue burden to reclaimers for the following reasons: according
to commenters, many generators already audit facilities, so responding
to a reasonable efforts inquiry should; be familiar and practiced
activity for reclaimers; we received several comments that suggested
reclaimers anticipate and prepare for audits, including by creating
audit guides or websites with necessary information; we believe that the
reasonable efforts questions (1) - (5) are objective and can be easily
answered by generators with input from reclaimers; and requiring all
generators to answer the same questions may in fact standardize the
requests that reclaimers receive, minimizing the effort it would take to
respond to each generator’s different questions.

EPA understands that trade associations would not be willing to share
information about audits with non-member companies and that currently an
association audit process may not consider the disclosure of information
to EPA. We expect that trade associations and others who provide
information to generators for their reasonable efforts will design their
information programs to ensure that generators are aware of their
policies for sharing that information.  We believe that the particular
information necessary to respond to the reasonable efforts questions is
general enough that these information programs can be designed such that
any information a generator needs for documentation will not compromise
the confidentiality of the reclaimer or the information provider if it
is provided to the regulating agency as part of its oversight
activities.  Nevertheless, if necessary, all regulating agencies have
procedures in place to manage and protect confidential business
information if claimed confidential by the regulated community. 

In codifying an objective standard for reasonable efforts, we believe we
have designed questions (1) - (5) to be straightforward and answerable
by all generators, including ones that may not have expert auditors on
staff. We also think that the codified questions are complete, and that
they ensure that a when a generator affirmatively answers the questions,
the generator is ensuring facilities receiving recyclable materials
intend to safely and legitimately recycle and not discard the material.
Therefore, we disagree with commenters' recommendations to require the
following in reasonable efforts: the generator or a qualified
staff/auditors with specific audit knowledge and experience must conduct
audits; auditors should have scientific or engineering expertise; and
include an addition to an audit ensuring that hazardous secondary
materials are actually recycled, and require information on hazardous
waste properties of the hazardous secondary material.

Finally, we do not believe that it is necessary in the reasonable
efforts condition to require that an auditor certify that the reclaimer
meets its requirements under the exclusion. In terms of certifications,
EPA believes that it is only necessary that the generator certify that
reasonable efforts were made prior to arranging transportation of
hazardous secondary materials.

7.4.1.6 - Frequency of periodically updating reasonable efforts

7.4.1.6 - Summary

EPA requested comment on a requirement for making periodic updates to
reasonable efforts, but did not propose an explicit time period. Some
commenters favored requiring a specific time limit for updating the
reasonable efforts provision, while others (a slightly smaller number)
favored a flexible time frame for updating reasonable efforts, to be
determined by the hazardous secondary material generator. The commenters
who supported a specific time frame for updating the reasonable efforts
condition included states, several representatives of the recycling
industry, one industry generator, and one environmental organization.
Several of these commenters stated that the hazardous material generator
needed to evaluate changes over time to the recycling facility (e.g.,
compliance status, financial assurance, permit renewals, impact of
changes in recycling markets) to ensure that their hazardous secondary
materials continue to be recycled properly and legitimately. Commenters
also suggested that generators re-evaluate recyclers whenever the
generator becomes aware of new, "material" information about or changes
to a reclamation facility. These commenters asked EPA to set a minimum
schedule for generators to update reasonable efforts. The suggested
schedules ranged from annually to every five years and were based on
commenters' current experience with industry audit practices as well as
commenters' suggested time frames for ensuring that reasonable efforts
information is reassessed periodically. One commenter noted that it
conducts a financial audit of facilities annually regardless of past
good behavior.

Several industry generators and associations, as well as one waste
management association, submitted comments in opposition to requiring
specific periodic updates of the reasonable efforts provision.
Commenters expressed concern that an arbitrary time frame would
unnecessarily change generators' current schedules for auditing or
making inquiries of recycling facilities. Several commenters suggested
that schedules for evaluating reclaimers should vary from facility to
facility and by industry and that a generator should be allowed to
decide when to update reasonable efforts given a facility's history and
the generator's familiarity with the facility. One commenting
organization cited its use of an internal risk-based audit schedule to
determine when to review a reclamation facility, while another commenter
suggested there is no equivalent annual audit requirement under existing
RCRA regulations to warrant an update of reasonable efforts. The stated
criteria for judging the level of risk included facilities with lower
financial health and an addition of "new processing capabilities and
when ownership changes." Another generator requested EPA to "suggest,
and not require, the frequency of periodic updates."

(457, 462, 463, 466, 470, 472, 476, 479, 482, 486, 489, 492, 503, 507,
509, 512, 525, 534, 538, 543, 549, 559) 

7.4.1.6 - Response

EPA agrees with the comments stating that requiring generators to
conduct specific periodic updates of the reasonable efforts provision is
critical for ensuring that excluded reclamation and intermediate
facilities continue to properly and legitimately recycle, and not
discard, the hazardous secondary materials into the future. We believe
that if a hazardous secondary material generator evaluated a reclamation
facility (or an intermediate facility if hazardous secondary material is
sent to such a facility) only once before the initial transfer of
hazardous secondary materials for recycling, it would not provide
adequate assurance that hazardous secondary material generators have met
the reasonable efforts condition to ensure discard will not occur 5, 10,
or 20 years into the future. 

We understand that generators often evaluate recyclers or intermediate
facilities on a recurring schedule determined by the generator's
particular interests, concerns, and experience. However, EPA believes
that hazardous secondary material generators are also interested in
having regulatory certainty regarding the time frame for which
reasonable efforts must be conducted, rather than a completely
discretionary "generator decides" approach, which will present many
disagreements and challenges as to what a "reasonable" schedule is. We
are also aware that many generators do not currently conduct reasonable
efforts, let alone re-evaluate such facilities over time, and note that
the reasonable efforts condition and its associated requirements will be
new to many generators without existing evaluation practices. 

It is our understanding that generators auditing facilities, based on
public comments and on knowledge gained from EPA's An Assessment of Good
Current Practices for Recycling of Hazardous Secondary Materials
(EPA-HQ-RCRA-2002-0031-0354 ) ("successful recycling study"), continue
to re-audit facilities every one to five years. Commenters, including
states, also believed that it is critical for generators to periodically
update reasonable efforts to ensure information used by generators is
current. For all of these reasons, we are requiring that generators
update their reasonable efforts evaluation at least every three years,
at a minimum. Again, based on public comments and our successful
recycling study, this appears to represent general industry practice and
an average time frame for those generators who currently conduct
environmental audits of facilities to which they send their hazardous
secondary materials. 

By specifying a time frame for periodic updates, EPA in no way intends
to limit a generator to conducting evaluations only every three years.
In fact, we acknowledge that shorter time frames could be appropriate
for certain industries. Additionally, we would expect that any hazardous
secondary material generator who has concerns about a reclamation or
intermediate facility, or who gains new knowledge of significant changes
or extraordinary situations at such facilities, would conduct reasonable
efforts regardless of the minimum required update schedule. 

7.5 - Conditions specific for reclaimers

7.5.1 - Storage of recyclable materials

7.5.1 - Summary

Two commenters did not object to the recordkeeping, storage, and
management requirements for reclaimers as proposed in 2007. [0472-46,
0486-45]

7.5.1 - Response

EPA appreciates the commenters' support of the proposed recordkeeping,
storage and management requirements for reclaimers.

7.5.1.1 - Requirement to manage materials in same manner as analogous
raw materials and to contain

7.5.1.1 - Summary

Several commenters supported the condition that secondary materials be
managed in a manner that is at least protective as that used for
analogous raw materials.  Commenters asserted that this condition makes
sense because the secondary materials are as valuable as the analogous
raw materials.  Accordingly, reclaimers have a substantial incentive to
take appropriate measures to ensure that the valuable materials are not
spilled, released or otherwise lost.  Reclaimers would also
appropriately contain secondary materials without analogous raw
materials to prevent releases for the same reasons discussed above. This
standard accurately defines the absence of discard, and no more specific
storage requirements are necessary. More specificity would carry the
rule over into the category of "modified RCRA regulations."  Given the
variability of raw materials, hazardous secondary materials, and storage
units used to store these materials, the proposed regulation at 40
C.F.R. § 261.4(a)(24)(v)(B) provides sufficient clarity in generally
describing how storage units for non-discarded materials are designed
and operated.

[0463-13, 0472-47, 0478-13, 0486-46, 0492-41]

7.5.1.1 - Response

EPA appreciates and agrees with the comments supporting the proposed
condition that secondary materials be managed in a manner that is at
least protective as that used for analogous raw materials.  

7.5.1.2 - Alternatives to proposed storage condition, including if more
specific terms for storage should be set

7.5.1.2 - Summary

Many commenters requested that EPA include more specific storage
standards for facilities reclaiming hazardous secondary materials under
the transfer-based option.  Commenters asserted that specific storage
conditions for reclamation facilities that operate under the proposed
exclusion would allow the Agency to determine that the recyclable
materials are not discarded. The great majority of damages documented in
the study of recent recycling-related damage incidents occurred at
commercial reclamation facilities, and mismanagement of hazardous
secondary material was found to be a cause of environmental problems in
35% of the incidents. It might be expected that truly responsible
generators and reclamation companies will evaluate the characteristics
of the specific hazardous materials and, using "sound engineering
practices,” will construct storage facilities with containment that is
protective of the environment. However, the EPA assessment of
environmental problems associated with the recycling of hazardous
secondary materials shows that improper storage and containment is a
significant source of the recorded environmental impacts. As currently
written, the "performance based approach" with no guidance on the actual
requirements, provides no assurance that good engineering practice will
be used. The proposal makes no reference to any type of design or
operating standard for these "analogous" materials, such as API or ASTM
standards, leaving it up to the generator to determine what the
appropriate standard should be.  Using this approach, EPA and the public
will only know that the performance-based approach was inadequate after
the environmental impact has already occurred. Hazardous secondary
materials may contain contaminants that are not compatible with the
associated storage requirements for the main component's analogous raw
material and often will need more protective storage. Given the dramatic
fires that have occurred over the last few years at facilities
conducting recycling operations (all of which involved tank and
container storage areas and all of which are currently regulated), the
most recent of which occurred on June 22, 2007, does EPA really want to
take a dramatic step backwards and promulgate regulations that would
eliminate existing requirements?  EPA has issued basic storage standards
for universal wastes that are reclaimed, such as batteries, thermostats,
and lamps, and for used oil that is recycled.  Surely hazardous
secondary materials that include organic solvents and toxic
metal-bearing sludges warrant storage standards that are at least as
specific and clear.

Accordingly, commenters believe that regulatory requirements for proper
storage are necessary, appropriate, and should be codified for
reclamation facilities that take advantage of this exclusion, and will
establish an expectation for the owner/operators of such facilities
(i.e., that they must manage hazardous secondary materials in a
protective manner to minimize the potential for these materials to be
released into the environment). Because the hazardous secondary
materials exhibit the same chemical and physical properties whether in
storage as hazardous waste or material destined for recycling,
commenters believe they should be subject to equivalent storage
requirements as currently exist for hazardous waste.

Examples of specific storage requirements provided include:  designated
area(s), containment, inspections, labeling, contingency planning, RCRA
specifications for containers, containment buildings, and waste piles,
and a prohibition on land placement.  

Other suggested alternatives to full RCRA requirements include:

Condition of containers and tanks. If the container or tank holding the
hazardous secondary material is not in good condition (for example, it
exhibits severe rusting or apparent structural defects) or it begins to
leak, the generator should transfer the material to a container or tank
that is in good condition, or manage the material in some other way that
is protective. 

Compatibility of materials. The generator must use a container or tank
made of or lined with materials that are compatible and will not react
with the hazardous secondary materials to be stored. 

Secondary containment. The generator must design and operate a
containment system for the storage area, with a base that is
sufficiently impervious to contain leaks, spills, and accumulated
precipitation until the collected material is detected and removed; and
with sufficient capacity to contain 10% of the volume of stored
materials, or the volume of the largest container or tank, whichever is
greater. 

Inspections. At least weekly, the generator must inspect the storage
areas looking for leaks and accumulated materials.  The generator must
remove any spilled or leaked materials and accumulated liquid from the
containment system as promptly as is necessary to prevent overflow. 

Air emission controls. The generator must manage the hazardous secondary
materials placed in a container or tank according to the requirements of
subparts AA, BB, and CC of 40 CFR part 264.  The following control
devices are permissible: thermal vapor incinerator, catalytic vapor
incinerator, flame, boiler, process heater, condenser, and carbon
absorption unit.

One commenter suggested that for land-based units, EPA should model the
storage unit requirements after those developed for PCB bulk product
wastes under the TSCA regulations at 40 CFR 761.65(c)(9). The commenter
believes that the risks posed by land-based storage of HSM storage are
similar to those posed by land-based PCB bulk product waste storage.
These storage requirements were developed specifically for land-based
storage, are well understood, and have been 'field-tested' for years.
When there is no analogous raw material for the HSM, the commenter
recommends modeling the storage unit requirements after those for
Universal Waste pesticides found at 40 CFR 273.13(b). 

[0457-43, 0475-6, 0475-28, 0475-29,  0482-3, 0482-4, 0489-19, 0507-31,
0521-21, 0525-14, 0531-8, 0538-8, 0539-12, 0543-13, 0543-49, 0548-9,
0551-2, 0558-46, 0559-35]

One commenter provided a specific example of spent catalyst storage
outside on a thin concrete pad or on the ground, which is how analogous
molybdenum and vanadium ores are stored.  Such an arrangement would have
had no leak detection to discover a building leak; indeed it may not
have had a building at all. With rudimentary runoff collection it could
have argued for years that the stored catalyst was both "analogous" to
vanadium/molybdenum ore storage and that it was "contained.” While
there may have been notification and remediation obligations under
CERCLA or state law, this is a poor substitute for the preventative
nature of specific storage requirements.

[0475-19, 0475-29]

One commenter agreed that the minimum requirement for reclamation
facilities should be that for the storage of analogous raw materials. 
However, in some cases that may be difficult to ascertain.  In those
circumstances, the commenter believes that secondary material should be
subject to storage standards equivalent to those for a RCRA regulated
hazardous waste of the same type and composition.  Because, as stated in
the preamble, past recycling facility environmental issues were due to
improper storage, not the recycling process, we believe that secure
storage is one of the most important considerations in protection of
human health and the environment.  Another comment noted that in some
cases there might not be an analogous raw material and that EPA should
require materials to be stored in a manner sufficient to minimize
releases.

[460-9, 0529-20]

Two commenters also said that EPA cannot rely on the generator's
"reasonable efforts" condition to make an assessment of storage at the
reclamation facility.  The generator needs a basic set of management
standards to assess the reclaimer's storage practices and equipment. 
EPA's proposed standard would require generators to know whether there
are analogous raw materials, and if so how those raw materials are
typically stored, in order to assess compliance with this condition -
knowledge that generators are unlikely to possess, since they are not
engaged in the business of recycling the secondary materials, which is
why they are sending the materials to a commercial reclamation facility.
 Auditors are typically not experts in the construction of storage
facilities. The proper approach is to put the onus on the reclamation
facility to meet basic storage standards, as demonstrated through a
certification by a professional engineer.

[0475-31, 0558-46]

7.5.1.2 - Response

EPA disagrees that more specific storage standards, such as secondary
containment, liners, and leak detection systems, are needed to determine
which hazardous secondary materials are not being discarded. The
restrictions and conditions that EPA is finalizing today address a
variety of hazardous secondary materials and reclamation operations that
are linked to defining the act of discard, rather than specifying a
particular technology that may not be appropriate in some cases. 

Specifically, EPA has established in the final rule that all secondary
hazardous materials, whether stored in a land-based unit or a non-land
based unit, must be contained in that unit.  By limiting the exclusion
to hazardous secondary materials that are contained, EPA is defining
"discard" for this material. Under the final rule, regulatory
authorities can determine whether such materials in a unit are contained
by considering all such site-specific circumstances. For example, local
conditions can greatly affect whether hazardous secondary materials
managed in a surface impoundment are likely to leak and cause damage,
and, therefore, whether the unit could be considered contained.
Similarly, facilities may employ such measures as liners, leak detection
measures, inventory control and tracking, control of releases, or
monitoring and inspections. Any or all of these practices may be used to
determine whether the hazardous secondary materials are contained in the
unit.

In addition to the condition that the hazardous secondary materials must
be contained, reclamation facilities and intermediate facilities must
also manage the hazardous secondary materials in a manner that is at
least as protective as that employed for the analogous raw material,
where there is an analogous raw material. An "analogous raw material" is
a material for which a hazardous secondary material substitutes and
which serves the same function and has similar physical and chemical
properties as the hazardous secondary material. A raw material that has
significantly different physical or chemical properties would not be
considered analogous even if it serves the same function. For example, a
metal-bearing ore might serve the same function as a metal-bearing air
pollution control dust, but because the physical properties of the dust
would make it more susceptible to wind dispersal, the two would not be
considered analogous. Similarly, hazardous secondary materials with high
levels of toxic volatile chemicals would not be considered analogous to
a raw material that does not have these volatile chemicals or that has
only minimal levels of volatile chemicals. 

These conditions work in conjunction with other conditions of the final
rule exclusion, including the reasonable efforts condition.  EPA
disagrees with comments that say generators are unlikely to possess the
knowledge of how hazardous secondary materials are typically stored and
therefore unable to perform reasonable efforts.  On the contrary, the
facility that generated the hazardous secondary material would be the
most knowledgeable about the physical and chemical properties of the
material and best be able to evaluate whether the recycling facility is
capable of handling it.  In fact, HSM generators are knowledgeable about
storage practices appropriate for their materials because they
themselves store the materials before shipping them off-site. The
storage conditions work in tandem with the other conditions to the
exclusion to show that the materials are not discarded, but instead are
treated as commodities which the handler considers valuable and would be
used and not be lost to the environment.

 

Furthermore, hazardous secondary materials excluded under today's rule
may remain subject (or become subject) to requirements under other
statutory programs. For example, hazardous secondary material
generators, transporters, intermediate facilities and reclaimers may be
subject to regulations developed under:

The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA) and
the Superfund Amendments and Reauthorization Act (SARA) of 1986 which,
combined, require notification of hazardous substance releases above a
reportable quantity, emergency planning and, if applicable, MSDS and
inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370). Hazardous
secondary material generators and reclaimers meeting defined criteria
are also subject to toxic chemical release reporting (i.e., Toxics
Release Inventory (TRI) under EPCRA (40 CFR part 372). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities alongside of RCRA. For more useful
information on these regulatory programs, please see "Memorandum:
Requirements that other Regulatory Programs would place on Generators,
Reclaimers and Transporters of Hazardous Secondary Materials" located in
the docket for this rulemaking.

7.5.1.3 - No storage condition needed

7.5.1.3 - Summary

A few commenters objected to the condition that if the secondary
material serves as a substitute for an analogous raw material, the
reclaimer must "manage the hazardous secondary material in a manner that
is at least as protective as that employed for analogous raw material." 
Commenters argue that such requirements are not necessary in light of
the existing legitimacy criterion that recycled materials be managed in
a manner similar to analogous virgin materials. One commenter argued
that storage should be appropriate to minimize losses and to avoid
releases. These concepts are consistent with good management, rather
than discard, but avoid overly prescriptive, and potentially
unnecessary, requirements and that therefore EPA should instead require
materials to be stored in a manner sufficient to minimize releases.

[0472-45, 0486-11]

7.5.1.3 - Response

EPA disagrees with comments stating that the condition that the
reclaimer must "manage the hazardous secondary material in a manner that
is at least as protective as that employed for analogous raw material"
is unnecessary.  Although this concept is also found in the definition
of legitimacy in 40 CFR 260.43, it is a "factor to be considered" and is
not mandatory.  Of the 208 damage cases in EPA's study of environmental
problems associated with hazardous secondary material recycling, 81
cases (40%) primarily resulted from the mismanagement of recyclable
hazardous secondary materials.  Accordingly, EPA continues to find that
such a storage condition is needed for the Agency to determine that the
hazardous secondary materials are not discarded.

7.5.2 - Management of recycling residuals

7.5.2 - Summary

Two commenters request clarification on regulation of residuals.  In the
circumstance when a solvent sent to reclamation is excluded from the
definition of solid waste, would only the solvent sludge from the
reclamation process be considered to be a "generated waste" and
therefore, only the volume of sludge would be included in the
calculation of the volume of waste generated by the facility for
purposes of determining if the generator is a small or large quantity
generator?  In the case of untreated electroplating wastes, which
residuals would meet the F006 definition, and how will the recovery
facility be notified of its obligation to manage the residuals as
hazardous waste?

[0040-1, 0186-12]

7.5.2 - Response

Any hazardous secondary material excluded from the definition of solid
waste is not a solid waste, and therefore is not a hazardous waste, and
therefore would not be included in the quantity calculations in
determining if the generator is a small or large quantity generator.   A
residual from the reclamation process, if discarded, would be solid
wastes and would be included in the quantity calculation if it exhibits
a hazardous waste or is itself a listed hazardous waste.  A reclamation
facility has the obligation under 40 CFR 262.11 to determine if its
solid waste is hazardous.  In the case of electroplating wastes,
residues from recycling would be identified as F006 only if they
themselves meet the F006 listing description as generated in the
recycling process.

7.5.2.1 - Manage any residuals that are generated from reclamation
processes in a manner protective of human health and the environment

7.5.2.1 - Summary

Some commenters agreed with EPA's proposed condition that specifies that
"any residuals that are generated from reclamation processes will be
managed in a manner that is protective of human health and the
environment. If any residuals exhibit a hazardous characteristic
according to subpart C of 40 CFR part 261, or themselves are listed
hazardous wastes, they are hazardous wastes (if discarded) and must be
managed according to the applicable requirements of 40 CFR parts 260
through 272."  Commenters noted that the purpose of this condition is
primarily to clarify the regulatory status of these waste materials, and
to emphasize in explicit terms that recycling residuals must be managed
properly. The commenters stated that the study of recent (i.e., post-
CERCLA, post-RCRA) recycling-related environmental problems revealed
that mismanagement of residuals was the cause of such problems in one
third of the incidents that were documented. Some common examples of
these mismanaged residuals were acids and casings from processing of
lead-acid batteries, solvents and other liquids generated from cleaning
drums at drum reconditioning facilities, and PCBs and other oils
generated from disassembled transformers. In many of these damage
incidents, the residuals were simply disposed in on-site landfills or
piles, with little apparent regard for the environmental consequences of
such mismanagement, or possible CERCLA liabilities associated with
cleanup of these releases.

[0457-44, 0470-26, 0482-28, 0507-32, 0558-48]

One commenter requested clarification of the proposed condition.  The
commenter said that it is not clear that the first sentence of this
paragraph has (or is intended to have) any meaning other than what is
stated in the second sentence.  The first sentence states the general
proposition that "any residuals that are generated from reclamation
processes will be managed in a manner that is protective of human health
and the environment."  The second sentence states what apparently is
intended by the first- i.e., that if these residuals exhibit a hazard
characteristic or are themselves listed hazardous wastes, they must be
managed accordingly under the applicable RCRA requirements of 40 C.F.R.
Parts 260 through 272 [Footnote 54: (According to EPA, "the purpose of
[40 C.F.R. 261.4(a)(24)(v)(C)] . . . is primarily to clarify the
regulatory status of these waste materials, and to emphasize in explicit
terms that recycling residuals must be managed properly."  72 Fed. Reg.
at 14195.)].  If this reading of the paragraph is correct, the first
sentence should be deleted because it is superfluous and confusing. If,
on the other hand, the first sentence is intended to establish some
additional requirement beyond those set forth in the second sentence,
EPA should explain what that is.

[0452-18]

7.5.2.1 - Response

EPA appreciates and agrees with comments supportive of the proposed
condition that specifies that "any residuals that are generated from
reclamation processes will be managed in a manner that is protective of
human health and the environment. If any residuals exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261, or themselves
are listed hazardous wastes, they are hazardous wastes (if discarded)
and must be managed according to the applicable requirements of 40 CFR
parts 260 through 272." Mismanagement of recycling residuals was the
primary cause of damages in 71 cases (34%) in the study of environmental
problems from hazardous secondary materials reclamation. Often, in the
case of mismanagement of recycling residues, reclamation processes
generated residuals in which the toxic components of the recycled
materials were separated from the non-toxic components, and these
portions of the hazardous secondary material were then mismanaged and
discarded. Examples of this include a number of drum reconditioning
facilities, where large numbers of used drums were cleaned out to remove
small amounts of remaining product such as solvent, and these wastes
were then improperly stored or disposed.  

EPA believes that both sentences are needed for this condition because
in some cases, the residuals may not be listed or characteristic
hazardous wastes (e.g., PCBs from dissembled transformers) but would
still require proper management.  

7.5.2.2 - Whether "derived from" principle should be used to regulate
management of recycling residuals

7.5.2.2 - Summary

2003 "Derived-From" Comments - Summary

Several commenters reacted to EPA's 2003 proposal statement in the
discussion of the regulatory impact analysis that stated that "residuals
from formerly listed hazardous waste would not be considered hazardous
wastes under the derived-from rule under this proposal.  In such cases,
these residuals could be land disposed in units other than hazardous
waste landfills." (68 FR 61592)  Commenters concurred with this
statement, noting that this approach is no different that than used for
recycled characteristic by-products and sludges, and that if EPA were
concerned about the residuals, the Agency could list the residuals in
their own right, as was done for refinery residuals (40 CFR
261.4(a)(12)(i)).

Commenters also stated that as a result of the non-application of the
derived from rule, hazardous waste landfill space would be saved, and
provided specific examples.  Commenters also believed that this would
encourage companies to eliminate or reduce the listed hazardous before
disposal.  Commenters encouraged EPA to extend this interpretation to
all legitimate reclamation, or at the very least, to reclamation under
the closed-loop exclusion at 261.4(a)(8).  

Other comments ask for clarification on whether the derived-from rule
would apply to residuals from excluded recycling, saying that it should
apply, so as to ensure that such residuals are properly managed in a
manner consistent with other hazardous wastes generated from similar
processes.

[0051, 0083, 0091, 0098, 0104, 0182]

2007 "Derived-From" Comments - Summary

Several commenters responded to EPA's request for comment in the 2007
proposal on applying the "derived-from" principle to the residuals
generated from the reclamation of excluded hazardous secondary materials
(72 FR 14195).   Many commenters agreed that it is not necessary to
apply the "derived-from" principle to residuals generated from the
reclamation of excluded hazardous materials.  Commenters stated that the
residuals from recycling excluded hazardous secondary materials should
be subject to a hazardous waste determination as set forth in 40 CFR
Part 262.11 and should be managed accordingly.  Commenters agreed that
"residuals from reclamation processes often do not resemble the
hazardous secondary materials that were reclaimed" and provided specific
examples.  Commenters stated that if these materials are excluded, the
logical basis of the derived from principle cannot be applied.  
Commenters also noted that the application of the "mixture and
derived-from rule" discourages the recycling of listed hazardous waste
such as F006 because the residues from recycling listed hazardous waste
are automatically considered a listed hazardous waste and provided
examples of how recycling would increase under the rule.

[0452, 0460, 0463, 0467, 0472, 0474, 0478, 0481, 0486, 0489, 0491, 0492,
0521, 0529, 0538]

One commenter agreed that the derived-from principle need not apply to
the residues, but not for the reasons cited by EPA  (i.e., because the
recycled hazardous secondary materials are not wastes, provided they
meet the conditions of the exclusion, and therefore the "derived from"
concept as articulated in §261.3(c)(2) should not be applied to these
wastes.  Further, such waste residuals from reclamation processes often
do not resemble the hazardous secondary materials that were reclaimed,
and thus, the argument goes, it should not be assumed that they would
always need to be managed as hazardous wastes.)  The commenter
understands the argument that recyclable secondary materials are not
wastes, provided they meet the conditions of the exclusion, but it does
not follow that "therefore the derived-from concept … should not be
applied." 

The critical question is whether as a condition of the exclusion, the
residuals should be managed in accordance with the derived-from
principle. The derived-from rule is critical to the RCRA program for
hazardous wastes.  The fundamental rationale is that treatment of listed
hazardous wastes, even the "best demonstrated available treatment"
(BDAT) required by the LDR program, may not destroy or remove the
hazardous constituents in listed wastes as necessary to fully protect
human health and the environment.  EPA recently confirmed the important
role played by the derived-from rule in the hazardous waste program when
the Agency re-promulgated the rule after an extensive rulemaking
process.  The commenter believed that the argument suggested by EPA that
residuals often do not resemble the hazardous wastes that are treated is
not relevant.  The critical point is not whether the residues resemble
the listed hazardous waste, but the presence in the residues of the same
hazardous constituents that caused the waste to be listed in the first
place, often in more concentrated form. 

 

Nonetheless, the commenter does not believe that this rationale applies
with the same force to residues from recycling of secondary materials. 
Often the reclamation process is intended to recover the hazardous
constituent(s), such as solvents or metals, that are of concern in a
listed hazardous waste.  Rather than transferring the hazardous
constituents to the residue for disposal, the constituents are recovered
and concentrated into a useful product, such as an industrial solvent,
intermediate, or metal dust or concentrate.  Moreover, some reclamation
processes for inorganic materials will alter the oxidation state or
complex of the inorganic material and physically/chemically change the
residue.  The constituents are fixed or stabilized and are less
available for release.  Finally, the commenter believes that the RCRA
hazardous characteristics will identify those residuals that should be
managed as hazardous wastes.  For these reasons, we agree with EPA that
the derived-from principle need not be apply to the residues from
recycling of hazardous secondary materials under the proposed rule.

[0558]

Other commenters stated that residuals should be regulated as RCRA
hazardous waste if they were derived from materials that were physically
and chemically identical to listed hazardous wastes and contain
hazardous constituents that might pose significant threats to human
health and the environment if the residuals were mismanaged. Commenters
stated that a fundamental rationale for the derived-from concept is that
treatment of listed hazardous wastes, even the "best demonstrated
available treatment" required by the LDR program, typically does not
destroy or remove all the hazardous constituents in listed wastes as
necessary to fully protect human health and the environment.  Recently,
EPA reaffirmed the critical role of the derived-from concept in
re-promulgating the rule after a lengthy rulemaking process. Commenters
believe that what is true for best available treatment is even truer for
recycling - the hazardous constituents in the materials are not
destroyed or removed, but in fact end up in the residuals. Indeed, the
better the recycling process at reclaiming the secondary material, the
more likely that the most toxic and dangerous contaminants will be
captured in the residuals. 

Therefore, commenters believe that these residuals should be managed as
listed hazardous wastes because they were derived from materials that
were physically and chemically identical to listed hazardous wastes.
Indeed, the materials would in fact be listed hazardous wastes when
reclaimed, but for the conditional exclusion.  Commenters stated that
the argument that residuals from reclamation processes often do not
resemble the materials that were reclaimed is equally true of residuals
from treatment of hazardous wastes.  The critical point is not whether
the residues resemble the listed hazardous waste, but the presence in
the residues of the same hazardous constituents that caused the waste to
be listed in the first place, often in more concentrated form. 

Nor do the commenters believe that the RCRA characteristics are adequate
to capture waste residuals that are hazardous.  The toxicity
characteristic includes only 32 regulated constituents, omitting many of
the most hazardous organic constituents in Appendix VIII to 40 CFR Part
261. In fact, many listed hazardous wastes either were listed for
hazardous constituents, or typically contain other hazardous
constituents, not addressed by the toxicity characteristic.  Commenters
stated that while simply removing the listing or characteristic
hazardous designation offers large potential economic saving to waste
generators, it undermines the entire EPA listing and LDR program while
disadvantaging recyclers managing the same waste in a fully permitted
RCRA Part B facility.

Commenters were concerned that the lack of a "derived-from" rule or a
risk based evaluation of the residuals will leave a loophole for
recycling residuals to be managed as non-hazardous simply because
residuals from the recycling of the listed waste were not contemplated
when the listing was established. In some instances it may even be
possible that the economic incentive to conduct the recycling will
result mainly from disposal in a non-hazardous landfill of recycling
residue from a material that meets a hazardous waste listing. 
Commenters were concerned that the non-hazardous waste landfill may not
even be subject to any design standards or permitting if the waste is
disposed of at the same site where the waste was recycled. In other
words, minimal recycling might be conducted as a means to place listed
waste into a non-hazardous waste landfill and may make sham recycling a
more attractive option under certain circumstances. Further
consideration needs to be given to the management of residuals and the
tools that will be available to prevent sham recycling and subsequent
disposal of the recycling residuals in a non-hazardous landfill.

Commenters stated that EPA's failure to consider these residuals
hazardous waste is arbitrary, capricious, and contrary to substantial
evidence. EPA's own Environmental Assessment reveals that numerous
damage cases resulted from the mismanagement of recycling residuals.  72
Fed. Reg. 14181. In fact, EPA notes that mismanagement of recycling
residuals was the primary cause of damage at a full 34% of the sites. 
Id. EPA explains that "reclamation processes generated residuals in
which the toxic components of the recycled materials because
concentrated, and these wastes were then mismanaged." Id. Given the
clear evidence assembled by EPA that points to the problems caused by
residuals, it is untenable that EPA would not apply the strictest
standards to their management to prevent the rampant damage catalogued
in its own recent study.

Other comments stated that if the residuals meet the listing definition
(still bottoms from the reclamation of spent solvents, for example),
they should be managed as listed hazardous wastes.   Commenters
expressed concern that in some instances it may even be possible that
the economic incentive to conduct the recycling will result mainly from
disposal in a non-hazardous landfill of recycling residue from a
material that meets a hazardous waste listing.

[0457, 0462, 0482, 0484, 0490, 0509, 0559]

Clarification Requested - Summary

Some comments ask for clarification.  For example, if used acetone is
not solid waste before recycling due to one of the proposed exclusions,
and the still bottom is not ignitable or toxic, does the F003 treatment
standard still apply to the still bottom, or can it be disposed of
directly in a Subtitle D facility?  

Another commenter asked that EPA be clear that EPA's language on
residuals exhibiting a characteristic or meeting a listing description
being hazardous waste would not be interpreted to apply to
"Bevill-covered" waste.

Another commenter expressed concern that the approach outlined in the
2007 proposal is inconsistent with EPA's determination in the 1994
"stripper skins" letter (RCRA OnLine number 11851) to Christopher Rhodes
and likely with the 1994 Weisjahn letter (RCRA OnLine number 11857.  In
this 1994 guidance, EPA did not consider as relevant the fact that the
sludge was generated within a 261.4(a)(8) closed-loop, where very
arguably there is no wastewater available to produce a F006 sludge,
given that there are no wastes within 261.4(a)(8) closed-loop.  (This
"no wastewater" argument was the thrust of NYSDEC's prior determination
that the stripper skins were not F006, a determination referred to in
the incoming letter to EPA of March 9, 1994 from Mr. Rhodes.)  The
commenter requested clarification of whether EPA intended to have two
different interpretations.  Would residues from the reclamation of that
wastewater (to, for example, produce a substitute for tap water) be
classified as F006? Would EPA even regard the regeneration of the
wastewater as potentially qualifying for the proposed exclusions in
those instances where the reclaimed water was merely used as a
substitute for tap water, given the typically modest cost of tap water? 
The wastewater might even be contained in land-based units (e.g.,
surface impoundments).

[0470, 0481, 0516]

7.5.2.2 - Response

2003 Comments - Response

The comments on the statement regarding the derived-from rule in 2003
proposal have been overtaken by events.  The 2003 proposal only excluded
from the definition of solid waste materials that were considered by EPA
to be "reclaimed in a continuous industrial process."  The 2007
Supplemental Proposal identifies restrictions and conditions to
materials that are not solid wastes if they comply with those conditions
and restrictions.  The condition that residuals must be managed to
protect public health and the environment is one of those conditions. 
Thus, the 2007 proposal has taken a different approach to addressing the
issue of residuals from the excluded reclamation process from the 2003
proposal.  EPA also notes that if the Agency were to list discarded
residuals of the recycling process as hazardous wastes in their own
right, the Agency would have to do this through a rulemaking.

2007 Comments - Response

EPA notes that, strictly as a matter of plain meaning, the "derived
from" rule in 40 CFR 261.3(c)(2) does not apply to residuals from
reclamation of hazardous secondary materials excluded under today's
rule. These waste residuals are generated at the point they exit the
recycling process for the purposes of applying the hazardous waste
determination requirements of 40 CFR 262.11.  Because the hazardous
secondary materials being reclaimed are not solid (or hazardous) wastes,
the residuals are not derived from a hazardous waste.  If the residuals
exhibit a hazardous characteristic, or they themselves are a listed
hazardous waste, they would be considered hazardous wastes (unless
otherwise exempted) and would have to be managed accordingly.  If they
did not exhibit a hazardous characteristic, or were not themselves a
listed hazardous waste, they would need to be managed in accordance with
applicable state or federal requirements for non-hazardous wastes.    If
EPA were to apply the derived-from principle to the residuals from
recycling of excluded hazardous secondary materials, it would need to do
so through a regulatory change.  

After reviewing the public comments on the 2007 proposal, EPA has
determined that it is not necessary to apply the "derived-from"
principle to residuals generated from the reclamation of excluded
hazardous materials.  In particular, EPA agrees with the commenter who
noted that often the reclamation process is intended to cover the
hazardous constituent(s), such as solvents or metals, that are of
concern in a listed waste, and that some reclamation processes for
inorganic materials will alter the oxidation state or complex of the
inorganic material and physically/chemically change the residue, making
the constituents less available for release.  

Thus, while that the fact that residuals do not resemble the original
hazardous secondary material may not be by itself reason to decide not
to apply the derived-from principle, the fact that the residuals often
have the hazardous constituents removed or immobilized is an important
consideration.  Moreover, EPA also notes that still bottoms from the
recycling of hazardous solvents - which are the residues from one of the
major classes of hazardous secondary materials recycling excluded by
this rule - are themselves listed hazardous wastes.   In addition, the
toxicity characteristic captures the major toxic metals, which would be
the contaminants of concern in the residues of the other major class of
hazardous secondary materials recycling excluded by this rule - metals
recycling.

However, EPA also notes that recycling can involve the separation of the
toxic components from the non-toxic components, and that the toxic
components in some cases have been mismanaged and discarded.  
Mismanagement of recycling residuals was the primary cause of damages in
71 cases (34%) in EPA's environmental problems study.  These cases, with
their uncontrolled massive piles of toxic residues and their acres of
abandoned contaminated drums (in some cases numbering in the tens of
thousands) represent gross violations of either Subtitle C regulations
(with materials failing the toxicity characteristic not being managed as
hazardous waste) or Subtitle D regulations (with violations of open
dumping laws and the prohibition of liquids in landfills).  Thus, EPA is
including two conditions in the final rule to facilitate proper
oversight of these types of residuals.  First, the generator must
conduct reasonable efforts to determine that the reclamation facility
will properly manage residuals from the recycling process.  Second, the
reclamation facility, as an explicit condition of the exclusion, must
manage any residuals that are generated from the reclamation process in
a manner that is protective of human health and the environment,
including managing such materials as hazardous waste if they exhibit a
characteristic or they themselves are a listed waste.

These conditions are necessary to ensure that the reclamation operation
is not just another way of discarding hazardous constituents and that
recycling is not merely an excuse to discard unwanted materials.   EPA
believes that this is the most appropriate way to address the issue of
residuals from recycling materials that are not solid wastes, which, due
to the nature of the excluded materials and the recycling processes,
generally pose different concerns from residuals from the treatment of
hazardous wastes.

Clarification Requested - Response

In response to the question on the status of still bottoms from
reclamation of acetone (F003), if a residual itself meets the
description of a waste listed in subpart D of 261, it is a listed waste.
 For example, still bottoms from the recovery of F001-F005 solvents are
specifically included in the listing description for listed hazardous
wastes.

In response to the question of EPA's language on residuals being
interpreted as applying to "Bevill-covered" waste, EPA agrees that the
final rule exclusions would not affect any material that is currently
excluded under existing provisions and has stated so explicitly in the
final rule preamble.

In regard to the questions raised by a commenter regarding EPA's
determination in the 1994 "stripper skins" Rhodes letter (RCRA Online
number 11851) regarding F006 produced from a closed-loop recycling
process and the 1994 Weisjahn letter (11857), these letters are not
based on the derived-from rule, but rather interpret the F006 listing
itself, and are consistent with the approach in the final rule (i.e., if
the residuals of an excluded recycling process themselves meet the
hazardous waste listing description, they are listed hazardous wastes). 


7.5.3 - Financial assurance requirements

7.5.3 - Summary

In response to the 2003 proposal, commenters questioned why EPA did not
include financial assurance as a condition for facilities recycling
materials when received from off-site. (See 0076, 0084 and 0119 from
2003 proposal.)  One commenter was specifically concerned with mineral
processing wastes being excluded from financial assurance requirements,
particularly when such sites were mentioned as causing significant
environmental damages in the past (0095). Commenters were concerned that
the 2003 proposal and 2007 supplemental proposal would lead to the
abandonment of waste under the worst possible circumstances, and would
be exempt from CERCLA liability. (See 0191, 0192, 0231, 0484, 0558.) 
One commenter was concerned that if EPA modifies its proposal to weaken
the financial assurance requirement, the Agency would be obligated under
Executive Order 12688 to estimate the amount of taxpayer paid clean up
this deregulatory proposal would generate as well as the likely
environmental harm. (0558)

One commenter recommended that a facility's financial assurance "must be
determined by a generator's or reclaimer's submittal to a permitting
review process no less stringent than RCRA Subtitle C Facility
permitting requirements." This commenter also recommended that a
facility should have the option of remaining a RCRA-permitted facility,
and receiving both excluded wastes and permitted waste.  The facility
may also elect to keep its permit for storage considerations of residual
wastes.  (0479)   One commenter recommended that financial assurance be
fully funded upfront. (0564)

One commenter believes that the financial assurance requirements
contained in the standardized permit rule should not be incorporated
into this proposed rule. Not all states adopted the standardized permit
rule. (0489)

One commenter was perplexed and troubled by the fact that EPA does not
require financial assurance under the generator-controlled tolling
exclusion, even though the tolling agent or batch manufacturer is not
the generator, and despite the fact that the background document "An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials"  EPA notes that 69 of the 208 damage
cases found were from abandonment because the recycler abandoned the
secondary hazardous materials at the site. (0548)

7.5.3 - Response

EPA agrees with comments supporting financial assurance, which is a
condition in the final rule for those facilities receiving hazardous
secondary materials from off-site. Intermediate and reclamation
facilities receiving and recycling hazardous secondary materials under
the transfer-based option that take advantage of the exclusion from the
definition of solid waste must have financial assurance that meets the
provisions of 40 CFR Part 261 Subpart H which is referenced by
261.4(a)(24)(vi)(D), including certain mechanisms being fully funded
immediately. 

 

As part of the final rule, a facility subject to the financial assurance
condition will be required to estimate the cost of removing all the
hazardous secondary material at the point the volume would be the
greatest, and managing it as hazardous waste. The facility also will
need to develop a detailed plan describing how this would be done, and
amend this plan if things change. The cost of removing all of hazardous
secondary material at the point the volume would be the greatest will be
the basis for estimating the facility’s financial assurance needs and
will be available for EPA and/or state inspectors to review. Similarly,
EPA and states who adopt this rule will be aware of facilities taking
advantage of this exclusion through the notification provisions of the
final rule.

The financial assurance requirements of 40 CFR 261 subpart H
substantively mirror the interim status standards in 40 CFR part 265 for
hazardous waste treatment, storage and disposal facilities (TSDFs), but
have been tailored for hazardous secondary material reclamation and
intermediate facilities. The provision in the new subpart H in 40 CFR
part 261 are parallel to equivalent provisions under 40 CFR part 265,
which, as we noted in the March 2007 supplemental proposal, "outline how
owners and operators should determine cost estimates, explain the
acceptable mechanisms for providing financial assurance, and set the
minimum amounts of liability coverage required" (see 72 FR 14196).  EPA
agrees with comments that the financial assurance requirements contained
in the standardized permit rule should not be incorporated into the
final rule.

In regards to the comment on the need for financial assurance for
materials recycled under tolling arrangements,  EPA notes that the
tolling contractor must certify that it has entered into a tolling
contract with a toll manufacturer and that the tolling contractor
retains ownership of, and responsibility for, the hazardous secondary
materials generated during the course of the manufacture, including any
releases of hazardous secondary materials that occur during the
manufacturing process.   The tolling contractor is essentially
outsourcing a step in the manufacturing process, while still maintaining
control of the hazardous secondary materials generated and recycled from
that process.  This arrangement is not the same as that characterized by
third-party recycling and found in the damage cases, where a generator
has essentially yielded control of his hazardous secondary material to
the reclaimer.  Thus EPA disagrees that financial assurance is warranted
under the generator-controlled tolling exclusion.

 

7.5.3.1 - Support for financial assurance condition

7.5.3.1 - Summary

Many commenters supported EPA's proposal that intermediate and
reclamation facilities receiving and recycling hazardous secondary
materials under the transfer-based option be required to demonstrate
financial assurance in accordance with the Subpart H of 40 CFR Part 265.
(See comments from 0104, 0171, 0452,  0457, 0458, 0460,0462,0470,
0475,0476, 0482, 0490, 0491, 0507,0521,0525, 0538, 0539, 0543, 0555,
0558, 0559, 0563)

Reasons supporting this recommendation included: 

Without a codified financial assurance requirement, recyclers that
mismanage hazardous secondary materials could simply close their doors
and walk away, leaving an environmental problem for the public to
address with the burden of correcting mismanagement at recycling
facilities shifting to states and local authorities that may not have
the resources to address and clean up mismanaged sites;. 

EPA's Damage Case Study shows that the primary cause of damage incidents
has been the business failure of recycling facilities.  Without
financial assurance for proper closure, states and taxpayers are stuck
with the bill for cleaning up these abandoned sites. 

A recycling facility that cannot obtain an insurance policy or other
financial instrument, or that does not have the resources to establish a
trust fund or other mechanism, probably should not be handling hazardous
secondary materials under the conditional exclusion. 

One of the primary reasons that generators audit recyclers is to
evaluate their financial health and resources to respond to accidents or
other problems that could cause adverse environmental or human health
consequences. This is primarily because of the joint-and-several
liability provisions of CERCLA, under which a generator can become a
"responsible party" obligated to help pay for remediation expenses if
(in this example) a recycler to whom he sent recyclable hazardous
secondary materials were to create contamination problems, but lacked
the resources to pay for their cleanup. This proposed condition for
financial assurance thus can be seen as a regulatory precaution against
the same concern, ensuring that the reclamation facility owner/operators
who would operate under the terms of this proposed exclusion are
financially sound.

7.5.3.1 - Response

EPA finds those comments that support the financial assurance condition
persuasive and agrees with their conclusions.  Requiring financial
assurance for reclamation and intermediate facilities operating under
the transfer-based exclusion is necessary for the Agency to determine
that the materials managed at these facilities are not discarded, and is
supported by the findings of the recycling studies we conducted as part
of this rulemaking effort.  Financial assurance as a condition will
ensure that the recycler will not abandon the material, thus
demonstrating that the material is not being discarded.

7.5.3.2 - Opposition to financial assurance condition

7.5.3.2 - Summary

Several commenters disagreed with EPA's proposal that intermediate and
reclamation facilities receiving and recycling hazardous secondary
materials under the transfer-based option be required to demonstrate
financial assurance in accordance with Subpart H of 40 CFR Part 265. 

Two commenters (0481 and 0492) believe EPA lacks the authority under
RCRA to impose financial assurance requirements on facilities using
secondary materials in production operations which are never discarded.
Several commenters questioned EPA's logic of applying the Subtitle C
financial assurance framework for hazardous wastes being discarded. to
the financial assurance framework for hazardous secondary materials
being recycled.  For example, two commenters (0481 and 0444) believe the
high cost of obtaining financial assurance (e.g., at a level equal to
Subtitle C financial assurance), will essentially keep new reclaimers
out of the recycling market.  Another commenter (0442) mentioned that
similar requirements were not established for facilities accepting
universal waste lamps or batteries, even though history has shown that
lead acid battery handling sites have required remediation under the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA). 

Another commenter (0458) stated that any financial assurance
requirements imposed by EPA should be directly proportional to the
direct additional risks associated with the storage (and potential
release) of specific types and volumes of conditionally excluded
secondary materials handled by a reclaimer. 

Still another commenter (0463) mentioned the large variability of
hazardous secondary materials and recycling operations, and argued that
imposing the existing Subtitle C financial requirements on reclamation
facilities that are not otherwise regulated under the 40 C.F.R. Part 264
permitting program is not appropriate. 

Two commenters (0458 and 0471) believe that the majority of the sites
that may pursue 3rd party reclamation activities are already chemical
manufacturers or other manufacturers and will likely have some type of
spill and pollution prevention assurance in the range of 1-5 million
dollars. Therefore, full Subtitle C financial assurance requirements
would be impractical and inhibit many qualified sites from becoming
third party reclaimers. 

One commenter (0518) opposed the provision requiring compliance with the
financial requirements in 40 CFR §264, Subpart H because those
financial requirements are intended for storage and disposal facilities
that are involved in the perpetual disposal of hazardous wastes into or
onto land. 

Two commenters (0526, 0528) mentioned that both the reclaimer and the
generator already have the potential for CERCLA liability should a
reclaimer not properly reclaim a material.  Thus, they do not see a
benefit in requiring reclamation facilities to secure financial
assurance at the levels currently required for permitted "hazardous
waste" TSDFs.  This is especially true where, as here, the materials in
question are neither "solid" nor "hazardous wastes."

Finally, one commenter (0442) simply recommended that financial
requirements be deleted in their entirety. 

7.5.3.2 - Response

EPA disagrees with comments opposing the financial assurance condition. 
Facilities that that receive hazardous secondary materials from off-site
and that are not under the control of the generator must have financial
assurance to ensure that the material is not abandoned, thus
demonstrating that the material is not being discarded.  

The financial assurance condition will both facilitate increases in
recycling and protect against the potential for discard of hazardous
secondary materials. Market forces and facility expertise will dictate
whether new facilities enter the hazardous secondary recycling industry.
 Many commercial recycling facilities currently process hazardous
secondary materials that have financial assurance. Therefore, EPA
disagrees with the comment that small and mid-sized companies will be
discouraged from entering this market strictly because of financial
assurance. Other factors, such as market forces and facility expertise
will be the major factor impacting a decision to enter this market. 

Despite the belief that a facility has a long term interest to prevent
"discard,” history suggests otherwise.  As noted by commenters, at
least 138 of the 208 damage cases were firms that had gone out of
business and abandoned their waste.    In addition, EPA's market forces
study indicates that recyclers of hazardous secondary materials may
behave differently from traditional manufacturers due to difference in
economic forces and incentives involved in recycling.  Similarly, we
disagree with the assumptions by one commenter that the majority of the
sites that may pursue 3rd party reclamation activities are already
chemical manufacturers. While some chemical manufacturers have unique
tolling agreements with other chemical manufacturers in the processing
and recycling of hazardous secondary materials, we believe the more
common occurrence will be recyclers who are not traditional
manufacturers.   In any case, a chemical manufacturer interested in
recycling would likely not find it difficult to meet the financial
assurance provisions using one or more of the available instruments.

 

EPA also believes there is no need for facilities taking advantage of
the exclusion to submit information associated with financial assurance
to the regulatory agency for review and approval. EPA and the states
will be able to identify reclamation and intermediate facilities because
they will be required to submit a notification identifying themselves. 
EPA and/or the state may then choose to conduct further inspection, if
necessary.

Finally, EPA is also clarifying that facilities recycling hazardous
secondary materials under current exclusions would continue to manage
their hazardous secondary materials under other authorities that do not
involve obtaining financial assurance. Similarly, facilities that are
already TSDFs have the option of including their hazardous secondary
material management units under their existing financial assurance
mechanisms.

7.5.3.3 - Suggested changes to financial assurance condition

7.5.3.3.1 - Adjust language of Subpart H for exempt facilities

7.5.3.3.1 - Summary

Three commenters recommended that EPA develop a financial assurance
program specifically for facilities that would take advantage of the
exclusion from the definition of solid waste. (See 0470, 0543, and 0489)


7.5.3.3.1 - Response

EPA agrees with the three commenters. EPA has developed closure and
financial assurance conditions specifically for recycling facilities
taking advantage of the exclusion from the definition of solid waste. 
Substantively, the financial assurance provisions mirror those in 40 CFR
265 for hazardous waste treatment, storage and disposal facilities
(TSDFs), but have been tailored to be appropriate for hazardous
secondary material reclamation and intermediate facilities.

7.5.3.3.2 - Closure plan needed to document costs

7.5.3.3.2 - Summary

One commenter recommended that reclamation facilities taking advantage
of the exclusion maintain a closure plan that would be available for
review, upon request, that substantiates and verifies the amount of
financial assurance required. (0490)

7.5.3.3.2 - Response

EPA concurs with the substance of this recommendation. Under this rule,
facilities claiming an exclusion from the definition of solid waste will
be required to maintain a plan that would be available for review, upon
request, that substantiates and verifies the amount of financial
assurance required.   Because Subtitle C closure requirements would not
apply to units managing excluded hazardous secondary materials (as long
as the conditions of the exclusion are met), this plan is not called a
"closure plan."    However, because hazardous secondary materials that
lose the exclusion may have to be disposed of as a hazardous waste and
the facility may have to be closed as a hazardous waste facility in
accordance with the requirements of 40 CFR Part 265, the plan would
include a detailed written estimate in current dollars of performing
this work.

7.5.3.3.3 - Require copies of financial assurance documents to be sent
to regulatory authority

No comments

 

7.5.3.3.4 - Set minimum standards for financial assurance

7.5.3.3.4 - Summary

Two commenters recommended that EPA require that copies of financial
assurance instruments be submitted along with notifications. (See 0462
and 0538). One commenter also recommended that EPA should set minimum
standards for financial assurance instruments at independent reclamation
facilities. (0462) 

7.5.3.3.4 - Response

EPA believes the process it has established for implementing financial
assurance components of this rule are sufficient to respond to the above
commenters. Specifically, as part of this rule, facilities seeking to
take advantage of this exclusion will be required to submit a
notification form to EPA or their authorized state that they are
operating under one of the exclusions in the final rule. In many
instances, facilities notifying will be already operating such that EPA
and the States are already aware of their operations. Therefore, EPA and
the States should be able to easily follow-up and review their cost
estimates and financial assurance mechanisms.

Similarly, EPA believes the process it has established for estimating
costs, and associated financial assurance, as well as closing the
facility once operations cease should satisfy the "minimum standards"
for recycling facilities seeking to take advantage of the exclusion from
the definition of solid waste.    

7.5.3.3.5 - Less stringent financial assurance standards for reclaimers

7.5.3.3.5 - Summary

Two commenters proposed that financial assurance requirements be less
stringent than Subtitle C financial assurance requirements. Reasons
provided included: other conditions in the exclusion will already make
discard highly unlikely (0529), or because reclamation facilities
processing hazardous secondary materials are more analogous to
manufacturing facilities using hazardous raw materials (e.g.,
essentially processing raw materials for beneficial use) than to RCRA
hazardous waste permitted facilities (0478). 

7.5.3.3.5 - Response

EPA disagrees with the comments stating that recycling hazardous
secondary materials is essentially the same as processing raw materials
for beneficial use.  Because of the nature of the materials covered by
the final exclusions (i.e., hazardous spent materials and listed
byproducts and sludges), they are more difficult to process than most
raw materials, and the nature of the economics of the transfer of these
materials creates an incentive for discard.   Requiring financial
assurance is essential for helping to define those situations where the
material is not being discarded.   (It should be noted that the
financial assurance instruments themselves are only utilized to provide
funds for management and disposal at the point that the hazardous
secondary materials are discarded; in other words, at the point the
regulatory authority determines that a reclamation facility is not
legitimately recycling or otherwise fails to meet the conditions of the
exclusion.  At that point, that facility is managing a solid and
hazardous waste and therefore is a TSDF for the purpose of activating
financial assurance instruments to provide funds.)

7.5.3.3.6 - Study the availability of financial assurance coverage

7.5.3.3.6 - Summary

Two commenters recommended that the Agency launch a study on the
availability of insurance or other financial assurance mechanisms. (See
0494 and 0517.) 

7.5.3.3.6 - Response

The Agency disagrees with comments requesting a study of the
availability of financial assurance for recycling facilities.  Under the
hazardous waste regulations, financial assurance instruments are already
available for hazardous waste recycling facilities and it is reasonable
to presume that the market will make available financial assurance for
those excluded facilities that qualify.  Moreover, the financial
assurance condition includes a range of financial assurance instruments
for the facility to choose from.

7.5.3.3.7 - Provide cost estimate guidance

7.5.3.3.7 - Summary

One commenter recommended that EPA "should issue some guidance or
republish existing guidance on closure cost estimates, or take a generic
approach in terms of uniform unit costs for different categories of
HSM." (0527.)

7.5.3.3.7 - Response

As part of Agency's Standardized Permit rule, EPA developed guidance
that can be used by facilities to estimate closure costs for hazardous
wastes stored in tanks, containers and containment buildings. See
http://www.epa.gov/epaoswer/hazwaste/permit/std-perm.htm. This guidance
is also applicable to facilities storing hazardous secondary materials
prior to recycling. Guidance is also under development for materials
stored in waste piles and surface impoundments. 

7.5.3.4 - Alternative approaches to 40 CFR Part 265 subpart H

7.5.3.4 - Summary

Several commenters responded to our request for comment concerning
whether or not the existing Subpart H requirements need to be modified
in some way specifically for reclamation facility owner/operators, or
whether we should adopt the financial assurance requirements that were
promulgated as part of the standardized permit rule (see 70 FR 53419,
September 8, 2005) We also asked for comment on whether the costing
requirements associated with Subpart H requirements for this proposed
rulemaking should be tailored, or minimum fixed estimates established. 

No commenters supported modifying the substance of the financial
assurance regulations under subpart H or adoption of the financial
assurance requirements that were promulgated as part of the standardized
permit rule. (See 0489, 0531, 0479). All except one commenter was
opposed to setting a fixed amount for financial assurance primarily
because of the variability that exists from one facility to another.
(See 0479, 0538, 0525.) One commenter favored the idea of using a fixed
amount because of its simplicity (0516). One commenter took no position,
but "if EPA does set such a value, it should be a "safe harbor" that the
facility owner/operator, in its discretion, could utilize in lieu of
making a closure-cost determination under Subpart H (0452). Another
commenter (0559) stated that if EPA is to deviate from subpart H cost
calculations, a far better record of the cleanup, closure and
post-closure costs for reclamation facilities must be established.

7.5.3.4 - Response

EPA agrees with comments arguing against adopting the financial
assurance requirements that were promulgated as part of the standardized
permit rule, or setting a fixed amount for financial assurance. 

With respect to modifying the regulations associated with subpart H
financial assurance requirements, EPA has modified these regulations to
be appropriate for reclamation facilities utilizing the transfer-based
exclusion from the definition of solid waste.  The final rule requires
that reclamation and intermediate facilities meet the financial
assurance requirements of 40 CFR 261 subpart H.  This is a new subpart
which mirrors 40 CFR 265 subpart H, but has been tailored for facilities
excluded under the DSW rule.  EPA determined that this new subpart was
necessary because so many wording changes were needed to make financial
assurance workable for excluded facilities. The main differences between
40 CFR 265 subpart H and 40 CFR 261 subpart H are:  (1) the new subpart
uses terminology appropriate for excluded facilities (e.g., hazardous
secondary material vs. hazardous waste), (2)  the references to Subtitle
C closure requirements have been removed; those aspects of closure
needed to properly implement financial assurance (e.g., cost estimate)
have been retained, and (3) the requirement for financial assurance for
post-closure care (e.g., groundwater monitoring) has been removed as it
is not appropriate for reclamation facilities that are not discarding
hazardous waste.

7.5.4 - Provision allowing reclamation facilities to claim conditional
exclusion even if generator chooses to manage secondary materials as
hazardous waste

7.5.4 - Summary

Many commenters opposed EPA's proposal to allow a reclamation facility
at which hazardous secondary materials are managed in accordance with
the provisions of this exclusion to also accept and manage hazardous
wastes under the exclusion from generators who do not use this
exclusion.  Commenters stated that if this provision is allowed, it
completely undermines the basic premise of the proposal that generators
will be responsible and ensure reclaimers properly manage and recycle
the hazardous materials. This provision will allow generators to ignore
the requirement of making a "reasonable effort" (261.4(a)(24)(v)) to
ensure the reclaimer intends to legitimately recycle the materials and
that the reclaimer will manage the material in a manner that is
protective of health and the environment. This provision provides a
large loophole that lets generators off the hook for auditing the
reclaimer and making other reasonable efforts to ensure the excluded
material is legitimately recycled and managed properly. It would appear
to allow the reclaimer to make whatever decisions they wish regarding
the exclusion. This approach seems contradictory to the approach EPA has
taken for off site transfer, namely attempting to make the generator
responsible, in addition to the reclaimer, for ensuring that the
material is truly recycled and managed properly.  Commenters note that
it is also not clear how a generator could manifest a hazardous waste
and ship it to a facility that is not a RCRA permitted facility.
Somewhere between the time the generator puts the material on the road
and the time it is received, it would have to be declared non-hazardous
and the manifest closed. This approach appears to be completely
contradictory to the RCRA "cradle to grave" approach and would
circumvent the RCRA rules and agency intent. The provision also
conflicts with 40 CFR 262 Subpart B. Generators who are not claiming the
exclusion may only send fully regulated hazardous waste to a facility
permitted to handle the waste, and raises CERCLA concerns. RCRA
regulatory hazardous wastes are automatically CERCLA hazardous
substances. CERCLA liability in Section 107(a)(3) pertains to persons
arranging for hazardous substance disposal or treatment, not offering
materials for legitimate reclamation.  Proposed 40 CFR 261.4(a)(24)(vi)
appears to allow non-RCRA permitted reclamation facilities to accept and
perhaps commingle "fully regulated hazardous wastes" with hazardous
secondary materials. This approach would increase the CERCLA liability
for hazardous secondary materials because it would blur any distinction
between materials offered for reclamation and wastes sent for disposal
or treatment.

[0475-36, 0479-40, 0482-27, 0489-23, 0500-9, 0507-22, 0507-34, 0538-21,
0548-11, 0548-24, 0558-53]

Other commenters requested that if EPA were to include this provision in
the final rule, that it be clarified, particularly in respect to how the
manifest would operate and whether the reclamation facility would be a
designated facility.  One commenter also requested that the reclaimer be
required to inform the generator of his intent to claim the exclusion. 
[0452-21, 0492-44, 0516-21, 0516-32]

Three commenters supported the provision because it adds flexibility for
generators to continue to manage their wastes as hazardous but still
send their waste for reclamation.

[0442-17, 0509-16, 0521-24]

7.5.4 - Response

EPA agrees with comments that oppose the proposed provision that would
have allowed a reclamation facility at which hazardous secondary
materials are managed under the proposed transfer-based exclusion to
also accept and manage regulated hazardous wastes under the exclusion
from generators who do not use this exclusion.   In particular, EPA
agrees that if a hazardous waste generator has shipped hazardous
secondary material as hazardous waste then generator has chosen to
discard it, and it would be inappropriate to apply the transfer-based
exclusion to such material.

7.5.5 - Other conditions for generators and reclaimers

7.5.5 - Summary

Several commenters commented on additional requirements for generators
and reclaimers. These comments include:

1) 	CONTRACTS: A few commenters recommended requiring contracts, or
recycling agreements, in the rulemaking. Commenters argued that
contracts are essential for assigning responsibility and establishing
liability amongst the generator and recycler and would facilitate
legitimate recycling. Contracts are a normal business practice and
minimize the potential for recyclers to receive shipments of hazardous
secondary materials that they are not equipped to recycle. [0457, 0460,
0470]

2) 	TRACKING/MANIFESTING: Some commenters believed tracking systems
(including, but not limited to, shipping papers) are essential to ensure
hazardous secondary materials are being transported and handled in a
responsible manner. One commenter believed tracking gives security to
the public in knowing that hazardous secondary materials are being
managed properly. This commenter further argued that the lack of
meaningful tracking systems places the public in harm's way of materials
that have been recognized as hazardous to human health and the
environment for decades. This would also render EPA unable to identify
potentially responsible parties, let alone recover cleanup costs.
Another commenter believed that manifests should be used and copies
maintained for at least three years. One commenter suggested modifying
the existing Uniform Hazardous Waste Manifest by creating an "E" waste
code for excluded waste.  Another commenter supported requiring
reclaimers to maintain receipt records in the form of shipping
documents. These documents should be coupled with records showing how
the material was recycled and what kind of product was rendered and
would be available for review by the regulating community to ensure
legitimacy of the recycling process. One commenter said the deletion of
the tracking/manifest system will have negative effects on tank
inspections, personnel training, contingency plans for spills or
accidental releases and air emission controls. The existing problems
that are presently uncovered in today's recycling industry will only be
magnified under a system with no tracking system because industries will
be influenced by monetary savings and not capable of conforming to the
intent of legitimate recycling. Furthermore, this commenter does not
believe that EPA has the resources to inspect and enforce against all
businesses that may engage in improper recycling. Another commenter
believed the designation "non regulated material" on shipping papers is
an invitation to abuse and is aware of many incidents where used oil has
been improperly characterized and shipped as non-regulated waste. [0192,
0457, 0460, 0462, 0470, 0479, 0484] 

3) 	WASTE CHARACTERIZATION: Commenters encouraged EPA to require
reclaimers to conduct characterization of hazardous secondary materials
because even small concentrations of certain compounds can present
serious process, human health and safety issues as well as product
quality impacts. One commenter supported requiring confirmatory
"fingerprint" testing of incoming shipments for recyclers to verify that
they are receiving the material described to them by the generator.
Waste verification procedures are currently a vital component in the
Waste Analysis Plans for RCRA permitted waste management facilities and
such procedures should also be required for reclaimers to ensure that
they are not receiving inappropriate material for recovery, reuse or
reclamation. Another commenter believed that proper characterization is
essential for the protection of facility employees and property. One
commenter recommended adoption of a uniform national waste/secondary
material profile form that includes LDR restriction information for use
by TSDFs, WWTFs, solid waste facilities and recyclers. [0457, 0460,
0462, 0470, 0484, 0543, 0548]

4) 	CONTINGENCY PLANNING/ EMERGENCY RESPONSE/TRAINING: Some commenters
believed that contingency planning, spill cleanup procedures, emergency
response and personnel training standards must be required for
generators and reclaimers. Under the final rule, hazardous secondary
materials would not count towards generator status and thus, because
generator size is reduced, so too will the minimum training requirements
for the affected generators. These commenters argued that a change in
name does not change the volume or hazardous properties of the wastes
and thus they still pose the same threat to human health and the
environment and are more likely to be mismanaged, absent good training
and emergency planning. One commenter recommended that the Agency
require reclaimers to comply with general facility standards similar to
those required for Used Oil Processors and Re-refiners under 40 CFR
279.52. Additionally, one commenter said security issues should be
addressed through the Department of Homeland Security requirements.
[0457, 0462, 0458, 0482, 0543] 

5) 	TANK/CONTAINER INSPECTION: Some commenters believed that tank and
container inspections should continue for hazardous secondary materials
because the wastes in question still pose the same threats to human
health and the environment, irrespective of what they are called.
Container and tank inspections help the generator to maintain its focus
in managing the hazardous secondary material and correcting problems
while they are easily manageable. [0457, 0462, 0470, 0482, 0509] 

6) 	EPA ID NUMBER: Some commenters believed generators should continue
to be required to obtain an EPA ID number. [0165, 0462, 0543]

7) 	MARKING/LABELING/SPECULATIVE ACCUMULATION: Commenters argued that
reclaimers should mark tanks and keep a log of the source, contents and
date of receipt and removal of all hazardous secondary materials in
order to ensure that speculative accumulation time limits are not
exceeded. One commenter also believed there should be a maximum amount
of hazardous secondary material that a reclaimer can accumulate at any
time, possibly in terms of 25-30 times the daily processing rate.
Another commenter said the storage of these hazardous secondary
materials should be subject to speculative accumulation provisions under
40 CFR 261.1(c)(8), as well as recurrent inspections by environmental
agency personnel. One commenter supported requirements equivalent to
those required for Universal Waste: labeling each container and
re-containerizing any leaking containers of hazardous secondary
material. This commenter believed that these minimum standards would
assist in the identification of hazardous secondary materials to
employees and regulatory staff alike; would reduce the potential for
unintentional disposal; and would prevent unintentional releases of
hazardous secondary materials. [0457, 0470, 0521, 0543, 0563]

8) 	NOTIFY IF OFFLINE: One commenter argued that reclaimers should
notify if the equipment is offline/out of order for more than 60 days
and that closure should be required if processing does not occur for 120
days. [0470] 

9) 	STORAGE STANDARDS: Some commenters strongly recommended that EPA
adopt storage and management standards to ensure that hazardous
secondary materials are managed properly under this exclusion.
Commenters argued that hazardous secondary materials, by definition,
have already been determined to be hazardous and, if not excluded, are
considered hazardous wastes, therefore, these hazardous materials
require some type of special management or they would not be subject to
the hazardous waste rules. One commenter said EPA's presumption that
hazardous secondary materials will be treated as "valuable commodities"
is not sufficient to ensure protective materials management practices
and that EPA should require some minimal materials management standards,
akin to the RCRA requirements, for facilities claiming the proposed
exclusion. Another commenter said the great majority of damages
documented in the study of recent recycling-related damage incidents
occurred at commercial reclamation facilities and mismanagement of
hazardous secondary material was found to be a cause of environmental
problems in 35% of the incidents. Accordingly, this commenter believes
that regulatory requirements for proper storage are necessary and
appropriate and should be codified in the exclusion. One commenter
believed that minimum standards would not be an impediment to
reclamation, as they simply reflect common sense. Another commenter said
requirements for storage and handling of the material at the reclamation
facility should include language that is performance-based and should
require a facility to prevent the escape of the hazardous secondary
material and to manage the material as a valuable ingredient necessary
to produce a product. This commenter further argued that storage and
accumulation should be limited to structures that provide secure
containment, such as indoor waste piles, above ground tanks and
containers with secondary containment. One commenter believed that any
storage condition imposed on generators should be limited to adequate
secondary containment, and management to prevent contamination of
stormwater. Another commenter said to require construction and
maintenance of facility process equipment to a standard that will limit
the possibility of discharge to the environment. Some commenters argued
that reclaimers should comply with Subparts I and J under the existing
RCRA regulations. Another commenter said, if land-based storage is
necessary and environmentally sound, the generator and reclaimer should
have the burden to demonstrate that the material is "contained,"
including soil and groundwater assessment at closure. Some commenters
suggested the following performance-based standards: 1) condition of
containers and tanks; if the tank is not in good condition, the
generator should transfer the material to a tank that is good condition;
2) compatibility of materials; the generator must use a container or
tank that is compatible and will not react with the hazardous secondary
materials; 3) secondary containment; must have sufficient capacity to
contain 10% of the volume of stored materials or volume of the largest
container, whichever is greater; 4) generator must store the material in
a manner that maintains its ability to be recycled; 5) generator must
store the material in equipment that is designed to prevent unauthorized
releases to the environment; 6) generator must store the material in
equipment that is inspected and maintained at intervals necessary to
keep the equipment in good working order; and 7) generator must minimize
the time the material is staged or stored before recycling. One
commenter believed that EPA should impose the same general performance
standard for generators as it proposes for reclaimers. Another commenter
suggested a strict prohibition on land-based units, codified minimum
standards for tanks, containers and buildings, and certification of any
recycling units to codified standards. [0084, 0457, 0458, 0460, 0462,
0470, 0475, 0482, 0484, 0489, 0509, 0512, 0516, 0531, 0548, 0551, 0558] 

On the other hand, some commenters believed materials handled in
accordance with the legitimacy criteria are, by definition, being
handled as product-like materials, which necessarily includes the
requisite handling safeguards to preserve the integrity of the material.
Second, the imposition of the unnecessary controls on materials being
legitimately reclaimed would create an uneven playing field between the
reuse of these materials and comparable virgin materials; it would be
counter-productive to impose unnecessary "handling" controls on
materials that could be legitimately reclaimed. One commenter believed
that hazardous waste generators are aware of the requirements for
storing wastes; therefore, the exclusion is not likely to result in
generators changing their established storage conditions. Including
storage conditions in the rule could create additional compliance
requirements and might require additional investment and regulatory
burden for no significant environmental benefit. Another commenter
believed that EPA's proposal that all materials must be "contained" was
a sufficient standard for generator storage and that additional storage
requirements are not necessary. [0076, 0149, 0461, 0485, 0486, 0492]

10) REQUIRE EQIVALENT TO SUBTITLE C: One commenter argued that
everything required by a Subtitle C formal permitting application
process should be required under the exclusions because the hazardous
nature of the material is not changing and is still as potentially
harmful to the environment. Another commenter said that all recycling
for similar materials should be regulated by similar standards. Still
another commenter recommended the rule be revised to require companies
to institute prescriptive management standards like those that are
likely to already be in place by companies processing more
commodity-like secondary materials for reclamation. Examples could
include labeling, waste analysis plans, containment standards for tanks
and containers, contingency planning etc. This commenter notes this
general approach has been implemented in the used oil and universal
waste regulations; however, these initiatives have targeted individual
materials and because the universe of hazardous secondary materials is
not as well defined, the management standards for hazardous materials
being reclaimed must be more encompassing. One commenter suggested
requiring a notice and public comment opportunity on any industry
facility proposing a recycling activity, similar to what currently
exists in RCRA for facilities seeking Part B permit modifications. This
commenter believed this would allow companies to achieve legitimate
recycling goals while giving the public an opportunity to ask questions,
be informed, and offer input as well as deterring those who would
operate at the fringes of environmental safeguards. Another commenter
believed an application approval process should be used that would
require the reclaimer to develop an operations plan that would include
design standards for storage units, waste analysis plans, financial
assurance documents, recycling residuals testing plan and documents
supporting the legitimacy criteria. The certification package must be
signed by both the owner and operator and EPA should require further
review by a professional engineer. One commenter suggested that off-site
reclaimers be regulated, operated, and registered as a large quantity
handler under the Universal Waste program, which requires labeling,
accumulation time limits, employee training, response to releases and
tracking requirements. This commenter believed this would provide
adequate protection without the burden of obtaining a RCRA permit.
[0192, 0479, 0484, 0544, 0548]

11) REMOVE TAXES/TRI REPORTING: One commenter supported the removal of
waste treatment and generation taxes and the removal of TRI reporting
requirements for any material that is recycled. This commenter believed
that if EPA and states were to provide incentives for RCRA recycling,
RCRA facilities would expand their services. This commenter also
supported fast track permit modifications as well as fast track
delisting capability. [0484]

12) CONDITIONS ON BROKERS: Some commenters supported additional
conditions on generators who use brokers. These conditions could include
requirements that are appropriately more conservative, albeit still
reasonable, and less than hazardous waste management requirements. One
commenter suggested conditions such as: having contracts, ensuring that
the generator's materials are not commingled with materials from other
generators; fulfilling responsibilities under RCRA and DOT hazmat rules
(e.g., shipping papers, manifests, packaging, labeling); and providing
for transportation. [0486, 0503] 

13) CLARIFICATION FOR REJECTED LOADS: Some commenters said the Agency
should clarify what happens when hazardous secondary materials are
rejected by the reclaimer, including if and how a manifest should be
used and the regulatory status of the materials. One commenter believed
that hazardous secondary material returned from the reclaimer cannot be
considered a "solid waste" during that return transit nor, for the
matter, at any point before the generator "discards" it by deciding to
manage it as a hazardous waste instead of reclaiming it. [0460, 0468,
0476, 0507, 0516]

14) CONDITION EXCLUSION ON ACTUAL RECYCLING: One commenter strongly
supported conditioning the exclusion for hazardous secondary materials
transferred for reclamation on the actual recycling of those hazardous
secondary materials. Another commenter said they would add a condition
that the generator must take possession of any waste resulting from the
treatment of the secondary material with the exception of waste that
becomes part of the equipment with the equipment still being usable for
subsequent use. An example would be a filter that is still serviceable
after the generator's materials have been reclaimed; that filter would
then be the reclaimer's waste or the waste of another generator if the
filter requires replacement during reclamation at that generator's site.
[0521, 0536]

15) REQUIRE RECLAIMERS TO NOTIFY GENERATORS WHEN LOSING PART B PERMIT /
SUBJECT TO ENFORCEMENT ACTION: One commenter requested that EPA require
that recyclers notify their generator customers that they will no longer
operate under a RCRA Part B permit and that EPA should provide
generators in this circumstance a grace period under which they can
perform the tasks necessary to meet the reasonable efforts standard, but
continue to send their hazardous secondary materials to the recycler for
reclamation. Another commenter said it is not uncommon for RCRA
generators to require RCRA TSDs to add the generator as an additional
insured on PLL/EIL policies, which typically also provides for
notification of cancellation or non-renewal or reduction in coverage to
said generator. One commenter said recyclers must be required to notify
generators within 30 days when administrative or judicial enforcement
actions by a state or federal agency are initiated against them,
including Notices of Violation. [0527, 0549, 0559] 

16) CERTIFICATON BY P.E.: One commenter believed that any
decision-making or affirmative statements by generators and/or
commercial hazardous waste facilities must be certified by a licensed
Professional Engineer who has the education and experience, plus the
sworn duty to be honest in any evaluation. [0564]

17) AIR EMISSION STANDARDS: Some commenters believed processes being
used to recycle hazardous secondary materials should be subject to air
emission limitations which are equally protective of human health and
the environment, such as RCRA's Maximum Achievable Control Technology
standards and the requirements of subparts AA, BB and CC of 40 CFR part
264. With the notification that the hazardous secondary materials are
going to be recycled, an evaluation of the potential air emissions
should be included and when recycling activities result in higher air
emissions that what would result from these same hazardous secondary
materials being managed within RCRA, the hazardous secondary materials
should not be excluded from the definition of solid waste. One commenter
noted that these minimal standards would not impose any significant
burden on generators. The subpart AA-CC air emission controls only apply
to hazardous secondary materials with high VOC content. [0457, 0482,
0543]

18) REQUIREMENTS ON PRODUCTS: In response to EPA's October 2003
proposal, one commenter supported requiring the sale of products derived
from hazardous secondary materials to commercial consumers that are part
of the "same industry." Another commenter said the current proposed rule
does not require the product to meet LDR standards and several other
conditions that a product made from HSM would currently have to meet in
accordance with 40 CFR 266.20(b). [0153, 0543]

7.5.5 - Response

Included below are our responses to the above comments regarding
additional conditions for generators and reclaimers managing hazardous
secondary material:

1)   CONTRACTS: Under the final rule, we are requiring contracts in two
types of situations: 1) under the generator-controlled exclusion, for
hazardous secondary material being reclaimed pursuant to a written
contract between a tolling contractor and toll manufacturer; and 2)
under the transfer-based exclusion, for hazardous secondary material
that will be passing through an intermediate facility that is not
addressed under a RCRA Part B Permit or interim status standards. In
this case, the hazardous secondary material generator must make
contractual arrangements with the intermediate facility to ensure that
the hazardous secondary materials are sent to the reclamation facility
identified by the generator. For these two scenarios, we determined that
contracts are necessary to ensure that hazardous secondary materials are
not discarded because these situations involve entities other than the
hazardous secondary material generator and reclaimer (i.e., the toll
manufacturer and intermediate facility). It is therefore appropriate to
require contracts in these cases to ensure the hazardous secondary
materials reach their intended destination for reclamation. 

2) 	TRACKING/MANIFESTING: We agree to a certain extent with commenters
that certain records are necessary to ensure hazardous secondary
materials were transported and received for reclamation as intended.
Under the transfer-based exclusion, we require generators, reclaimers
and intermediate facilities to maintain records of all off-site
shipments either sent from or received at the facility. We also require
generators to maintain confirmations of receipt from both the
intermediate facility and reclaimer. These two requirements together are
sufficient to assure the hazardous secondary material generator and
regulatory authority that the hazardous secondary materials were
transferred and received by the reclamation facility and were not
discarded. Furthermore, based on our examination of practices that many
generators and recyclers currently use to ensure that hazardous
secondary materials are recycled safely and responsibly (see An
Assessment of Good Current Practices for Recycling of Hazardous
Secondary Materials in the docket for this rule), we disagree with
commenters who believe that industries are not capable of conforming to
the intent of legitimate recycling. Lastly, we note that hazardous
secondary materials transferred for reclamation must be packaged and
labeled according to Department of Transportation regulations at 49 CFR
Parts 173, 178, and 179 while in transport, if applicable.

3) 	WASTE CHARACTERIZATION: We are not requiring waste characterization
or waste analysis plans under the final rule because waste
characterization does not directly define discard of hazardous secondary
materials. For example, hazardous secondary materials that undergo waste
analysis may still be discarded. We agree that most responsible
reclaimers would likely test shipments of hazardous secondary materials
in order to maintain the integrity of the reclamation process; however,
universally requiring all reclaimers to systematically characterize
hazardous secondary materials is not necessary to defining discard under
the final rule. Furthermore, as some commenters noted, hazardous
secondary materials may be subject to the Occupational Safety and Health
Act of 1970, which requires material safety data sheets (MSDS) for
hazardous substances.

4) 	CONTINGENCY PLANNING/EMERGENCY RESPONSE/TRAINING: We are not
requiring contingency planning, emergency response or standards for
employee training because these requirements do not directly define
discard (e.g., a generator could have a contingency plan but still be
discarding its materials). Furthermore, we note that hazardous secondary
materials excluded under the final rule may remain subject (or become
subject) to requirements under other programs. For example, hazardous
secondary material generators, transporters, intermediate facilities and
reclaimers may be subject to regulations developed under:

	

The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA) and
the Superfund Amendments and Reauthorization Act (SARA) of 1986 which,
combined, require notification of hazardous substance releases above a
reportable quantity, emergency planning and, if applicable, MSDS and
inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370). Hazardous
secondary material generators and reclaimers meeting defined criteria
are also subject to toxic chemical release reporting (i.e., Toxics
Release Inventory (TRI) under EPCRA (40 CFR part 372). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities. For more useful information on these
regulatory programs, please see "Memorandum: Requirements that other
Regulatory Programs would place on Generators, Reclaimers and
Transporters of Hazardous Secondary Materials" located in the docket for
this rulemaking.

5) 	TANK/CONTAINER INSPECTION: We are not specifically requiring regular
tank and container inspections because we believe the requirement that
hazardous secondary materials must be contained achieves the same
objective in a performance-based manner that is more appropriate for
excluded hazardous secondary materials that are not discarded. This
approach allows the person managing the hazardous secondary material
flexibility to determine what practices, procedures, and equipment are
appropriate to ensure that the hazardous secondary material is
contained, based on the specifics of the situation.

6)	EPA ID NUMBER:  We are not requiring hazardous secondary material
generators to obtain an EPA ID number; however, if a facility doesn't
already have an EPA ID number, it will be assigned a unique EPA ID as a
matter of course when submitting a notification using the Subtitle C
Site Identification Form. This unique EPA ID is not a regulatory
requirement, but is used to identify the facility in EPA's databases.

7)	MARKING/LABELING: Under the final rule, facilities managing excluded
hazardous secondary materials are subject to the speculative
accumulation provisions of 40 CFR 261.1(c)(8). We are not requiring
specific labeling or records to monitor compliance with speculative
accumulation because we believe any requirement would be duplicative of
the existing 40 CFR 261.1(c)(8), which already provides that "a material
is not accumulated speculatively, however, if the person accumulating it
can show that the material is potentially recyclable and has a feasible
means of being recycled; and that-during the calendar year (commencing
on January 1)-the amount of material that is recycled, or transferred to
a different site for recycling, equals at least 75 percent by weight or
volume of the amount of that material accumulated at the beginning of
the period." Furthermore, we did not propose limitations on the amount
of hazardous secondary materials that a facility may accumulate and thus
any consideration of establishing a maximum amount of hazardous
secondary material to be accumulated at any time is outside the scope of
this rulemaking. We also note that we are not requiring specific marking
and labeling of hazardous secondary materials because this requirement
does not directly define discard (e.g., a well-marked drum can still be
discarded).

8)	NOTIFY IF OFFLINE: We are requiring facilities that stop managing
hazardous secondary materials in accordance with the exclusion, to
notify the Regional Administrator using EPA Form 8700-12. Notification
in this instance serves two objectives: (1) it allows states to follow
up with the facility to verify that the hazardous secondary material has
not been discarded; and (2) it maintains the usability of the database
to enable states to monitor compliance and, for the transfer-based
exclusion, to assist generators with performing reasonable efforts on
potential reclaimers. We consider a facility to have ‘stopped’
managing hazardous secondary materials when a facility no longer
generates, manages and/or reclaims hazardous secondary materials under
the exclusion and does not expect to manage any amount of hazardous
secondary material under the exclusion for at least one year. This
includes if the facility chooses to manage the hazardous secondary
materials as hazardous waste or the facility chooses to temporarily
suspend management of hazardous secondary materials and does not expect
to manage any amount of hazardous secondary materials for at least one
year. For example, a facility that has previously notified it is
managing hazardous secondary materials under the exclusion, but then
subsequently chooses to stop managing all hazardous secondary materials
for a period of at least one year, must notify the Regional
Administrator. However, if this same facility only stopped managing one
type of hazardous secondary material (but continued to manage another
type of hazardous secondary material under the exclusion) it would not
need to notify, and could just update its list of hazardous secondary
materials during the next periodic re-notification submitted every two
years. Additionally, if a reclaimer or intermediate facility managing
hazardous secondary materials under the transfer-based exclusion
requests release of financial assurance under 40 CFR 261 Subpart H, it
is clear the facility has ‘stopped’ managing hazardous secondary
materials, and, therefore, must notify the Regional Administrator (for
additional clarification, notification does not ‘trigger’ the
process for releasing financial assurance; instead, a facility wishing
to be released from financial assurance obligations must notify it has
‘stopped’ managing hazardous secondary materials). 

9)	STORAGE STANDARDS: We are requiring that hazardous secondary
materials managed under the final rule to be contained, whether managed
in a land-based or non-land-based unit. Under the final rule, a wide
variety of hazardous secondary materials and reclamation operations are
eligible for the exclusions and, thus, rather than specifying a
particular technology or storage standard that may not be appropriate in
some cases, requiring hazardous secondary materials to be contained
achieves the same objective and is applicable in all cases to directly
define discard of hazardous secondary materials. For example, as
appropriate to the specific situation, facilities may employ such
measures as liners, leak detection, inventory control and tracking,
control of releases, and/or monitoring and inspections to ensure that
the hazardous secondary materials are contained in the unit.
Furthermore, under the legitimacy provision in 40 CFR 260.43, the
management of the hazardous secondary material must be considered in
order to determine the overall legitimacy of a specific recycling
activity. We, therefore, believe that the final rule sufficiently
addresses proper storage of hazardous secondary materials and that
additional storage standards are not necessary. Additionally, we note
that spent catalysts meeting the listing description for K171 or K172 in
40 CFR 261.32 are not eligible for the exclusions; EPA is currently
addressing these materials in a separate rulemaking.

10)	REQUIRE EQUIVALENT TO SUBTITLE C: EPA has the authority to regulate
hazardous wastes (see RCRA sections 3001-3004) and the authority to
directly consider whether particular materials are not considered
"discarded" and thus are not solid and hazardous wastes subject to
regulation under Subtitle C of RCRA. In response to a series of seven
decisions by the U.S. Court of Appeals for the D.C. Circuit (1987 to
2000), which, taken together, have provided EPA with additional
direction regarding the proper formulation of the RCRA regulatory
definition of solid waste for purposes of Subtitle C, we are finalizing
a set of exclusions for reclaimed hazardous secondary materials that,
when managed according to the restrictions and conditions of the
exclusion, are not solid wastes. Requiring the equivalent of Subtitle C
would not be appropriate for hazardous secondary materials that are
handled more like valuable products and are not discarded. The
exclusions contain appropriate restrictions and conditions necessary for
defining discard.

11)	REMOVE TAXES/TRI REPORTING: The commenter's suggestion to remove
taxes, remove TRI reporting requirements, fast track permit
modifications and to fast track delisting capabilities are outside the
scope of this rulemaking. Furthermore, the suggestion to fast track
permit modification and to fast track delisting capabilities would
require revisions to EPA's Subtitle C program for hazardous waste. The
final rule is limited in scope to identifying hazardous secondary
materials that are not solid and hazardous wastes.

12)	CONDITIONS ON BROKERS: Under the final rule, we are requiring
intermediate facilities to comply with similar requirements and
conditions to those required for a reclaimer of hazardous secondary
material, which include: notification, recordkeeping, confirmations of
receipt, financial assurance and a management standard for hazardous
secondary materials and their residuals. Furthermore, hazardous
secondary material generators must make contractual arrangements with
the intermediate facility to ensure the hazardous secondary material is
sent to the reclamation facility identified by the generator. We also
note that hazardous secondary material generators must package hazardous
secondary materials according to applicable Department of Transportation
regulations at 49 CFR Parts 173, 178, and 179 while in transport.

13)	CLARIFICATION FOR REJECTED LOADS: Hazardous secondary material that
is transferred off-site for reclamation but is subsequently rejected by
the reclaimer for any reason is not a solid waste provided the hazardous
secondary material generator reclaims the material, such as by sending
it to another reclamation facility, within the limits of speculative
accumulation and in compliance with the conditions of the exclusions.
Prior to arranging for transport to an alternate reclamation facility,
hazardous secondary material generators must make reasonable efforts to
ensure the alternate reclamation facility intends to properly and
legitimately reclaim the hazardous secondary material and must keep
records of the off-site shipment and confirmation of its receipt as
required under the final rule. If a hazardous secondary material
generator is unable to reclaim the material in compliance with
speculative accumulation and the terms of the exclusion, he must manage
the material as solid and hazardous waste according to RCRA Subtitle C.
Furthermore, we believe the recordkeeping conditions (records of all
off-site shipments and confirmations of receipt) are sufficient to
ensure hazardous secondary materials are properly managed in the event a
rejected shipment must be returned to the hazardous secondary material
generator or sent to an alternate reclamation facility.

14)	CONDITION EXLUSION ON ACTUAL RECYCLING: We considered requiring the
hazardous secondary material generator to maintain "confirmations of
reclamation," or in other words, confirmation that his materials were
actually reclaimed. However, we determined this type of condition would
be challenging to implement because commercial reclaimers may commingle
hazardous secondary materials from multiple generators and, therefore,
could not be expected to determine exactly what materials from which
generator were reclaimed when. For this reason, we decided to require
hazardous secondary material generators to maintain confirmations of
receipt to ensure the hazardous secondary materials reached the intended
destination for reclamation. Furthermore, any residuals resulting from
the reclamation of hazardous secondary material are considered newly
generated wastes. If any residuals exhibit a hazardous characteristic
according to subpart C of 40 CFR part 261, or themselves are listed
hazardous wastes, they are hazardous wastes (if discarded) and the
reclaimer must manage the residuals according to the applicable
requirements of 40 CFR parts 260 through 272.

15)	REQUIRE RECLAIMERS TO NOTIFY GENERATORS WHEN LOSING PART B PERMIT /
SUBJECT TO ENFORCEMENT ACTION: If a permitted facility modifies its Part
B permit terms in a way that the permit no longer extends to the
management of the hazardous secondary materials, the hazardous secondary
material generator would need to perform reasonable efforts in
accordance with the transfer-based exclusion. EPA recommends that any
hazardous secondary material generator transferring hazardous secondary
materials to a permitted facility request placement on the facility
mailing list, so they can receive adequate notice of changes to the
permit status of the reclaimer or intermediate facility (see 40 CFR
270.42 and 40 CFR 124.10). 

In the final rule, EPA is requiring that hazardous secondary material
generators make reasonable efforts every three years, at a minimum, in
order to ensure that the generators adequately manage their risk and are
attune to changes at reclamation and intermediate facilities with which
they are partners. By specifying periodic updates for reasonable efforts
every three years at a minimum, EPA in no way intends to limit a
generator to conducting evaluations only every three years. In fact, EPA
expects that any generator who has concerns about a reclamation or
intermediate facility, or who gains new knowledge of significant changes
or extraordinary situations at such facilities, would conduct reasonable
efforts regardless of the required schedule. However, we are not
requiring reclaimers to notify hazardous secondary material generators
in the event of an enforcement action because EPA already provides
public access to compliance records online (see
http://www.epa-echo.gov/echo/, or successor website).

16)	CERTIFICATION BY P.E.: Where required under the final rule, we are
requiring certification (such as for notification) to be signed and
dated by an authorized representative of the facility. We are not
further defining "authorized representative" in order to provide
facilities flexibility to determine the appropriate personnel for
signature and certification. A wide range of hazardous secondary
materials and, therefore, facilities are eligible for the exclusions and
thus, we do not believe it is practical to mandate a certain position or
level of experience that may not be appropriate or necessary for every
facility.

17)	AIR EMISSION STANDARDS: Under the final rule, the hazardous
secondary materials must be contained, whether they are stored in
land-based units or non-land-based units. Generally, such material is
"contained" if it is placed in a unit that controls the movement of the
hazardous secondary material out of the unit and prevents the material
from being released into the environment. This requirement is consistent
with the idea that normal manufacturing processes are designed to use
valuable material inputs efficiently rather to than allow them to be
released into the environment. We, therefore, believe that the final
rule sufficiently addresses proper storage of hazardous secondary
materials and that additional standards are not necessary. Additionally,
facilities who manage hazardous secondary materials may be subject to
standards under the Clean Air Act which regulates air emissions from
stationary and mobile sources.

18)	REQUIREMENTS ON PRODUCTS: EPA is not finalizing its approach
proposed in October 2003, which excluded hazardous secondary materials
generated and reclaimed in a continuous process within the same
generating industry (defined using NAICS codes); therefore, the comment
supporting a requirement that the sale of products be constrained to the
same industry no longer applies. Furthermore, EPA does not fully
understand the comment that the product should meet the LDR standards,
since neither the product, nor the hazardous secondary material used to
make the product, would be land disposed. 

7.6 - Recordkeeping

7.6 - Summary

GENERAL SUPPORT FOR RECORDKEEPING: Several commenters supported
requiring records for the proposed exclusions. [0043, 0067, 0068, 0076,
0077, 0080, 0084, 0091, 0092, 0095, 0117, 0119, 0153, 0167, 0172, 0185,
0196, 0217, 0454, 0456, 0463, 0467, 0470, 0472, 0475, 0476, 0479, 0484,
0485, 0486, 0489, 0494, 0507, 0529, 0531, 0539, 0543, 0549, 0558, 0559]

GENERAL OPPOSITION FOR RECORDKEEPING: Several commenters believed that
recordkeeping was not necessary for the proposed exclusions. [0060,
0061, 0062, 0085, 0089, 0102, 0122, 0125, 0131, 0149, 0174, 0184, 0199,
0204, 0222, 0439, 0442, 0458, 0468, 0520]

EXPAND RECORDKEEPING: Several commenters supported expanding
recordkeeping requirements for the proposed exclusions. Some commenters
recommended that the Agency require the use of a tracking, recordkeeping
and reporting system, similar to that used for hazardous waste, in order
to avoid the potential for significant environmental damage as a result
of this proposed rule. While this will not provide the same level of
cost reduction anticipated by the Agency, generators of excluded
materials will still enjoy the other projected major savings associated
with salvage value and waste disposal cost avoidance, as well as other
administrative cost savings. One commenter argued that, if imposed,
recordkeeping requirements should have a finite timeframe. Some
commenters, many in response to the Oct 2003 proposal, supported
requiring records to document that speculative accumulation was not
occurring. One commenter argued these were needed because of the
cyclical nature of the commodities market and that companies could have
an economic incentive to store wastes for long periods of time. Required
recordkeeping would allow the states to enforce against companies who
store hazardous materials that have no near-term likelihood of being
recycled. One commenter argued that keeping records on-site is important
for documenting that the person is operating within the terms of the
exclusion and that, in this state commenter's experience, enforcement of
speculative accumulation is labor intensive and documentation is usually
only produced as a result of enforcement order. One commenter believed
that EPA should require recordkeeping similar to what is required for
hazardous wastes, including requiring manifests. [0067, 0068, 0076,
0077, 0092, 0095, 0117, 0119, 0127, 0153, 0167, 0172, 0185, 0196, 0217,
0470, 0475, 0479, 0484, 0489, 0543, 0558, 0559]

DO NOT EXPAND RECORDKEEPING: Some commenters supported the recordkeeping
requirements as proposed and did not believe that more extensive
recordkeeping or reporting requirements are necessary. Commenters argued
that any notification and/or recordkeeping requirements should be kept
as simple as possible so as not to discourage recycling. One commenter
believed strongly that records should be maintained on-site and
available to the implementing authority rather than submitted on a
regular basis when some of these records might never even be reviewed.
Moreover, the "maintain on-site" approach reduces the probability of
complications from the potential inclusion of confidential business
information. One commenter believed keeping on-site records to document
that materials being recycled are moving in a manner consistent with the
regulatory conditions is fair and consistent with existing requirements,
but that more detailed records that trace material flows on a
shipment-by-shipment basis are unwarranted and would prevent a
disincentive to recycle. Another commenter noted that many of the
additional proposed records for which EPA sought comment are more
detailed than the information currently collected through the hazardous
manifest. [0062, 0083, 0093, 0097, 0102, 0104, 0112, 0122, 0140, 0149,
0194, 0203, 0205, 0222, 0454, 0456, 0458, 0461, 0467, 0468, 0471.2,
0472, 0476, 0486, 0492, 0510, 0529, 0534, 0549] 

RECORDKEEPING NECESSARY FOR ENFORCEMENT:  Some commenters believed
reporting and recordkeeping requirements are necessary to monitor
compliance with and enforce the terms of the exclusion and thus ensure
hazardous secondary materials are safely handled in a manner protective
of human health and the environment. One state commenter noted that
early identification of violations means that return to compliance is
quicker, penalties are lower, inspection and enforcement resource
expenditures are kept to a minimum, and the risk of significant adverse
affects is managed. Furthermore, this commenter believed that the
absence of reporting and recordkeeping requirements and the freedom with
which the excluded materials would be able to be managed would make the
movements and transactions associated with the material so difficult to
trace that enforcement would be perceived as unlikely, and, thus, would
create an incentive for parties to evade compliance. At least two state
commenters stated that their support for the rule was contingent on
strong reporting and recordkeeping requirements. Another state commenter
said, without recordkeeping requirements, the state will need to
incorporate its own recordkeeping requirements so that it may determine
if the conditions of the exclusion are achieved. One state commenter
said, absent recordkeeping requirements, it will be difficult to
determine if the speculative accumulation guidelines are being met. A
few commenters also noted that records need not be submitted to the
state and that records would need to be maintained on-site and made
available for review by the regulatory agency. One commenter found it
incredible that EPA proposes to allow hazardous wastes to exit the RCRA
cradle-to-grave and financial assurance system without requiring some
other form of tracking. Without this, EPA will not even be able to
identify potentially responsible parties, let alone recover cleanup
costs. One commenter believed that the existing regulation at 40 CFR
261.2(f) should be modified to contain inventory and recordkeeping.
Another commenter noted that a recordkeeping condition would clarify the
types of records that are required under 40 CFR 261.2(f). One commenter
believed the proposed recordkeeping requirements (in the March 2007
proposal) are a reasonable way of establishing legitimate recycling
practices. [0067, 0076, 0077, 0084, 0092, 0093, 0095, 0119, 0153, 0167,
0172, 0185, 0196, 0217, 0467, 0475, 0479, 0531, 0558, 0559] 

RECORDS ARE STANDARD INDUSTRY PRACTICE: Commenters stated that companies
maintain records on-site as standard practice. One commenter argued that
such records would indeed be standard business practice, especially if
the material is a "commodity," as opposed to a "waste." Some commenters
said that, because the hazardous secondary materials represent a
valuable material, generators are likely to keep appropriate transaction
records of the handling and disposition of the material and thus
recordkeeping requirements would not impose any paperwork burden. These
companies generally keep shipping, payment and receipt records
including: DOT hazardous material records, records of shipment and
financial transactions, inventory records, warehouse location records,
usage records, bills of lading, records of shipments for any
non-hazardous waste materials, non-hazardous debris quantities and
destinations and records needed to complete reporting for TRI. Some
commenters supported EPA's proposal not to specify the format in which
records must be kept. [0061, 0067, 0097, 0112, 0222, 0458, 0475, 0486,
0529]

RECORDS HELP TO MEASURE SUCCESS: Some commenters supported records and
reports to measure the overall success of the exclusion in increasing
recycling. Commenters argued that the lack of reporting and
recordkeeping requirements would prevent governments and citizens from
tracking the generation of these hazardous materials, the process by
which they are recycled, and how they are ultimately managed. One
commenter recognized and shared the interest of EPA and the states in
having an overall understanding and perspective on the recycling
opportunities that will result from the proposed exemptions; however,
the collection of this information must proceed on a legally sound
footing and not unduly burden participants. This commenter would
willingly partner with EPA and the states in various programs to assess
and evaluate recycling activities, including those involving newly
exempt secondary materials. [0067, 0080, 0092, 0222, 0559] 

RECORDKEEPING REQUIREMENTS ARE NOT NECESSARY: Some commenters argued
that nothing in the record supports requiring more than the current RCRA
scheme mandates and that RCRA's current self-implementing approach,
sufficient to protect human health and the environment for existing
exclusions, should be used for any future exclusion. Other commenters
believed it would be unfair to add more recordkeeping and reporting
requirements to the litany that already apply under RCRA and many of the
environmental laws, such as the Clean Water Act, Clean Air Act and the
Superfund Recycling Equity Act (SREA) as well as other regulations, such
as DOT and OSHA. Several commenters believed that recordkeeping
requirements are not necessary because facilities have sufficient
incentive to track materials sent off site for reclamation and to
maintain documentation under 40 CFR 261.2(f), which requires persons to
provide appropriate documentation to show compliance with the terms of
the exclusion in an enforcement action. Commenters supported allowing
flexibility to provide documentation appropriate to the recycling or
reclamation operation rather than specifying retention or reporting of
detailed information. One commenter believed that imposing one more
precise recordkeeping or reporting requirements would subject operators
to inadvertent violations and civil penalties. A few commenters argued
that keeping records of volumes of materials handled is unnecessary,
since persons accumulating hazardous secondary materials are already
required to demonstrate that they are recycling materials in the amounts
specified pursuant to the current speculative accumulation rule at 40
CFR 261.1(c)(8). [0060, 0083, 0085, 0089, 0091, 0093, 0097, 0102, 0104,
0112, 0122, 0131, 0140, 0149, 0174, 0179, 0184, 0194, 0199, 0203, 0204,
0205, 0222, 0458, 0468, 0472, 0486, 0492] 

RECORDKEEPING INCREASES BURDEN: Some commenters argued that
recordkeeping requirements contrast with the Agency's being committed to
minimizing recordkeeping and reporting requirements and the Agency's
Burden Reduction Rule that eliminated a number of existing RCRA
recordkeeping requirements that the Agency believed are unnecessary or
duplicative. Some commenters argued that guidance on what is appropriate
to keep on-site would unnecessarily add to recordkeeping requirements,
since companies already maintain records on-site as standard practice. A
few commenters argued that additional recordkeeping would discourage
recycling because of the added burden. One commenter said it was
unlikely to use the exemptions because the burden/costs to notify
regulators and maintain records for each applicable waste
stream/recycler would outweigh the overall benefits to be gained. One
commenter argued, with the deletion of existing exemptions and
subsequent regulation under the new exemption (as EPA proposed in
October 2003), this could potentially result in many on-site generators
and reclaimers having to keep extensive records over and above what are
required today. A few commenters were concerned about the paperwork
burden that the new rule may generate and that small businesses may not
have sufficient staff to undertake any new requirements. Another
commenter was concerned about the aggregate impact of paperwork
requirements and the disproportionate impact of notice and recordkeeping
requirements on its members and on the specialty batch chemical
manufacturing sector in general. This commenter argued that is essential
that the recordkeeping and paperwork burdens of being 'exempt' not
overwhelm smaller companies. EPA should make an honest assessment
upfront of whether and how the information will be used and then to
balance any information need against both the burden created and the
exempt status of the material at issue. One commenter noted that CESQGs
generally have no federal notice or recordkeeping requirements and thus,
if EPA finalizes the recordkeeping requirements as proposed, the agency
will be imposing more burdensome requirements than the current RCRA
regulatory system. [0061, 0062, 0090, 0096, 0097, 0102, 0179, 0184,
0199, 0222, 0439, 0442, 0458, 0468, 0481, 0510, 0529]

EPA LACKS AUTHORITY TO IMPOSE RECORDKEEPING REQUIREMENTS: Some
commenters argued that hazardous secondary materials are not solid
wastes and, therefore, EPA has no jurisdiction to impose any
recordkeeping requirements. While EPA may define the characteristics of
materials and their handling that make them discarded or not discarded,
specific regulatory requirements such as reporting and recordkeeping may
be imposed only after EPA has defined a material as discarded. One
commenter believed that RCRA does not provide EPA authority to impose
regular reporting and recordkeeping requirements on materials that may
become solid wastes at some point in the future. One commenter
questioned whether such requirements are even relevant to the discard
inquiry. [0089, 0179, 0199, 0492, 0520] 

7.6 - Response

First, EPA notes this section responds to more general comments
regarding recordkeeping. For detail regarding specific recordkeeping
requirements, such as documentation and certification of reasonable
efforts, notification, periodic reports and confirmations of receipt,
please refer to other relevant sections of this response to comment
document. Second, the summary above combines comments from both the 2003
and 2007 proposals, which proposed different recordkeeping requirements
for the exclusions. In October 2003, EPA proposed requiring a one-time
notification and, in March 2007, EPA proposed a one-time notification
and a requirement for generators and reclaimers to maintain for no less
than three years records of all off-site shipments of excluded material
for the transfer-based exclusion.

We agree with commenters who support recordkeeping requirements to
enable monitoring of compliance of facilities with the conditions of the
exclusion. We have, thus, maintained the requirements for facilities to
submit notification and to maintain records of all off-site shipments,
as proposed in March 2007. We also agree with commenters that expanded
recordkeeping requirements are necessary to enable regulatory
authorities to monitor compliance of facilities with the exclusions and
to determine that hazardous secondary materials are not discarded.
Therefore, we have expanded recordkeeping under the final rule to
include periodic renotification, confirmations of receipt, documentation
and certification of reasonable efforts and annual reports for hazardous
secondary material exported for reclamation. We have also added a
certification requirement for "same company" under the final rule's
generator-controlled exclusion. We consider the recordkeeping and
reporting requirements in the final rule to be the minimum information
necessary to determine that hazardous secondary materials are reclaimed
and not discarded, and thus, managed in a manner protective of human
health and the environment. For further discussion on our rationale for
these additional recordkeeping requirements, please see other relevant
sections of this document. 

We further believe that the reporting and recordkeeping requirements in
the final rule are aligned with what responsible companies would already
produce as a matter of routine business records (as many commenters
noted) and thus we do not believe the recordkeeping requirements will
pose an undue burden or unnecessarily discourage facilities from
availing themselves of the exclusions. Furthermore, although we identify
specific types of information (such as, "name and address of
reclaimer"), we are not requiring records to be maintained in a specific
format in order to provide facilities with maximum flexibility. As we
note in the preamble, we anticipate these requirements may be fulfilled
by ordinary business records, such as bills of lading and financial
records, and thus will keep additional burden to a minimum.

Many commenters argued that recordkeeping requirements were not
necessary because it would be duplicative of 40 CFR 261.2(f), which
already requires persons responding to enforcement actions to provide
appropriate documentation to show compliance with the terms of an
exclusion. However, we believe that, by including specific recordkeeping
requirements in the final rule, we will: 1) reduce regulatory
uncertainty for facilities that would have had to determine what types
of records constitute "appropriate documentation"; and 2) better enable
compliance monitoring.

In regards to other comments on recordkeeping, we respond as follows:

We agree with the one commenter who argued that, if imposed,
recordkeeping requirements should have a finite timeframe. We require
most records to be maintained for a period of three years.

We are not requiring specific records to monitor compliance with
speculative accumulation because we believe any requirement would be
duplicative of the existing 40 CFR 261.1(c)(8), which already provides
that "a material is not accumulated speculatively, however, if the
person accumulating it can show that the material is potentially
recyclable and has a feasible means of being recycled; and that-during
the calendar year (commencing on January 1)-the amount of material that
is recycled, or transferred to a different site for recycling, equals at
least 75 percent by weight or volume of the amount of that material
accumulated at the beginning of the period." 

With the exception of the notification and annual reports for hazardous
secondary material exported for reclamation, we are requiring records to
be maintained on-site and, thus, facilities will not need to submit
records to regulatory authorities on a routine basis. This approach was
well supported by commenters and we further believe this will reduce the
overall burden for both the regulated community and the regulatory
authorities.

We disagree with commenters who argue that EPA should not require
recordkeeping based on the fact that existing exclusions under 40 CFR
261.4 do not require recordkeeping. We note that EPA has required
appropriate conditions when necessary to do so based on the specific
types of materials being excluded in order to protect human health and
the environment, such as, placing limits on speculative accumulation and
requiring use of drip pads for reclaiming wastewaters from wood
preserving solutions. The final rule is broad in scope covering many
categories of materials; therefore, we believe recordkeeping is
necessary to enable effective oversight. Furthermore, we note EPA
currently requires recordkeeping for hazardous secondary materials used
to make zinc micronutrient fertilizers (261.4(a)(20)).

The recordkeeping and reporting requirements are not covered under other
environmental laws, such as the Clean Air Act or Clean Water Act and
thus we cannot rely on them to ensure that hazardous secondary materials
are not discarded.

We disagree with commenters who believe the recordkeeping requirements
are inconsistent with the RCRA Burden Reduction Initiative, since that
initiative sought to eliminate duplicative or unnecessary paperwork
requirements. Recordkeeping requirements will be used to enable credible
and effective compliance monitoring of facilities with the conditions
and restrictions of the final rule and thus is not duplicative or
unnecessary. 

Regarding the comment that conditionally exempt small quantity
generators (CESQGs) generally have no recordkeeping requirements, we do
not anticipate many of these facilities would choose to manage their
materials under the final rule and thus their regulatory requirements
will not change. 

We disagree with commenters who question EPA's authority to impose
recordkeeping requirements under the final rule. We consider the
recordkeeping and reporting requirements to be the minimum information
necessary to determine that hazardous secondary materials are reclaimed
and not discarded, and, thus, managed in a manner protective of human
health and the environment.

7.6.1 - Recordkeeping requirements

7.6.1 - Summary

SUPPORT REQUIREMENT TO MAINTAIN RECORDS OF OFF-SITE SHIPMENTS:  Some
commenters supported the requirement to maintain records of off-site
shipments at the facility for a period of three years that would be
available upon request by a regulatory agency. Commenters said this
requirement would provide an effective means for hazardous waste
inspectors to check compliance with the proposed rule and with
speculative accumulation requirements. One commenter said that, without
shipment records, regulatory personnel may find it difficult to
determine if a generator is accumulating hazardous secondary materials
speculatively using only documents in 40 CFR 261.2(f). One commenter
believed that records of off-site shipments were essential since there
is a greater potential for mismanagement and environmental harm at
subsequent reclamation facilities due to less accountability. This
commenter further noted that current regulations at 40 CFR 261.2(f) only
requires these records be made available by respondents in enforcement
actions. Some commenters supported keeping the requirement flexible, and
not mandating a specific format, since ordinary business records, such
as bills of lading or other shipping records, should provide adequate
records regarding the flow of secondary materials. Some commenters said
that shipping records would be consistent with current industry
practices for movement of DOT-regulated materials and thus EPA need not
create a new regulatory record-keeping framework. Because these
materials represent valuable commodities, generators and other handlers
have a natural incentive to keep track of them without the burden of
using the manifest system. Commenters agreed with the Agency's
understanding that generators would typically maintain these records in
the normal course of business and thus this requirement will impose only
a minimal paperwork burden. While the regulated community might consider
this an additional paperwork burden, one state commenter believed it was
key to ensure that recycling is occurring in a timely manner. Another
commenter believed the recordkeeping requirement did not impose
additional burden, but instead constituted good operational practice.
Some commenters noted that current exclusions from the definition of
solid waste require no special or additional handling or management.
[0068, 0098, 0112, 0138, 0148, 0177, 0153, 0178, 0457, 0460, 0463, 0470,
0472, 0476, 0485, 0486, 0491, 0507, 0512, 0527, 0529, 0539, 0543, 0544,
0549]

DO NOT EXPAND RECORDKEEPING REQUIREMENTS: Some commenters objected to
additional recordkeeping requirements. Commenters believed that
additional recordkeeping is not necessary for proper hazardous secondary
material management and would increase burden on the regulated
community. One commenter said additional requirements are unwarranted,
particularly in light of the 'reasonable efforts' requirements imposed
upon generators. Another commenter argued that such detailed
requirements are not necessary to establish the absence of discard, are
inconsistent with existing exclusions, would impose significant burden
on reclaimers, are not accounted for in the ICR and are without any real
benefit to the implementing agencies. Other commenters urged EPA to keep
any recordkeeping requirements associated with the final rule as simple
as possible so as not to discourage entities from engaging in legitimate
recycling. A few commenters argued that more thorough characterization
of secondary materials, beyond that deemed necessary by the recycler to
manage their processes in conformance with the legitimacy criteria,
would add unnecessary costs to recycling. Furthermore, existing
requirements in other regulations, such as Material Safety Data Sheets,
will provide the necessary information, as is currently required for
primary products. Additional requirements regarding transportation
records are redundant as there are DOT requirements for transportation
of hazardous materials. One commenter also argued that residuals from
the reclamation process should be considered hazardous waste if they
meet the criterion for listed or characteristic waste. This commenter
believed that, in order to not undercut the effectiveness of this
proposal, EPA should seek to impose only those regulations necessary to
maintain environmental protection. One commenter specifically opposed
requiring the generator to record the date when the hazardous secondary
material was generated; since RCRA currently does not require generators
to identify the date hazardous waste was generated, only the date that
the 90-day accumulation begins, this requirement would go above and
beyond the current regulations and would be burdensome if the waste was
generated on a continuous basis. Another commenter opposed any
requirement for generators and reclaimers to keep on-site records
relating to the types and volumes of hazardous secondary materials. As
with any recycling exclusion, generators would be prepared to provide
"appropriate documentation" to prove that their recycling process meets
the conditions of the exclusion and nothing in the record supports the
notion that anything more is needed. One commenter said a requirement
for the generator to document which type of exclusion they are using for
their material would not be needed. Another commenter saw no reason to
require that generators and off-site recyclers keep records showing when
specific volumes of secondary materials were generated and recycled. As
long as appropriate volumes of the material are processed at the
reclamation facility during the year, the material can reasonably be
viewed as meeting speculative accumulation. [0112, 0178, 0458, 0463,
0472, 0482, 0485, 0486, 0491, 0492, 0507, 0512, 0529, 0534, 0549, see
also commenters who generally opposed expanding recordkeeping in section
7.6]

EXPAND RECORDKEEPING REQUIREMENTS: Some commenters believed that
additional recordkeeping requirements are necessary to demonstrate
compliance with the conditions of the rule. A few commenters argued that
additional requirements are necessary to ensure that hazardous secondary
materials are safely handled in a manner protective of human health and
the environment. Some commenters believed additional records were no
different from records companies typically keep for valuable raw
materials and that this information would be maintained as standard
business practice, especially if the material is a "commodity," as
opposed to a "waste." Therefore, these additional recordkeeping
requirements would not create an unreasonable burden. One commenter
further argued that if the Agency is convinced that companies that
generate and reclaim these materials have a sufficient level of
corporate responsibility that they will operate in a protective manner
despite the absence of regulatory oversight, then no responsible company
should object to the minimal amount of documentation and recordkeeping
necessary to ensure and verify they are conducting their operations
properly. Another commenter argued that additional recordkeeping
requirements are necessary in order to help identify potential liable
persons, or persons who generate and/or accept for recycling hazardous
secondary materials and have released these materials into the
environment. Additionally, another commenter argued that records must be
available to agency inspectors and also to auditors from generators. In
order for a generator to perform audits of the reclamation facility,
determine the disposition of the reclaimed materials, and thereby, meet
the reasonable efforts criteria, the reclamation facility must be able
to produce records showing what hazardous secondary materials were
received from the generator and how they were processed. Other
commenters, in response to EPA's October 2003 proposal, believed
additional recordkeeping was needed to document "continuous process."
One commenter believed that recordkeeping similar to what is currently
required under the hazardous waste regulations was necessary to avoid
the potential for significant environmental damage at future sites as a
result of EPA's proposed rule. Another commenter believed the generator
should retain all the information (including information submitted in
notifications) on-site. [0043, 0068, 0084, 0092, 0110, 0124, 0130, 0153,
0178, 0185, 0196, 0207, 0210, 0457, 0462, 0470, 0475, 0479, 0489, 0495,
0509, 0516, 0521, 0538, 0543, 0548, 0558, 0559]

ADDITIONAL RECORDKEEPING REQUIREMENTS: In addition to requirements
proposed, commenters supported adding the following recordkeeping
requirements:

1.	Volumes of hazardous secondary material generated and dates of
generation. Some commenters believed this information was necessary to
determine that speculative accumulation was not occurring. [0068, 0092,
0130, 0196, 0210, 0475, 0489, 0509, 0521, 0538, 0559] 

2.	Volumes of hazardous secondary material reclaimed and dates of
reclamation (both on-site and offsite). Some commenters believed this
information was necessary to determine that speculative accumulation was
not occurring. [0043, 0068, 0092, 0110, 0130, 0138, 0153, 0178, 0196,
0210, 0470, 0489, 0521, 0538, 0543]

3.	Contractual information in order to perform material balance checks
to determine recycled materials are not a disposal mechanism. [0488]

4.	Waste analysis plan/characterization of hazardous secondary
materials. This documentation will show that the hazardous secondary
material is suitable for the proposed reclamation. [0043, 0124, 0457,
0462, 0470, 0475, 0509, 0538, 0543, 0548, 0558, 0559] 

5.	Description of the types of storage units; compatibility with other
materials stored near the materials [0457, 0475, 0489, 0509, 0538, 0548,
0558, 0559] 

6.	Means of transportation; confirmation of transport as DOT hazardous
waste [0457, 0475, 0538, 0548, 0559]

7.	Description of reclamation processes; equipment and chemical
feedstocks used [0092, 0124, 0178, 0470, 0489, 0507, 0543]

8.	Products produced/disposition of products [0092, 0124, 0470, 0489,
0538]

9.	Management of residuals [0092, 0470, 0489, 0538] 

10.	Documentation that speculative accumulation is not occurring; log of
the source, contents and dates of receipt and removal of all hazardous
secondary material in units [0470, 0538, 0559]

11.	Documentation of how a hazardous secondary material qualifies for
the exclusion [0084, 0124] 

12.	Documentation of legitimacy, including if one or more of the
criteria is not met [0060, 0110, 0153, 0171, 0470, 0488, 0507, 0538,
0541, 0543] 

13.	Source of hazardous secondary material/description of process that
generated material [0124, 0470]

14.	Demonstration that the material is recycled on a "first in- first
out" basis to define continuous process (in response to EPA's 2003
proposal) [0068, 0153]

15.	Manifests/documents tracking the movement of offsite shipments
[0462, 0479] 

16.	Brokers must provide the reclaimer a list of names and addresses of
each generator whose material has been consolidated into a single
shipment [0452]

17.	Description of hazardous secondary material; shipping name and waste
code, data on composition, physical and chemical properties, toxic
constituents or any other information that would be required to properly
recycle the material. This information could be obtained from generally
available technical sources, such as the MSDS sheets, or be developed by
the reclamation facility based on pilot or test data. [0119, 0124, 0178,
0470, 0482]

18.	Billing records [0470]

19.	Mass balance summary [0470]

20.	Contingency plan and incident reports identifying leaks, spills,
fires, explosions and responses. Some commenters believed these records
would help the regulatory authorities to verify that spilled hazardous
secondary materials were recovered and not released as hazardous waste.
[0470, 0509, 0521]

21.	Records on rejected loads [0516]

22.	Certification by an authorized representative [0543]

23.	Documentation of Compliance, which would address each of the
conditions and would be signed by the owner and operator of the
reclamation facility. This would also include compliance with the
management standards for container and tank storage and land-based
units, certified by a professional engineer. This would create a
comprehensive facility record that would document how the reclaimer is
meeting the performance standards of the rule. [0558]

24.	Tolling contractors must submit contemporaneous records and report
to the state that it is taking responsibility and title to the raw
material and any residuals created by the process. This is essential to
EPA's ability to assess the rule's effectiveness and to ensure that
hazardous waste recycling is not posing a threat of imminent and
substantial endangerment to health or the environment. [0559]

ADDITIONAL RECORDKEEPING COMMENTS: Commenters submitted the following
additional comments regarding recordkeeping.

1.	The Agency needs to clarify what specific information is to be
gathered and maintained so that there is no confusion as to what is
required. Lack of form and facility standardization will ultimately add
regulatory burden and costs to reclamation facilities. This commenter
urged EPA to work with existing forms so that personnel do not have to
be reeducated, retrained and new systems do not have to be developed by
the regulated community. Documentation should be defined and
standardized to facilitate its proper completion and evaluation. [0138,
0479]

2.	Due to the anticipated drop in fees and decrease in staff, the state
regulatory agencies may not be able to inspect sites as frequently and
thus record retention times should be increased to no less than five
years. [0488]

3.	Records must be available for inspection within a reasonable time.
[0544] 

4.	Recordkeeping requirements should be applied to all recycled
materials, not just the proposed exclusions. [0092, 0470]

7.6.1 - Response

EPA notes this section responds to comments regarding: 1) the proposed
requirement to maintain records of all off-site shipments; and 2)
comments regarding other types of recordkeeping not already covered in
other sections of this document. 

SUPPORT REQUIREMENT TO MAINTAIN RECORDS OF OFF-SITE SHIPMENTS: We agree
with commenters who supported a requirement that facilities maintain
records of all off-site shipments for no less than three years and have
included this requirement in the final rule. We believe these records,
along with a requirement to maintain confirmations of receipt (see
section 7.6.2), will enable effective oversight to ensure the hazardous
secondary materials were transferred for reclamation and were not
discarded. We also agree with commenters that many routine business
records would fulfill this requirement, and thus we are not requiring a
specific format for these records in order to provide facilities
flexibility in leveraging their own documents and processes. We
anticipate this will keep additional burden to a minimum.

EXPAND / DO NOT EXPAND REQUIREMENTS: We also agree with commenters that
expanded recordkeeping requirements are necessary to enable regulatory
authorities to monitor compliance of facilities with the exclusions and
to determine that hazardous secondary materials are not discarded.
Therefore, we have expanded recordkeeping under the final rule to
include periodic renotification, confirmations of receipt, documentation
and certification of reasonable efforts and annual reports for hazardous
secondary material exported for reclamation. We have also added a
certification requirement for "same company" under the
generator-controlled exclusion. We consider the recordkeeping and
reporting requirements in the final rule to be the minimum information
necessary to determine that hazardous secondary materials are reclaimed
and not discarded, and thus, managed in a manner protective of human
health and the environment. For further discussion on our rationale for
these additional recordkeeping requirements, please see other relevant
sections of this document. 

ADDITIONAL RECORDKEEPING REQUIREMENTS: Several commenters supported
additional recordkeeping requirements, the result of which is a long
list of suggestions, as documented above. In addition, other commenters
opposed including certain elements. After carefully considering the
comments, we believe we have included those recordkeeping requirements
that are essential for monitoring compliance with the exclusions to
ensure that hazardous secondary materials are not discarded. We also
believe that many of the recordkeeping requirements would be what
responsible companies would document as part of standard business
practice and, thus, we do not believe the requirements will pose an
undue burden or discourage facilities from taking advantage of the
exclusions. Our response for each suggested additional recordkeeping
requirement is as follows:

1.	Volumes of hazardous secondary material generated and date of
generation: We are requiring all facilities operating under the final
rule to report volumes of hazardous secondary material managed under the
exclusion in the notification requirement. Furthermore, we are requiring
volumes as part of the requirement to maintain off-site shipment
records. We are not requiring date of generation, however, because as
some commenters noted, RCRA currently does not require generators to
identify the date hazardous waste was generated. Furthermore, we are
defining speculative accumulation limits for hazardous secondary
materials as is currently defined for hazardous waste and thus we are
not modifying speculative accumulation in the final rule.

2.	Volumes of hazardous secondary materials reclaimed and dates of
reclamation: We are requiring all facilities operating under the final
rule to report volumes of hazardous secondary material managed under the
exclusion within the notification requirement. Furthermore, we are
requiring volumes as part of the requirement to maintain off-site
shipment records. However, we are not requiring dates of reclamation.
Since many reclaimers would process hazardous secondary materials from
multiple hazardous secondary material generators, it would be
unreasonable to request an exact date when a certain material from a
certain generator was reclaimed.

3.	Contractual information: Under the final rule, we are requiring
contracts in two types of situations: 1) under the generator-controlled
exclusion, for hazardous secondary material being reclaimed pursuant to
a written contract between a tolling contractor and toll manufacturer;
and 2) under the transfer-based exclusion, for hazardous secondary
material that will be passing through an intermediate facility that is
not addressed under a RCRA Part B Permit or interim status standards. In
this case the hazardous secondary material generator must make
contractual arrangements with the intermediate facility to ensure that
the hazardous secondary materials are sent to the reclamation facility
identified by the generator. For these two scenarios, we determined that
contracts are necessary to ensure that hazardous secondary materials are
not discarded because these situations involve entities other than the
hazardous secondary material generator and reclaimer (i.e., the toll
manufacturer and intermediate facility). It is therefore appropriate to
require contracts in these cases to ensure the hazardous secondary
materials reach their intended destination for reclamation. 

4.	Waste analysis plan/characterization of hazardous secondary material:
We are not requiring waste characterization or waste analysis plans
under the final rule because documentation of waste characterization
does not directly define discard of hazardous secondary materials. For
example, hazardous secondary materials that undergo waste analysis may
still be discarded. We agree that many responsible reclaimers would
likely test shipments of hazardous secondary materials in order to
maintain integrity of the reclamation process; however, universally
requiring all reclaimers to systematically characterize hazardous
secondary materials is not necessary to defining discard under the final
rule. Furthermore, as some commenters noted, hazardous secondary
materials may be subject to the Occupational Safety and Health Act of
1970, which requires material safety data sheets (MSDS) for hazardous
substances.

5.	Description of the types of storage units: We believe that the
requirement that hazardous secondary materials 'must be contained'
adequately determines discard and can be applied to every storage unit,
regardless of type. We do not believe that documenting the types of
storage unit is essential to defining discard, since what is essential
is that the hazardous secondary materials are contained in the unit.

6.	Means of transportation: In the final rule, we are requiring
facilities to maintain records of all off-site shipments of hazardous
secondary materials and confirmations of receipt to ensure that the
materials reach the intended destination. We do not believe that
documenting the means of transportation is essential to defining
discard, since what is essential is that the hazardous secondary
materials be transferred to a reclamation facility for reclamation.
Furthermore, as some commenters noted, facilities would need to comply
with DOT regulations regarding transport of hazardous materials, when
applicable.

7.	Description of reclamation process: Although it is likely that many
companies would document the reclamation process as part of its routine
business information, we are not requiring facilities to maintain a
description of the reclamation process under the final rule. We do not
believe that documenting the reclamation process is essential to
defining discard, since what is essential is that the hazardous
secondary materials be reclaimed. Furthermore, we believe the legitimacy
provision adequately provides a standardized, objective standard for
facilities to use when determining if their reclamation process
constitutes legitimate recycling.

8.	Products produced/disposition of products: We are not requiring
facilities to document records regarding products produced or
disposition of products because our authority is limited to regulating
solid wastes. However, we do note that, in order to be legitimately
recycling, the hazardous secondary material must provide a useful
contribution and the product must be valuable according to 40 CFR
260.43.

9.	Management of residuals: We require facilities to manage residuals in
a manner that is protective of human health and the environment and in
compliance with RCRA Subtitle C if the residuals are a listed or
characteristic waste. If subject to Subtitle C regulation, facilities
must keep records for management of residuals in compliance with
existing hazardous waste regulations.

10.	Documentation for speculative accumulation: We are not requiring
specific records to monitor compliance with speculative accumulation
because we believe any requirement would be duplicative of the existing
40 CFR 261.1(c)(8), which already provides that "a material is not
accumulated speculatively, however, if the person accumulating it can
show that the material is potentially recyclable and has a feasible
means of being recycled; and that-during the calendar year (commencing
on January 1)-the amount of material that is recycled, or transferred to
a different site for recycling, equals at least 75 percent by weight or
volume of the amount of that material accumulated at the beginning of
the period." 

11.	Documentation of how a hazardous secondary material qualifies for
the exclusion: We consider the recordkeeping requirements to
collectively serve as documentation to enable regulatory authorities to
determine the hazardous secondary material is being properly managed
under the exclusion and is not discarded.

12.	Documentation of legitimacy: Although there is no specific
recordkeeping requirement that goes with the ability to demonstrate
legitimacy, EPA expects that in the event of an inspection or an
enforcement action by an implementing agency, the recycler would be able
to show how it made the overall legitimacy determination per §261.2(f).
 

13.	Source of hazardous secondary material/description of process that
generated material: Although many responsible companies would likely
maintain a description of the process that generates the hazardous
secondary material, requiring records is not necessary for defining
discard under the final rule.

14.	Demonstration that the material recycled is on a 'first in-first
out' basis: EPA is not finalizing an exclusion for materials recycled in
a continuous process within the same industry as originally proposed in
October 2003, thus this comment no longer applies.

15.	Manifest/tracking documents: We agree to a certain extent with
commenters that certain records are necessary to ensure hazardous
secondary materials were transported and received for reclamation as
intended. Under the transfer-based exclusion, we require generators,
reclaimers and intermediate facilities to maintain records of all
off-site shipments either sent or received from the facility. We also
require generators to maintain confirmations of receipt from both the
intermediate facility and reclaimer. These two requirements together are
sufficient to assure the hazardous secondary material generator and the
regulatory authority that the hazardous secondary materials were
transferred and received by the reclamation facility and were not
discarded. However, requiring a manifest, as is currently required for
hazardous wastes, is not appropriate for hazardous secondary materials
since these materials are managed more akin to valuable commodities
rather than solid and hazardous wastes being discarded.

16.	Brokers must provide the reclaimer a list of names and addresses of
generators: Under the final rule, we require intermediate facilities and
reclaimers to maintain records of all off-site shipments of hazardous
secondary materials received and, if applicable, sent off-site. These
records must contain the name of the hazardous secondary material
generator. Furthermore, once receiving the hazardous secondary material,
we require both intermediate facilities and reclaimers to submit a
confirmation of receipt to the hazardous secondary material generator.
We believe these requirements are sufficient to ensure that the
hazardous secondary material will reach the reclamation facility as
intended.

17.	Description of hazardous secondary material: We require facilities
to identify the type of hazardous secondary material in the
notification, off-site shipment records, and in confirmations of
receipt. For the notifications, we specify that the hazardous secondary
material be reported as the hazardous waste code that would apply had
the material been managed as hazardous waste. Furthermore, we note that
hazardous secondary materials may be subject to the Occupational Safety
and Health Act of 1970, which requires material safety data sheets
(MSDS) for hazardous substances. 

18.	Billing records: Billing records are a nearly universal business
practice and, although we are not explicitly requiring such records, we
anticipate these records would fulfill the requirement to maintain
confirmations of receipt.

19.	Mass balance summary: This type of record is not currently required
for hazardous wastes under the existing regulations and would likely be
costly and difficult to implement. We believe other requirements in the
final rule, such as speculative accumulation and the legitimacy
provision, are sufficient to ensure hazardous secondary materials are
reclaimed and not discarded.

20.	Contingency planning and incident reports: We are not requiring
contingency planning, emergency response or standards for employee
training because these requirements do not directly determine discard
(e.g., a generator could have a contingency plan but still be discarding
its materials). Furthermore, we note that hazardous secondary materials
excluded under the final rule may remain subject (or become subject) to
requirements under other programs. For example, hazardous secondary
material generators, transporters, intermediate facilities and
reclaimers may be subject to regulations developed under:

The Occupational Safety and Health Act of 1970, which requires hazard
communication programs, labeling, material safety data sheets (MSDS) and
employee information and training (29 CFR Part 1910). The Occupational
Safety and Health Administration (OSHA) regulations also require
emergency response planning and training under their Emergency Response
Program to Hazardous Substance Releases (29 CFR 1910.120); 

The Hazardous Materials Transportation Act of 1975 and the subsequent
Hazardous Materials Transportation Uniform Safety Act of 1990, which
requires hazardous secondary materials meeting the Department of
Transportation's defining criteria for hazard classes and divisions to
comply with hazard identification, shipping papers, labeling and
placarding, incident reporting and security plans (49 CFR part 107 and
parts 171-180); 

The Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Emergency Planning and Community Right-to-Know Act (EPCRA) and
the Superfund Amendments and Reauthorization Act (SARA) of 1986 which,
combined, require notification of hazardous substance releases above a
reportable quantity, emergency planning and, if applicable, MSDS and
inventory reporting (40 CFR 302.6, 40 CFR parts 355 and 370). Hazardous
secondary material generators and reclaimers meeting defined criteria
are also subject to toxic chemical release reporting (i.e., Toxics
Release Inventory (TRI) under EPCRA (40 CFR part 372). 

While not exhaustive, this list provides examples of regulatory programs
designed to protect human heath and the environment developed under
other statutory authorities. For more useful information on these
regulatory programs, please see "Memorandum: Requirements that other
Regulatory Programs would place on Generators, Reclaimers and
Transporters of Hazardous Secondary Materials" located in the docket for
this rulemaking.

21.	Records on rejected loads: We consider the requirement for hazardous
secondary material generators, intermediate facilities, and reclaimers
to maintain records of all off-site shipments and confirmations of
receipt to provide sufficient documentation regarding rejected loads.
Specifically, hazardous secondary material generators and regulatory
authorities will be alerted of a rejected shipment when the hazardous
secondary material generator does not receive, and thus cannot produce,
a confirmation of receipt from the reclaimer.

22.	Certification by an authorized representative: We require
certification for reasonable efforts, for the notification requirement
and, in some instances, to define hazardous secondary material generated
and reclaimed under the control of the generator to assure
accountability.

23.	Documentation of compliance: Although helpful, a comprehensive
record containing all documentation for the rule in one recordkeeping
requirement is not essential to determine discard. 

24.	Tolling contractors report responsibility: Under the final rule,
tolling contractors must notify the regulatory authority that it will be
managing hazardous secondary material under the exclusion. Furthermore,
we require the tolling contractor to certify that it will retain
ownership of, and responsibility for, the hazardous secondary materials
that are generated during the course of manufacture, including any
release of hazardous secondary materials that occur.

ADDITIONAL RECORDKEEPING COMMENTS: 

1.	The Agency agrees that clarifying what specific information is to be
gathered and maintained under the recordkeeping requirements will reduce
confusion and regulatory uncertainty. In the final rule, we have defined
the types of information necessary to comply with each recordkeeping
requirement (notification, off-site shipment records, confirmations of
receipt, reasonable efforts, notice of export etc.). However, besides
the notification (which will be submitted using the Site ID form) we are
not mandating the recordkeeping requirements be kept in a specific
format. This is to provide facilities with flexibility in leveraging
their existing routine business information to fulfill the requirements
in order to reduce burden.

2.	We have maintained the record retention time of three years to be
consistent with other recordkeeping requirements in Subtitle C.  We
anticipate this will reduce confusion as many of the facilities that
will take advantage of the final rule are likely currently operating
under Subtitle C. We also believe that this timeframe strikes an
appropriate balance between the practicalities of records management and
the need for oversight and documentation.

3.	We agree that records must be available for inspection within a
reasonable time. We anticipate that many of the recordkeeping
requirements (off-site shipment records, confirmations of receipt) would
be stored at the facility; however, for reasonable efforts
documentation, we note that we encourage entities, such as parent
companies or trade associations, to pool information in order to keep
burden to a minimum. In this case, reasonable efforts documentation may
not be available at the facility site itself, and thus we have added
into the final rule a provision that documentation for reasonable
efforts must be made available upon request by a regulatory authority
within 72 hours, or within a longer period of time as specified by the
regulatory authority.

4.	The recordkeeping requirements in the final rule only apply to
hazardous secondary materials managed under the exclusions.
Consideration of recordkeeping requirements for recycled materials not
eligible for the final rule's exclusions is outside the scope of this
rulemaking.

7.6.2 - Confirmations of receipt

7.6.2 - Summary

Of the commenters who discussed this issue, the overwhelming majority
supported a requirement for generators to maintain confirmations of
receipt in order to verify that the hazardous secondary materials
reached the intended destination and were not discarded. Some commenters
noted that reputable commercial recycling facilities routinely issue
receipt confirmations or "recycling certificates" and that providing
receipts of delivery is a near-universal practice for any valuable
commodity. Commenters also agreed that keeping a receipt further
supports the concept that hazardous secondary materials transferred for
reclamation have value. Other commenters believed that the Agency should
use confirmations of receipt in order to allow facilities to use brokers
and to also include a parallel requirement for the reclaimer to provide
such a receipt to the generator. [0178, 0447, 0452, 0457, 0458, 0460,
0470, 0482, 0489, 0507, 0509, 0516, 0521, 0529, 0531, 0539, 0549, 0558,
0559, 0563]

Furthermore, some commenters also said the requirement would provide
oversight documentation for regulatory agencies in order to aid
inspections and ensure the regulation is implemented correctly. Without
this record, as one commenter noted, EPA and state inspectors would
never be able to confirm from the generator's records that any shipment
of excluded material was actually received by the reclaimer in
compliance with the exclusion and was not, conversely, disposed and at
risk of causing environmental damage. One commenter also noted that this
type of receipt would protect the generator against claims that the
material was mismanaged on its way to the recycler. Another commenter
believed that there is an incentive for small businesses to leave
transactions of recyclables "off the books" because they have a cash
value. [0470, 0482, 0516, 0539, 0558] 

Many commenters suggested that EPA not create a new recordkeeping
framework and to allow facilities flexibility in documenting
confirmations of receipt in order to be consistent with current industry
practices. Several commenters believed the information should be
available in a variety of formats, such as financial records, hardcopy
receipts, telephone log entries, email messages, invoice payments,
shipping manifests, hazardous materials bills of lading, electronic
records or other documents indicating a communication from the reclaimer
that the shipment was delivered. Additionally, one commenter
specifically discouraged the Agency from requiring a RCRA-like manifest.
[0458, 0460, 0482, 0491, 0507, 0529, 0558]

On the other hand, one state commenter supported requiring a shipping
paper that acts as a chain-of-custody and identifies all three parties
handling the hazardous secondary material in the course of
transportation and contains all the signatures of representatives of all
three parties. This commenter argued that state environmental agencies
could review these documents to track shipments, monitor compliance and
ensure the materials were properly delivered to legitimate recyclers.
Furthermore, one commenter argued that the current hazardous waste
management system should not be upset and that the same procedures for
hazardous waste transactions should apply for hazardous secondary
materials. [0479, 0495]

A few commenters opposed requiring confirmations of receipt because
these requirements would impose manifest-like responsibilities on
generators. These commenters argued that manifesting is appropriate for
hazardous waste, but not for secondary materials that have value, will
be reclaimed, and are not discarded. Another commenter stated that
confirmations of receipt would not necessarily be a normal business
practice and is not necessary to defining the absence of discard.
Lastly, one commenter opposed the addition of any further recordkeeping
requirements, other than those proposed, so as not to discourage
entities from engaging in legitimate recycling activities. This
commenter further argued that, as with any recycling exclusion,
generators would be prepared to provide "appropriate documentation" to
prove that their recycling process meets the requisite conditions of the
exclusion and, thus, this commenter believed nothing more is needed in
this rulemaking. [0476, 0492, 0534]

7.6.2 - Response

We agree with commenters who support requiring confirmation of receipt.
Under the final rule, hazardous secondary materials may be transferred
to intermediate facilities for storage or, where reclamation consists of
multiple steps occurring at separate facilities, may be transferred to
more than one reclaimer. This requirement would confirm that the
hazardous secondary materials did in fact reach the reclaimer (or each
reclaimer, if reclamation occurs at separate facilities) and any
intermediate facility as originally intended and were not discarded. EPA
also agrees with commenters that responsible companies would produce and
maintain receipts as part of their routine business operations and,
thus, this requirement will not pose an undue burden.  We have,
therefore, added to 40 CFR 261.4(a)(24) a requirement that generators
maintain confirmation of receipts from reclaimers and intermediate
facilities for all off-site shipments of excluded hazardous secondary
materials for a period of three years. We've also added a parallel
requirement that reclaimers and intermediate facilities must send
confirmations of receipt to the generator. 

In response to commenters, the Agency is not specifying a certain form
or format for this documentation, but instead is requiring the
documentation to specifically contain the name and address of the
reclaimer or intermediate facility, the type and quantity of hazardous
secondary materials received, and the date which the hazardous secondary
materials were received. The Agency anticipates that routine business
records (e.g., financial records, bills of lading, copies of Department
of Transportation (DOT) shipping papers, electronic confirmations of
receipt) would contain the appropriate information sufficient for
meeting this requirement.

EPA further believes that requiring a chain-of-custody shipping paper or
other requirements similar to the hazardous waste manifest are not
appropriate for hazardous secondary materials since these materials are
managed more akin to valuable commodities rather than solid and
hazardous wastes being discarded. We also disagree with commenters who
believe confirmations of receipt are "manifest-like" and that
confirmations of receipt would not necessarily be a normal business
practice. We instead believe, as one commenter noted, that providing
receipts is a near-universal practice for transactions of valuable
commodities, from sales of zinc to packages of gum. Therefore,
confirmations of receipt are a further indication that the hazardous
secondary materials are being treated as valuable commodities instead of
negatively-valued wastes being discarded. 

We also disagree that requiring confirmations of receipt would
discourage facilities from legitimate recycling activities since we
believe that responsible companies are likely providing confirmations of
receipt to their customers as a matter of routine business practice.
Confirmations of receipt may even encourage legitimate recycling
practices as it establishes and documents for all parties that a
transaction has occurred: the generator is assured that his materials
have reached their intended destination for reclamation and have not
been discarded. 

7.6.3 - Periodic reports

7.6.3 - Summary

GENERAL SUPPORT: Many commenters supported requiring hazardous secondary
material generators and reclaimers to submit periodic
reports/renotification (either annually or biennially) detailing their
recycling activities. [0067, 0068, 0076, 0077, 0095, 0104, 0119, 0153,
0161, 0165, 0171, 0178, 0185, 0191, 0217, 0219, 0231, 0447, 0460, 0470,
0475, 0479, 0484, 0488, 0489, 0495, 0521, 0538, 0543, 0544, 0548, 0558,
0559, 0563]   

ENABLES COMPLIANCE MONITORING: Several commenters believed that periodic
notification should be required to ensure compliance with the
exclusions. Some of these commenters believed that the absence of
reporting and recordkeeping requirements in the proposed exclusion would
make the terms of the exclusion extremely difficult to monitor and
enforce and could lead to environmental problems similar to those that
preceded the RCRA Subtitle C regulatory program. One state commenter
noted that early identification of violations means that return to
compliance is quicker, penalties are lower, inspection and enforcement
resource expenditures are kept to a minimum, and the risk of significant
adverse affects is managed. Furthermore, this state commenter believed
that the absence of reporting and recordkeeping requirements and the
freedom with which the excluded materials would be able to be managed
would make the movements and transactions associated with the material
so difficult to trace that enforcement would be perceived as unlikely,
and, thus, would create an incentive for parties to evade compliance.
One commenter argued that, without sufficient oversight, "recycling"
will continue to wear a "black-eye" because of the actions of a few bad
actors. [0067, 0076, 0104, 0119, 0165, 0178, 0185, 0217, 0231, 0489,
0495, 0543, 0548, 0559] 

ENSURES RE-EVALAUTION OF PRACTICES: Some commenters believed periodic
notifications would require the facility to re-evaluate its practices
and ensure that it is meeting the terms of the exclusion. This commenter
believed that a one-time notification will inevitably allow the facility
to relax its environmental safeguards and proactive thinking about the
potential dangers posed by hazardous secondary materials and, as
recycling practices change at the facility over time, there will be
little incentive to review the exclusion conditions and consider whether
the changes are environmentally sound. This commenter also believed that
annual notice would remind EPA or authorized state that there were once
hazardous wastes generated at the facility and allows the regulators to
remind the facility to properly analyze whether the exclusion is
warranted and whether there might be any waste streams that do not
qualify for the exclusion. [0191, 0489] 

ENSURES DATA REMAIN MEANINGFUL: Commenters supported increased reporting
in order to ensure the information maintained remains meaningful.
Otherwise, it is impossible to accomplish the goals that notification
should serve. One commenter argued that periodic renotification would
also be helpful in purging the data system of facilities that go out of
business or change locations or names.  A second commenter argued that,
absent annual notification, data may quickly become obsolete, causing
the regulating agencies to waste resources determining the compliance of
generators who no longer recycled hazardous secondary materials or whose
processes or volumes do not warrant added oversight. A third commenter
believed that a one-time notification would be virtually useless since
it would (eventually) be substantially out of date. One commenter
believed that Agencies need to know when reclamation ceases in order to
follow-up on closure. [0219, 0470, 0521, 0564] 

DECREASES REGULATORY UNCERTAINTY: One commenter noted that periodic
renotification would decrease regulatory uncertainty, since the one-time
notification is not really "one-time"; generators must file revised
notices whenever there is a change to the required information. While
this seems straight-forward, it actually creates some uncertainty when
generators have to determine, for example, whether their hazardous
secondary material has changed enough to warrant a revised notice, as
well as problems with missed filings and outdated information. This
commenter argued that generators would, instead, benefit from a clear
requirement to file an annual report. A second commenter also noted
that, despite requirements to re-notify upon process changes, many
generators fail to re-notify and believed that annual notification would
remedy this problem. [0521, 0558] 

COMPILES CREDIBLE INFORMATION: A few commenters supported periodic
reports to allow agencies to compile credible information regarding
hazardous secondary materials. Some had concerns regarding the lack of
reporting and tracking requirements in the proposed exclusions because
there would be no way for governments and citizens to track the
generation of these hazardous materials, the process by which they are
recycled, and how they are ultimately managed. One commenter believed
the proposed reporting requirements were grossly inadequate and would
render it impossible for citizens to exercise their right to know about
potentially dangerous activities in their communities. A requirement to
submit periodic reports would allow regulatory authorities to compile
credible information regarding hazardous secondary materials recycling
that could be made available to the public, rather than just kept in the
generator files. Commenters believed public disclosure is an important
part of ensuring that generators and reclaimers are meeting the
requirements of the conditional exclusion and that there is a mechanism
for the regulatory agencies and the public to review activities on a
regular basis. [0080, 0104, 0119, 0231, 0475, 0484, 0543, 0559] 

MEASURES PERFORMANCE: Several commenters supported periodic reports to
measure the overall success and impact of the rulemaking on hazardous
waste recycling. One commenter supported an initial collection of data
to demonstrate success of the rulemaking while another commenter
suggested limiting information gathering to five years after the rule is
finalized in order to reduce the future reporting burden. This last
commenter suggested EPA focus its efforts to obtain additional
performance measures through the National Partnership for Environmental
Priorities (NPEP) program. [0067, 0095, 0104, 0458, 0461, 0470, 0495,
0543, 0555, 0559] 

MINIMAL ADDITIONAL BURDEN: A few commenters believed the additional
burden of periodic reporting to be minimal. One commenter said that the
generator will be required to have this information in the generator
files so it will not take much additional work to file it annually with
the Agency and thus make it available to the public. This commenter went
on to say that any company managing valuable raw materials or similar
commodities maintains records of inventory and disposition of these
valuable materials. Therefore, assuming the hazardous secondary
materials meets the requirement that it is a valuable commodity and not
a waste, it can be expected that any responsible company will keep
detailed records and thus an annual report will not place an undue
burden on the generator. Another commenter noted that the requirement to
maintain shipping records would simplify the summary of shipments for
the year if an annual report were required. Some commenters noted that
while such recordkeeping requirements are seen as burdensome, they are
offset by the reduction in other aspects of regulation offered through
the exclusion. [0077, 0475, 0512, 0527] 

TYPES OF INFORMATION INCLUDED IN REPORT: Some commenters felt the
information proposed for the one-time notification to be insufficient
for monitoring compliance with the exclusions. One state commenter did
not support the broader conditional exclusion because such a broader
exclusion would place a much greater resource burden on state agencies
that must enforce compliance and these agencies would only have the
information in the one-time notifications to assist their inspection
targeting strategies. Another state commenter noted the regulatory
agency would consider the type of process and volume of hazardous
secondary materials handled by a facility to prioritize compliance
inspections and thus needs annual reports to supply this information.
Several commenters believed that facilities should be required to
provide annual summary reports relating to, for example, the types,
volumes, sources, destinations, dates received, storage times,
management methods, recycling processes, uses, products produced, and
management of residuals of the hazardous secondary materials managed
under the exclusions. A few of these commenters suggested requiring
certification of such a report by a Responsible Corporate Official.
Commenters believed this information is essential to determine
compliance with the conditions of the exclusions, especially the
prohibition on speculative accumulation. [0067, 0068, 0095, 0119, 0153,
0217, 0231, 0458, 0461, 0470, 0475, 0488, 0489, 0495, 0521, 0538, 0543,
0544, 0555, 0563] 

ADDITIONAL DOCUMENTATION FOR REPORT: A few commenters suggested
including additional information such as the economic value of the
commodities recycled, a declaration that the reclaimer continues to meet
the conditions of the conditional exclusion, hazardous secondary
material analysis reports, legitimacy determinations, billing records,
mass balance summaries, procedures used for safe handling and storage of
the materials, documentation that speculative accumulation is not
occurring, documentation and certification that "reasonable efforts" has
been conducted, transporting information, special reports for tolling
contractors certifying responsibility to the raw material and any
residuals in the process, contingency plans and incident reports. One
commenter noted that if portions of the actual reclamation process are
business or trade secrets, these descriptions can be noted as such using
the standard EPA guidelines for keeping technical process information
confidential. [0470, 0475, 0488, 0538, 0543, 0559] 

FORMAT OF REPORT: A few commenters suggested that the periodic report be
submitted in a format similar to the biennial report, or as a modified
biennial report, and at the same frequency so that the data can be
submitted electronically and captured in RCRAInfo. One commenter
specifically supported the use of a modified Biennial Report over using
the Toxic Release Inventory (TRI) because it seemed more relevant, since
TRI is focused on a limited number of approximately 350 chemicals. This
same commenter also believed that ad hoc surveys and voluntary
partnerships would take more resources to administer and collect less
data than a modified biennial report. A few commenters supported
periodic reports using a revised Subtitle C Site Identification Form so
that the information can be entered into RCRAInfo, EPA's national
database. One commenter noted that reports could be filed electronically
through the Central Data Exchange (CDX) that EPA has already established
for such environmental reports. Some commenters said that if the final
rule requires mandatory reporting, any such requirement should be no
more burdensome than, and should be integrated with, current reporting
obligations. For instance, reports should not be required any more
frequently or detailed than hazardous waste reporting (e.g., biennial
and not annual as suggested). One commenter believed the requirement to
submit a "one-time notice" to EPA would be redundant if EPA were to
require an "annual report" since the annual report would provide the
same information as the one-time notice. This commenter suggested that
any reporting required by this rule be completed by way of a simple,
short form submitting electronically. Another commenter said
standardized forms need to be adopted rather than allow submission of a
letter so that all required information is provided in a format that
provides national consistency and lends itself to analysis. This
commenter also said the frequency of reporting depends on how often the
information is needed. Even though the hazardous waste cycle is
biennial, more than half the states collect reports on an annual basis,
and some even quarterly. [0212, 0217, 0447, 0458, 0461, 0489, 0495,
0512, 0515, 0543, 0555, 0558, 0563]  

REQUIRE BIENNIAL REPORTING: One commenter said EPA should continue to
require submittal of biennial report data, or risk losing complete
control and awareness of the disposition of secondary materials already
recognized as having the potential to harm human health and the
environment. Another commenter recommended the Agency require the use of
a tracking, recordkeeping and reporting system, similar to that used for
hazardous waste, for all excluded waste destined for reclamation. While
this will not provide the same level of cost reduction anticipated by
the Agency, generators of excluded materials will still enjoy the other
projected major savings associated with salvage value and waste disposal
cost avoidance, as well as other administrative cost savings. One
commenter had no objection to eliminating the biennial report for
hazardous secondary material, but noted they will continue to obtain
annual reports on hazardous secondary material from their generators.
[0117, 0462, 0548] 

WHO SHOULD SUBMIT REPORTS: One commenter argued that additional
reporting obligations would best be placed upon the end user (typically
a manufacturing facility or a waste or wastewater treatment facility)
because the generator does not have direct knowledge of the end use, or
effective control of the end user. One state commenter suggested
specifically requiring reclaimers to submit a summary report or
renotification at least once every five years. Another commenter
supported requiring periodic reports for LQGs and off-site reclaimers.
Other commenters supported biennial reporting by both the generator and
reclaimer. Several commenters believed that annual reporting should
apply for both hazardous secondary material transferred for reclamation
and to generators who reclaim their own materials. Two commenters said
that these requirements should be applied to all recycling exclusions,
not just the proposed exclusions. One commenter said EPA needs to
consider whether the information that will be required on a report
should vary depending on the type of hazardous secondary material
generator, for example, a generator that does not recycle on-site should
have relaxed reporting requirements as compared to a facility that does
recycle hazardous secondary material. [0165, 0470, 0495, 0515, 0521] 

OTHER EXCLUSION THAT REQUIRES REPORTS: Two commenters noted that the
laboratories undertaking treatability studies under the provisions of 40
CFR 261.4(e)-(f) are required to obtain a USEPA Identification Number
and file an annual report documenting their activities and final
disposition of the exempt sample materials. These commenters believed it
would seem reasonable that EPA required, at a minimum, the same level of
care for hazardous secondary materials. [0161, 0165]

GENERAL OPPOSITION: Many commenters opposed requiring hazardous
secondary material generators and reclaimers to submit periodic
reports/renotification detailing their recycling activities. [0055,
0060, 0062, 0083, 0085, 0089, 0091, 0098, 0102, 0112, 0122, 0138, 0153,
0174, 0184, 0199, 0204, 0205, 0222, 0439, 0442, 0454, 0468, 0471.2,
0472, 0481, 0491, 0492, 0506, 0520, 0534, 0549] 

EPA LACKS AUTHORITY: Some commenters argued that EPA does not have the
authority under RCRA to require periodic reporting with respect to the
management of hazardous secondary materials that are exempt from
hazardous waste regulation. These commenters argued that hazardous
secondary materials under the proposed rule's exclusions are not
discarded and not solid wastes and therefore should not be subject to
additional requirements beyond the existing regulatory scheme for
recycled materials. One commenter said that, under ABR, in-process
secondary materials generated and reclaimed in the same industry are not
solid wastes and therefore EPA has no jurisdiction to impose any
requirements on their management. One commenter believed that EPA was
stretching its authority under RCRA §3007 too far if the Agency
required regular reports for materials that are never discarded. This
commenter believed that RCRA does not provide EPA authority to impose
regular reporting and recordkeeping requirements on materials that may
become solid wastes at some point in the future. For example, EPA would
not be able to impose similar notification requirements on commercial
chemical products, virgin materials and other raw materials or
ingredients at a facility, even if they inevitably become solid wastes.
Another commenter believed that annual reports would be purely
regulatory and irrelevant to defining discard. [0089, 0199, 0222, 0468,
0471.2, 0491, 0492, 0520]

REPORTS HAVE NO VALUE: Although some commenters recognized and accepted
the appropriateness of a submission that identifies facilities intending
to rely upon the exemption, commenters believed the level of detail and
frequency of filings in an annual report cannot be justified and perhaps
all that would be accomplished would be the creation of an ongoing
paperwork burden for both regulators and the regulated community. Some
commenters further believed that the data collection contributes nothing
to the protection of human health and the environment while increasing
manufacturing costs with no measurable resulting benefits. A few
commenters were concerned that EPA may not have clear sense of direction
on the specific data that is most helpful or relevant to meet its goals
and believe it essential for the Agency to make an honest, upfront
assessment of whether and how the information will be used. This
commenter believed that it is particularly important that EPA have to
collect such information through an activity, such as a survey, that
would be subject to OMB comment and approval in accordance with the
Paperwork Reduction Act. One commenter believed that EPA's proposed
recordkeeping and reporting requirements are sufficient for the purposes
of the rule and do not need to be future expanded. In response to the
October 2003 proposal, some states felt that annual reporting was not
necessary.  One commenter was extremely concerned about EPA's interest
in using the rule to collect "useful" information not immediately needed
to assure and maintain regulatory compliance, such as for measurement of
the performance of the rulemaking. Although this commenter recognized
the potential interest in obtaining this information, this purpose has
no direct relationship to the regulatory reporting and compliance
objectives at issue. This commenter believed that adding a
long-standing, broad regulatory reporting obligation as part of this
rulemaking program is not an effective approach to this goal; however,
this commenter would be willing to partner with the Agency to seek
additional information from its members regarding the impact of the
rulemaking. One commenter said the Agency could collect additional
information, such as quantities of materials reclaimed, by using the
biennial report, but only after justifying the need for such
information. [0061, 0083, 0093, 0102, 0153, 0222, 0454, 0471.2, 0473,
0491, 0506, 0534]

INCREASES BURDEN: A few commenters argued that increased reporting, or
annual reports, is contrary to the Paperwork Reduction Act and that such
a requirement would not be deregulatory in nature and would be more
stringent than is required under the existing regulations, thus,
defeating the purpose of reducing the regulatory burden on their
industry. A few commenters argued that it was simply unfair to add more
recordkeeping and reporting requirements to the litany that already
apply under RCRA and many other environmental and health and safety laws
and regulations (e.g., DOT, OSHA, National Fire Protection Association
standards and EPA's Spill Prevention Counter Control Measures and TRI
Reporting). Some commenters argued that nothing in the record supports
requiring more than the current RCRA scheme mandates and, given the
regulations already in place for the management of these materials,
these requirements would place significant burdens on industry without
commensurate health and environmental benefits. Imposing one more
precise recordkeeping or reporting requirement would subject operators
who inadvertently violate the requirement to notices of violation and
civil penalties. A few commenters argued that annual reports would
subject facilities that recycle to extremely burdensome requirements far
and above what is currently mandated by RCRA and would act as a
disincentive to utilizing the exclusion altogether. Some commenters
argued that annual reports would be unnecessary and inconsistent with
EPA's 2006 RCRA Burden Reduction Initiative which eliminated several
existing RCRA reporting and recordkeeping requirements which were
considered unnecessary, burdensome or duplicative, such as the
requirement for recyclers to submit notification under 40 CFR
268.7(b)(6). Some commenters said that any type of reporting
requirements would place an unjustified and disproportionate burden on
small business and specialty batch chemical manufacturers, who routinely
make multiple products at a time in small batches and have a product mix
that changes frequently in response to customer demands. Some commenters
noted that adding a provision for periodic reports would limit any
burden reduction associated with the proposal; one commenter noted that
the Information Collection Request estimated a $398,575 annual savings
from reduced Biennial Reporting requirements and that those cost and
burden reductions should be retained rather than reversed by requiring
unprecedented reporting of non-waste materials in that report. A few
commenters instead believed that RCRA's current self-implementing
approach is sufficient and should be used for any future exclusion.
Moreover, still another commenter considered it extremely important that
EPA impose only the minimum regulatory reporting obligations necessary
because some smaller facilities simply do not have the manpower or other
resources to allocate to other than core regulatory compliance matters.
One state commenter opposed annual reporting because it would constitute
an administrative burden to the state and the regulated community and
considered this burden to outweigh the amount of useful information
provided in such a report. [0062, 0089, 0090, 0096, 0098, 0102, 0138,
0174, 0184, 0199, 0204, 0205, 0222, 0439, 0442, 0458, 0468, 0471.2,
0472, 0481, 0492, 0506, 0534, 0549]

DOCUMENTATION AVAILABLE UPON REQUEST: One commenter argued that
facilities maintain documentation on-site as standard practice and that
this documentation could be provided upon request without implementing
additional reporting burdens. Some commenters argued that a facility has
every incentive to avoid potential enforcement actions by providing
sufficient data and documentation to show that it is complying with the
conditional exclusions. One commenter saw no need to require submission
of all recordkeeping to the implementing authority when some of these
records might never even be reviewed. [0060, 0061, 0089, 0091, 0472,
0506, 0534]

OTHER DATA SOURCES AVAILABLE: Some commenters argued that the biennial
hazardous waste report and the reporting requirements under the Toxic
Release Inventory program already require reporting of types of
hazardous materials and their management and recycling and, thus,
another report on recycling activities would be duplicative and not add
value or serve any administrative or environmental purpose. [0055, 0085,
0102, 0112, 0468, 0506]

NOT APPROPRIATE FOR BIENNIAL REPORT: Some commenters argued that
excluded materials should not be subject to reporting under the Biennial
Reporting System because the reporting of hazardous secondary materials
that are excluded would be entirely inconsistent with the historical and
intended scope of the Biennial Report (i.e., to track hazardous wastes
and hazardous waste activities). [0473, 0492, 0515, 0536]

SUBMITTING CONFIDENTIAL BUSINESS INFORMATION: A few commenters noted
that some facilities, particularly specialty batch chemical
manufacturers, would face a true dilemma if such filings were a
condition of qualifying for the exclusion since, in many instances,
confidentiality agreements with their customers would preclude their
being able to provide the level of detail discussed in EPA's preamble.
[0222, 0471.2, 0472]

7.6.3 - Response

We agree with commenters who support periodic reports in order to: 1)
enable compliance monitoring of facilities managing hazardous secondary
materials under the exclusions; 2) support regular re-evaluation by
facilities to ensure conditions of the exclusion continue to be met; 3)
update facility information so it remains meaningful and therefore
usable; 4) decrease regulatory uncertainty of when to update a
notification; 5) compile credible information for the regulated
community, states, EPA and the public; and 6) measure performance and
impacts of the rulemaking.

However, we also carefully considered the arguments presented by those
who opposed periodic reports, the majority of which objected on the
basis that: 1) EPA lacks authority to require periodic reports for
hazardous secondary materials that are not solid wastes; 2) periodic
reports would increase burden on facilities; and 3) EPA has not
demonstrated a clear need and use for data collected in such a report
and thus commenters lacked confidence that periodic reports would result
in any administrative or environmental value.

In response to both sets of comments, EPA believes it has designed an
appropriate and effective requirement that both serves to maintain
accurate information to enable compliance monitoring while minimizing
additional burden on facilities. Instead of requiring a separate,
detailed periodic report, EPA is requiring periodic renotification, or
in other words, facilities that manage hazardous secondary materials
must submit a notification prior to operating under the exclusions and
every two years thereafter. 

EPA'S AUTHORITY: We believe our authority to require notification is
inherent in our authority to determine whether a material is discarded,
and we consider notification to be the minimum information needed to
enable credible evaluation of the status of hazardous secondary
materials under section 3007 of RCRA and to ensure that the terms of the
exclusions are being met by generators and reclaimers. EPA further
believes that RCRA section 3007 allows us to gather information about
any material that we have reason to believe may be a solid waste and
possibly a hazardous waste within the meaning of RCRA section 1004(5). 

Under RCRA section 3007(a), EPA has the authority to gain access and
gather information for the purpose of developing, or assisting in the
development of, any regulation or enforcing the provisions of RCRA. 
RCRA section 3007(a) requires that "any person who generates, stores,
treats, transports, disposes of, or otherwise handles hazardous wastes"
to provide EPA access and furnish information "relating to such wastes."
EPA believes that this language allows it to gather information with
regard to any material that the Agency has reason to believe may be a
solid waste and possibly a hazardous waste within the meaning of RCRA
section 1004(5). Section 2002 also gives EPA authority to issue
regulations necessary to carry out the purposes of RCRA.  

This is a long-standing position that EPA first set forth in 1980 in 40
CFR section 261.1(b)(2)(i). This provision of the Subtitle C regulations
states that for purposes of exercising section 3007 authority, the scope
of such authority is not limited to those solid wastes which have been
already identified or listed as hazardous waste.  Instead, EPA has the
authority to gather information concerning a material whenever it has
reason to believe that the waste may be a solid waste and possibly a
hazardous waste as defined under RCRA section 1004(5) of RCRA. EPA has
explained this position in the May 19, 1980, hazardous waste
identification and listing rule (45 FR 33084, 33090) and amendments to
the definition of solid waste on January 4, 1985 (50 FR 614, 627). Given
that the hazardous secondary materials covered by the final rule's
exclusions are used, spent materials and by-products and sludges that
have previously been listed by the Agency, as hazardous wastes, it is
obvious that, absent appropriate recycling and management, these
materials would be solid and hazardous wastes.  Thus, it is appropriate
for the Agency to gather information to ensure that these materials are
managed in such a way that they are not wastes.

In a related matter, the United States Court of Appeals for the Seventh
Circuit, in a warrant case, upheld the Agency's broad reading of section
3007(a) and specifically rejected the view that this section could be
limited to those wastes designated as hazardous under Agency
regulations.  In National-Standard Co. v. Adamkus, 881 F.2d 352 (7th
Cir. 1989), the court held that section 3007(a) "provides EPA with a
broad mandate for enforcing the national policy of treating, storing,
and disposing of hazardous wastes" and "empowers the agency to enforce
the entire RCRA scheme, not just a particular provision." The court
compared section 3007(a) with other provisions of RCRA and specially
noted that "Congress significantly chose the broad, general term
'hazardous waste' defined in section 6903(5) . . . rather than
'hazardous waste identified or listed under [Subtitle C of RCRA],'
employed in other provisions," such as RCRA's permitting provisions
under section 3004(a).  881 F.2d at 360. The court stated that the very
limited view of section 3007, advocated by the defendant, would
"emasculate EPA's ability to pursue the broad remedial goals of RCRA."  
Id.  

In both the 2003 and 2007 proposals, we proposed a one-time notification
in order to provide basic information to regulatory agencies about who
is managing hazardous secondary materials under the exclusions in order
to monitor compliance with the exclusions. However, as commenters noted,
with the proposed one-time notification approach, there is no assurance
that the information collected in EPA's databases will remain accurate
over time. Therefore, the Agency can imagine instances where precious
resources are required to "clean up" the data before regulatory
authorities can use it to identify facilities who are currently managing
hazardous secondary materials under the exclusions. This inefficient use
of resources would serve to lower the effectiveness of regulators to
monitor compliance overall and could potentially increase the risk of
environmental damage from abuse of the final rule's exclusions. 

EPA further believes that responsibility for submitting and maintaining
updated information lies with the hazardous secondary material
generators, reclaimers, and intermediate facilities that use the
exclusions. We believe that, as originally proposed, the one-time
notification would in effect reverse this responsibility, placing an
unreasonable burden on the states and EPA to 'clean up' the data every
time a regulating agency sought to use the information. Instead, the
incremental burden to facilities who must submit periodic notifications
is minimal compared to the considerable public expense that states and
EPA would likely incur over time in order to use information submitted
in a one-time notification.

Furthermore, we note that the requirement to provide this notification
is not a condition of the exclusion. Thus, failure to comply with the
requirement constitutes a violation of RCRA, but does not affect the
excluded status of the hazardous secondary materials. 

Lastly, we note that requiring periodic reports for hazardous secondary
materials excluded from the definition of solid waste is not without
precedent; EPA currently requires manufacturers of zinc fertilizers or
zinc fertilizer ingredients made from excluded hazardous secondary
materials to submit annual reports identifying the total quantities of
all excluded hazardous secondary materials that were used to manufacture
zinc fertilizers or zinc fertilizer ingredients under 40 CFR
261.4(a)(20).

ADDITIONAL BURDEN: We designed the notification requirement in the final
rule to enable effective compliance monitoring while keeping additional
burden to facilities at a minimum. Specifically:

We require only essential information that we consider to be what
responsible companies would maintain as part of routine business
information and avoid requiring information that would be complex or
difficult to collect. We believe the brief list of data elements
required in the notification will not pose an undue burden to
facilities.

We are requiring facilities to submit the notification using the RCRA
Site Identification Form in response to comments that expressed strong
support for using this form because it was already familiar to the
regulated community, inputs data into a retrievable database, and thus
would be more efficient and less burdensome to use. 

Once an initial notification is submitted, to re-notify, a facility need
only review the previous notification and either make changes if
necessary or confirm that the information remains accurate and thus, we
believe additional burden for renotification will be minimal.

We chose the two-year time frame to reflect both commenters' suggestions
(of those who supported periodic reporting, most suggested annual or
biennial reporting) and to best fit with the biennial reporting process
for hazardous wastes. Since many facilities are accustomed to the
biennial reporting process and likely have structured their processes
around the biennial report schedule, we chose to mimic the same two-year
time frame for the notification requirement in order to allow facilities
to leverage their existing processes (and thus keep additional burden to
a minimum).

USE AND VALUE OF INFORMATION: We have made, in one commenter's words,
"an honest, upfront assessment of whether and how the information will
be used." For the final rule, we considered the data elements suggested
by commenters and selected what we believe to be the minimum necessary
information required to monitor compliance with the exclusions in order
to ensure that hazardous secondary materials are reclaimed and not
discarded. We also intend to use this information to meet other
objectives, such as assisting generators with performing reasonable
efforts, targeting state and government programs to achieve further
increases in safe hazardous waste recycling, compiling credible
information about hazardous waste recycling, and measuring impacts of
the rulemaking. We have listed in the table below how each specific data
element in the notification will be used:  

EPA Rationale for Notification Requirements

We are requiring…	This will be used to…

Name, address or EPA ID number (if applicable)	Ensure that states know
which facilities are operating under the exclusion to enable compliance
monitoring, thereby addressing a major concern discussed in comments

Identify potential reclaimers (via RCRAInfo) for generators interested
in recycling

Name and telephone number of a contact person	Contact the facility, if
needed, in regards to the notification.

NAICS code 	NAICS code coupled with the type of HSM (reported as
hazardous waste code) allows EPA and states to identify and target waste
streams for compliance monitoring.

Enables EPA and states to target specific industries for future
programmatic efforts (e.g., compliance assistance, training, guidance).

Whether the HSM will be managed under the transfer-based or
generator-controlled exclusion	Alert EPA and the states to what
exclusion, and thus what conditions, a facility is complying with in
order to enable compliance monitoring.

Whether the reclaimer or intermediate facility has financial assurance
Support generators’ reasonable efforts inquiries (via RCRA Info) of
whether reclaimers have notified EPA of their excluded status and if
they have financial assurance

When the facility expects to begin managing HSM	Provide flexibility to
facilities submitting notification while allowing regulatory authorities
to determine, at any given time, which facilities are actually managing
HSM and therefore warrant compliance monitoring.

A list of hazardous secondary materials (HSM) that will be managed
according to the exclusion	Allow for prioritizing compliance monitoring
based on type and diversity of hazardous secondary material (e.g., a
facility managing 10 different HSM may warrant greater oversight than a
facility managing 1 type of HSM).

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Whether the HSM will be managed in a land-based unit	Allow for
prioritizing compliance monitoring based on use of land-based units
since they inherently pose more risk than non-land based units.

The quantity of HSM to be managed annually	Allow for prioritizing
compliance monitoring based on quantity of HSM managed (e.g., a facility
managing 10,000 tons of HSM may warrant greater oversight than a
facility managing 10 tons of HSM)

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Certification signed and dated by an authorized representative of the
facility	Ensure accountability for accuracy of notification data.

Provide adequate assurance for generators who must rely on notification
data to perform reasonable efforts



 ADDITIONAL INFORMATION/DOCUMENTATION: We did not include many of the
additional data elements suggested by commenters on the basis that some
data seemed too complex and onerous to collect on a national basis (such
as description of the reclamation process) or that were not consistent
with the basic intent of the notification to identify who is managing
hazardous secondary materials under the exclusion. For example,
requiring billing records and mass balance summaries as some commenters
suggested seemed inappropriate for hazardous secondary materials that
are not solid wastes, particularly since these types of reports are not
required for hazardous wastes under the existing regulations. Other
suggestions seemed inconsistent with the principle of
self-implementation of the exclusions; for example, generators are not
required to obtain 'approval' from the regulatory authority prior to
operating under the exclusion and thus submission of detailed paperwork,
such as legitimacy determinations or documentation of reasonable
efforts, is unwarranted. We also did not include information that we
believe is more appropriately documented and maintained at the facility.
For example, some commenters suggested adding a requirement that
generators indicate the identity of the reclaimer receiving their
hazardous secondary materials for reclamation; however, under the
transfer-based exclusion, this information is already documented as part
of the requirement for hazardous secondary material generators to keep
records of all off-site shipments. Moreover, we didn't include
information that could be considered sensitive or confidential business
information (such as products produced or storage times) as this type of
information would unnecessarily complicate, and increase the burden for,
the notification requirement.

Some commenters opposed periodic reports because facilities could
maintain documentation on-site and that this documentation could be
provided upon request. We agree that this would be appropriate for many
types of documentation, such as documentation of reasonable efforts, but
would not be practical for the purposes of the notification, which is to
identify who is managing hazardous secondary materials under the
exclusions.

FORMAT OF REPORT/BIENNIAL REPORTING: We chose to require periodic
renotification using the Site ID form as a way to provide regulatory
authorities with essential, meaningful information while keeping
additional burden to facilities at a minimum. Use of the Site ID form
also means information will be collected and stored in EPA's RCRAInfo,
allowing governments, the regulatory community and the public to
electronically access and use the information. 

In the March 2007 proposal, we considered using information collected
through the TRI program and the existing Biennial Report as a way to
measure increases in recycling as a result of the rulemaking. However,
as some commenters pointed out, TRI is focused on a limited number of
chemicals and thus the data is not consistent with what is required to
measure impacts of the rulemaking. Furthermore, the Biennial Report is
only required for large quantity generators managing hazardous waste and
thus facilities managing hazardous secondary materials under the final
rule's exclusions are not required to report these materials. EPA will,
instead, leverage the notification requirement to measure impacts of the
rulemaking.

As noted above, we decided to require renotification by March 1st of
each even numbered year to reflect both commenters' suggestions (of
those who supported periodic reporting, most suggested annual or
biennial reporting) and to best fit with the biennial reporting process
for hazardous wastes. Since many facilities are accustomed to the
biennial reporting process and likely have structured their processes
around the biennial report schedule, we chose to mimic the same two-year
time frame for the notification requirement in order to allow facilities
to leverage their existing processes (and thus keep additional burden to
a minimum).

WHO SHOULD SUBMIT REPORTS: All facilities that manage hazardous
secondary materials under the final rule's exclusions must comply with
all conditions or restrictions of the exclusions, regardless of the size
of the facility. Regulatory authorities, thus, must be enabled to
monitor compliance with all facilities operating under the exclusions.
Therefore, the final rule requires all facilities managing hazardous
secondary materials to re-notify every two years.

7.6.4 - Documentation of reasonable efforts

7.6.4 - Summary

While EPA proposed that generators conduct reasonable efforts before
sending hazardous secondary materials to the reclamation facility, we
did not propose that documentation records must be kept of such
demonstrations. However, EPA requested comment on whether to require
hazardous secondary material generators to maintain documentation at the
generating facility demonstrating that the reasonable efforts condition
was satisfied prior to transferring the hazardous secondary materials to
a reclamation facility. No form of documentation or format was
specified, although EPA did cite audits as one type of documentation
that could be relevant. We asked whether questions (A) - (F) should be
specifically documented. Finally, we requested comment on whether
hazardous secondary material generators should be required to maintain
certification statements, as a form of documentation, that reasonable
efforts were conducted for each reclamation facility to which the
generator transferred the hazardous secondary materials to be reclaimed.

A majority of commenters supported a requirement that generators
maintain documentation of reasonable efforts and most commenters
described documentation as facility audits, responses to questions (A) -
(F), and/or other relevant information. Several commenters also voiced
support for including the certification statement for reasonable efforts
as a form of documentation and a few commenters stated that legitimacy
determinations should also be included in a documentation requirement.
Several commenters asked EPA to require specific documentation or
guidance about how to clearly demonstrate that the reasonable efforts
condition had been met and be able to provide supporting documentation
as necessary. One commenter worried that allowing the use of "any
credible evidence" for making reasonable efforts, including information
provided by the reclaimer or reclaimer word-or-mouth, without a
documentation requirement, may allow generators to falsely claim they
met the condition. Another argued that the generator must document
reasonable efforts "within its facility records." This would add some
assurances when generators send hazardous secondary materials to brokers
that the generator satisfied the condition for all facilities managing
its materials and that the materials were ultimately legitimately
recycled and not discarded. Still, several commenters in support of
documentation also requested that EPA not specify a type of
documentation because, for example, reasonable efforts to "ensure
legitimate [recycling] and proper materials management is inherently a
case-specific inquiry."

Several commenters asked that documentation of reasonable efforts be
kept on-site, while a few commenters requested that the documentation
could be kept at a headquarters or other off-site location. Other
commenters specifically requested that EPA: not specify a location for
documentation; require documentation be made available to regulatory
authorities upon request; submit documentation to regulatory agencies,
even suggesting it be included with the one-time notification and
submitted annually or biannually; and maintain a document on-site
confirming an audit was performed and that the recycling facility was
approved for use via a generator company's internal review process. A
few commenters suggested that documentation should be maintained for
three or five years, and certification requirements be maintained for
one year. One industry commenter asked that EPA set a time requirement
specifying how long such documentation must be kept.

Commenters in favor of this requirement generally stated that
documentation would be necessary for showing the basis for the
reasonable efforts evaluation and determining whether a generator
satisfied the condition, as well as for improving the enforceability of
the condition. Commenters also stated: 

It is "not unreasonable to require… some basic documentation" and
maintaining documentation of an audit is already part of existing good
business practice. Furthermore, any responsible generator that audits
facilities would document its work.

Documentation of reasonable efforts does not pose any undue hardship for
a responsible generator with the resources to perform audits or hire a
third party auditor.

Documentation provides the bare minimum amount of information regulatory
authorities could use to test that the condition is satisfied and
provide a paper trail for verification.

A generator's claim of having made reasonable efforts will be supported
by documentation, which will help shield a generator from liability.

Requiring documentation will help ensure generators only approve true
recycling facilities and it will also prove an audit is not a sham.

Maintaining a certification statement ensures an audit was properly
conducted and that documentation is a business record.

A certification statement could be required in lieu of specific
documentation, and backup documentation would be required to be made
available for review by regulatory authorities.

On the other hand, a few commenters were opposed to a documentation
requirement for reasonable efforts and provided the following reasons: 

They do not support the reasonable efforts condition and/or disagree
with audits being the foundation of reasonable efforts; therefore, they
disagree with using audit reports as documentation.

Confidentiality is a serious concern for generators that audit a
facility's business operations and make financial evaluations. One
commenter stated they "strongly [oppose] any condition that [requires]
documentation… be accessible to regulatory agencies, third parties, or
any other individual," which according to the commenter could include
members of the media, non-governmental organizations, consultants, and
competitors of the facility. These commenters generally believed
providing access to documentation to outside parties, including
regulators, would limit reclaimer support for allowing generators or
third parties to review their facilities.

Do not require documentation, but "as with any recycling exclusion,
generators would be prepared to provide 'appropriate documentation' to
prove that their recycling process meets the requisite conditions of the
exclusion."

One commenter stated that certification is not a normal business
practice; therefore, it should not be required. However, this commenter
did support a documentation requirement.

A few commenters advocated requiring only a certification to show that
the generator answered questions (A) - (F) and/or satisfied the
reasonable efforts condition, instead of requiring other documentation.

One state commenter suggested it would be difficult for states to
enforce the documentation requirement, presumably because EPA proposed
that "any credible evidence available" could be used to demonstrate the
condition was met. The same commenter also expressed concern that by
documenting reasonable efforts, "generators may mistakenly believe such
'reasonable efforts' [serve] as a shield for their state or federal
[CERCLA] liability."

Some commenters also suggested comments on alternative methods of
documentation:

Maintaining a generator suggested set of pre-transfer and post-transfer
questions for reasonable efforts was suggested as an alternative to
documenting an audit.

"Use the manifest with an 'E' code in Block 13" for documenting
certification of reasonable efforts.

One commenter only expressed support for a "short-form checklist" of
questions, provided that it was not a condition of the exclusion.

(447, 457, 460, 463, 466, 470, 472, 475, 476, 479, 482, 486, 489, 491,
492, 495, 507, 509, 516, 525, 529, 534, 538, 543, 548, 549, 558, 559,
563) 

7.6.4 - Response

After evaluating the comments, EPA has concluded that it is important
for hazardous secondary material generators to produce documentation to
demonstrate the reasonable efforts condition has been met prior to
transferring hazardous secondary materials to a reclamation and/or
intermediate facility. We believe this requirement helps generators
support their position that hazardous secondary materials have not been
discarded and helps regulators determine whether a generator has
satisfied this condition. This is critical to ensure that generator
liability for any discard is clearly defined in the event its hazardous
secondary materials are discarded by another facility at some point in
the future. Since updates of reasonable efforts are required at a
minimum of every three years, EPA believes generators should maintain
documentation for a minimum of three years to show that the requirement
to update reasonable efforts has been satisfied. 

Based on commenter input, we understand that audits and evaluations of
reclamation facilities are not always kept on-site and may be maintained
at a generator's headquarters or at another off-site location. For this
reason, EPA is requiring that documentation must be made available upon
request by a regulatory authority within 72 hours, or within a longer
period of time as specified by the regulatory authority. We agree with
commenters that this requirement is necessary to ensure regulatory
authorities are able to verify this condition is satisfied. We
understand that in the age of near-instantaneous communication, a
hazardous secondary material generator performing reasonable efforts
prior to transferring hazardous secondary materials should be able to
retrieve documentation with relative ease. We also note that time frames
for producing documentation are generally determined by regulatory
authorities on a case-by-case basis and time frames are clearly outlined
by authorities within RCRA Section 3007 information request letters.

In response to the comments we received, we believe by codifying
questions (1) - (5), we have clarified that generators must be able to,
at a minimum, document their affirmative responses to the questions in
order to satisfy the condition. We believe this requirement is specific
enough to satisfy commenters' interest in a clearly defined
documentation requirement. However, we do not believe it is necessary to
mandate that, for example, audits be specifically required for
documentation. Instead, we prefer to maintain some flexibility in terms
of the format for documenting the condition based on commenter input and
the knowledge that each reasonable efforts inquiry will be unique. This
flexibility for documentation is also in response to commenter concern
about the confidentiality of audits; although we never anticipated, as
suggested by a commenter, that documentation could be made available to
"[the] media, non-governmental organizations, consultants, and
competitors of the facility," or other third parties. We do not believe
this flexibility will in any way impact the ability of regulatory
authorities to determine whether the condition is satisfied. We believe
the certification statement is critical for ensuring accountability for
satisfying the condition and that the act of making reasonable efforts
is in fact genuine. In the event of an enforcement action, we believe
the certification will lend support to hazardous secondary material
generators needing to prove that the reasonable efforts condition was
met. We find the generator suggestion of maintaining a document on-site
confirming an audit was performed, and that the recycling facility was
approved for use via a generator company's internal review process,
would be an acceptable form of certification, provided it also met the
requirements of 40 CRF 261.4(a)(24)(v)(C)(1) and
261.4(a)(24)(v)(C)(2).However, we do not think a certification alone
could satisfy the documentation requirement and note that questions (1)
- (5) would have to be answered in order to be certified; therefore,
requiring the responses be documented is necessary for an authorized
representative to certify the condition. Based on our understanding of
existing best audit practices and on commenter feedback, we strongly
believe documenting evaluations of facilities is a sound business
practice that does not pose any significant burden to generators. 

We also disagree with other commenter provided suggestions about
documentation of reasonable efforts for the following reasons:

Documenting legitimacy determinations is not a requirement of 40
CFR260.43; therefore, it is not necessary to include it within a
generator's documentation of reasonable efforts.

We do not believe it is necessary to submit documentation to regulatory
authorities, in a notification or any other format, if it is maintained
on-site and easily produced for review by such authorities. 

Based on our understanding of how often generators currently audit
facilities, and on input from commenters, we believe it is necessary to
maintain documentation for three years. This is the required frequency
for updating reasonable efforts; therefore, it makes sense that every
time reasonable efforts are conducted, documentation of questions (1) -
(5) and a certification statement are updated and maintained for review.
(For more information about the frequency for updating reasonable
efforts, please refer to latter section of this document entitled,
"Frequency of periodically updating reasonable efforts.") 

We do not believe there is a persuasive or strong enough distinction
between what we are finalizing and the following commenter suggestion: a
certification statement should be required in lieu of specific
documentation and that backup documentation must be made available for
review by regulatory authorities.

Since the severance of a generator's RCRA liability under the
transfer-based exclusion is not a characteristic that is shared with
other recycling exclusions, we do not agree with the commenter who
argued against a documentation requirement by noting that other
exclusions do not require it. We believe documentation is critical for
ensuring that generators have in fact made reasonable efforts and for
verifying that the generator did conduct reasonable efforts, and
therefore is not liable under RCRA for managing the hazardous secondary
material as a hazardous waste in the event of future discard by the
reclaimer or other parties.

We disagree that because certification is a normal business practice it
should not be a requirement. It is our understanding that not all
generators currently evaluate facilities; thus, they do not certify
evaluations. As a result, we believe it is critical to capture this
practice within the regulatory requirement for reasonable efforts. 

We do not believe that because a generator documents and satisfies the
reasonable efforts condition for the transfer-based exclusion from the
RCRA definition of solid waste that the generator will believe it is
shielded from state or federal CERCLA liabilities. To clarify a
generator's liability with respect to the reasonable efforts condition,
we included a discussion of liability in the preamble. (For more
information, please refer to section VIII(E) of the preamble to today's
rulemaking.) 

With respect to commenter support for documenting only pre-transfer and
post-transfer questions, or a "short-form checklist" of questions, we
believe requiring questions (1) - (5) is the most appropriate approach
for defining reasonable efforts and that documenting responses to those
questions is necessary and appropriate.  (For more information about the
questions defining "reasonable efforts," please refer to an earlier
section of this document entitled, "Questions that reasonable efforts
must address at a minimum.")

Use of the hazardous waste manifest form is not a requirement of the
transfer-based exclusion; therefore, it is not an appropriate method for
documenting certification of reasonable efforts.

7.6.5 - Certification of reasonable efforts

7.6.5 - Summary

EPA solicited comment on requiring hazardous secondary material
generators to certify they made reasonable efforts prior to arranging
for transport of hazardous secondary materials to be recycled. As
discussed in the preamble to the March 2007 supplemental proposal, the
certification statement would be a form of documentation necessary for
each reclamation facility and would be signed and dated by an authorized
representative of the generator company. We also provided certification
language as an example. 

Several commenters, including recyclers, all responding states but one,
and a few industry generators and associations, commented in favor of
requiring hazardous secondary material generators to certify they had
met the reasonable efforts condition. All commenters that responded
regarding the example certification statement supported the language. A
few commenters reiterated that generators must certify reasonable
efforts for each reclamation facility and certification should not be
necessary for RCRA Part B permitted facilities. One commenter requested
that the certification statement must be made "prior to implementing
exempt operations." Another commenter believed a certification statement
would improve the enforceability of the reasonable efforts condition and
a few commenters believed it provides the bare minimum information to
regulators who may later want to verify that the condition is met. One
commenter stated that the certification correctly places responsibility
with the generator for managing hazardous secondary materials and that
certification by a corporate official is necessary to determine an
evaluation was properly conducted.  A generator currently auditing its
waste facilities stated that "a letter signed and dated by the
department manager is mailed to the audited facility stating the results
of the audit," and that the letter should act as a certification.
Another commenter suggested that given the large number of facilities
for which reasonable efforts is required, having a company
representative, as opposed to an "authorized representative," sign and
date a certification should be sufficient and would be less burdensome.
A few commenters proposed the generator certification and signature be
built into the one-time notification that EPA is requiring for the
exclusion. One commenter suggested EPA's Uniform Hazardous Waste
Manifest could be used for certification and another stated the
certification is similar to the one required for land disposal of
hazardous wastes. Finally, one commenter asked that certification be an
annual requirement.

A smaller number of comments from industry generators and associations,
and one state not supporting the reasonable efforts condition, opposed
the certification requirement. A few generators found the certification
statement to be overly burdensome and stated it would stifle the use of
third-party reclaimers. Additionally, a few commenters found a
certification unnecessary since a one-time notification is required,
current generator evaluations are already sufficient, documentation of
reasonable efforts is an adequate requirement, additional reporting
would be likely through the RCRA Biennial Report, and currently
facilities are not required to certify hazardous waste determinations.
One generator, who currently audits reclamation facilities, stated it
could not certify the accuracy of information prepared by third parties,
nor could it certify responses by reclamation facilities to questions
(B) through (E), which EPA discussed in the preamble. Another generator
responded that without further clarification as to the minimum
requirements for satisfying reasonable efforts, the generator could not
certify the condition was met. A commenter also suggested requiring
certification of reasonable efforts for reclamation facilities that
recycle hazardous secondary materials was unnecessary if certification
is not required for the storage, treatment, and disposal of hazardous
waste.

(442, 447, 452, 457, 458, 460, 463, 466, 470, 472, 475, 476, 479, 481,
485, 489, 491, 492, 495, 507, 509, 512, 516, 519, 525, 527, 529, 534,
538, 539, 543, 548, 549, 558, 559, 564)

7.6.5 - Response

After evaluating the public comments, the majority of which supported a
certification, EPA has concluded that certifying the reasonable efforts
provision is a necessary and minimally burdensome requirement for
ensuring the reasonable efforts condition is met prior to transferring
the hazardous secondary materials to a reclamation or intermediate
facility. This certification requirement is not unlike existing
certifications found in existing RCRA documentation with which the
regulated community is familiar and appear to function well, such as the
RCRA Site ID Form, RCRA financial assurance requirements, and the
Uniform Hazardous Waste Manifest. We also strongly believe having an
authorized representative, who can be any appointed representative of
the generator company, certify reasonable efforts is critical for
guaranteeing accountability by the generator for meeting the condition
and for ensuring that the act of making reasonable efforts is in fact
genuine. It will also facilitate any review by regulatory authorities
investigating whether the conditions of the transfer-based exclusion are
satisfied and help delineate liability under RCRA if the materials were
discarded. Since individual generators may use any form of credible
evidence, we believe it is critical for all generators to uniformly
certify that the condition is satisfied demonstrating that they
evaluated the information and made a reasonable determination.
Furthermore, we find the certification requirement to be appropriate
based on our understanding that third-party auditors and other
information providers do not generally draw any conclusions based on
their audits, but simply report the results to generators. While a
generator may use any credible information for making reasonable
efforts, the certification statement would affirm that a generator used
information that is gathered and documented during the reasonable
efforts inquiry to draw the conclusion that the facility meet the
reasonable efforts condition, similar to how generators currently draw
conclusions based on third-party audit documents. 

Therefore, in today's final rulemaking, we are finalizing a requirement
that hazardous secondary material generators must certify that
reasonable efforts were made for each reclamation and intermediate
facility prior to transferring hazardous secondary materials to such
facilities. A certification for each facility will be required every
three years at a minimum and we believe this frequency is adequate for
generators making reasonable efforts to ensure their hazardous secondary
materials are properly and legitimately reclaimed and thus are not
discarded.

We are not requiring that certification be provided in a specific
format, such as the notification or manifest form, because we believe
the notification form is not an appropriate option and we are not
requiring manifesting within the final rulemaking. We are not requiring
certification to be included as part of the notification because the
consequences for failing to certify reasonable efforts (as a condition
of the exclusion) and failing to submit notification (as a requirement
of the exclusion) are not the same. If a facility fails to certify
reasonable efforts, the excluded status of its materials may be lost.
However, if a facility fails to submit a notification, although in
violation of the notification requirement, the excluded status of its
materials would not be lost provided it is complying with the conditions
of the exclusion. Therefore, to avoid potential ambiguities when a
facility fails to notify, we determined it was best to not include the
reasonable efforts certification as part of the notification. While
either of these commenter suggested options would serve to provide a
concrete, existing method for certification, we believe that the
certification details outlined in the regulatory text are adequate for
ensuring that generators have conducted reasonable efforts and thus are
not discarding their hazardous secondary material.

With respect to those commenters who opposed certification and
specifically argued that requiring such certification would stifle the
use of third-party auditors, it is our understanding that third-party
auditors do not generally draw any conclusions based on their audits,
but simply report the results. In addition, the reasonable efforts
condition requires the hazardous secondary material generator to decide
whether a reclaimer is acceptable, similar to how generators currently
draw conclusions based on third-party audits. The certification
statement would clearly show a generator used the information gathered
during the reasonable efforts inquiry. 

Therefore, we disagree with those commenters who stated that requiring a
certification would constitute a significant new burden. Rather, EPA
believes requiring a hazardous secondary material generator to certify
the reasonable efforts condition would provide them the flexibility to
use audits or other information necessary in certifying the condition of
the exclusion was met. We also believe the certification requirement for
generators is necessary to satisfy the reasonable efforts condition
because it supports the underlying basis for reasonable efforts and for
determining when materials of concern are not discarded. For the above
reasons, we also disagree with the comment that documentation of
reasonable efforts is adequate without certification.

We also find the commenter example of an existing practice of sending a
letter with audit results to an audited facility would need to include
the certification language in 40 CFR 261.4(a)(24)(v)(C)(2) in order to
meet the reasonable efforts condition. 

7.7 - Imports/Exports

7.7 - Summary

SUPPORT EXPORTS UNDER EXCLUSION: Some commenters supported allowing both
imports and exports of hazardous secondary materials for reclamation
under the transfer-based exclusion. One commenter supported the
requirements as proposed, believing the requirements are sufficient
enough to ensure that hazardous secondary materials will not be
discarded, but are not so burdensome so as to prevent exporters from
seeking legitimate recycling opportunities in other countries. One
commenter believed EPA should allow exports for recycled materials
"applied to the land' to prevent the loss of legitimate recycling
opportunities due to overly conservative assumptions. Specific to EPA's
2003 proposal, one commenter supported EPA's proposal that hazardous
secondary materials destined for recycling in a continuous manufacturing
process should not be regulated as hazardous wastes when sent to or from
the United States under import and export regulations and prevailing
OECD treaties. This commenter stated that many domestic plants have
sister plants located in other nations and the option to process a wider
range of materials at these facilities would potentially result in
additional secondary material recovery options that are not even
considered under the current regulatory program. This commenter further
supported the inclusion of imports and exports if EPA were to adopt a
broader exclusion. Another commenter, also in response to EPA's 2003
proposal, urged EPA to clarify how the exclusion would apply to imports
and exports. One state commenter noted a limitation of the NAICS code,
in the 2003 proposal, is verifying that industries in a foreign country
actually fall within the same industry as a generator. [0081, 0083,
0095, 0438, 0472, 0479, 0481, 0486, 0507, 0529, 0545, 0550]

OPPOSE EXPORTS UNDER EXCLUSION: Some commenters opposed allowing exports
of hazardous secondary material under the transfer-based exclusion,
arguing instead that the current hazardous waste export regulations
under 40 CFR 262 Subparts E and H should be required. One commenter did
not advocate a less rigorous approach than previous RCRA rules for any
domestic waste, but if less rigor must be applied allegedly to encourage
domestic recycling, this should be done in the RCRA provisions for
domestic hazardous waste management stipulated by differing destinations
and not by altering the definitions and scope of the law. [0470, 0475,
0484, 0502, 0538, 0559, 0562] 

EXPORT REQUIREMENTS NOT NECESSARY: One commenter believed EPA should
eliminate the export notification and other requirements because the
proposed notice and consent procedures are inconsistent and unnecessary
given EPA's existing export regulations and the laws of importing
countries and international regimes, which this commenter believed to be
sufficient to ensure the hazardous secondary materials will be recycled
in an environmentally sound manner. This commenter also believed that,
under the terms of the proposal, a generator would be required to assure
itself through "reasonable efforts" that the reclaimer will manage the
materials in an environmentally sound manner and thus any person
claiming the exclusion will bear the burden of demonstrating that the
materials satisfy the conditions of the exclusion. This commenter
believed the proposed export requirements would serve as a barrier to
recycling of secondary materials in other countries and would discourage
overall recycling of hazardous secondary materials. Commenters argued
that EPA's proposed export requirements impose an unnecessary burden on
exports where an importing country's domestic laws do not require prior
consent because the importing country considers the secondary materials
sent for recycling to be commodities or non-hazardous wastes and, thus,
U.S. export controls would unduly restrict legitimate markets for
secondary materials in other countries and in turn limit options for
recycling of secondary materials. This commenter believed EPA needs to
work more closely with its own Office of International Affairs and with
the State Department to ensure a more reasonable approach to dealing
with exports of hazardous secondary materials. One commenter believed
the proposed notice and consent procedures are inconsistent with EPA's
existing export procedures and thus will confuse importing countries
because some secondary materials excluded from U.S. hazardous waste
regulations require importing country consent and others do not. One
commenter believed EPA's requirement for generators to provide
notification of the excluded material prior to export was in effect
applying "derived-from" principle to residuals generated from the
reclamation of excluded hazardous waste. This commenter believed that if
a hazardous waste determination has been performed and the material is
determined to be non-hazardous waste, then this commenter does not think
export notification should be required. [0438, 0479, 0481] 

EXPORTS WILL RESULT IN ENVIRONMENTAL DAMAGE: One commenter strongly
disagreed with EPA's approach, arguing that there is certainly no
guarantee or method of enforcement to ensure the hazardous secondary
materials are in fact properly managed and recycled at overseas
locations, particularly with the limited information required in the
proposed notification and recordkeeping. This commenter argued that,
once the material is exported, there will be no labeling or tracking of
the material and there will be no paperwork in place to notify the
receiving country inspectors that this material has special conditions
attached to it and that it is a hazardous secondary material. [0475]

Commenters argued that verifying that sham recycling is not occurring
and determining that companies overseas are complying with the criteria
in legitimate recycling will be impractical given the limited authority
and resources available to both generators and states. Another state
commenter did not support the proposed exclusion for exported hazardous
secondary materials because the proposal increases the temptation and
opportunity for export-dumping, since the generator would not have to
use a hazardous waste transporter in the U.S. Many commenters noted
recent coverage of foreign mismanagement of exported electronics and
batteries as an indication for damage incidents resulting from
mismanagement of wastes subject to current exclusions. One commenter
expressed concern that any exclusion provided to battery breakers could
weaken North American recyclers of lead-acid batteries by creating an
economic incentive to shift battery recycling activities to other
countries where environmental laws are less stringent or less certain.
As a result, the shift of the lead-acid battery recycling market
overseas could undermine gains in protection of human health and the
environment that EPA has achieved with the current well-balanced
regulatory scheme. [0095, 0470, 0483, 0502, 0543, 0559, 0562]

Some commenters did not support exports of hazardous secondary materials
because the U.S. would potentially be exposing foreign countries to the
mismanagement of U.S. generated hazardous waste, arguing that the
economic incentives for exports of hazardous waste to countries are
indisputable because environmental standards in industrialized countries
significantly raise the cost of those activities in developed countries
and, thus, developing countries can provide disposal at a fraction of
the cost. Another commenter further believed the rule will have a
significant impact on international efforts to curtail both legal and
illegal traffic in hazardous electronic waste. This commenter argued
that the electronic waste trade, which has resulted in severe
environmental and occupational impacts, continues unabated because of
exemptions already carved into RCRA for recycling and should serve as a
warning against future delisting. This commenter further argued that
current exclusions for lead acid batteries, circuit boards, contaminated
scrap metals and mixed electronic wastes allows these materials to be
freely exported without controls and that this is illegal from an
international standpoint and stands as a global environmental injustice.
Lastly, one commenter argued that EPA provides no data or analysis
concerning the potential impacts of the exportation of hazardous
secondary materials for reclamation or recycling and that EPA should
determine the potential effect of its supplemental proposal on human
health and the environment in importing countries.[0484, 0502, 0559] 

EXPORT REQUIREMENTS INCONSISTENT WITH INTERNATIONAL AGREEMENTS:  Some
commenters believed that the proposal is inconsistent with the Basel
Convention, the OECD 1986 accord, and the 1992 OECD accord. Some
commenters described the development and principles of the Basel
Convention on the Transboundary Movement of Hazardous Wastes and Their
Disposal, arguing that the Convention has been highly successful and
that the U.S. needs to be in step with the Convention, despite the fact
that the U.S. is not a party. Regarding the Basel Convention, some
commenters argued that, although the U.S. is not a Party of the Basel
Convention and therefore not legally liable for Basel's requirements,
the U.S. is aiding and abetting illegal trafficking in hazardous waste
by other countries. Regarding the OECD treaties, which are legally
binding on the U.S., one commenter argued the proposed rule violates the
1986 OECD Treaty and the 1992 OECD Treaty in the following ways:

Violations of 1986 and 1992 OECD Treaties:

While the proposed rule introduces a new form of prior informed consent,
the definitions of what is a hazardous waste under the OECD decision and
the proposed rule are not in alignment;

The proposed rule does not require the consent of the receiving country
for hazardous electronic waste, lead acid batteries and other hazardous
waste exports as defined as such by the OECD that have been exempted
through earlier delistings; 

The proposed rule does not address that the United States currently
exercises no control, nor shows any concern as to whether the hazardous
wastes they export are destined for "adequate facilities." The
requirement for environmentally sound management by the exporter is
glaringly absent;

The proposed rule's claim that certain wastes are not hazardous simply
because they are recyclable is not consistent with the existing
obligations under OECD accords which are in fact legally binding on the
United States;

The proposed rule's requirements are far less comprehensive than Subpart
H of RCRA and fail to require contracts as required under the OECD
treaty;

The proposed rule fails to require the duty to re-import the material in
question;

The right of a Member country to control wastes differently must be on
an exceptional basis and in order to protect human health and the
environment;

A Member country may, in conformity with domestic legislation, legally
define or consider an Amber waste subject to the Green controls only if
it does not exhibit hazardous characteristics; and

All such deviations must be notified to the OECD Secretariat and Member
states.

This commenter argued that only the United States, unique among nations,
has concluded that materials cease to be a "waste," or less hazardous,
simply because somebody wants to recycle them. Under the Basel
Convention, while a national designation of what constitutes a hazardous
waste can augment the Basel definitions, it is not possible that a
country can subtract from the internationally agreed Basel lists simply
on the basis of national definitions; the vast majority of what the U.S.
will suddenly be designating as non-wastes will still be defined as
hazardous wastes under Basel and in the laws of 170 countries. This
commenter argued that generators should manage the materials as
hazardous waste; the receiving country could then have their own
exclusion or apply certain conditions if they want, just as specific
conditions and exclusions can be applied to hazardous waste that arrives
at the U.S. border. One commenter believed that EPA should strike the
proposed 40 CFR 261.4(a)(25) because imposing export controls on
excluded hazardous secondary materials was premature, overly broad and
unnecessarily burdensome, given anticipation of U.S. ratification of the
Basel Convention. This commenter suggested that EPA, instead, require
exporters to submit a one-time notification which would allow EPA to
track exports, but without imposing undue burdens on exporters,
importing countries and markets for recycling of secondary materials.
[0481, 0502, 0559] 

STRENGTHEN EXPORT REQUIREMENTS: One commenter believed that if EPA is
going to retain the export provision the Agency needs to strengthen the
conditions for recordkeeping, characterization, shipping procedures and
documentation. It is also particularly important that the generator
facility maintain records of their audits and documentation used to meet
the reasonable efforts provision, as EPA and the states will not have
any access to the overseas reclamation facility. One commenter argued
that international shipments should be allowed, but due to restrictions
on the shipment of this material to most other countries governed by the
Basel Convention, the United States should limit this exclusion to
countries with which it has a bilateral agreement allowing this
practice. Another commenter believed that EPA should limit the scope of
the rule to allow export for recycling only to countries that are
members of the North American Free Trade Agreement (NAFTA) in order to
assure hazardous secondary materials are managed in an environmentally
sound way. One commenter argued that exports should not apply to
lead-acid batteries regulated under the specific requirements of 40 CFR
266.80 because the supplemental proposed rule could create an incentive
to export batteries for recycling to countries that may not have similar
restrictions as the United States or that may result in less recycled
lead that is available for use in the United States. This commenter
believed these incentives would undermine the purpose of the revisions
to promote safe recycling of materials and to reduce the amount of
hazardous materials that may be available for release into the
environment. [0475, 0502, 0514, 0545]

IMPORTS: One commenter said that hazardous waste that is generated in a
foreign country can enter the U.S. exempted, if the party importing it
claims that the waste is an excluded material because of the intent to
recycle it. Since there would not be a manifest and the proposed
recordkeeping and notification provisions are weak, this commenter
believed the rule would create a huge opening for waste to be dumped in
the U.S. Another commenter supported imports of hazardous secondary
materials and questioned why the Agency did not address imports in its
proposal. [0119, 0491]

GLOBAL COMPETITION: One commenter argued that EPA should limit
exportation outside of the NAFTA trade area for end-of-life products in
the recycling industry until a system can be developed in the future
that guarantees a level playing field in environmental management,
community protections and occupational health. Another commenter noted
that a shift of the lead-acid battery recycling market overseas could
lead to serious erosion of the technological capabilities of the North
American industry to recycle these materials. This commenter suggested
that, if EPA were to allow exports of lead acid batteries, the Agency
could clarify its export regulations to ensure the exports only occur to
countries with specific bi-lateral agreements, such as NAFTA, where the
parties have detailed appropriate environmental requirements. One
commenter did not support exports of hazardous secondary materials
because exports would constrain the development of our own U.S.
recycling infrastructure. [0143, 0483, 0484]

EXPORT REQUIREMENTS NOT CONSISTENT WITH OTHER EXCLUSIONS: One commenter
noted that a number of the existing exclusions from the definition of
solid waste are not subject to notice and consent procedures for export.
This commenter believed that imposing notice and consent in the proposed
rule is therefore arbitrary and serves no environmental purpose.
Furthermore, where a secondary material is eligible for more than one
exclusion, the generator is likely to choose the exclusion for which no
export requirements apply. [0481] 

7.7 - Response

SUPPORT/OPPOSE EXPORTS UNDER EXCLUSION: EPA agrees with those commenters
who support allowing exports of hazardous secondary materials for
reclamation to a foreign country under the transfer-based exclusion. We
believe that hazardous secondary materials exported for reclamation in
accordance with the final rule are not discarded and not solid wastes
and, therefore, we have no basis for prohibiting exports when a
hazardous secondary material generator complies with the regulatory
requirements. We also agree with commenters that the conditions of the
exclusion are sufficient to ensure that hazardous secondary materials
are not discarded, but are not so burdensome so as to prevent exporters
from seeking legitimate recycling opportunities. 

Although the final rule mirrors aspects of the hazardous waste export
regulations (notice and consent, annual reports etc.), hazardous
secondary materials managed according to the final rule are not solid
and hazardous wastes and thus 40 CFR 262 Subparts E and H would not
apply. 

We are not including exports for hazardous secondary material "applied
to the land" because the scope of our rulemaking is limited to materials
being reclaimed; our rulemaking does not apply to recycling involving
"use constituting disposal" or "burning for energy recovery." 

We note that our March 2007 supplemental proposal and the final rule do
not include limitations on reclamation regarding NAICS codes (as
proposed in October 2003). Therefore, there is no condition that
hazardous secondary materials must be reclaimed in a continuous process
within the same industry and thus no need to verify that industries in a
foreign country fall within the same industry as the generator.

EXPORT REQUIREMENTS NOT NECESSARY: We do not agree with commenters who
believe the notice and consent requirements are not necessary given
EPA's export regulations and the laws of receiving countries. We note
that hazardous secondary materials are not solid and hazardous wastes,
provided the conditions of the final rule are complied with, therefore,
the hazardous waste export regulations in 40 CFR 262 Subparts E and H
would no longer apply. Furthermore, we confirm that hazardous secondary
materials reaching the border of a receiving country would be subject to
the receiving country's applicable laws and regulations; however, in
order for the receiving country to apply its regulations, it must be
made aware of the intent to transfer and the nature of the hazardous
secondary material. Therefore, we are requiring notice and consent under
the final rule to provide the receiving country essential information to
enable the receiving country to make an informed decision regarding: 1)
whether the hazardous secondary material can be imported for reclamation
and not discarded; and 2) to determine which of the receiving country's
laws and regulations would apply. 

We disagree with commenters who believe the hazardous secondary material
generator conditions are sufficient to ensure the materials will not be
discarded abroad and thus further requirements, such as notice and
consent, are not necessary. U.S. regulatory authorities cannot enforce
conditions on facilities located in foreign countries and thus it is
critical we inform and engage the regulatory authorities in these
foreign nations to enable them to monitor compliance and enforce against
sham recycling operations. Simply relying on the hazardous secondary
material generators to perform reasonable efforts would not provide the
receiving country with information needed to evaluate and assess how the
hazardous secondary material will be reclaimed and regulated within its
borders.

We do not believe the requirements on exports of hazardous secondary
materials are too burdensome so as to discourage overall recycling of
hazardous secondary materials. In fact, the exclusion achieves an
overall net burden reduction than what is required under the existing
export regulations, which these materials were previously subject to. We
also do not believe the regulations are unnecessarily burdensome in
cases where the receiving country considers the materials to be
non-hazardous wastes, since information in the notice and consent
requirement is needed to allow the receiving country to make this
determination in the first place.

We agree to some extent with commenters who believed the proposed notice
and consent requirements for hazardous secondary materials may cause
confusion for receiving countries due to the inconsistency with notice
and consent requirements for hazardous wastes. In the final rule, we
have modified the notice requirements for hazardous secondary materials
to more closely align with the notice requirements for hazardous wastes
under 40 CFR Subpart E. We believe this will reduce confusion on the
part of the receiving country since the notices will appear nearly
alike, regardless of if the material was regulated as hazardous
secondary material or hazardous waste in the U.S. We've also modified
the final rule to allow tacit consent for exports of hazardous secondary
materials to OECD Member countries to better align with current
practices under OECD agreements and our existing 40 CFR Subpart H.

We do not believe we fully understand the comment that EPA's requirement
for hazardous secondary material generators to provide notice of export
for the excluded material was, in effect, applying the "derived-from"
principle to residuals generated from the reclamation of excluded
hazardous waste. The exclusion applies to hazardous secondary materials
sent for reclamation to a reclamation facility located in a foreign
country; therefore, EPA has no authority to apply the "derived-from"
rule to residuals generated from the reclamation process within the
receiving country. Furthermore, for reclamation within the U.S., under
the final rule the "derived-from" rule does not apply since these
hazardous secondary materials are not hazardous waste; however, if any
residuals from the reclamation process exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261, or themselves
are listed hazardous wastes, they are hazardous wastes (if discarded)
and must be managed according to the applicable requirements of 40 CFR
parts 260 through 272.

EXPORTS WILL RESULT IN ENVIRONMENTAL DAMAGE: We believe the exclusion
for hazardous secondary materials exported for reclamation contains the
necessary conditions to ensure the materials will be reclaimed and not
discarded. What EPA can and must do is to ensure that our domestic
hazardous secondary material generators are responsible for performing
reasonable efforts as set forth in 40 CFR 261.4(a)(24)(v)(B) with
respect to a foreign reclamation facility and that proper notice is
given to the regulatory authorities in the receiving country to enable
them to make an informed decision regarding the proper management and
compliance monitoring of the hazardous secondary materials within their
borders. Both of these conditions, in addition to others, such as
recordkeeping, are required for the exclusion of hazardous secondary
materials exported for reclamation. Furthermore, we note that, once
reaching the borders of the receiving country, the hazardous secondary
materials would be subject to all applicable laws and regulations of
that country, including any required labeling and tracking of the
material.

In response to commenters who referenced recent news stories regarding
the mismanagement of electronic waste and batteries abroad, we note that
some of these wastes are not currently subject to notice and consent
requirements under the existing hazardous waste regulations. We believe
the conditions under the final rule, which include notice and consent,
are sufficient to ensure the hazardous secondary materials will be
reclaimed and not discarded. In response to the comment that argued EPA
must regulate export of materials already excluded from the definition
of solid waste, such as scrap metal and circuit boards, we note that
this type of action is outside the scope of the rulemaking (EPA,
however, is planning to propose notice and consent requirements for
spent lead-acid batteries exported for reclamation under a separate
rulemaking). Regarding one commenter's concern that the exclusion would
adversely affect battery recycling; we note the final rule does not
apply to spent lead-acid batteries.

EXPORT REQUIREMENTS INCONSISTENT WITH INTERNATIONAL AGREEMENTS: We
disagree with commenters who believe the final rule runs contrary to
international agreements controlling the movement of hazardous waste. We
note the U.S. is an OECD Member and is, therefore, legally bound to
comply with the OECD's "Decision of the Council C(2001)107/FINAL,
Concerning the Control of Transboundary Movements of Wastes Destined for
Recovery Operations, as amended by C(2004)20," which provides a
framework for OECD Member countries to control transboundary movements
of recoverable waste in an environmentally sound manner. This Amended
2001 Decision recognizes that Member countries may develop their own
regulations to determine whether or not materials are controlled as
hazardous wastes. Specifically, the Amended 2001 Decision states: "[i]n
addition, certain Member countries have developed regulations used to
determine whether or not wastes are controlled as hazardous wastes."
Under the final rule, hazardous secondary materials meeting certain
conditions and exported for reclamation are not solid wastes under U.S.
regulation. The Agency notes, however, that once hazardous secondary
materials reach the border of the receiving country, the hazardous
secondary material is regulated in accordance with the receiving
country's laws and regulations. In other words, such materials that are
not solid and hazardous wastes under U.S. hazardous waste regulations
may be solid and hazardous wastes under the receiving country's
regulations and, therefore, facilities should be aware of the
requirements that competent authorities of receiving countries may
impose. 

Additionally, some commenters asserted that the proposed rule was
inconsistent with the Basel Convention, a multilateral international
agreement governing the transboundary movements of hazardous wastes. The
U.S., however, is not a party to the Basel Convention and thus is not
held to the Convention's agreements (although, because the Convention
prohibits exports between a Basel party and a non-Basel party, the U.S.
may not export hazardous waste to any Basel party, absent an acceptable
bilateral or multilateral agreement with that party). 

STRENGTHEN EXPORT REQUIREMENTS: In response to comments on the March
2007 supplemental proposal, EPA is requiring, in addition to conditions
already proposed, hazardous secondary materials generators transferring
hazardous secondary materials to another person (including to a
reclamation facility located in a foreign country) to document and
certify reasonable efforts and maintain confirmations of receipt from
the reclamation facility. In addition, EPA is also requiring hazardous
secondary material generators that export hazardous secondary materials
to submit annual reports detailing the types and volumes of hazardous
secondary materials exported abroad. We believe these additional
recordkeeping and documentation requirements are necessary to ensure
hazardous secondary materials are not discarded and will assist
regulatory authorities with monitoring compliance of the exclusion. 

We are, however, not limiting exports to certain countries, such as our
bi-lateral partners or countries that are members of the North American
Free Trade Agreement (NAFTA). We consider hazardous secondary materials
exported for reclamation under the conditions of the final rule to be
not discarded and thus not solid wastes. We therefore have no rational
basis to limit exports of these materials to a subset of foreign
countries (however, we do note here, and in the preamble to the rule,
that because the Basel Convention prohibits exports between a Basel
party and a non-Basel party, the U.S. may not export hazardous waste to
any Basel party, absent an acceptable bilateral or multilateral
agreement with that party). We further believe that codification of an
objective standard for reasonable efforts (i.e. the questions included
under 40 CFR 261.4(a)(24) (v)(B)) will ensure that hazardous secondary
material generators evaluate foreign reclaimers according to an
appropriate and consistent standard to ensure the materials will be
managed in a manner that is protective of human health and the
environment and not discarded. Regarding one commenter's concern that
the exclusion would adversely affect battery recycling, we note that the
final rule does not apply to spent lead-acid batteries.

IMPORTS: We have included language in the preamble to the final rule
that clarifies that imports of hazardous secondary materials are
eligible for the transfer-based exclusion, provided that the person who
imports the hazardous secondary material fulfills all requirements and
conditions (e.g., notification, reasonable efforts, recordkeeping) for a
hazardous secondary material generator under 40 CFR 261.4(a)(24) of the
final rule. We believe these conditions will ensure hazardous secondary
material imported into the U.S. will be managed safely and in the same
environmentally protective manner as hazardous secondary materials
generated domestically. We further note that persons who import
hazardous secondary materials are not eligible for the
generator-controlled exclusion since this exclusion applies only to
hazardous secondary materials generated and reclaimed within the U.S. or
its territories. We do not have sufficient information regarding how
imports of hazardous secondary material generated from foreign
manufacturing processes, and thus subject to foreign laws and
regulations, would affect the likelihood of discard under the
generator-controlled exclusion.

GLOBAL COMPETITION: EPA does not have the authority to prohibit, or
limit, exports to foreign countries on the basis that we must prevent
shifts in the recycling market from the U.S. to other foreign countries.
Our authority instead is limited to regulating materials that have been
discarded and are thus solid and hazardous wastes. Furthermore, we
believe that codification of an objective standard for reasonable
efforts (i.e. the questions included under 40 CFR 261.4(a)(24)(v)(B))
will ensure hazardous secondary material generators evaluate foreign
reclaimers according to an appropriate and consistent standard to ensure
the materials will be managed in a manner that is protective of human
health and the environment. Regarding one commenter's concern that the
exclusion would adversely affect battery recycling, we note that the
final rule does not apply to spent lead-acid batteries. 

EXPORT REQUIREMENTS NOT CONSISTENT WITH OTHER EXCLUSIONS: EPA, in the
past, has excluded certain types of materials from the definition of
solid waste and has required conditions (such as limits on speculative
accumulation) that are appropriate and necessary for each specific
exclusion. Under the final rule, a wide variety of hazardous secondary
materials from many types of industries are eligible for the exclusions,
and thus EPA has deemed it appropriate and necessary to require notice
and consent for exports in order to provide receiving countries with
essential information about the hazardous secondary material to ensure
it is properly managed within the receiving country's borders. We also
note that requiring notice and consent for a solid waste exclusion is
not without precedent; the Agency currently requires notice and consent
for used cathode ray tubes exported for reclamation. Lastly, hazardous
secondary material generators do not have a choice between the exclusion
and an existing exclusion because the final rule requires that hazardous
secondary materials specifically subject to an existing exclusion from
the definition of solid waste must continue to meet the existing
conditions or requirements of that exclusion. 

7.7.1 - Export requirements

7.7.1 - Summary

Some commenters supported the requirements for exports of hazardous
secondary materials as proposed in 40 CFR 261.4(a)(25). These commenters
believed these requirements to be sufficient to ensure proper
management, handling and recycling of hazardous secondary materials, but
not so burdensome so as to prevent exporters from seeking legitimate
recycling opportunities in other countries. [0529, 0545]

One commenter believed that EPA's proposed notice and recordkeeping
requirements would create needless, duplicative and counterproductive
paperwork that will unnecessarily encumber and curtail the exporting of
secondary materials for reclamation. This commenter noted EPA has not
required export and consent procedures for other materials excluded from
the definition of solid waste when recycled and that notice and
recordkeeping are not necessary given existing international agreements
and laws of the importing countries, particularly where the importing
country considers the secondary materials sent for recycling to be
commodities or non-hazardous wastes. Another commenter opposed the
requirement to submit a one-time notification and some commenters
opposed the prohibition against brokers as part of the export
requirements. One commenter did not believe the requirements were
necessary or appropriate since both exporters and importers are capable
of ensuring that applicable laws and regulations for any hazardous
materials are followed; however, this commenter did not object to a
one-time notification or to the submission of an annual report. [0438,
0458, 0518]

Although a few commenters were opposed to allowing exports of hazardous
secondary material under the proposed rule altogether, one commenter
noted that requiring export notification is better than just applying
the conditional exclusion. This commenter also argued that EPA should
strengthen the conditions for recordkeeping, characterization, shipping
procedures and documentation. Another commenter believed that EPA's
notification and recordkeeping requirements for exporters were
inadequate and unenforceable and argued that EPA include export
requirements similar to what is required for exports of hazardous waste
including: use of a manifest; expanded notice of consent requirements;
post-shipment requirements, including requirements for when a shipment
cannot be delivered; exception reporting; annual reports; and
recordkeeping. One commenter argued that EPA's proposed export
requirements were significantly out of step with what will be required
by a Basel Party in order to respond to the consent and included a
comparison of EPA's notice requirements with that of a notification
under the Basel Convention. This commenter also believed that EPA should
require 40 CFR 262 Subparts E and H whenever wastes are exported,
arguing that these subparts were written with existing international
requirements of the OECD in mind and would avoid confusion when
communicating with competent authorities of other countries. [0475,
0502, 0559]

One commenter suggested EPA clarify that imports for transfers to third
parties for the purpose of reclamation be included at proposed 40 CFR
261.4(a)(24), noting that third parties often specialize in certain
reclamation activities (i.e., precious metal recovery) and that
providing for imports would allow legitimate reclamation to occur at
reclamation facilities within the USA. [0486]

Another commenter suggested EPA use an electronic notification form with
the required fields provided. This commenter also asked if EPA will be
required to respond to the notification and, if so, could the
notification be completed within a reasonable time to assure the
shipment takes place as scheduled. A second commenter believed that (D),
(E) and (F) are duplicative with the requirements under 40 CFR
261.4(a)(24)(i)-(iv) and are not necessary and that (G) is covered by
the mandatory reasonable efforts requirement. [0512, 0529]

One commenter said EPA set up an area of potential confusion by not
fully explaining the connection between the 261.4(a)(25) exports of
hazardous secondary materials under the transfer-based exclusion and
non-waste determinations established under 260.30. [0491]

Finally, two commenters specifically supported EPA's proposal to not
place reclaimer conditions (such as financial assurance requirements) on
foreign reclaimers since these reclaimers are not subject to U.S.
environmental laws and should not be forced to meet U.S. specific
requirements as a condition of doing business with U.S. suppliers.
Furthermore, one commenter believed it unnecessary for EPA to assert
RCRA jurisdiction over facilities in a foreign country as long as the
U.S. generator/exporter is made accountable through the reasonable
efforts and recordkeeping requirements as proposed in the supplemental
proposal. Four commenters specifically addressed the importance of
documenting and certifying reasonable efforts since EPA and the states
will not have any access to the overseas reclamation facility. [0475,
0482, 0529, 0545, 0558]

7.7.1 - Response

We agree with those commenters who supported our proposed requirements
for hazardous secondary material exported for reclamation at
261.4(a)(25). We consider these requirements to be necessary to ensure
the hazardous secondary materials are reclaimed and not discarded. This
includes requiring the generator to: notify the regulatory authority; be
responsible for performing reasonable efforts in order to evaluate a
foreign reclaimer's capacity for reclaiming the hazardous secondary
material; maintain records of all off-site shipments and confirmations
of receipt to ensure the hazardous secondary materials reached their
intended destination and were not discarded. We also believe it is
necessary to require the hazardous secondary material generator submit
notice and obtain consent prior to exporting hazardous secondary
material. This provides the foreign receiving country an opportunity to
review and evaluate their ability to properly manage the hazardous
secondary materials being reclaimed so as to avoid environmental damage
resulting from mismanagement of the materials. Therefore, with the
exception of a few changes (e.g., addition of annual reports for
hazardous secondary material generators and use of tacit consent for
exports to OECD Member countries), we are finalizing the export
requirements largely as proposed.  

We disagree with the commenter who felt the requirements at 261.4(a)(25)
were unnecessary and would create needless and duplicative paperwork. In
fact, many of the requirements under 261.4(a)(25) relate directly to the
hazardous secondary material generator requirements under 261.4(a)(24),
with the only additional requirements being notice and consent and
annual reports, which are necessary to provide the receiving country
with adequate information in order to make an informed decision
regarding the export. We also disagree that EPA should not require
notice and consent for hazardous secondary materials based on the
argument that EPA has not required notice and consent for other
definition of solid waste exclusions. Rather, when promulgating
exclusions from the definition of solid waste, we codify export
requirements where it is logical and necessary to do so. In this case,
many types of hazardous secondary materials from a number of industrial
processes may take advantage of the exclusion; it is therefore critical
that hazardous secondary material generators provide foreign receiving
countries with sufficient information about the specific hazardous
secondary material being exported so that the foreign receiving country
can apply their relevant laws and regulations regarding its proper
management. Additionally, we note we currently require notice and
consent for some materials excluded from Subtitle C when recycled, such
as for cathode ray tubes exported for recycling under 40 CFR
261.4(a)(22) and for industrial ethyl alcohol being reclaimed under 40
CFR 261.6(a)(3)(i)). Regarding notification, we believe this requirement
is essential to enable regulatory authorities to monitor compliance of
the hazardous secondary material generator with the exclusion and,
therefore, disagree with the commenter who opposed this requirement.
Regarding the use of brokers, we have modified our final rule to allow
the use of intermediate facilities for hazardous secondary materials
exported for reclamation provided that hazardous secondary material
generators can affirmatively answer the reasonable efforts questions for
intermediate facilities at §261.4(a)(24)(v)(B) (excepting (v)(B)(2) of
this section for foreign intermediate facilities). Please see the
section 7.3 of this document for a more detailed discussion of our
rationale for allowing intermediate facilities under the final rule.

Regarding commenters who supported strengthening export requirements, we
have considered the suggested additional conditions and have made
changes in the final rule where appropriate: 

Use of a manifest: Under the exclusion, we require hazardous secondary
material generators to maintain records of off-site shipments and
confirmations of receipt for a period of no less than three years. We
believe these conditions are sufficient to allow both hazardous
secondary material generators and regulatory authorities to monitor
off-site shipments to ensure the materials were transferred and received
for reclamation and were not discarded. Furthermore, hazardous secondary
materials managed under the exclusion are managed more akin to valuable
commodities and are not solid and hazardous wastes; we, therefore, do
not believe manifests, which are required for hazardous wastes that
generally have little or no value, are necessary.

Notice of export: From the March 2007 supplemental proposal, we made
slight modifications to the notice requirements to more align with the
notice of export requirements for hazardous wastes so as to reduce
confusion on the part of the foreign receiving country (who otherwise
would receive slightly different information in the notice of export for
the same type of material, depending on if the material was regulated as
hazardous secondary material or hazardous waste in the United States).
For example, in the final rule we require that the hazardous secondary
generator must provide in the notice of export a description of the
hazardous secondary material and the EPA hazardous waste number that
would apply if the hazardous secondary material was managed as hazardous
waste and the U.S. DOT proper shipping name, hazard class and ID number.
Furthermore, we believe this information serves to better identify the
hazardous secondary material to the foreign receiving country so it may
make an informed decision regarding the proper management of the
material. 

Post-shipment requirements, including a requirement for when a shipment
cannot be delivered: We require hazardous secondary material generators
to maintain confirmations of receipt from the foreign reclaimer to
ensure the hazardous secondary materials reached their intended
destination for reclamation and were not discarded. Furthermore, as we
proposed in March 2007, we are finalizing a requirement that if a
shipment cannot be delivered for any reason to the reclaimer or
alternate reclaimer, the hazardous secondary material generator must
renotify EPA of a change in the conditions of the original notice of
export and obtain another Acknowledgement of Consent. This is similar to
the process required for hazardous waste exports. 

Exception Reporting: In the hazardous waste export regulations, an
exporter must file an exception report with the Administrator if he has
not received a copy of the manifest signed by the transporter within
forty-five days from the date it was accepted; if he has not received
written confirmation within ninety days; or if the waste was returned to
the United States. Under the final rule, hazardous secondary material
generators must maintain confirmations of receipt from the foreign
reclaimer or risk losing the exclusion status of the hazardous secondary
materials. We, therefore, believe there is sufficient incentive for
hazardous secondary materials to ensure confirmation of receipt by the
reclamation facility and thus do not believe a requirement to file an
exception report would add value.

Annual Reports: We agree with commenters who support a requirement for
hazardous secondary material generators to file an annual report with
the Administrator and have therefore added this to the exclusion for
hazardous secondary materials exported for reclamation. These reports
enable EPA to compare actual shipments in the annual report to proposed
shipments in the export notice to ensure that the shipments occurred
under the terms approved by the receiving country. Annual reports also
allow EPA to provide summary information that can help the receiving
country to determine the amount of hazardous secondary materials
received in that country.

Recordkeeping: We have maintained in the final rule the recordkeeping
requirements as proposed in the March 2007 proposal. This includes a
requirement that hazardous secondary material generators keep copies of
notices of export and Acknowledgements of Consent for a period of three
years. Hazardous secondary material generators must also maintain at the
generating facility for no less than three years records of all off-site
shipments of hazardous secondary materials. As more thoroughly discussed
in other relevant sections of this document, we have also expanded
recordkeeping to require that hazardous secondary material generators
maintain documentation and certification of reasonable efforts and
confirmations of receipt for no less than three years. We believe that
the recordkeeping requirements are the minimum necessary to ensure the
hazardous secondary materials are reclaimed and not discarded and will
also assist regulatory authorities with monitoring compliance of
facilities with the exclusions.

We disagree with the commenter who believed our notice of export
requirements should align with notice requirements under the Basel
Convention (a multilateral international agreement governing the
transboundary movements of hazardous wastes). The U.S. is not a party to
the Basel Convention and thus this rulemaking does not address the
status of hazardous secondary materials under the Convention. Regarding
commenters who supported requiring Subparts E and H (export regulations
for hazardous waste) for hazardous secondary materials, although we have
structured the export requirements for hazardous secondary materials to
closely align with the requirements for hazardous waste exports, we
believe we cannot simply require compliance with Subparts E and H. This
is because these Subparts are specific to hazardous wastes and in many
cases base requirements on use of the manifest (e.g., the exception
report), both of which do not apply to hazardous secondary materials.
We, instead, are finalizing an exclusion for hazardous secondary
materials exported for reclamation that adopts requirements that are
both: 1) similar to those within Subparts E and H in order to minimize
confusion on the part of the receiving country; and 2) necessary for
ensuring hazardous secondary materials are properly managed and not
discarded abroad. This strategy also effectively avoids any confusion
that would most certainly result from an attempt to modify Subparts E
and H to accommodate hazardous secondary materials.

In response to the commenter who requested a clarification regarding
imports, we confirm that imports of hazardous secondary materials are
eligible for the transfer-based exclusion, provided that the person who
imports the hazardous secondary material fulfills all requirements and
conditions (e.g., notification, reasonable efforts, recordkeeping) for a
hazardous secondary material generator under 40 CFR 261.4(a)(24) of the
final rule. Persons who import hazardous secondary materials are not
eligible for the generator-controlled exclusion since this exclusion
applies only to hazardous secondary materials generated and reclaimed
within the U.S. or its territories. We do not have sufficient
information regarding how imports of hazardous secondary material
generated from foreign manufacturing processes, and thus subject to
foreign laws and regulations, would affect the likelihood of discard
under the generator-controlled exclusion.

We are not requiring electronic forms for the notice of consent because
we believe any changes to the format of the notice of consent
requirement are best addressed as a separate effort since it would
likely affect both hazardous secondary materials and hazardous wastes.
We also are not requiring EPA to respond to the notice of consent within
a specific amount of time because these notices will likely vary in
complexity (for example, depending on the types of hazardous secondary
materials, the number of shipments, and the number of transit countries)
with some notices requiring more review than others. We instead require
persons exporting hazardous secondary materials to notify EPA of an
intended export at least sixty days before the initial shipment will
ship off-site. Furthermore, we don't understand the comment that
requirements (D), (E), (F) and (G) (information a hazardous secondary
material generator must submit in his notice of export) are duplicative
with requirements under 40 CFR 261.4(a)(24)(i)-(v) (which include
conditions for hazardous secondary material generators, such as,
speculative accumulation, notification, reasonable efforts and
recordkeeping). 

We confirm that persons managing hazardous secondary materials that are
granted non-waste determinations under 40 CFR 260.30 do not need to
comply with the requirements under 40 CFR 261.4(a)(25). However,
regulatory authorities, if they so choose, may stipulate conditions
within the non-waste determination as appropriate and relevant on a
case-by-case basis.

Lastly, we agree with commenters who note that foreign reclaimers are
not subject to U.S. law and regulations. We have, therefore, modified
the regulatory language to except hazardous secondary material
generators from having to affirmatively answer if a foreign reclaimer
has notified and has financial assurance since these requirements would
not be applicable to foreign reclamation facilities. We also strongly
agree with those commenters who support documentation and certification
of reasonable efforts and recordkeeping requirements for the hazardous
secondary material generator to ensure that hazardous secondary
materials are not discarded abroad and to enable regulatory authorities
to monitor compliance with the exclusion. We are finalizing both these
requirements in the final rule.

7.7.2 - Exports under the control of the generator

7.7.2 - Summary

Summary of comments that supported allowing exports under the control of
the generator:

Some commenters (mostly industry) supported allowing exports under the
control of the generator. At least two of these commenters also
supported allowing imports under the control of the generator. [0472,
0473, 0481, 0486, 0491, 0492, 0507, 0521, 0537, 0553]

One commenter argued that allowing exports under the control of the
generator would improve its members' ability to efficiently manage
manufacturing and recycling because these members have worldwide
operations and processing and manufacturing operations may occur in more
than one facility, in more than one country. This commenter also argued
that additional controls on exported hazardous secondary materials could
serve as a barrier to the environmentally sound recycling of hazardous
secondary materials in other countries. Additionally, another commenter
argued that allowing exports under the control of the generator would
reflect the globalization of economies and international movement of
feedstocks and end-products. [0481, 0553]

Two commenters questioned what additional information EPA would need to
justify applying the generator-controlled exclusion to exports, given
that the exclusion is conditioned upon retention of control of the
hazardous secondary material generators, evidence of which is to be
established by the generators themselves. Some commenters further argued
that exports should be allowed since the generator would retain control
over its hazardous secondary materials through certification language
and contractually through tolling arrangements and would, therefore,
remain responsible for environmentally sound management of the
materials. One commenter said the limitation has nothing to do with
whether material is actually discarded, and it therefore makes little
sense as part of the RCRA definition of solid waste. EPA has the ability
to require any information it needs from the in-country facility
involved in the recycling activity and such a facility would have the
burden of showing that it really is recycling the material at issue. One
commenter also believed that existing EPA regulations, as well as the
laws of importing countries and international regimes, are sufficient to
ensure that exported hazardous secondary materials will be recycled in
an environmentally sound manner. [0473, 0481, 0492, 0521, 0537, 0553]

Some commenters argued that EPA was inconsistent, since the Agency
proposes to allow exports under the transfer-based exclusion, but not
for the generator-controlled exclusion. One commenter further argued
that hazardous secondary material would be regulated the same, for
example, in Canada, whether or not the commenter was sending the
materials to a facility the commenter owned or to a third party for
reclamation. [0472, 0473, 0486, 0491, 0492]

One commenter suggested restricting international shipments to bilateral
partners, due to the restrictions on shipments of hazardous secondary
material to most other countries governed by the Basel Convention.
Another commenter supported the ability to move hazardous waste across
international boundaries in North America because the environmental
regulations are generally equivalent to those in the U.S. [0507, 0558]

Summary of comments that opposed allowing exports under the control of
the generator:

Some commenters opposed allowing exports under the control of the
generator (at least two commenters opposed a 'blanket extension' of the
exclusion, but supported including exports with additional conditions). 
[0462, 0470, 0475, 0479, 0482, 0489, 0558, 0559, 0564]

Some commenters argued that, as currently written, the
generator-controlled exclusion has minimal conditions based on the
premise that the generator will handle the material responsibly at the
facility; however, while this argument may have some merit for U.S.
facilities operating under U.S. laws and liability (e.g., CERCLA), it
certainly is not necessarily the case in other countries. Commenters
further argued that environmental stewardship and protection is ignored
by many industries, or is not enforced by the respective foreign
governments, and that by extending the generator-controlled exclusion to
include exports would result in movement of these materials to countries
that do not have adequate environmental management. Furthermore, once
the material is outside of EPA jurisdiction, the ability of the Agency
and the states to enforce proper management and legitimate recycling of
the material is severely limited or non-existent. Additionally, one
commenter argued that tolling contractors would have little control over
a third-party generator located overseas. [0462, 0475, 0482, 0495, 0558,
0559, 0564]

Several of these commenters agreed with EPA that there is not sufficient
information available about recycling activities outside of the United
States to allow exports under the control of the generator. Some
commenters further argued that there is no resource or information
available to regulatory authorities to determine who owns an "out of
country" business and if the foreign reclaimer has the ability to reuse,
recycle or reclaim the hazardous secondary material. Furthermore,
foreign receiving countries would only have minimal information about
the materials being imported. Moreover, one commenter noted that EPA
does not have a record on which to base its decision and, thus, by law
cannot extend its exclusion to materials reclaimed outside the U.S. or
its territories. [0470, 0475, 0489, 0495, 0559, 0564]

Two commenters argued for a provision that requires generators who
recycle hazardous material in processes under their control to perform
reasonable efforts to ensure the hazardous secondary material is managed
at least as stringent as is required in the U.S. One commenter believed
that generators that want to export these hazardous materials should
follow the hazardous waste rules for exports in all cases so the
receiving country can determine upon receipt how they want to regulate
these materials and whether special conditions should apply. Another
commenter suggested requiring the generator to demonstrate the inherent
safety of the material on a case-by-case basis. [0475, 0479, 0482, 0558]

7.7.2 - Response

We have structured the generator-controlled exclusion to contain few
requirements on the basis that we believe hazardous secondary materials
are unlikely to be discarded because they would be closely managed and
monitored by a single entity. However, with exports of hazardous
secondary materials, as commenters have argued, management and
monitoring by a single entity would likely be hindered by international
differences in waste management policy. We further agree with commenters
who note that U.S. law (e.g., CERCLA liability), while providing a
strong incentive not to mismanage waste domestically, would not apply to
hazardous secondary material exported for reclamation. Furthermore, we
understand the validity of arguments regarding limitations of the Agency
and the states to enforce proper management and legitimate recycling of
the hazardous secondary material at foreign reclamation sites. 

Based on these arguments, we strongly believe that hazardous secondary
material generators must perform reasonable efforts to ensure the
foreign reclaimer intends to reclaim, and not discard the material. We
also believe that generators must provide notice and receive consent
prior to exporting the hazardous secondary material in order to allow
the foreign receiving country to evaluate if it can accept and
legitimately reclaim the material. Therefore, we are not allowing
exports under the control of the generator exclusion because we consider
the requirements found in the conditional transfer-based exclusion for
hazardous secondary material exported to foreign reclamation facilities
to contain the minimum conditions necessary to ensure the materials are
reclaimed and not discarded.  

We disagree with commenters who believed that exports should be allowed
under the generator-controlled exclusion since, in order to claim the
exclusion, the generator would be required to retain control over the
hazardous secondary materials and, thus, could ensure the materials were
not discarded abroad. Under the generator-controlled exclusion,
hazardous secondary material generators are subject to very few
requirements based on the premise that they are unlikely to discard
their materials because they find value in the materials, retain control
over them, and intend to use them. However, we do not have sufficient
information on whether this principle extends to reclamation in a
foreign country. Most importantly, generator control could be severely
challenged by differences in waste regulation among foreign nations.
Furthermore, we believe it would be difficult for regulatory authorities
to monitor a foreign reclamation facility in order to ensure the
hazardous secondary material generator is complying with the exclusion
and is maintaining control of his materials. We, therefore, believe the
transfer-based exclusion contains the minimum conditions necessary to
ensure hazardous secondary materials are not discarded abroad.

Furthermore, we disagree with commenters who argue that additional
controls on exported hazardous secondary materials could serve as a
barrier to recycling because the conditional exclusion for hazardous
secondary materials exported to foreign reclamation facilities
constitutes a reduction in burden than what is currently required under
Subtitle C for hazardous waste exports.

We also see no basis in arguments that we should allow exports under the
control of the generator exclusion simply because we allow exports under
the transfer-based exclusion. We believe the transfer-based exclusion
contains the minimum conditions necessary to ensure hazardous secondary
materials are not discarded abroad and see no reason to allow exports
under both exclusions just for the sake of consistency.

Although we understand commenters' rationale for suggesting that we
restrict exports to our bilateral partners (Canada and Mexico), we
believe that hazardous secondary materials exported for reclamation in
accordance with the final rule are not discarded and, thus, not solid
waste. Therefore, we have no authority to restrict exports when a U.S.
hazardous secondary material generator complies with the regulatory
requirements. 

7.7.3 - Exports to OECD countries

7.7.3 - Summary

Two commenters noted that the proposed notice and consent procedures are
inconsistent with EPA's existing regulations for exports of hazardous
wastes to countries that are members of the Organization for Economic
Cooperation and Development ("OECD").  40 CFR part 262, Subpart H, which
implements OECD Council Decision C (92)(39), allows for tacit consent;
however, EPA's proposal for the excluded secondary materials would
require affirmative consent. These commenters argued that EPA should
adopt the equivalent of OECD 262 Subpart H 262.83(a)(1)(ii) "Tacit
consent" for export of hazardous secondary materials under a
transfer-based option. [0438, 0481, 0491]

One commenter supported requiring 40 CFR Subpart H for all hazardous
secondary materials exported to OECD countries in order to be consistent
with the 1986 OECD Decision governing all exports of OECD listed
hazardous wastes to non-OECD countries. Another commenter suggested
adding discussion, with examples, of materials that are not solid or
hazardous wastes in the U.S. being shipped for recovery to countries
within the OECD where these materials are deemed hazardous wastes (e.g.,
Amber List). This commenter further noted that it may have been simpler
for EPA to follow 262 Subpart H exclusively through conforming changes
to 262.58 International Agreements and/or Subpart H, 262.80
Applicability, in order to avoid setting up duplicative requirements
between 262 Subpart H (recovery operations) and 261.4(a)(5), which
mirrors 262 Subpart E (hazardous waste) export requirements. [0491,
0502]

7.7.3 - Response

We agree with commenters who found it confusing that fully regulated
hazardous wastes are eligible for tacit consent, whereas excluded
hazardous secondary materials would require consent in writing. To
eliminate this confusion, EPA has added a provision to the regulations
that allows hazardous secondary materials exported to OECD countries to
be eligible for tacit consent, similar to that allowed for hazardous
wastes under 40 CFR Part 262, Subpart H. We note that Canada and Mexico,
though they are OECD Member countries, typically require written consent
for exports to their countries. 

We also note that 40 CFR Part 262 Subpart H (regulations for exporting
hazardous waste to OECD countries) includes additional export
requirements (such as requiring a manifest and exception reports) that
are not required for hazardous secondary material exports. Thus, we
could not exclusively follow part 262 Subpart H as one commenter
suggested.

Furthermore, we disagree with commenters who believe the final rule runs
contrary to international agreements controlling the movement of
hazardous waste. We note the U.S. is an OECD Member and is, therefore,
legally bound to comply with the OECD's "Decision of the Council
C(2001)107/FINAL, Concerning the Control of Transboundary Movements of
Wastes Destined for Recovery Operations, as amended by C(2004)20," which
provides a framework for OECD Member countries to control transboundary
movements of recoverable waste in an environmentally sound manner. This
Amended 2001 Decision recognizes that Member countries may develop their
own regulations to determine whether or not materials are controlled as
hazardous wastes. In the final rule, we have added discussion that
explains hazardous secondary materials meeting certain conditions and
exported for reclamation are not solid wastes under U.S. regulation,
but, once hazardous secondary materials reach the border of the foreign
receiving country, the material is regulated in accordance with the
foreign receiving country's regulations. This includes foreign countries
that import hazardous secondary material for reclamation, but would
regulate these materials as "amber wastes" under the OECD's Amended 2001
Decision.

7.8 - Enforcement

7.8 - Summary

2003 Proposal Enforcement Language

Several commenters opposed EPA's language in the October 2003 proposal
that stated "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. [footnote omitted] 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." (68
FR 61581)

Commenters stated that EPA's enforcement scheme would go against the
prospective nature of RCRA and the admonition of the D.C. Circuit not to
regulate materials that "have not yet become part of the waste disposal
problem." See, AMC I, 824 F.2d at 1186. It also would impose liability
without regard to fault, despite clear evidence that Congress did not
intend such a liability regime. Commenters stated that the approach
proposed by EPA would be fundamentally unfair and represent a serious
violation of due process. The resulting risks that generators would face
would discourage legitimate recycling and thereby undermine the goals of
RCRA.

Commenters stated that as a general matter, retrospective regulatory
measures are "decidedly" disfavored absent clear legislative approval.
Ralis v. RFE/RL,, Inc., 770 F.2d 1121,1126-28 (D.C. Cir. 1985). In the
case of RCRA, there has been no such legislative approval of
retroactivity. On the contrary, RCRA clearly establishes a prospective
regulatory regime.  [See, e.g., United states v. Aceto Agric. Chems.
Corp., 872 F.2d 1373, 1377 (8th Cir. 1989) (citing H.R. Rep. No. 1016,
Part I, 96th Cong., 2d Sess. 17, reprinted in U.S.C.C.A.N. 6119, 6120);
United states v. Bliss, 667 F. Supp. 1298, 1313 (E.D. Mo. 1987) (citing
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 1, reprinted in 1976
U.S.C.C.A.N. 6238-39); 45 Fed. Reg. 33,154, 33,170 (May 19, 1980) ("RCRA
is written in the present tense and its regulatory scheme is
prospective.").]

Commenters assert that the D.C. Circuit, in fact, has made clear that
the definition of solid waste is forward-looking. According to the
court, material that is "'destined' - denoting the future" - for
beneficial reuse or recycling is not "discarded" and therefore cannot be
regulated as a solid waste. See ABR, 208 F.3d at 1053. For a material to
be discarded, there must be an "intent to abandon."  [See API II, 216
F.3d at 57 ("Legal abandonment of property is premised on determining
the intent to abandon"); see also Webster's 3rd New International
Dictionary (Unabridged) 614-15 (1981) ("destine" means "to designate,
assign, or dedicate in advance: intend''; "to direct, devise, or set
aside for a specific purpose or end").]

Commenters also note that "under RCRA, material must be thrown away or
abandoned before EPA may consider it to be 'waste.'" See ABR, 208 F.3dat
1053. The Agency cannot regulate materials that "have not yet become
part of the waste disposal problem." Id. at 1053 (quoting AMC I, 824
F.2d at 1186). Commenters believe EPA's proposed enforcement scheme
would effectively rewrite the statute by imposing penalties for the
handling of materials that were, at the time, not discarded but rather
intended for recycling. This would be contrary to the plain language of
RCRA and the rulings of the D.C. Circuit, and therefore must be
rejected.

Commenters assert that EPA's proposed enforcement approach would
establish a "strict liability" scheme under which a generator who does
everything right could nevertheless be penalized due to the subsequent
actions of others that the generator has no knowledge of or control
over.  [Indeed, EPA's proposal would go beyond traditional notions of
strict liability, because it would hold a generator responsible for
''violations" created by the actions of a recycler that are not
proximately caused by the generator. See. e.g., Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 115 S.Ct. 2407, 2419-20
(1995) (O'Connor, J., concurring) ("[P]rinciples of proximate cause
routinely apply in the ... strict liability context[ 1. . . . Strict
liability means liability without regard to fault; it does not normally
mean liability for every consequence, however remote, of one's
conduct."). Strict liability statutes generally should not be
interpreted so as to eliminate the proximate causation requirement. Id.
at 2420 ("I would not lightly assume that Congress, in enacting a strict
liability statute that is silent on the causation question, has
dispensed with this well-entrenched principle."). It is even more
inappropriate to ignore causation where, as here, the statutory scheme
is not based on strict liability.]

Although such liability has been imposed by Congress under certain
remedial programs (e.g., CERCLA and the "imminent and substantial
endangerment" provision of RCRA 0 7003(a)), it has never been authorized
under the hazardous waste regulatory program of RCRA Subtitle C. EPA
also cannot, on its own, decide to impose strict liability. See, e.g.,
Fort Worth and Denver Ry. Co. v. Lewis, 693 F.2d432, 435 andn.8 (5th
Cir. 1982) (refusing to interpret a statute so as to allow an agency to
select strict liability above other standards of liability, because
doing so would raise constitutional questions of overbroad delegation).

Commenters also note that under CERCLA - which, as noted above,
generally does impose strict liability - Congress has explicitly carved
out an exception for generators and other persons who arrange for the
recycling of scrap metal, batteries, and other items. In particular, the
Superfund Recycling Equity Act of 1999 ("SREA") excepts generators from
liability if they exercise "reasonable care" to ensure that the
receiving facility is in compliance with the substantive provisions of
applicable environmental laws and regulations. See CERCLA § 127(c)(5),
(d)(l), (e)(l). The SREA also specifies that the exception does not
apply if the arranger lacks "an objectively reasonable basis" to believe
that the material will be recycled or fails to exercise "reasonable
care" with respect to the management and handling of the material. See
CERCLA §127(f).  Congress enacted these provisions so that generators
of recyclable materials would no longer face the specter of being held
"responsible for the actions of those who purchase their goods." See 145
Cong. Rec. SI3086 (October 25, 1999) (statement of Sen. Lott); see also
id. at S10391, SI0431 (August 5, 1999). Congress recognized that such
liability would discourage generators from sending their recyclable
materials to recyclers and therefore was inconsistent with the goal of
"maintain[ing] a successful recycling effort nationwide." Id. at S13086.

In addition, commenters believe that such penalties against generators
would be fundamentally unfair and therefore would violate the due
process guarantees of the U.S. Constitution. As the Supreme Court has
noted, "In our jurisprudence guilt is personal." See Scales v. United
states, 367 U.S. 203, 224 (1961). "Implicit within the concept of due
process is that liability may be imposed on an individual only as a
result of that person's own acts or omissions." See Tyson v. New York
City Housing Authority, 369 F. Supp. 513,519 (S.D.N.Y. 1974).

At the time of their actions, the generator might have every reason to
believe that the materials are being properly handled. Indeed, the
generator may have exercised reasonable care, or even greater care, to
ensure that the receiving facility will recycle the material in
conformance with the exclusion. Nevertheless, under EPA's
regardless-of-fault, after-the-fact enforcement scheme, the generator
could be penalized anyway, if the recycler ultimately fails to satisfy
the requirements of the exclusion. Commenters believe that this approach
would destroy any meaningful relationship between the liability and the
actions of the generator.

Commenters stated that it is manifestly unfair to impose punishment on
an individual for actions that he or she has no power to avoid.  [See,
e.g., Spence v. Govrnley, 439 N.E. 2d 741, 748 (Mass. 1982) ("punitive
action must be based on personal responsibility") (citing Plyler v.
Doe., 457 U.S. 202, 219-22 (1982)); Weber V. Aetna Cas. & SW, CO., 406
U.S. 164, 174-5 (1972)).]  Thus, the commenters believe that proposal's
enforcement scheme simply cannot be sustained.

Commenters believe that EPA's enforcement scheme would discourage
generators from sending their materials for recycling. Congress
recognized a similar danger under CERCLA and reacted by amending that
statute's liability scheme for generators of recyclable materials.
Commenters believe that if the Agency now implements the same liability
scheme under RCRA, it will be undermining the resource conservation and
recovery goals of the statute. The generators will have no way of
knowing how the enforcing agencies will exercise their discretion until
well after the generators transfer their materials off-site. Moreover,
none of the enforcement options mentioned by EPA are likely to be deemed
acceptable risks by generators who are concerned about the Agency's
regardless-of-fault, after-the-fact enforcement scheme.

Commenters stated that if EPA believes that it would not be appropriate
to initiate an enforcement action against a generator who acts in
reasonable reliance on the new exclusion, it should say so explicitly in
the final rule. This approach would help to reduce impediments to
recycling. In addition, it would be more consistent with the structure
of RCRA, the requirements of due process, and the decision of the D.C.
Circuit in ABR.

Commenters offered specific examples of situations where they believe
the generator would be unfairly treated under the proposed enforcement
approach.

[0048, 0060, 0090, 0091, 0093, 0096, 0102, 0112, 0149, 0152, 0169, 0173,
0174, 0178, 0181, 0184, 0197, 0199, 0204, 0205, 0212, 0216, 0222, 0225]

2007 Supplemental Proposal Language

In contrast, many commenters supported the approach in the March 2007
proposal that stated "that the failure of the reclaimer to meet
conditions or restrictions does not mean the material was considered
waste when handled by the generator, as long as the generator can
adequately demonstrate that he has met his obligations" (72 Fed. Reg.
14197 (March 26, 2007)). Commenters agreed that as long as the generator
meets their duty to ensure that the secondary hazardous material sent
for reclamation will be safely and legitimately recycled, events out of
the generators control once that material is transferred should not be
attributed to them.  Commenters requested that this language be codified
in the regulatory language itself, and not just in the preamble to the
final rule, thus removing any regulatory uncertainty.  

[0452, 0468, 0472, 0474, 0476, 0478, 0481, 0486, 0492, 0521, 0529, 0534,
0535]

One commenter also requested that the parallel situation should be
treated the same way (i.e., a reclaimer that has met its obligations
under 40 C.F.R. 261.4(a)(24)(v) should not be deemed to have discarded
the secondary material or to have forfeited the exclusion just because
the generator failed to meet one of the conditions applicable to
generators). Apart from raising due process concerns, it would be unfair
and unduly harsh to penalize a reclaimer who has managed conditionally
excluded secondary material in accordance with all the conditions and
restrictions applicable to reclaimers and in a good faith belief that
the generator has met all his applicable conditions as well.  Moreover,
as a practical matter, it would be impossible for a reclaimer that has
given up its RCRA hazardous waste permit (and now reclaims only excluded
secondary materials) to comply with RCRA waste management requirements
if the exclusion for the material being reclaimed is deemed to have been
lost without the reclaimer's knowledge and before the reclaimer even
received it due to the actions or inactions of the generator. To avoid
such an unfair outcome, the commenter believes that EPA should make
clear that a reclaimer of hazardous secondary material who abides by all
conditions and restrictions applicable to reclaimers-and has no reason
to believe that the generator of the material has violated any of his
conditions-will continue to qualify for the "transferred materials"
exclusion under 40 C.F.R. 261.4(a)(24). [0452]

Other commenters disagreed with the 2007 proposed enforcement approach. 
Commenters stated that persons who fail to meet the proposed exclusion
requirements should be subject to enforcement actions under RCRA section
3008(a) for all violations occurring from the time such materials are
generated through the time they are actually disposed or reclaimed.
Likewise, if a reclaimer were to fail to meet any of the pre-conditions
or restrictions on the management of hazardous secondary material that
are applicable to the reclaimer, then the material should be considered
discarded by the reclaimer and subject to RCRA subtitle C regulation
from the point at which the reclaimer failed to meet a condition or
restriction, thereby discarding the material. Commenters believe that
this approach will provide generators and recyclers with an incentive to
handle hazardous secondary materials pursuant to the applicable
regulatory requirements. Commenters specifically stated that although a
generator may satisfy the "reasonable efforts" provisions of the
proposed rule, this should not alleviate his (her) "cradle-to-grave"
responsibility for the hazardous secondary material being sent to a
recycler. This "cradle-to-gave" accountability has been one of the
basic, single-most effective guarantees under RCRA to insure generators
manage their wastes properly. The concepts behind allowing hazardous
secondary materials to be recycled, is predicated on the generator
making the correct decisions on the management and use of the hazardous
secondary materials. Commenters believe that if the generator is not
absolutely sure that the hazardous secondary materials are going to be
legitimately recycled and properly managed, they should not be sent to
the recycler and that removing this responsibility undermines RCRA,
increases the potential for mismanagement of hazardous secondary
materials, and creates a higher probability of future CERCLA sites
without responsible parties to clean them up. In addition, commenters
stated that because a recycling facility will be managing the same types
of hazardous secondary materials which are also handled by TSDF as
hazardous waste, the recycle facility should be subject to the same
level of Agency scrutiny and oversight. 

One commenter stated that once hazardous secondary material becomes a
hazardous waste, the generator also becomes liable for any harm to human
health or the environment under the liability schemes of RCRA and
Superfund, even if the damage results from actions by a third-party
reclaimer.  Of course, the reclaimer would also be liable and would be
the party with primary liability for cleanup costs and civil penalties
for violations.  But under the strict liability schemes of RCRA and
Superfund, the generator is liable for its hazardous waste from "cradle
to grave," and EPA should not subvert that statutory liability scheme in
preamble statements.   The enforcement statement, read narrowly, means
only that the generator himself did not commit a violation of RCRA
regulations.  If EPA meant that the generator would then have no
liability under RCRA, Superfund, or state laws for response and remedial
costs related to the generator's material - which was a hazardous waste
at the time of improper disposal -  then the commenter believes that
this preamble is wrong.  The generator's "good faith" and "circumstances
beyond his control" may mitigate culpability, but are not relevant to
the strict liability schemes of the environmental statutes.  EPA needs
to clarify these statements in the final rule, consistent with the
positions taken in compliance cases by the Office of Enforcement and
state enforcement agencies. 

 

In addition, commenters believe that EPA's preamble language would
severely undercut the effectiveness of the reasonable efforts inquiry. 
The fundamental reason that a generator conducts a due diligence audit
of a reclamation facility is to minimize future liability.  That
potential liability is what motivates the generator to conduct a careful
and thorough audit.  If EPA by preamble fiat declares that a generator
has no future liability, then that incentive is lost.  The generator
will conduct an audit to satisfy the regulatory condition for the
exclusion, but the true incentive to minimize potential liability will
be vitiated.  In business, this is called "shooting yourself in the
foot." 

 

[0457, 0488, 0558, 0564]

7.8 - Response

In response to those commenters who addressed our enforcement criteria,
especially for retrospective liability, we note that the criteria are
explained in sections VII, VIII, and IX of the preamble of this final
rule. 

Specifically, we note that hazardous secondary materials transferred to
a third party for the purpose of reclamation are excluded from RCRA
Subtitle C regulation under certain conditions and restrictions. If a
reclaimer or an intermediate facility failed to meet any of the
above-described conditions, then the hazardous secondary materials would
be considered discarded by the reclaimer or intermediate facility and
would be subject to RCRA Subtitle C requirements from the point at which
the reclaimer or intermediate facility failed to meet a condition or
restriction, thereby discarding the material.  

However, we also note that the failure of the reclaimer or intermediate
facility to meet the conditions of the exclusion does not mean that the
hazardous secondary material was considered waste when handled by the
generator, as long as the generator can adequately demonstrate that it
has met its obligations, including the obligation under 40 CFR
261.4(a)(24)(v)(B) to make reasonable efforts to ensure that the
hazardous secondary material will be recycled legitimately and properly
managed. A hazardous secondary material generator that met its
reasonable efforts obligations could, in good faith, ship its excluded
materials to a reclamation facility or intermediate facility where, due
to circumstances beyond its control, they were released and caused
environmental problems at that facility. In such situations, and where
the generator's decision to ship to that reclaimer or intermediate
facility is based on an objectively reasonable belief that the hazardous
secondary materials would be reclaimed legitimately and otherwise
managed in a manner consistent with this regulation, the generator would
not have violated the terms of the exclusion.  

However, if a hazardous secondary material generator fails to meet any
of the above-described conditions that are applicable to the generator,
then the hazardous secondary materials would be considered discarded by
the generator and would be subject to the RCRA Subtitle C requirements
from the point at which such material was generated. This approach is
long-standing EPA policy, which we did not propose to amend in our March
26, 2007 supplemental proposal.  

EPA notes that such a determination would only be for the purposes of
determining compliance with the exclusions in the final rule and would
not affect liability under CERCLA.  To see further discussion on how
today's rule is not intended to affect CERCLA liability, see section
10.3 of this document.

Finally, EPA disagrees with the commenter who states that this
regulation, somehow, "subverts" strict liability schemes of RCRA and
Superfund or is inconsistent with positions taken in compliance cases. 
While RCRA, itself, provides for a "cradle to grave" regulation of
hazardous wastes, that does not mean that every generator, even if he
complies with all RCRA hazardous waste regulations, is liable for
whatever happens to a waste when a person later causes releases to the
environment.  In this case, materials may not even be solid wastes when
shipped.  Further, even under CERCLA, not every person who ships
material to another person who eventually disposes of it becomes an
arranger for disposal.  This regulation is entirely consistent with the
statutory schemes of both statutes and no specific instances of
inconsistency have been provided by the comment.  

8 - Non-waste determination

8.1 - Purpose/intent of non-waste determination

8.1 - Summary

SUPPORT NON-WASTE DETERMINATIONS: Some commenters supported a non-waste
determination process to allow companies to receive formal
determinations on a case-by-case basis that the material being reclaimed
is not a solid waste and thus not subject to RCRA regulation. Commenters
supported the process as a formal mechanism to give not only the
regulated community, but the regulators themselves, certainty in those
cases where there is some question of whether or not the material is
being legitimately recycled. This reaffirms the importance of
maintaining a flexible approach to regulatory controls. One commenter
believed the petition process served as a mechanism for waste streams
that can be legitimately reclaimed but do not meet all four legitimacy
criteria. This commenter believed that this is an environmentally
protective way to allow the maximum number of waste streams to take
advantage of the exclusion without threatening human health or the
environment; however, EPA needs to be more explicit about this process -
either through regulation or guidance. One state commenter conditionally
supported the non-waste determination process; this commenter
recommended that EPA amend the proposal to place the financial burden on
the petitioning facility that will benefit from the process. Another
commenter agreed that a formal administrative process is desirable for
EPA and the states to make defensible non-waste determinations, provided
the process is transparent and allows for adequate notice and
opportunity for public comment. This petition process should then
replace the informal, private letters that have been issued by EPA and
states in the past, usually without any public notice. Furthermore, this
commenter believed the petition process will serve as a "relief valve'
to take corrosive pressure off the new regulatory system while EPA,
states, the regulated community and other interested parties gain
experience with it. This commenter also said that the three types of
non-waste determinations are broadly encompassing and should be
workable; these petitions will also provide EPA with example situations
that may call for modifications or improvements to the rules. [0448,
0453, 0454, 0456, 0457, 0464, 0467, 0468, 0470, 0471.2, 0472, 0473,
0476, 0481, 0486, 0488, 0492, 0494, 0505, 0507, 0511, 0517, 0519, 0526,
0528, 0529, 0531, 0534, 0535, 0536, 0544, 0549, 0553, 0558]

OPPOSE NON-WASTE DETERMINATIONS:  Some commenters opposed the non-waste
determination process. Some commenters argued that the case-by-case
regulation is inherently resource intensive, time-consuming and
inefficient and would strain state resources. One state commenter said
the current process for requesting a variance (40 CFR Part 260) is
sufficient for accomplishing the same objective. Another state commenter
respectfully submits that the formal process for evaluating petitions
for non-waste determinations is not necessary because the state's own
"informal" process currently being employed works well as it provides
sufficient flexibility to consider special or unique circumstances that
a formal process may not. Commenters viewed the non-waste determination
process as far too open-ended and were convinced that it would result in
sharp state-to-state inconsistency. Some commenters believed that many
generators would try to take advantage of the non-waste determination in
order to avoid regulation and generator fees, thus burdening the agency.
One commenter said EPA and the states should continue to rely on the
requirement in 40 CFR 262.11 for generators to make adequate hazardous
waste determinations; in 262.40 for keeping records of determinations
on-site; and in 261.2(f) for waste handlers to maintain documentation to
support claims that a material is excluded or conditionally exempt from
regulation. Regulatory authorities can then review these records on-site
to verify the waste is properly excluded. Another commenter argued that
definition of solid waste issues should-to the greatest extent
possible-be addressed through self-implementing regulations. This
commenter also believed that the larger problem is that it would make
non-waste determinations available only in certain unnecessarily narrow
circumstances delineated in the proposed rule. This commenter argued
that the RCRA definition of solid waste turns on whether a material is
discarded, and there is no reason why petitions should turn on markedly
narrower criteria. Some commenters did not support the non-waste
determination process because it: 1) undermines the generator-controlled
and transfer-based exclusions; 2) does not require generators to perform
reasonable efforts, potentially leading to discard and mismanagement of
hazardous secondary material; 3) does not require any conditions, such
as management restrictions, to protect the environment; and 4) would
result in a significant administrative burden, likely unfunded, on the
states to review the petitions that would be submitted. One commenter
argued that the petition process is inconsistent with Section 3009 of
RCRA and is therefore contrary to law. By deregulating wastes, states
can create a system in which state law is less stringent than the
federal rules, which is clearly impermissible under RCRA. Thus, EPA must
withdraw the proposed petition process. One commenter did not anticipate
using the non-waste determination process. [0447, 0489, 0490, 0495,
0516, 0521, 0537, 0538, 0541, 0543, 0559, 0562, 0564] 

EXPAND SCOPE OF NON-WASTE DETERMINATION: Commenters believed that EPA
should expand the scope of non-waste determinations to allow all
recycling scenarios to be eligible, including "burning for energy
recovery (BFE)" and "use constituting disposal (UCD)." 

Allow BFE and UCD:

Commenters argued that EPA has no rational basis for a general finding
that hazardous secondary materials legitimately used and produced as
fuels and produced as land-applied products are "discarded," and thus
EPA should open up the petition process to allow for consideration of
these types of recycling. One commenter said, for some valuable
products, placement on the land may be the only intended use, but it may
not pose any risk to human health and the environment. Another commenter
said that, although 40 CFR Part 266, subpart C contains regulatory
"relief" for entities wanting to engage in the legitimate recycling of
materials to produce fertilizers, such entities must obtain a hazardous
waste storage permit and the final fertilizers must meet the applicable
land disposal restriction standards. The costs and negative stigma
associated with having to obtain a hazardous waste permit discourage
fertilizer manufacturers from reusing materials generated off-site for
their mineral values. To encourage recycling, this commenter requests
the EPA expand its contemplated non-waste determination process to
include UCD scenarios. One commenter said the benefits of a variance
mechanism could significantly expand industrial ecology in the United
States, reduce the amount of material that is discarded and help move
towards a more sustainable society. This commenter suggested that the
program be resourced by a panel of experts from various stakeholders,
funded by those requesting variances and maintain credibility through
transparent and robust public participation. One commenter believed that
the pre-compliance plan case-by-case approval process developed for
compliance with the Clean Air Act Amendment Hazardous Air Pollutant
Maximum Achievable Control Technology requirements is a suitable model
for implementing a case-by-case determination for legitimate fuels.
Another commenter said expanding the scope of non-waste determinations
to encompass use as fuels would be consistent with the policy
goal-identified in a recent EPA study-of removing regulatory barriers to
broader recycling of wastes and process byproducts for energy recovery
in "US EPA, Energy Trends in Selected Manufacturing Sectors:
Opportunities and Challenges for Environmentally Preferable Energy
Outcomes" (March 2007). Still another commenter noted that the estimated
savings included in the Information Collection Request of only $1
million per year for non-waste determinations would be far exceeded if
the petition process were open to these categories of recycled
materials. [0448, 0456, 0464, 0472, 0473, 0476, 0486, 0492, 0511, 0526,
0528] 

Allow additional/all recycling scenarios: 

Some commenters supported broadening the scope of non-waste
determinations to include recycling scenarios beyond the three that EPA
proposed in March 2007. Some commenters supported allowing any generator
to request a non-waste determination for any hazardous secondary
material that was legitimately recycled. This extended petition
capability will allow for increased recycling and recovery of materials,
diverting them from the waste stream. Some commenters said, while EPA's
three proposed non-waste determinations may well constitute the majority
of opportunities, there may well be other categories where a non-waste
determination is appropriate. For example, a perfectly legitimate
recycling activity that occurs in a non-continuous or non-industrial
process and that does not satisfy either of the other two categories.
EPA should be open to considering these types of petitions because no
government agency can envision each and every method of legitimate
recycling. Commenters supported a fourth category of non-waste
determination: one that permits the petitioner to demonstrate that a
particular recycling method is legitimate and avoids improper
management, such as speculative accumulation. [0456, 0468, 0472, 0476,
0486, 0494, 0517, 0519, 0553]

Allow non-hazardous secondary materials:

One commenter said EPA should clarify that the proposed petition process
will apply to non-hazardous secondary materials, such as recycling of
recoverable paper. This commenter said that, when recoverable paper is
not defined as a solid waste, fewer state and local solid waste laws
("flow control" measures, taxes, fees, permits, operating and reporting
requirements) will apply. Hence, the recovery of fiber from recoverable
paper versus fiber from virgin forest material will be encouraged. This
commenter noted that the proposed regulatory language for 40 CFR 260.34
does not limit the petition process to hazardous secondary materials:
"an applicant may apply to the Administrator for a formal determination
that a material is clearly not discarded and therefore not a solid
waste…" This commenter acknowledges that the proposed rule amends
Subtitle C, not Subtitle D; however, surely EPA does not contend that if
it finds a certain secondary material is not a solid waste under
Subtitle C that it could be a solid waste under the federal Subtitle D.
This commenter said it was very odd that EPA would extend to hazardous
secondary materials the opportunity to obtain through the petition
process a non-waste determination, yet not allow non-hazardous secondary
materials the same opportunity. Certainly there should be greater
environmental concerns with respect to excluding hazardous secondary
materials than non-hazardous secondary materials. [0505]

LIMIT SCOPE OF NON-WASTE DETERMINATIONS: One commenter believed the
petition process for non-waste determinations should be as rigorous as
that for obtaining variances from the definition of solid waste found in
40 CFR 261.31. Excluding all hazardous secondary materials destined for
recycling would be inconsistent with the mandate to track hazardous
wastes and U.S. EPA's assertion that materials are not excluded from its
jurisdiction simply because someone claims they will be recycled. This
commenter believed that non-waste determinations should be limited to
reclamation activities, and should not apply to recycling of "inherently
waste-like" materials, "used in manner constituting disposal" and
"burning for energy recovery." One commenter said, because case-by-case
evaluations are resource-intensive and will take a good deal of staff
time away from compliance assistance, enforcement, permitting, program
development etc., the petition process should only be allowed for
processes which are not covered by any specific exclusion. [0543, 0452,
0470] 

CASE-BY-CASE DETERMINATIONS IN LIEU OF BROADER EXCLUSION (2003
PROPOSAL): Some commenters, responding to EPA's October 2003 proposal,
supported a broader exclusion over a case specific petition process. 

Some commenters supported both options; the broader exclusion would
provide uniformity in implementation and thus encourage increases in
resource conservation and recovery, while the case-by-case mechanism
would serve to address unforeseen scenarios. One state commenter
acknowledged that a petition process would allow enforcement agencies
closer oversight of excluded recycling; however, using a case-by-case
system in lieu of an across-the-board exemption would consume an
inordinate amount of administrative resources. [0041, 0043, 0061, 0160]

One commenter argued that the case-by-case approach would be needlessly
burdensome and would result in eliminating new initiatives designed to
foster increased recycling. This commenter also found it hard to imagine
how such a system would ensure that such standards are adhered to after
the determination is granted. Another commenter saw no need for a
case-by-case variance as a means to provide regulatory relief that would
result from a broader exclusion, since the burden of pursuing a variance
falls on the generating facility and thus presents a significant
disadvantage for small business. Another commenter said the current
variance mechanism is archaic and prohibitively difficult to conduct. In
addition, state-by-state disparities in addressing variances create an
unleveled field of hazardous waste requirements that adversely impact
the cost of business. One commenter did not believe such an approach
would be a suitable alternative to the broader exclusion because of the
administrative burden of developing, filing and processing case-by-case
determinations. Through the legitimacy criteria, other regulatory
provisions, and general oversight, EPA would have sufficient ability to
ensure protection of human health and the environment without relying
solely on a variance mechanism.[0093, 0098, 0138, 0145, 0149, 0212]

On the other hand, a few commenters supported the case-by-case
determination process in lieu of a broader exclusion. Some commenters
argued that authorized states and EPA should have the discretion to
review recycling scenarios on a case-by-case basis and the authority to
grant variances for legitimate recycling that falls outside the scope of
a specific recycling exclusion, or doesn't meet all the legitimacy
criteria. One commenter believed that the burden should be on the
generator of the material to demonstrate that its material and the
manner of recycling: 1) involves beneficial use or reuse; 2) is
legitimate; and 3) is not part of the waste disposal problem. This will
encourage legitimate recovery of hazardous secondary materials where
EPA's existing exclusions are too limited or uncertain. Another
commenter urged a cautious, case-by-case approach to reducing regulation
to avoid remediation of failed recycling operations and to maintain
environmental safety. Still another commenter suggested a certification
process be used since states already have similar processes. This would
also eliminate the "continuous process" and "speculative accumulation"
questions. [0092, 0147, 0153, 0213]

OTHER COMMENTS ON NON-WASTE DETERMINATIONS: 

1.	Codify four alternatives for non-waste determinations for materials:
1) reclaimed in a continuous industrial process; 2) indistinguishable in
all relevant aspects from a product; 3) reclaimed directly under the
control of the person who physically generates the material; and 4)
reclaimed under a tolling arrangement. These four alternatives would
avoid problems resulting from the fictitious notion that the person who
physically generates the hazardous secondary materials retains ownership
of, and liability for, the material. [0452]

2.	The optional petition review should be mandatory for materials that
are recycled off-site and that, with definitive regulatory definitions
and requirements (to be developed), that all recycling proposals, with
due diligence documents, should be submitted simultaneously to EPA and
the primary affected state. [0488]

3.	The term "may" in 40 CFR 260.34 should be changed to "shall"; "an
applicant shall apply to the Regional Administrator or authorized
state." [0488]

4.	In the proposed regulatory language for 40 CFR 260.30 and 260.34,
change "reclaimed" to "recycled" to effectively open the petition
process to all types of legitimate recycling, including uses for energy
recovery and to for products applied to the land. [0492] 

5.	Delete "and is not discarded" from proposed 40 CFR 260.34, because:
1) it is repetitive, since 40 CFR 260.34(a) already states that
paragraphs (b), (c), and (d) contain the criteria that will be used to
determine that a material "is clearly not discarded;" and 2) since
"discarded material" is a defined term in 40 CFR 261.2(a)(2) that
includes various recycled materials and thus removing the terminology
'and is not discarded" would avoid potential confusion with the 40 CFR
261.2 definition of the term. [0492] 

6.	The petition process should not create artificial distinctions that
presume that recycling performed by the generator is to be preferred
over recycling performed by the non-generator recycler. This commenter
believes that companies that perform recycling as their exclusive
business often have recycling expertise that is not possessed by the
generator and that EPA should emphasize that the value of a recycling
scenario should be evaluated on its own merits - not whether the
petitioner is a generator or professional recycler.  Moreover, there may
be sound business reasons why a recycler, rather than the generator,
should prepare and submit the petition. For example, the generator may
not have the requisite expertise, may be reluctant to publicly identify
its secondary materials, or may be interested in recycling only if
approved by EPA - a task that only the recycler has an incentive to
undertake. [0494] 

7.	Clarify that the criteria listed in proposed 40 CFR 260.34 are not a
prerequisite to being excluded from the definition of solid waste under
40 CFR 261.4(a)(24). [0500, 0535]

8.	Clarify that a non-waste determination can be granted to an industry
group. In other words, EPA should clarify that it does not intend to
limit the non-waste determination process to a specific generator or
recycler of secondary material at a specific site, or even to a single
generator or recycler at all of its sites. This would be an enormous
drain on private and Agency resources if only an individual generator or
recycler is allowed to apply for a non-waste determination; it would be
far more efficient to allow a group to present a petition to EPA. [0505]

9.	EPA should at least confirm that it would entertain petitions for a
non-waste determination in the same manner in which it addressed the
variance request from secondary lead smelters under 40 CFR 260.30(c).
EPA Headquarters addressed and decided that the reclamation of lead from
spent lead acid batteries met the first four criteria of 40 CFR
260.30(c), which EPA considered to be determinable at a national level.
EPA, however, said that individual regions would have to decide whether
the last two criteria (40 CFR 260.30(c)(5) and (6)) were met since these
needed to be addressed on a site-specific basis. At a minimum, EPA
should implement its petition process for a non-waste determination so
as to address at a national level all of the criteria that can be
addressed at such a level. [0505]

10.	If EPA were to adopt this petition process, EPA should strengthen
the petition criteria by requiring more detailed information, setting
forth additional, more detailed criteria, having a mechanism to provide
close EPA oversight of the petition process to assure consistent
determinations from state-to-state, and providing additional, new
resources for states to implement the petition process. [0534, 0543]

11.	EPA should develop a guidance document that will assist petitioners
in preparing a complete petition. [0494, 0517]

12.	The non-waste determination process should not alter prior
determinations made by authorized States. The preamble is confusing: is
EPA stating that all prior non-waste determinations by duly authorized
States must be revisited and approved by EPA under the contemplated
non-waste determination process, or only that prior non-waste
determinations in authorized States that the three proposed types of
non-waste determinations are meant to address must be revisited and
approved by EPA? EPA should also explicitly recognize all currently
approved exclusions under 40 CFR 261.4. Clarify that authorized states
do not have to submit non-waste determinations to EPA for approval.
[0481, 0528, 0529]

13.	The standards and criteria for obtaining a non-waste determination
should be the same as parameters of the solid waste exclusion for
reclamation activities to be adopted in 40 CFR 261. The entity seeking a
non-waste determination should not have to establish its entitlement by
meeting additional criteria not found in 40 CFR 261. EPA should not
impose a more stringent set of requirements for reclamation than the
existing regulatory program. [0481, 0535]

14.	Some sort of indemnification mechanism must be in place for the
generators, recyclers and regulatory agencies if a "good faith" error is
ever found in the process. [0543] 

15.	The introductory text to 40 CFR 260.30 should be amended to add a
reference to the new 40 CFR 260.34 standards and criteria. [0563]

16.	One commenter would be concerned if this petition process, which is
notably lacking in any timeframes for action, were to become the routine
default mechanism for assessing the scope of the proposed exclusions and
thus believed that only unusual cases or circumstances where the stakes
are particularly high should need to be addressed through the petition
process. In particular, this commenter was concerned if the addition of
this mechanism were viewed by EPA and the states as requiring all
requests for guidance determinations to be made through this process.
This commenter strongly urged EPA to clarify that states can and should
continue to provide direct guidance and determinations to the regulated
community outside of the petition process. [0471.2]

8.1 - Response

SUPPORT/OPPOSE NON-WASTE DETERMINATIONS: EPA agrees with the majority of
commenters who support the non-waste determination process as an
alternative way for hazardous secondary material generators to seek
regulatory certainty in circumstances involving reclamation of hazardous
secondary materials which do not clearly fit under the final rule's
self-implementing exclusions. In the final rule, we are finalizing two
non-waste determinations: 1) for hazardous secondary materials reclaimed
in a continuous industrial process; and 2) for hazardous secondary
materials indistinguishable from a product or intermediate. EPA is not
finalizing the non-waste determination for materials that are reclaimed
under the control of the generator (please see section 8.4 for
additional information).

Of the commenters who opposed the non-waste determination process, many
argued that the process would be time-consuming and therefore would
strain state resources. EPA, however, does not agree that the non-waste
determination would cause significant burden to states. Instead, we
anticipate that the vast majority of persons will choose to use the
self-implementing exclusions because this would be less resource
intensive for the facility. In fact, the Agency does not envision any
person submitting such an application if they are considered "under the
control of the generator" because there are relatively few restrictions
for this exclusion, and, indeed, it would probably require less effort
than seeking a non-waste determination. In addition, the scope of
activities to which the non-waste determination process would
potentially be applicable is limited to situations which are do not
constitute discard; we do not have any evidence to suggest that there
are a large number of scenarios that would fit within the scope. Thus,
the Agency only expects a limited number of persons to submit
applications where the regulatory status is unclear under the final
rule's exclusions and a formal non-waste determination may be
appropriate. EPA further believes that, by modeling the non-waste
determination process after the current variance procedures, it has kept
the additional burden to the states at a minimum because states can
leverage their existing processes. 

With respect to the comment regarding inconsistency among state
non-waste determinations, EPA notes that, by allowing states to become
authorized to conduct their own RCRA hazardous waste programs, the RCRA
statute provides states flexibility to regulate hazardous waste more
stringently than required under the federal regulations. This ultimately
leads to variations between state regulations and interpretations, which
EPA views as inherent to the RCRA structure and, thus, not a quality
unique to the non-waste determination process. Furthermore, we note that
the final rule's non-waste determination process includes a set of
standard criteria, which all applicants must demonstrate their material
meets and an opportunity for public notice. Conversely, 'informal'
determination processes, which many states use currently, do not use
nationally standardized criteria and are often made through informal,
private letters. For these reasons, we believe that the final rule's
non-waste determination process may in fact reduce state-to-state
inconsistency.

EPA believes that requiring explicit conditions, such as those required
for the final rule's self-implementing exclusions, is not warranted for
hazardous secondary materials receiving non-waste determinations because
persons are, instead, required to make specific demonstrations as to how
the hazardous secondary materials meet the eligibility criteria.
Furthermore, regulatory authorities, if they so choose, may stipulate
conditions within the non-waste determination as appropriate and
relevant on a case-by-case basis. One purpose of the non-waste
determination is to provide a measure of flexibility not provided by the
self-implementing solid waste exclusions and specifying the conditions
to be imposed would defeat this purpose. 

We agree with the commenter who argued that definition of solid waste
issues should be addressed through self-implementation. We are thus
finalizing the non-waste determination in addition to two
self-implementing exclusions from the definition of solid waste. We
believed that for the vast majority of cases, self-implementation will
be the most appropriate approach. However, for cases where there is
ambiguity about whether a hazardous secondary material is a solid waste,
the formal non-waste determination process will provide regulatory
certainty for both the facility and the implementing Agency.

We do not consider the non-waste determination to "run on markedly
narrower criteria" (relative to the final rule's self-implementing
exclusions). For cases where there is uncertainty about whether a
hazardous secondary material is a solid waste under the final rule's
self-implementing exclusions, the non-waste determination provides an
alternative option: an applicant may, instead, demonstrate how his
hazardous secondary material meets a set of defined criteria. Once a
non-waste determination has been granted, the hazardous secondary
material may not be subject to the limitations and conditions discussed
elsewhere in the final rule (e.g., prohibition on speculative
accumulation, storage standard, or, for the transfer-based exclusion,
recordkeeping, reasonable efforts, financial assurance, and export
notice and consent) and thus it is appropriate and necessary to define
criteria by which to evaluate the regulatory status of a material.

We do not accept the argument that the non-waste determination process
is inconsistent with RCRA. As discussed in more detail in section XX of
the preamble to the final rule, under section 3006 of RCRA, EPA would
authorize states to administer the non-waste determinations as part of
their base RCRA program. Since 40 CFR 260.34 sets national standards by
which implementing agencies would make non-waste determinations, state
programs utilizing this provision as codified would be equivalent to the
federal program since they would be using the same or equivalent
standards as the federal program.

EXPAND/ LIMIT SCOPE OF NON-WASTE DETERMINATIONS: In the March 2007
supplemental proposal, EPA proposed that non-waste determinations would
be limited to reclamation activities and would not apply to recycling of
"inherently waste-like" materials, as defined at 40 CFR 261.2(d),
recycling of materials that are "used in a manner constituting
disposal," or "used to produce products that are placed on the land,"
(40 CFR 261.2(c)(1)), or "burning materials for energy recovery" or
"used to produce a fuel or otherwise contained in fuels" (40 CFR
261.2(c)(2)). 

After considering the comments, EPA is finalizing as proposed and is
limiting eligibility for non-waste determinations to include only
reclamation activities. With respect to "burning for energy recovery"
and "use constituting disposal," we determined that the level of
complexity and number of technical issues involved in defining a set of
national criteria by which to determine when these types of recycling
are not discard would require a formidable amount of resources.
Therefore, we believe these types of recycling would best be left to
other rulemaking proceedings. Furthermore, we believe that by limiting
the scope to include only reclamation activities, we are serving to
limit burden on states who must implement the non-waste determination
process, a concern expressed by many state commenters. As one commenter
noted, we believe the petition process will provide EPA with example
situations that may call for modifications or improvements to the rules
and would be open to such change in the future.

We are not finalizing a 'general' non-waste determination for all types
of reclamation, as some commenters suggested (for example, for
reclamation that occurs in a "non-continuous or non-industrial process
and does not satisfy the other two categories").  We note that persons
who successfully obtain a non-waste determination would not be subject
to specific conditions, such as those required for the final rule's
self-implementing exclusions (unless stipulated by the regulatory
authority in the determination). We, therefore, believe the two types of
non-waste determinations set appropriate limits and criteria for
determining that discard is not occurring as an alternative to the final
rule's self-implementing exclusions. Furthermore, we disagree with those
commenters who suggest further limiting the eligibility to only those
cases where reclamation of the hazardous secondary materials would
specifically violate a condition of the final rule's self-implementing
exclusions. We believe that by modeling the non-waste determination
procedure after the existing variance procedure, we have ensured that
any additional burden to the states will be kept at a minimum and thus
further limits on eligibility are not necessary. 

The final rule only applies to hazardous secondary materials; therefore,
the comment regarding non-hazardous secondary materials is outside the
scope of this rulemaking. Furthermore, this rulemaking only affects the
definition of solid waste under RCRA Subtitle C.

CASE-BY-CASE DETERMINATIONS IN LIEU OF BROADER EXCLUSION: Based on
comments received in response to EPA's October 2003 proposal, EPA issued
a supplemental proposal which included two self-implementing exclusions
as well as a process for making case-by-case non-waste determinations.
EPA believes that these options together will provide flexibility for
ensuring that hazardous secondary materials are not discarded, while
balancing the advantages and disadvantages of each approach. As stated
previously, EPA is finalizing the two self-implementing exclusions and a
process for non-waste determinations basically as proposed.

OTHER COMMENTS ON NON-WASTE DETERMINATIONS: 

1.	We are not codifying the proposed non-waste determination for
materials reclaimed under the control of the generator and, thus, do not
need to separate this into two types of non-waste determinations, as
suggested by one commenter. For information regarding why EPA is not
finalizing this non-waste determination, please see section 8.4.

2.	Requiring all hazardous secondary materials transferred off-site for
reclamation to be reviewed on a case-by-case basis through a non-waste
determination process in lieu of self-implementing exclusions would
require a significant amount of resources and increase burden on both
the regulated community and the regulating agencies. EPA, therefore, is
finalizing the self-implementing exclusions along with a non-waste
determination process to provide maximum flexibility while keeping
additional burden to a minimum.

3.	Since persons have the option of applying for a non-waste
determination, we believe that "may" is used correctly in: "an applicant
may apply to the Regional Administrator."

4.	For reasons stated above, we are limiting the non-waste determination
process to consider reclamation activities only. Therefore, we are
maintaining the language as "reclaimed."

5.	We are maintaining the language "and is not discarded" in both
non-waste determinations to ensure clarity. 

6.	Non-waste determinations do not limit eligibility based on whether
the petitioner is a generator or professional recycler. EPA sees no
reason to prohibit exchange of information between parties in order to
develop an application for a non-waste determination and further
believes there may be potential cost-savings by doing so.

7.	EPA confirms in the preamble to the final rule, and here as well,
that the criteria in 40 CFR 260.34 are specific to the relevant
non-waste determinations, and thus are not required for the
self-implementing exclusions or those exclusions found in 40 CFR 261.4,
unless they are specifically included under state regulations as
criteria to consider. 

8.	Where multiple facilities engage in similar reclamation processes
that share the same fact pattern and are located within the same state,
or are subject to the same state regulations, EPA sees no reason to
prohibit exchange of information between parties with the objective of
developing a common application for receiving a non-waste determination.
We can see how this type of exchange would result in potential
cost-savings for both the regulated community and the regulatory
agencies. However, we note this type of approach would be subject to the
discretion and approval of the regulatory agency.

9.	EPA is open to considering non-waste determinations in the same
manner as the variance request for secondary lead smelters; we see no
reason not to consider demonstrations that some reclamation processes
may universally meet certain criteria for the non-waste determination,
and thus should be considered to 'meet' this criteria at a national or
state level. 

10.	EPA is finalizing the non-waste determination process basically as
proposed, with the exception of the non-waste determination for
materials reclaimed under the control of the generator (for more
information, see section 8.4). We believe the criteria we are finalizing
strike an appropriate balance between the need to define discard while
remaining flexible so as to apply to multiple reclamation processes and
hazardous secondary materials. For reasons stated above, we do not
believe the non-waste determination process will significantly increase
burden or state-to-state inconsistency above what is implemented
currently.

11.	EPA is open to considering development of a guidance document.

12.	The Agency confirms that the process for non-waste determinations is
not intended to affect any existing exclusion under 40 CFR 261.4. The
process is also not intended to affect any variance already granted
under 40 CFR 260.30 or other EPA or authorized state determination. In
other words, generators or reclaimers operating under an existing
exclusion, variance, or other EPA, or authorized state, determination do
not need to apply for a formal non-waste determination under the final
rule. This process also does not affect the authority of EPA or an
authorized state to revisit past determinations according to appropriate
procedures, if they so choose. States authorized for the non-waste
determination provision do not have to submit non-waste determinations
to EPA for approval (except in certain circumstances discussed below).
However, because states are not required to implement federal
requirements that are less stringent or narrower in scope than the
current requirements, authorized states are not required to adopt the
non-waste determination process. Ordinarily this provision could not go
into effect in an authorized state until the state chooses to adopt it.
However, because the non-waste determination process is a formalization
of determinations that states may already perform, states that have not
formally adopted this non-waste determination process may participate if
the following conditions are met: (1) the state determines that the
hazardous secondary material meets the criteria in either paragraph (b)
or (c) of 40 CFR 260.34; (2) the state requests EPA to review its
determination; and (3) EPA approves the state determination. In
addition, of course, states may continue to make determinations
concerning the applicability of other regulatory provisions under their
authorized state regulations, as they do now.

13.	For cases where there is uncertainty about whether a hazardous
secondary material is a solid waste under the final rule's
self-implementing exclusions, the non-waste determination provides an
alternative option: an applicant may, instead, demonstrate how his
hazardous secondary material meets a set of defined criteria. Once a
non-waste determination has been granted, the hazardous secondary
material may not be subject to the limitations and conditions discussed
elsewhere in the final rule (e.g., prohibition on speculative
accumulation, storage standard, or, for the transfer-based exclusion,
recordkeeping, reasonable efforts, financial assurance, and export
notice and consent) and thus it is appropriate and necessary to define
criteria by which to evaluate the regulatory status of a material.

14.	EPA is not mandating "some sort of indemnification mechanism" as
part of a non-waste determination; however, we note that regulatory
authorities may stipulate conditions in the non-waste determination as
necessary.

15.	We have added a reference to the new 40 CFR 260.34 to the
introductory text in 40 CFR 260.30. 

16.	We anticipate that the vast majority of persons will choose to use
the self-implementing exclusions, rather than the non-waste
determination process, because this would be less resource intensive for
the facility. In fact, the Agency does not envision any person
submitting such an application if they are considered "under the control
of the generator" because there are relatively few restrictions for this
exclusion, and, indeed, it would probably require less effort than
seeking a non-waste determination. In addition, the scope of activities
to which the non-waste determination process would potentially be
applicable is limited to situations which are do not constitute discard;
we do not have any evidence to suggest that there are a large number of
scenarios that would fit within the scope. Thus, the Agency only expects
a limited number of persons to submit applications where the regulatory
status is unclear under the final rule's exclusions and a formal
non-waste determination may be appropriate. We also confirm in the
preamble to the final rule and reiterate here that facilities may
continue to contact EPA or the authorized state to ask for informal
assistance in making these types of non-waste determinations. 

8.2 - Non-waste determination for hazardous secondary material reclaimed
in a continuous industrial process

8.2.1 - Definition of "continuous"

8.2.1 - Summary

BACKGROUND: This section summarizes comments received mostly in response
to EPA's October 2003 proposal, which proposed to exclude hazardous
secondary materials that are generated and reclaimed in a continuous
process within the same industry. EPA originally proposed that hazardous
secondary materials were reclaimed in a "continuous process" if 1) they
were handled exclusively by facilities or entities (except for
transporters) that are within the generating industry; and, 2) they were
not speculatively accumulated as defined in 40 CFR 261.1(c)(8). EPA also
included various other options for defining "continuous process" in the
preamble to its October 2003 proposed rule.

Based on comments received on the October 2003 proposal, EPA decided to
restructure our approach to revising the definition of solid waste to
more directly consider whether particular materials are not "discarded"
and thus are not solid and hazardous wastes subject to regulation under
Subtitle C of RCRA. In March 2007, EPA proposed to exclude hazardous
secondary materials that were reclaimed under the control of the
generator and transferred off-site for reclamation, provided certain
restrictions and conditions were met. Additionally, EPA proposed to
include a non-waste determination process for hazardous secondary
materials that are: reclaimed in a continuous industrial process;
indistinguishable from a product or intermediate; and reclaimed under
the control of the generator. 

Even though many of the comments on the definition of "continuous" were
in response to EPA's 2003 approach, we believe these comments are
relevant for the non-waste determination for hazardous secondary
materials that are reclaimed in a continuous industrial process because
it includes this non-waste determination includes the concept of
"continuous."

SUPPORT DEFINITION OF "CONTINUOUS": One commenter agreed with the
proposed definition of continuous as explained in the October 2003
preamble. [0175] 

DO NOT FURTHER DEFINE "CONTINUOUS": Some commenters said that there
should be no further tests or testing requirements imposed to define
"continuous process" because, as one commenter believed, such additional
complexity will only lead to potential regulatory confusion and would
not result in any significant environmental benefit. One commenter
believed EPA's definition of "continuous process" should be applied as
broadly as possible. Another commenter said EPA should make no attempt
to define a "typical product" for each industry (which, the commenter
noted, the EPA termed an impracticable effort that would require a large
amount of time and resources).  [0044, 0062, 0138] 

Commenters further believed EPA should not impose conditions based on
the:

-	Episodic nature of reclamation operations: Some non-Bevilled
gold-laden materials from the precious metals industry are generated and
reclaimed only episodically and not on a routine day-to-day basis. These
secondary materials are of no less value, and their management exhibits
no more element of discard, simply because they are generated
episodically. [0089]

-	Geographic proximity of the generating and reclaiming facilities: EPA
should not impose a geographic limit on the generating-reclaiming
circuit because this would discourage beneficial recycling in many
instances, particularly where technological considerations and economies
of scale dictate that numerous generators utilize a small number of
off-site facilities to reclaim their materials. [0089, 0178]

-	"Physical linkage" between the processes that generated and reclaim
the material: There is no environmental or logical reason to require
physical linkage; any attempt to impose a "physical linkage" requirement
as part of the October proposal would be in direct violation of the D.C.
Circuit's holdings, which ruled that EPA could not regulate hazardous
secondary materials as solid wastes, notwithstanding that they were
being processed for recovery in different units, or different parts of
the production process, that generated them. If a physical linkage was
required, any secondary material that is stored outside a closed loop
system before being reclaimed presumably would be a solid waste, but
that result was soundly rejected in the ABR case (where the material at
issue could be stored on the land for some time before being reclaimed)
and in the Safe Food and Fertilizer decision (where the zinc-containing
secondary material was made into fertilizer by a different entity from
the generator). Furthermore, a "physical linkage" requirement would
discourage beneficial recycling in many instances, particularly where
technological considerations and economies of scale dictate that
numerous generators utilize a small number of off-site facilities to
reclaim their materials. [0089, 0178]

 

-	Reclamation in the precise process that generated the secondary
material: For reasons stated above, one commenter believed that EPA
should not require that metal-bearing hazardous secondary materials be
placed back into the same production process that generated them. There
is no element of discard involved in their management, and no
environmental reason that the materials should be regulated as solid
waste. [0089] 

NEED TO FURTHER DEFINE "CONTINUOUS":  Some commenters were concerned
with the lack of specifics on what constitutes a "continuous process." 
[0084, 0117, 0119, 0217, 0231, 0539] 

One commenter said the term "continuous process" has different meanings
depending upon who is using the term. For example, from an engineering
standpoint one can define a continuous process in terms of a series of
unit process or manufacturing steps that are assembled to perform a
specific function or produce a specific product. But from a business
standpoint, it can be used to define the interaction of several
manufacturing operations designed to achieve a certain goal. This
commenter believed that it is not clear what the Court intended in its
various decisions and believes that the Court was trying to define the
concept in terms of a technical interpretation; namely, that the
hazardous secondary materials are managed at the individual facility in
a process that is uninterrupted. Another commenter said EPA must pay
closer attention to the guidance in the court decisions; the court
sometimes used the short-hand phrase "continuous process," but more
often the court spoke of reuse in an "ongoing production process," "an
ongoing manufacturing or industrial process," "part of ongoing
industrial processes," "passing in a continuous stream or flow from one
production process to another." The key element is a firm's
"production," "manufacturing" or "industrial" process; however, EPA's
October 2003 proposal totally omits this key element. EPA proposed a
hazardous secondary material can be discarded, stored, shipped, and then
reclaimed in a separate non-production process, provided speculative
accumulation limits are met. Therefore, this commenter believed the
definition of "continuous process" is inaccurate, incomplete and fails
to distinguish between discarded and non-discarded materials. [0117,
0119] 

One commenter said that, if EPA is going to propose an exclusion for
hazardous secondary materials that are recycled in a continuous process,
then EPA has the responsibility of defining a "continuous industrial
process." If this term cannot be defined by EPA, then there is no way
that the regulatory community will understand the exclusion and the
result will be arbitrary determinations by the states as to what is
meant by that terminology. This commenter believed a careful, narrow
definition of 'continuous industrial process" is exactly what the D.C.
Circuit Court of appeals called for in several opinions rejecting EPA's
existing solid waste definition as over-broad. Another commenter
believed a state regulator would have a difficult time determining
whether any particular step in a process really constitutes something
continuous without considering the entire process. Such an effort may be
beyond the resources reasonably available to a state regulatory agency.
One commenter said the rule should be modified to define continuous in
an objectively measurable fashion to ensure the rule's enforceability.
Some commenters said the definition "in a continuous process" should
embrace concepts related to material stewardship. Commenters supported
adding a requirement that there should be no third-party processing or
handling of the materials once they have been received by, or reclaimed
by, the reclamation facility because such additional processing defeats
the purpose of product stewardship and responsibility. In other words,
the reclaimed products, or new product, must go directly back from the
reclaimer to the same industry from which they were generated. One
commenter also noted that their process of waste minimization and
increasing the sustainable use of resources is basically a continuous
utilization process (i.e., cradle-to-cradle) in a closed-loop
environment. Maintaining the integrity of that process dictates that
product and material stewardship be internalized and not handed off to
third parties. One commenter said hazardous waste determination criteria
should be used. [0072, 0084, 0101, 0217, 0479, 0539]

One commenter said EPA should strengthen this requirement by integrating
the concepts of "regularity" and "predictability" of reclamation
activities. These concepts should refer to an ongoing and uninterrupted
process with physical linkages between the processes that generate
secondary materials and the processes that reclaim such material.
Inherent within the physical linkage of processes is the concept that
geographically disparate facilities are not linked. Thus, in order to
satisfy this requirement, generation and reclamation processes must
occur on the same site. This commenter believed establishing these
minimum protections is consistent with RCRA's predominate goal of
protecting public health and environmental quality. Moreover, this
uniform and protective approach would promote consistency and ease
oversight. [0231] 

One commenter recommended that EPA consider a "balancing test" approach,
where the burden would be on the generator on a site-specific basis to
demonstrate, in a variance procedure, by a preponderance of the evidence
that his/her reclamation process meets the narrative test. A few
evidentiary factors might be: historic industrial practices; regularity
and predictability; amount of time between generation and reclamation
and reuse of the material with specific maxima; NAICS code; geographic
considerations; relationship between product lines; business
relationship between generator and reclaimer; fate (sale, use, reuse,
additional reclamation) of the reclaimed material; linkage between
physical processes of generation, reclamation and reuse; economic
factors; and others. [0092]

SPECULATIVE ACCUMULATION: Some commenters supported using the existing
definition of speculative accumulation as an appropriate approach for
defining continuous process and to ensure materials are reclaimed in
reasonable timeframe. One commenter believed EPA should consider how
this can be applied to recycling conducted off-site, inter-industry, and
especially, by recycling companies. One commenter said, while the use of
the speculative accumulation parameter seems valid, it seems to apply to
only a portion of the process, the period prior to reclamation. For the
process to be continuous, the materials must be used after reclamation.
If none, or only a small portion, of the reclaimed materials is used
after reclamation, the process should not be considered continuous. This
concept should be expressed in the definition of "continuous" or
"legitimate recycling." One commenter did not support using speculative
accumulation as a means of defining "continuous process." "Continuous"
means no breaks in the process, and allowing materials to remain
unregulated without being recycled for close to two years in some cases
does not coincide with the concept of continuous. Furthermore, under
speculative accumulation, some materials may never actually be
processed. Another commenter said the express prohibition on speculative
accumulation is unnecessary and unhelpful. A third commenter said,
because the (October 2003) proposed rule allows the speculative
accumulation period to begin anew each time the waste is transferred,
the rule allows for indefinite, unregulated storage of hazardous waste
at various facilities across the country. [0044, 0083, 0122, 0167, 0217,
0225, 0231]

SUPPORT PROHIBITION ON BROKERS: Some commenters supported EPA's October
2003 proposal not to allow transfer of hazardous secondary materials
through a broker or other middleman because the use of any middleman
would invalidate the concept of "continuous process with the same
generating industry." One commenter believed that the hazardous
secondary material may have an intrinsic value to companies within a
similar industrial sector and so are likely to be properly handled and
managed; however, the inclusion of a third party would make tracking
shipments more difficult and may result in releases to the environment
if the hazardous secondary materials are not properly handled. A second
commenter believed that, since a broker will have a different NAICS
industry classification code than the generator, the use of a broker
will create an additional and more significant discontinuity in the
generation, reclamation and reuse process. Additionally, one commenter
believed that such intermediaries are essentially waste management
firms, and that this approach is consistent with the provision in EPA's
October 2003 proposal which disallows waste management firms to avail
themselves of the exclusion. Commenters further believed the use of
independent transporters to ship hazardous secondary materials from the
generator to the reclaimer is within the bounds of normal commerce. One
commenter suggested, in addition to transporters, that EPA add
in-transit warehouses and distribution centers to the exception from
having to be within the same generating industry. Depending on the
distance and route involved, some materials may temporarily be stored in
a warehouse or distribution center awaiting a different transporter or
additional volumes of other materials to be shipped together to provide
a full load. Particularly in instances where materials will be
temporarily stored beyond ten (10) days, the Agency should view such
activities as within the normal course of transportation. Another
commenter urged EPA to clarify, if the prohibition on brokers was
maintained, that out-of-industry transporters include out-of-industry
loading, unloading and related operations. One commenter noted the
October 2003 proposal contains an arbitrary distinction between labeling
the use of "transporters" as part of a continuous process, while
excluding the use of middle-men from this definition and believed that
EPA failed to enunciate a rational reason for allowing transporters to
qualify as part of a continuous process. [0068, 0072, 0083, 0098, 0140,
0148, 0152, 0231] 

OPPOSE PROHIBITION ON BROKERS: Some commenters disagreed with EPA's 2003
rationale that use of brokers was inconsistent with the concept of
recycling in a 'continuous process" and believed EPA should, instead,
allow the use of brokers. One commenter said, as reviewing courts have
made clear, a material is not a solid waste until it is intended to be
discarded. Handling recyclables through a broker does not inherently
suggest that the generator intends to discard them, on the contrary, it
suggest the opposite. Commenters pointed out that, as noted by EPA,
"brokers are often better able to find markets for recyclable secondary
materials, and can thus facilitate their beneficial use."  Brokers work
hard to find generators and recyclers, since a broker's business depends
on it, and would therefore facilitate recycling opportunities by
identifying and connecting the generators with recycling facilities. A
second commenter argued that brokers provide valuable services in terms
of their expertise on the RCRA requirements that must be met, such as
the criteria to comply with a RCRA recycling exclusion, as well as other
relate regulations, such as DOT regulations. Another commenter said that
most foundries, particularly non-ferrous foundries (which tend to be
smaller, privately-held and often family-run businesses), do not recycle
on-site and, more often, rely on brokers to facilitate and coordinate
economic transfer and legitimate recycling of commodities. Commenters
believed that brokers play an important part in the continuous recycling
process; typically, a broker can obtain better pricing for commodities
by aggregating materials from a number of smaller sources into a
sufficient volume to make recycling economically feasible. Small
companies, in particular, are more likely to recycle hazardous secondary
materials if an intermediary is allowed. One commenter noted that small
businesses contract with a waste management company to pick up their
waste routinely for recycling; these smaller quantities are hauled on a
"milk run" manifest. One commenter noted that, although EPA reasons that
since brokers are not in the same industry sector as the generators and
reclaimers and thus their involvement breaks the direct intra-industry
link, EPA, however, proposes to make an exception for third-party
transporters, who would not be in the same industry as the generator and
recycler. EPA's willingness to make an exception to this "linkage
principle" for transporters and not brokers shows how artificial this
principle is. Furthermore, this commenter was not aware of a statutory
reason or court dictate that requires that there be a direct link
between the generator and recycler in order for the hazardous secondary
material not to be a solid waste. Moreover, this commenter, who operates
as a "broker," describes its business operations as follows: 

-	The generator, recycler and broker are contractually bound to one
another to ensure that the hazardous secondary materials are sent to the
recycler;

-	Through contracts, the generator selects the recycler (using
information that the broker provides) and knows exactly where the
hazardous secondary materials will be recycled before it is shipped;

-	The generator provides the recycler a sample of the hazardous
secondary material and/or information regarding the material to enable
the recycler to confirm that he can effectively recycle the material;

-	Generators and recyclers represent and warrant the accuracy of the
information provided;

-	The generator's materials are not allowed to be mixed or bulked with
another generator's materials and thus, the generator's materials can be
identified and confirmed upon receipt at the reclamation facility;

-	When the hazardous secondary material leaves the generator's facility,
title passes to the recycler, which gives the recycler additional legal
and economic reasons to ensure that he receives the shipment;

-	Each of the three parties indemnify each other if their actions or
omissions cause damages or additional costs for proper handling of the
material;

-	The recycler's services are extensively reviewed, including: the
recyclers operations, the recycler's compliance record, and its
financial status and terms.

 

Some commenters urged EPA to allow brokers in the final rule by adding a
provision that requires a contractual commitment between the generator,
recycler and broker. There is no legal or policy reason to prohibit
brokers from facilitating such carefully circumscribed recycling, and
there is every reason from a resource recovery standpoint to encourage
it. One commenter noted that their members would not use a brokering
service at all without acquiring detailed knowledge about the company
and the recycling companies to which it brokers materials. Additionally,
if EPA finalizes the prohibition on brokers, one commenter notes that
there will be several implementation issues involving what it means to
be a "transporter" (and not a broker) and to 'handle' the material
(whether that infers physically handling, or arranging the transaction
without taking possession). [0126, 0129, 0138, 0149, 0151, 0152, 0153,
0178, 0181, 0187, 0196, 0197, 0204]

CLARIFY DEFINITION OF BROKER: Some commenters believed that the
difference between brokers and transporters needs to be more clearly
defined to avoid confusion and misinterpretation. Specifically, the
Agency should distinguish between transporters, brokers, middlemen,
processors and end users. The term "broker" should be reserved for
entities which do not physically handle or transport the waste materials
but instead act as a matchmaker to pair generators with processors or
end users. "Middlemen" are entities which handle, transport and/or
stockpile materials for later use. "Processors" are parties that
physically transport and manage the residuals. "End users" are the
consumers of the recycled materials. [0067, 0138, 0231] 

MULTIPLE RECLAMATION STEPS: One commenter agreed with EPA's 2003
proposal that reclamation should be allowed to occur in one or more
processing steps, at one or more sites. So long as the hazardous
secondary material is destined for legitimate reclamation, it is not
part of the nation's waste disposal problem, and there is no reason that
reclamation has to occur on the same site as generation. [0089] 

8.2.1 - Response

BACKGROUND: As stated above, this section responds to comments mostly
received in response to EPA's October 2003 proposal, which proposed to
exclude hazardous secondary materials that are generated and reclaimed
in a continuous process within the same industry. EPA originally
proposed that hazardous secondary materials were reclaimed in a
"continuous process" if 1) they were handled exclusively by facilities
or entities (except for transporters) that are within the generating
industry; and, 2) they were not speculatively accumulated as defined in
40 CFR 261.1(c)(8). EPA also included various other options for defining
"continuous process" in the preamble to its October 2003 proposed rule.

Based on comments received on the October 2003 proposal, EPA decided to
restructure our approach to revising the definition of solid waste to
more directly consider whether particular materials are not "discarded"
and thus are not solid and hazardous wastes subject to regulation under
Subtitle C of RCRA. In March 2007, EPA proposed to exclude hazardous
secondary materials that were reclaimed under the control of the
generator and transferred off-site for reclamation, provided certain
restrictions and conditions were met. Additionally, EPA proposed to
include a non-waste determination process for hazardous secondary
materials that are: reclaimed in a continuous industrial process;
indistinguishable from a product or intermediate; and reclaimed under
the control of the generator. 

Even though many of the comments on the definition of "continuous" were
in response to EPA's 2003 approach, we believe these comments are
relevant for the non-waste determination for hazardous secondary
materials that are reclaimed in a continuous industrial process because
it includes this non-waste determination includes the concept of
"continuous."

DEFINITION OF "CONTINUOUS": In the final rule, the self-implementing
exclusions are no longer limited to the concept of "continuous," as was
originally proposed in October 2003. Furthermore, the non-waste
determination for materials reclaimed in a continuous process is an
administrative procedure whereby applicants must demonstrate to their
regulatory authority that their hazardous secondary material meets the
criteria for this non-waste determination. Regulatory authorities, after
an opportunity for public comment, grant non-waste determinations on a
case-by-case basis.

For the non-waste determination for materials reclaimed in a continuous
process, EPA proposed, and is finalizing, four criteria for making this
determination:

-	The extent that the management of the hazardous secondary material is
part of the continuous primary production process and is not waste
treatment;

-	Whether the capacity of the production process would use the hazardous
secondary materials in a reasonable time frame and ensure that the
hazardous secondary materials will not be abandoned (for example, based
on past practices, market factors, the nature of the hazardous secondary
material, or any contractual agreements);

-	Whether the hazardous constituents in the hazardous secondary material
are reclaimed rather than released to the air, water or land at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be release by
the production process; and

-	Other relevant factors that demonstrate the hazardous secondary
material is not discarded.

EPA is not explicitly defining "continuous process" because production
processes vary widely from industry to industry and, therefore,
determining "continuous process" should be made on a case-specific
basis. At one end of the spectrum, if the hazardous secondary material
is handled in a manner identical to virgin feedstock, then it would
appear to be fully integrated into the production process. At the other
end of the spectrum, hazardous secondary materials indisputably
discarded prior to being reclaimed are not a part of the continuous
primary production process, ("AMC II"), 907 F. 2d 1179 (D.C. Cir. 1990)
(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). For cases
that lie within the spectrum, persons applying for a non-waste
determination need to provide sufficient information about the
production process to demonstrate that the management of the hazardous
secondary material is an integral part of the production process and is
not waste treatment. It is important to note that this non-waste
determination is not necessarily limited to cases under the control of
the generator. For example, hazardous secondary materials that are hard
piped from one facility to another facility that is under separate
control would appear to be fully integrated into the production process
and may therefore be eligible for this non-waste determination, provided
the other criteria are met. 

SPECULATIVE ACCUMULATION: For the final rule's self-implementing
exclusions for hazardous secondary materials, EPA's existing regulations
regarding speculative accumulation (as defined in 40 CFR 261.1(c)(8))
apply. For the non-waste determination, a person may wish to provide
information about the hazardous secondary material and the process to
demonstrate that, even though the speculative accumulation criteria will
not be met, the hazardous secondary material will in fact be reclaimed
in a reasonable time frame and will not be discarded. EPA is not
explicitly defining "reasonable time frame" because such time frames
could vary according to the hazardous secondary material and industry
involved and, therefore, determining this time frame should be made on a
case-specific basis. However, a person may still choose to use the
speculative accumulation time frame as a default.

Furthermore, regarding the comment that materials must be used after
reclamation, we note that persons seeking non-waste determinations must
be legitimately recycling pursuant to the new 40 CFR 260.43, which
requires that hazardous secondary material provide a useful contribution
to the recycling process, or to a product or intermediate of the
recycling process, and the recycling process must produce a valuable
product. EPA further defines these two factors in the final rule; the
product or intermediate is valuable if it is: 1) sold to a third party;
or 2) used by the recycler or the generator as an effective substitute
for commercial product or as an ingredient or intermediate in an
industrial process. 

BROKERS: EPA is convinced by commenters' arguments that it is possible
for intermediate facilities to use responsible business practices to
ensure hazardous secondary materials are sent for reclamation and are
not discarded. In response to comments received on the 2003 and 2007
proposals, EPA is allowing use of intermediate facilities under the
final rule's transfer-based exclusion, provided certain conditions are
met (see section 7.3 for more detail). Since EPA has structured the
non-waste determination process as a flexible alternative to the final
rule's two self-implementing exclusions, it seems logical to extend this
thinking to the non-waste determinations as well. Therefore, use of
intermediate facilities would not necessarily preclude a person from
obtaining a non-waste determination, provided the applicant is able to
demonstrate the extent the management of the hazardous secondary
material is part of the continuous primary production process and is not
waste treatment. However, we note that regulatory authorities, if they
so choose, may stipulate conditions within the non-waste determination
as appropriate and relevant on a case-by-case basis. We also note that
the final rule includes regulatory definitions to ensure clarity for
what EPA considers an "intermediate facility," as opposed to a "transfer
facility."

MULTIPLE RECLAMATION STEPS:  The non-waste determination for hazardous
secondary materials reclaimed in a continuous industrial process does
not preclude reclamation which must occur in one or more processing
steps, at one or more sites, provided the applicant can demonstrate the
extent the management of the hazardous secondary material is part of a
continuous primary production process and is not waste treatment. We
note that multiple reclamation steps would likely be a factor for
consideration and that regulatory authorities, if they so choose, may
stipulate conditions within the non-waste determination as appropriate
and relevant on a case-by-case basis.

8.2.2 - Capacity of the production process to use the material in a
reasonable timeframe

8.2.2 - Summary

One commenter supported a more conservative timeframe when defining
continuous process, preferably full recovery within 90 days of receipt.
If this creates difficulty for any given recycler, a regulatory
provision could provide alternate timeframes, provided a necessity can
be documented. One commenter supported using the existing definition of
speculative accumulation to ensure materials are reclaimed in a
reasonable timeframe. Another commenter believed that speculative
accumulation should not be a requirement for such a determination but
that if imposed, that a one-year extension be made possible. A third
commenter agreed that a recyclable material should not be stored in
perpetuity prior to recycling; however, believed that the appropriate
time period is either: 1) two years from January 1st; or 2) the one-year
period currently contemplated by EPA, with the availability of an
extension of up to an additional year. This commenter noted that the
Arizona Department of Environmental Quality recognized that there may be
legitimate reason as to why the generator of a recyclable material may
not be able to meet the speculative accumulation prohibition and, as
such, provided a mechanism for the generator to request an extension of
up to one year to recycle or have the materials at issue recycled
without being deemed "solid waste." This additional year is well placed
and recognizes that there may be exigent circumstances wherein a
recyclable material will be recycled, but not within a one-year time
period. Another commenter argued that longer storage times should only
be granted on a case-by-case basis if the facility demonstrates that a
longer period of time is necessary to recycle the material and the
longer storage time would not impact the environment. [0069, 0077, 0083,
0526, 0528]

One commenter requested that EPA clarify whether hazardous secondary
material determined by a state not to be discarded could then be
speculatively accumulated. Specifically, in the first column EPA states
that, once a non-waste determination has been granted to a hazardous
secondary material it "would not be subject to…speculative
accumulation," but in the third column states that "the petitioner would
not necessarily need to demonstrate that the material would be
accumulated speculatively." [0516] 

One commenter supported the concept of a case-specific "reasonable
timeframe" as an option to speculative accumulation. However, this
commenter believed that EPA should make the regulated community more
aware of its availability and relationship to speculative accumulation,
for example, by including a statement in 261.1(c)(8) as follows:
"Materials subject to a 260.30 non-waste determination for hazardous
secondary materials recycled in a continuous manufacturing process are
not accumulated speculatively when materials are reclaimed in a
reasonable timeframe as determined on a case-specific basis." [0491] 

Commenters said, because the judicial direction regarding non-discard is
"continuous process," all non-waste determinations should include the
"reasonable timeframe" criterion. [0470, 0543]

8.2.2 - Response

EPA is not explicitly defining "reasonable timeframe" because such
timeframes could vary according to the hazardous secondary material and
industry involved and, therefore, determining this time frame should be
made on a case-specific basis. However, a person may still choose to use
the speculative accumulation timeframe as a default.

For the non-waste determination, a person may wish to provide
information about the hazardous secondary material and the process to
demonstrate that, even though speculative accumulation will not be met,
the hazardous secondary material will in fact be reclaimed in a
reasonable time frame and will not be discarded. By not defining
"reasonable timeframe," EPA is preserving flexibility in order to
accommodate various types of reclamation processes and hazardous
secondary material. However, if an applicant chooses to use speculative
accumulation as a default for meeting this criterion, and receives a
non-waste determination based on that, the applicant must comply with
the speculative accumulation limits or he may be considered to be
discarding his hazardous secondary materials and thus subject to RCRA
Subtitle C. This same rationale applies if the applicant, instead,
demonstrated he met this criterion using a different time table for
"reasonable timeframe." If an applicant is not reclaiming his materials
in a reasonable timeframe as demonstrated in his application for a
non-waste determination, then he may be considered to be discarding his
materials and thus subject to hazardous waste regulations. We also note
that we have added a provision to the non-waste determination process
that, in the event of a change in circumstances that affect how a
hazardous secondary material meets the relevant criteria, the applicant
must re-apply for a formal determination that the hazardous secondary
material continues to meet the relevant criteria and, therefore, is not
a solid waste.

We believe that the proposed regulatory language regarding "reasonable
timeframe" is sufficiently clear because it does not reference
speculative accumulation and provides examples of what types of factors
would influence "reasonable timeframe" (for example, past practices,
market factors, nature of material and any contractual arrangements).
Furthermore, we believe adding in a reference to speculative
accumulation would instead serve to increase confusion and uncertainty,
not only for this non-waste determination process, but perhaps with the
definition of speculative accumulation as well.

Since EPA would consider hazardous secondary materials that were
eternally 'stored' for future recycling to be akin to discard, EPA
agrees with commenters that all non-waste determinations should take
into account whether the hazardous secondary materials will be reclaimed
within a "reasonable timeframe." Therefore, in this final rule, EPA has
added this criterion (with appropriate modifications to the language) to
the non-waste determination for hazardous secondary materials
indistinguishable in all relevant aspects from a product or
intermediate. As with the non-waste determination for hazardous
secondary materials reclaimed in a continuous industrial process, a
person may wish to provide information about the hazardous secondary
material and the process to demonstrate that, even though the
speculative accumulation criteria will not be met, the hazardous
secondary material will in fact be reclaimed in a reasonable time frame
and will not be discarded. However, a person may still choose to use the
speculative accumulation time frame as a default if he so chooses.

8.2.3 - Whether the hazardous constituents in the secondary material are
reclaimed rather than released to air, land, or water at significantly
higher concentrations than would otherwise be released by the production
process

8.2.3 - Summary

Some commenters opposed this criterion. One commenter said, in the
mining and mineral processing industry, it is inevitable in some cases
that releases will be at a "significantly" higher level due to the
concentration of metals in sequential production operations. These
releases, however, may not pose a meaningful risk or represent an
indicator of discard. As EPA acknowledges, "production processes can
vary widely from industry to industry," thus, EPA should not burden the
non-waste determination process with criteria that do not accurately
assess whether a material has in fact been discarded. A second commenter
believed whether or not the constituents are discarded should be the
determining factor in evaluating this criterion. Another commenter said
such considerations should have no place in the definition of solid
waste context, because the issue of whether a material is discarded
depends on what is being done with the material itself, not on the
ultimate fate of each and every constituent the material contains.
Furthermore, the use of ordinary products commonly results in releases
or emissions of some kind, but this provides no basis to say that the
product itself is discarded material. For example, the ultimate disposal
of avocado pits and skins provides no rational basis to claim that fresh
avocados on a grocery shelf are "discarded material." This commenter
argued that, if one valuable material is being used to produce another
valuable material, for example, the fact that emissions occur in the
process does not alter the fact that the valuable material is being used
rather than discarded. This commenter further argued that RCRA provides
no authority to regulate non-discarded materials for this purpose. If
the use of non-discarded materials generates solid waste, such waste
would be subject to air, water, and waste regulations as appropriate.
[0481, 0528, 0534, 0537]

One commenter very much supported this criterion as exactly the right
inquiry to be conducted. This criterion correctly reflects the guidance
of the court in Safe Foods v. EPA and related cases. Furthermore,
whether hazardous constituents are released at "significant" levels is
invariably more a qualitative than quantitative determination, this
commenter agreed with EPA's approach of considering statistical or
risk-based measurements. This commenter recommended that EPA include
guidance in the final rule on statistical measures that would provide a
bright line, which could include: adopting the approach used for cement
kiln dust in 40 CFR 266.112 to distinguish "normal residues" from "waste
derived residues"; using universal treatment standards in 40 CFR 268.48;
or defining acceptable levels of hazardous constituents based on the
risk model in the delisting process. Another commenter said this
criterion is ambiguous in its reference to hazardous constituents and
does not provide the bright line needed for a safe harbor. Moreover,
this criterion establishes a bias against metal reclamation in that
secondary materials worthy of reclamation will invariably contain some
constituents at higher levels than are found in ores. [0535, 0558]

A couple commenters suggested, for clarity and consistency, that
260.34(b)(3), 260.34(c)(3) and 260.34(d)(2) should all state that
"hazardous constituents in the secondary material are reclaimed rather
than discarded at significantly higher levels than would otherwise be
released from the primary production process." [0470, 0543]

One commenter said this criterion would be difficult to evaluate on an
on-going basis without a permitting and inspection program. [0509]

8.2.3 - Response

EPA disagrees with commenters who believe this criterion is not relevant
for determining if hazardous secondary materials are being discarded. By
indicating that releases must not be at "significantly higher
concentrations" than would otherwise be released during the production
process, we believe we have set a reasonable and meaningful bar that
applicants must meet in order to demonstrate that their hazardous
secondary materials are reclaimed and not discarded. Reclamation
scenarios that fail to meet this criterion are, by definition, different
than the relevant production process in terms of releases of hazardous
constituents. Thus, they cannot be determined (without further analysis)
to not be discard and to not present a greater risk of adverse impacts
to human health and the environment. In these cases, a non-waste
determination would not be appropriate. To entertain the avocado
example, if a person were to throw a large portion of the avocado fruit
on the ground, he would in fact be releasing significantly higher
concentrations of the avocado than would otherwise be released by the
primary production process (i.e., the person is discarding more of the
avocado than the pits and skins, which are normally released during the
eating process). In cases where a significant concentration of the fruit
ends up on the ground, it would be challenging to argue that the person
is not discarding the avocado. Therefore, we disagree with this
commenter's reasoning.

Regarding those commenters who support a "bright line" in order to
define "significantly higher concentrations," EPA believes that, given
the wide variety of production processes and recycling practices,
establishing a "one size fits all" objective standard is not practical
and would invite inefficiency. We also note that non-waste
determinations are reviewed on a case-by-case basis; thus, the non-waste
determination itself serves to provide a safe harbor for facilities,
since the regulatory authority would have reviewed the specific fact
pattern and deemed the hazardous secondary material not to be solid
waste. Furthermore, we disagree that this criterion presents a bias
against metal reclamation in the way suggested by the commenter since
this criterion compares the hazardous constituents released to the air,
land or water to that which would otherwise be released by the
production process; it does not compare the hazardous constituents in a
hazardous secondary material to a virgin material (or in this case,
virgin ore).

We agree with commenters who suggested the language of the criterion
should be exactly the same for each of the non-waste determinations to
improve clarity and consistency. We have incorporated this change into
the final rule.

EPA anticipates that regulatory authorities may monitor compliance of
facilities that have been granted a non-waste determination,
particularly if the non-waste determination stipulates conditions that
the facility must meet. Furthermore, in the event of a change in
circumstances that affect how a hazardous secondary material meets the
relevant criteria, including this criterion, the applicant must re-apply
to the Administrator for a formal determination that the hazardous
secondary material continues to meet the relevant criteria.

8.3 - Non-waste determination for hazardous secondary material
indistinguishable in all relevant aspects from a product or intermediate

8.3 - Summary

One commenter questioned the need for this determination because the
current regulations already exclude hazardous secondary materials from
the definition of solid waste when they are recycled as a substitute for
a commercial chemical product. This commenter requested EPA clarify how
this determination differs from the current exclusion at 261.2(e)(ii).
Another commenter suggested that generators be required to obtain a
variance under 40 CFR 261.31(c). [0479, 0539]

One state commenter requested clarification of EPA's preamble language
on page 14203 where EPA states: "to qualify for a non-waste
determination, any differences between the hazardous secondary material
in question and commercial products or intermediates must be
insignificant from either a statistical or from a health and
environmental risk perspective." This commenter asked if they were
correctly interpreting this statement as "no toxics along for the ride"
and expressed that confirmation from EPA will help to ensure that no
state will administer their non-waste determination program less
stringently than EPA intended. [0516]

One commenter did not believe it is EPA's responsibility to enforce
product safety standards and that any proposed recycling consumer
product that has potential safety issues in this matter can be referred
to the U.S. Consumer Product Safety Commission or other applicable
federal agency for a safety evaluation. [0488]

8.3 - Response

In cases where hazardous secondary materials that are used or reused
directly and are indistinguishable from products they would be excluded
from solid waste regulation under 40 CFR 261.2(e). However, 40 CFR
261.2(e) does not cover materials that are indistinguishable from an
intermediate that goes on for further processing that would be
considered reclamation. 261.2(e) also does not cover situations where
the hazardous secondary material is speculatively accumulated. The final
rule's 40 CFR 260.34(c) covers these scenarios. 

EPA cannot simply require generators to apply for a variance under 40
CFR 260.31 because the existing variances do not extend to, and thus
would offer no relief for, cases where hazardous secondary materials are
reclaimed in a continuous industrial process or for hazardous secondary
material that are indistinguishable in all relevant aspects from a
product or intermediate. Today's non-waste determinations, although
similar to the current variance procedures, are technically not
variances in which EPA regulations otherwise classify materials as solid
wastes and facilities may apply for an exception. Instead, the new
procedure would apply to cases in which hazardous secondary materials
are not discarded but which do not fit within the self-implementing
exclusions or for which the restrictions and conditions of the
exclusions are not applicable.

EPA clarifies that our statement that "any differences between the
hazardous secondary material in question and commercial products or
intermediates should not be significant from either a statistical or
from a health and environmental risk perspective" is used to explain the
second criterion regarding whether the chemical and physical identity of
the hazardous secondary material is comparable to commercial products or
intermediates. This concept is different from "no toxics along for the
ride," since this legitimacy factor is concerned only with the hazardous
constituents and hazardous characteristics of the material, whereas the
second criterion for the non-waste determination looks at the entire
chemical and physical identity of the hazardous secondary material and
whether it is comparable to a product or intermediate. Furthermore, we
note that legitimacy, as provided in the final rule under 40 CFR 260.43
and including the non-mandatory factor of "no toxics along for the
ride," applies to hazardous secondary materials reclaimed under both
non-waste determinations.

We agree that EPA does not have the authority to regulate product
safety; however, EPA does have the authority to define when a hazardous
secondary material is discarded and, thus, a solid waste. EPA,
therefore, is establishing criteria which, along with the codified
legitimacy provision, serve to define discard for the non-waste
determination for hazardous secondary materials indistinguishable from a
product or intermediate.

8.4 - Non-waste determination for hazardous secondary material reclaimed
under the control of the generator via a tolling arrangement or similar
contractual arrangement

8.4 - Summary

One commenter argued that, when contractual arrangements (like tolling
agreements) are involved, the notion that the person who physically
generates the hazardous secondary material retains control over its
reclamation and the residuals resulting from its reclamation is more
likely to be a convenient fiction than an accurate description of what
is actually occurring. One commenter agreed that a properly structured
tolling arrangement will be inconsistent with the concept of "discard,"
but this determination should not turn on the fictitious notion that the
person who physically generates the secondary material being reclaimed
retains ownership of, and liability for, the material (and the
residuals). Another state commenter argued that residuals are generally
co-mingled to save shipping and disposal costs and that, with regards to
the recycled material, some recyclers may return a specified volume of
the same material, but it may actually have been co-mingled with other
generators' recyclable materials before processing. This commenter also
stated that another issue is the management of recyclable materials that
are not processed in a timely manner or not processed back to the
generator's specifications; since, under these circumstances, the
processor may have already failed to comply with the contract and thus
confidence in the generator's ability to insure that this waste will be
managed in an environmentally safe manner is questionable. Another state
commenter anticipated major enforcement problems in scenarios where a
commercial recycler is processing multiple hazardous secondary material
streams from numerous customers and the streams are combined into a
single recycling unit that produces residuals (e.g., still bottoms) that
are mismanaged. [0452, 0509, 0516] 

Some commenters believed that hazardous secondary materials that are
reclaimed pursuant to tolling arrangements or similar contracts should
only be made on a case-by-case basis using the non-waste determination
petition process. This commenter argued that tolling agreements can vary
greatly in their terms and conditions; one provision in the contract can
purport to assign control of the production and residuals to the tolling
contractor, while other provisions can create warranties and indemnities
that effectively nullify the recitation of control. If the batch
manufacturer allegedly breaches the tolling contract, the specialty
chemical manufacturer may be exonerated and the basic premise of the
conditional exclusion would be vitiated. However, during the petition
process, EPA or a state would look closely at "whether the generator
retains ownership and liability via a contract" as well as the other
criteria to determine that the hazardous secondary material meets this
non-waste determination and is not discarded. This commenter also
suggested that SOCMA and its member companies could develop a standard
contract and tolling arrangement in a petition to EPA for approval.
[0470, 0558] 

One state commenter disagreed with this non-waste determination,
believing that materials managed under a tolling arrangement are
discarded and should be subject to RCRA permits. This commenter argued
that the generator does not have the ability to insure that the recycler
will have the ability to properly recycle and return the material, and
to dispose of the residuals properly. Furthermore, the recycling
facility may attempt to attract customers based on lower recycling costs
and that these costs may in fact be the result of shortcuts in
environmental protection. Another commenter argued that contractual
agreements in the pre-RCRA/CERCLA era did not preclude environmental
catastrophes like fires, explosions, community evacuations and
groundwater contamination and even with today's contractual agreements,
these still occur today. [0509, 0564]

One commenter suggested adding additional criteria for consideration,
such as the length of time the material is on-site before and after
recycling, the length of time residuals are on-site, procedures for
managing recyclable materials and residuals and whether they are kept
separate from other generators' materials, and wastes and the compliance
history of the facility. Some commenters argued that the tolling
arrangement or "other contractual arrangement" must be a written
contract with copies maintained at the generating facility and the
reclaimer, and this exclusion should be limited to situations where the
primary business of both the generating facility and the reclaimer is
manufacturing. Another commenter supported requiring generators to
recycle the materials to remove any unstable characteristics of the
materials, such as the potential to self-heat, spontaneously combust,
react in air, be corrosive, release noxious or toxic fumes, and have
them obtain a variance under 40 CFR 261.31(c). [0470, 0479, 0509, 0543]

One commenter believed that the second criterion "whether the hazardous
constituents in the material are reclaimed rather than discarded to the
air, water or land at significantly higher levels from either a
statistical or from a health and environmental risk perspective than
would otherwise be released by a production process" has nothing to do
with whether the material is being reclaimed "under the control of the
generator." That is, this commenter says, the fact that a reclamation
process does (or does not) release hazardous constituents to the air,
water or land at higher levels than would otherwise be released by a
production process can hardly be said to demonstrate that the material
is (or is not) being "reclaimed under the control of the generator."
[0452]

8.4 - Response

EPA has decided not to finalize the non-waste determination for
materials reclaimed under the control of the generator because EPA could
not identify any comments which described in detail other specific
situations involving tolling or contractual arrangements that would not
already be covered under the final rule's self-implementing
generator-controlled exclusion. We, therefore, remain unclear as to what
other arrangements exist where the generator would retain control over
its hazardous secondary materials to ensure they are reclaimed and not
discarded. Without this clear picture, EPA believes we cannot finalize
this non-waste determination and thus we are not including it in the
final rule. 

In addition, we did not intend for such circumstances where a hazardous
secondary material generator was unable to maintain control and
responsibility over his hazardous secondary materials to be eligible for
a non-waste determination for hazardous secondary materials reclaimed
under the control of the generator. Where an applicant's hazardous
secondary materials are intermingled with materials from other hazardous
secondary material generators in a way that renders the applicant unable
to maintain control and liability over his specific materials, the
applicant would have been effectively precluded from obtaining this
formal non-waste determination since he would ultimately fail the first
criterion. 

8.5 - Non-waste determination process

8.5 - Summary

ESTABLISH TIMEFRAME FOR AGENCY DECISIONS: Some commenters argued that
EPA should set a standard timeframe for the agency's approval or denial
of the petition. Given that the decision to recycle a given material
needs to be made on a timely basis and that the current exclusions do
not provide for speculative accumulation of the materials, EPA must
specify a timeframe in which determinations will be made, lest an
applicant's petition remain open indefinitely. One commenter said many
of its members have had the experience of never receiving a response or
even a timeline for further consideration of these types of requests.
EPA may require an extended schedule due to limited regulatory
resources, but this information will at least enable the petitioner to
have some sense of when or whether it will receive the assessment needed
and plan production activities and make business decisions accordingly.
Another commenter recommended that EPA and the primary state(s) approve
or disapprove the non-waste determination within 180 days of receipt of
the application, or the application is automatically accepted. [0467,
0468, 0471.2, 0488, 0494] 

PUBLIC NOTICE IS INADEQUATE: Some commenters said the public notice
requirements for non-waste determinations were inadequate to provide for
meaningful public participation. Commenters believed that the notice
requirements contained in 40 CFR 260.33 are not sufficient because only
publication in local media is required. There is no requirement for
establishing an administrative record, no opportunity for a public
hearing, no allowance for written public comment and response from the
agency, nor is there a requirement for publication in the federal
register. One commenter noted that the local notice requirement in 40
CFR 260.33(b) is currently used to make very limited determinations that
have only a local impact and are unlikely to significantly impact human
health and the environment. Just because the non-waste determinations
are conveniently located in 40 CFR 260.33 does not make local newspaper
or radio notice adequate for nationally-applicable non-waste
determinations. Materials that are recycled pursuant to contracts could
extend to many third-party reclaimers at wide-spread locations across
the U.S., thus, the significance of these non-waste determinations and
the potential health and environmental impacts are far greater than
contemplated by the local notice procedures in 40 CFR 260.33. Although
these are case-by-case determinations, the precedents set are likely to
have national importance and therefore, a broader range of the public,
including environmental groups, state agencies, and corporations, will
have a substantial interest. Commenters argued that non-waste
determinations should follow the public notice procedures in 40 CFR Part
260, which requires notice be published in the Federal Register, with
opportunity for public comment. Because of the broad scope of the
proposed exclusions, a large number of case-by-case petitions are not
expected and thus publication of a draft notice will not pose an undue
burden.  One commenter suggested promulgating non-waste determinations
as a rulemaking and giving states the option to adopt the determination
or not. Still another commenter said the process should be revised to
allow updated methods of public notice. In this age of electronic
information, notice can be made through methods other than, or in
addition to, newspaper publications, such as agency Web pages, e-mail,
listservers, and department calendars. The costs associated with
newspaper publication can be prohibitive in many locations. EPA should
also make the documents available to the public through the electronic
docket and EPA docket center. [0470, 0544, 0558, 0559] 

REQUIRE RENEWAL OF PETITION IF CIRCUMSTANCES CHANGE: Some commenters
believed that a petitioner should be obligated to inform the agency
whenever circumstances change that affect the original basis of the
petition and that the Agency should be able to revoke a petition. One
commenter recommended the hazardous secondary material be conditionally
exempted from regulation, not excluded, for a term of three years, after
which the non-waste determination must be renewed. Commenters said EPA
should develop a mechanism by which the Agency can confirm that the
criteria that originally led to a "non-waste determination" persist over
time. Requiring one-time testing in the petition process is not
sufficient. In the delisting provisions, EPA requires that waste be
tested on some regular frequency, usually quarterly, to confirm that the
delisted waste is still meeting the exclusion limits. This same type of
regular confirmation test should apply to hazardous secondary materials
granted a non-waste determination. Furthermore, EPA should require an
amendment to the petition and re-testing if the process changes or a new
product or intermediate use is proposed. [0470, 0479, 0488, 0543, 0548,
0558] 

ADDITIONAL COMMENTS: The following include additional comments received
on the petition process:

1.	EPA should handle the petition process so that EPA's decisions are
well-researched, documented and readily available to the public and the
regulated community. This commenter envisions a process whereby EPA
decisions will form a coherent and consistent set of precedents that
will guide petitioners as well as EPA.[0494]

2.	EPA should develop a guidance document that will assist petitioners
in preparing a complete non-waste determination application. [0494,
0517] 

3.	EPA should not accept petitions from facilities in authorized states.
[0470] 

4.	EPA needs to clarify the steps that need to be followed to obtain a
non-waste determination. [0467]

5.	The other recycling mechanisms in the proposal place the burden of
compliance on the regulated community that benefits from the exclusion,
while the petition process places the additional burden on the regulated
agency at a time when budgets are already strained. One commenter
recommended that EPA amend the proposal to place the financial burden on
the petitioning facility that will benefit from the process. Another
commenter said the Agency must provide resources for timely and
effective review of petitions. [0531, 0553] 

6.	It is important that the petition contain some certification by the
generator to ensure that the generator is taking responsibility and
certifying the terms and conditions of the petition. [0558]

7.	If it is determined later that approval of a petition was based on
incomplete, inaccurate, or false information provided by the generator,
the waste should be subject to regulation from the point of generation
and not from the date of determination. Some sort of indemnification
mechanism must be in place for the generators, recyclers and regulatory
agencies if a "good faith" error is found in the evaluation and program
participation process. This indemnification should cover both the
organizations and the individual employees. [0470, 0488, 0543] 

8.	If a petition is adopted, EPA must ensure that such petitions can be
filed with and approved by state approved programs and not retain
jurisdiction for reviewing those petitions. However, EPA must be bound
by such determination and the determination must provide a shield
against EPA enforcement. If EPA later disagrees with the determination,
it may seek to have the state program withdraw the determination on a
prospective basis. Absent such protection the granting of a petition
provides the generator of the material little comfort. [0549]

8.5 - Response

ESTABLISH TIMEFRAME FOR AGENCY DECISIONS: Although we understand
commenters' concern about the length of time an applicant would need to
wait before receiving a formal determination from their regulatory
authority, requiring non-waste determinations to be made within a
specific time frame would be difficult, as each case varies in
complexity with some requiring more time to review than others.
Furthermore, EPA would be challenged to prescribe one time frame that
would accommodate numerous state regulatory agencies that vary in
staffing and workloads. Therefore, we are not requiring regulators to
issue determinations within a certain period of time. 

PUBLIC NOTICE IS INADEQUATE: EPA notes the non-waste determination
process was purposely structured to follow the same procedures as
outlined for solid waste variances in 40 CFR 260.33 in order to leverage
the existing structure and keep additional burden on the states to a
minimum. EPA, furthermore, believes that any changes to the type of
format required for public notice would be more appropriately handled as
part of a separate, wholesale effort to update all public notice
requirements in the federal hazardous waste regulations. Therefore, for
the final rule, EPA is retaining the same public notice provisions as
currently required in 40 CFR 260.33. 

Furthermore, we note that the non-waste determination process is a
formalization of determinations that states may already perform. Thus,
we believe the non-waste determination process constitutes an
improvement in regards to public notice, because under many informal
state processes, states sometimes grant such determinations in private
letters without any opportunity for public comment.

We also note that non-waste determinations are granted on a case-by-case
basis and thus we consider the affects of the determination to be
relatively local and case-specific. We also note that that regulatory
authorities, if they so choose, may stipulate conditions within the
non-waste determination as appropriate and relevant on a case-by-case
basis.

REQUIRE RENEWAL OF PETITION IF CIRCUMSTANCES CHANGE: EPA agrees with
those commenters who believe that certain changes in the recycling
process should logically trigger a re-review of the circumstances.
Therefore, in the event of a change that affects how hazardous secondary
materials meet one or more of the criteria upon which a non-waste
determination has been based, EPA is requiring persons to re-apply to
the Administrator or the authorized state for a formal determination
that the hazardous secondary material continues to meet the relevant
criteria and is not discarded and, therefore, not a solid waste.

EPA believes that specifying particular conditions, such as quarterly
testing of the material, is not warranted across the board for all
hazardous secondary materials receiving non-waste determinations because
persons are, instead, required to make specific demonstrations as to how
the hazardous secondary materials meet the eligibility criteria.
Applicants should include demonstrations that the recycling meets the
criteria as appropriate to the specific case in their applications.
Furthermore, regulatory authorities, if they so choose, may stipulate
conditions within the non-waste determination as appropriate and
relevant on a case-by-case basis. One purpose of the non-waste
determination is to provide a measure of flexibility not provided by the
self-implementing solid waste exclusions and specifying the conditions
to be imposed would defeat this purpose. 

ADDITIONAL COMMENTS: We provide the following responses to the comments
above:

1.	Under section 3006 of RCRA, EPA authorizes qualified states to
administer the RCRA Subtitle C hazardous waste program within the state.
Authorized states that adopt the non-waste determination process are
therefore primary administrators of non-waste determinations within
their state.

2.	EPA is open to considering development of a guidance document.

3.	Authorized states that adopt the non-waste determination process may
grant non-waste determinations without EPA review; however, because the
non-waste determination process is a formalization of determinations
that states may already perform, states that have not formally adopted
this non-waste determination process may participate if the following
conditions are met: (1) the state determines that the hazardous
secondary material meets the criteria in either paragraph (b) or (c) of 
40 CFR 260.34; (2) the state requests EPA to review its determination;
and (3) EPA approves the state determination. In addition, of course,
states may continue to make regulatory determinations under their
authorized state regulations, as they do now. In addition, EPA would not
process petitions from facilities in states authorized to implement
these provisions.

4.	EPA notes the non-waste determination process was purposely
structured to follow the same procedures as outlined for solid waste
variances in 40 CFR 260.33 in order to leverage the existing structure
and keep additional burden on the states to a minimum. EPA, furthermore,
believes that any changes to this procedure would be appropriately
handled as part of a separate rulemaking effort. We also note that EPA
is open to considering development of a guidance document.

5.	We note that the regulated community would bear the financial
responsibility for preparing an application that demonstrates how their
hazardous secondary materials meet the relevant criteria for a non-waste
determination. We also anticipate that the vast majority of persons will
choose to use the self-implementing exclusions where applicable because
this would be less resource intensive for the facility. In fact, the
Agency does not envision any person submitting such an application if
they are considered "under the control of the generator" because there
are relatively few restrictions for this exclusion, and, indeed, it
would probably require less effort than seeking a non-waste
determination. In addition, the scope of activities to which the
non-waste determination process would potentially be applicable is
limited to situations which are do not constitute discard; we do not
have any evidence to suggest that there are a large number of scenarios
that would fit within the scope. Thus, the Agency only expects a limited
number of persons to submit applications where a formal non-waste
determination may be appropriate. Additionally, considering that the
non-waste determination process is a formalization of determinations
that states may already perform, we do not believe that states require
additional resources from EPA. Lastly, states may impose fees for
certain program implementation activities, if the state has the
authority to do so.

6.	We are not requiring a certification for non-waste determinations
because, as noted previously, the non-waste determination process was
purposely structured to follow the same procedures as outlined for solid
waste variances in 40 CFR 260.33 in order to leverage the existing
structure and keep additional burden on the states to a minimum. EPA,
furthermore, believes that any changes to this procedure would be
appropriately handled as part of a separate rulemaking effort.

7.	If the information in the application is found to be incomplete or
inaccurate and, as a result, the hazardous secondary material does not
meet the criteria for a non-waste determination, then the material may
be considered a solid waste from the point of generation subject to the
RCRA Subtitle C requirements and EPA or the authorized state could
choose to bring an enforcement action under RCRA section 3008(a).
Moreover, if the person submitting the non-waste determination is found
to have knowingly submitted false information, then he also may be
subject to criminal penalties under RCRA section 3008(d). EPA is not
including an indemnification mechanism due to the complexity of such a
provision. In addition, EPA does not believe indemnification is
necessary.

8.	Under section 3006 of RCRA, EPA may authorize qualified states to
administer the RCRA Subtitle C hazardous waste program within the state.
Authorized states that adopt the non-waste determination process are
therefore primary administrators of non-waste determinations within
their state. In addition, EPA would not process petitions from
facilities in states authorized to implement these provisions.

9 - General comments on changes to legitimacy

9 - Summary

(1) Commenters expressed general support for the legitimacy requirements
in the proposed rules. One requested that no changes be made to the
proposed rulemaking. They state that the legitimacy factors in the rule
closely mirror the Reusable Industrial Packaging Association Code of
Operating Practice they have developed for their members. One commenter
stated that limiting the definition of solid waste exclusion in the 2003
proposal to activities that are legitimate can help ensure that the
excluded recycled materials are managed in a way that minimizes the risk
of environmental harm. One commenter stated that transparent and
predictable legitimacy determinations would allow broader application
among the recycling industries and facilitate greater public and
regulatory acceptance of recycling. (170, 172, 178, 211, 513)

One commenter expressed support for the Agency to supersede the
legitimacy guidance with more specific conditional exclusions for
specific waste streams, such as zinc fertilizers from K061 and
recommended that EPA adopt this approach for all hazardous spent
materials, listed byproducts and sludges that are the subject of the
rule. (119)  

One commenter stated that the legitimacy requirements should be
strengthened. (159) 

(2) Commenters suggested general changes or clarifications to the
legitimacy requirements in the two proposed rules. One commenter argued
that EPA should consider the material and the recycling processes in
legitimacy determinations and must promulgate regulations that clarify
which processes under 40 CFR 261.6(c)(1) are legitimate processes and
which are not. Commenters stated that the legitimacy factors should have
more specific definitions for its terms, not vague factors. One
commenter stated that determinations should be approved by an
implementing agency. One commenter stated that sham recyclers will
operate in any market where money can be made. One commenter expressed
concern about it being the responsibility of a regulated entity to
ensure, if requested, that recycling is legitimate, because they think
that self-implementing regulations will not work and gamesmanship will
occur. (76, 103, 119, 130, 146, 475, 564)

(3) Another commenter expressed concern that the burden of determining
whether a recycling process is legitimate is placed on the generator
even though there is no way for the generator to know if the state, EPA,
or tribes would agree with the determination or if other states in which
the generator does business would agree. They suggested that this would
lead to less recycling and to prevent that, EPA should develop a process
whereby a generator can submit a request for a legitimacy determination
to a single source and that determination would be binding on other
regions, states, and tribes. (124, 127)

One commenter argued that a process should be developed to accommodate
recycling that is not an exact fit to the legitimacy requirements but is
still legitimate. An example is an environmental evaluation and
justification made by the recycler that is sent to EPA for processing
and approval in a reasonable timeframe. (172)

(4) Two commenters expressed general opposition to the legitimacy
factors in the proposed rules. One of these opposed the inclusion of
legitimacy in the rule, stating that EPA has engaged in “regulatory
creep” and has transformed its “sham recycling” policy into
something broader since 1985. The commenter argued that EPA's legal
authority to assert and enforce sham or legitimacy criteria only exists
in the language of the existing recycling exclusions and that codifying
the legitimacy criteria would for the first time provide an enforceable
legal basis for regulators to “trump” applicable recycling
exclusions with the case-by-case application of the legitimacy factors.
They argued also that this would lead to expansion of regulatory
uncertainty for the regulated community. (123)

Another commenter added that the legitimacy requirements in the proposed
rule add a “confounding burden” and that EPA should adopt the
proposed exclusion for on-site reclamation without these requirements.
(537) 

One commenter stated that legitimate recycling should not be the focus
of the 2003 proposed rulemaking discussing the definition of solid waste
exclusions because a lot of waste treatment operations have been
involved in legitimate recycling and have caused extensive
contamination. The commenter added that EPA should clarify first what it
considers disposed or abandoned and then identify which recycling is
legitimate. (186) 

(5) One commenter stated that regardless of the cost of treatment versus
the value of recovery, recycling activities resulting in products that
are not substantially degraded by the addition of Universal Treatment
Standards constituents and that do not result in the land application or
disposal of those constituents at higher levels should be regulated as
recycling. (484)

9 - Response

(1) EPA agrees with commenters supporting the legitimacy requirements
essentially as proposed. Although some changes were made to the 2003
proposal in the 2007 supplemental proposal in making two of the factors
mandatory, EPA kept many of the details of the individual factors the
same as they were when proposed. EPA believes that the finalized
legitimacy factors will assist the regulatory community in knowing
whether they are subject to the RCRA Subtitle C waste management
requirements or the recycling requirements and/or recycling exclusions
and will help implementing agencies with their compliance assistance and
enforcement responsibilities. EPA also agrees with the commenter that
codifying the legitimacy factors will result in more predictable and
transparent legitimacy determinations, which will, in turn, engender
greater acceptance and support for hazardous secondary material
recycling.

(2) In response to the commenters’ request to clarify which processes
under 40 CFR 261.6(c)(1) are legitimate and which are not, EPA responds
that the requirements in 40 CFR 261.6(c)(1) are for owners and operators
that store recyclable materials before they are recycled. To fit under
this provision, the recycling in question must be legitimate recycling.
The existing legitimacy policy, as discussed in preamble statements and
the Lowrance Memo are applicable to this provision and should be used to
make this legitimacy determination. 

In response to the request that the legitimacy factors have specific
definitions for terms, EPA recognizes that there is flexibility in its
factors because the terms are not defined quantitatively or with
bright-line cut offs. However, we believe that this is more appropriate
than defining hard and fast tests for legitimacy that may result in
arbitrary legitimacy determinations. EPA has added more explanation and
more examples to the preamble of the final rule to clarify the meaning
of the terms in the factors. 

In response to the concern that the legitimacy factors are
self-implementing, EPA notes that  under the policy, legitimacy has long
been the responsibility of the entity claiming the recycling exclusion
and EPA does not think it is practicable or necessary for recyclers to
seek legitimacy determinations from their implementing agency in every
case. The requirement that the recycler be able to demonstrate that
their recycling is legitimate is consistent with the existing
requirement at 40 CFR 261.2(f) that is currently applicable and EPA
believes that this self-implementing approach is most appropriate for
legitimacy determinations.  

(3) In response to the request that there be a process in place for a
generator to request a determination from the implementing agency on the
legitimacy of its process, EPA reiterates that it expects the legitimacy
factors to work in much the same way that the existing policy currently
works. If a generator is unsure of the legitimacy of its particular
process, it can submit a request to its regulating entity with the
details of its materials and process for assistance in making a
legitimacy determination in the same way as it would have under the
legitimacy guidance. Because each state implementing RCRA can be more
stringent than the federal regulations, it is not appropriate for EPA to
mandate that one state, Region, or tribe's legitimacy determination must
be applicable in another area. 

(4) To reduce confusion among the regulated community and implementing
states about the status of recycling under existing exclusions, EPA has
not codified the legitimacy provisions for all recycling in this final
rule. However, EPA does not agree with commenters that it has engaged in
“regulatory creep” with the legitimacy requirements since 1985. EPA
believes that the legitimacy provisions codified in this rule are
equivalent to the policy in the Lowrance Memo and in Federal Registers
that discuss legitimacy. EPA stresses, however, that the existing
legitimacy concept applies to all recycling and we expect that states
and implementing agencies will use it as they have in the past to ensure
that recycling is real and not sham.  

(5) EPA does not agree with the comment that the determining factor for
what is recycling should be that the recycling activity results in
products that are not substantially degraded by the addition of
Universal Treatment Standards constituents and do not result in the land
application or disposal of those constituents at higher levels. EPA
believes that legitimate recycling at a minimum would meet the two
mandatory factors in the final rule. First, the hazardous secondary
material must provide a useful contribution either to the process or the
final product of the recycling—if this is not the case the material is
simply being run through the recycling process to avoid disposal.
Second, the product of the recycling process must be valuable. Simply
not having UTS constituents is not enough to assure that the recycling
is legitimate because if the product is not valuable, then the recycling
is being done just to provide a way to get rid of the hazardous
secondary materials. 

9.1 - Change in structure for legitimacy

9.1.1 - The 2007 proposed structure for legitimacy is appropriate

9.1.1 - Summary

The vast majority of commenters agreed that the two factors proposed to
be mandatory (useful contribution and valuable product) are critical
indicators of legitimacy and as such, should be included in the
definition of legitimacy (452, 457, 460, 463, 467, 471.2). Some
commenters also discussed their reasoning for supporting the new
structure, with the two fundamental factors mandatory and the other two
factors (managed as a valuable commodity and no significant hazardous
constituents) to be considered (471.2, 478, 529). More than one
commenter noted that they did not object to the proposed “two plus
two” reorganization of the legitimacy criteria (472, 486) or preferred
it over an approach where all four factors were mandatory (481). Several
commenters noted that while they would prefer that legitimacy factors
remain as guidance, to the extent that the Agency codifies the criteria,
they agreed that only the useful contribution and valuable product
factors should be made mandatory (472, 481, 534). Two commenters stated
that the legitimacy factors EPA is proposing to codify are generally
fair and appropriate, and their application should in most cases be
sufficient by themselves to define discard (or its absence) in the
context of recycling. These commenters also agreed that only the first
two factors should be mandatory and that the third and fourth factors
are usually, but not always, relevant to the discard inquiry. These
commenters summarized their position by stating “On the whole, the
four factors and their structure are reasonably objective, but allow for
necessary flexibility in legitimacy determinations (473, 492).  

One commenter specifically mentioned that they did not anticipate any
conflict between the generic legitimacy criteria and the more specific
regulatory provisions for their particular recycling practices (138).

The U.S. Chamber of Commerce noted that they approved of the new
structure, stating that codification of the criteria for distinguishing
legitimate recycling would provide consistency and predictability in
applying the exclusions while also preserving EPA's ability to evaluate
special circumstances on a case-by-case basis. They felt it was
especially important for the exclusions to be applied as consistently as
possible without being so rigid as to effectively bar future recycling
technologies (510).

9.1.1 - Response

The Agency agrees with the commenters who voiced their support for the
proposed structure of legitimacy, with the first part consisting of two
factors that must be met: (1) a requirement that hazardous secondary
materials being recycled provide a useful contribution to the recycling
process or to the product of the recycling process and (2) a requirement
that the product or intermediate of the recycling process be valuable
and the second part consisting of two factors that must be considered:
(1) whether the hazardous secondary materials are managed as a valuable
commodity and (2) whether the product of the recycling process contains
significant concentrations of hazardous constituents. Therefore, we are
finalizing this structure in the final legitimacy provision at 40 CFR
260.43. We have determined that the two factors that must be met are
crucial to evaluating legitimate recycling and are at the very core of
what it means to recycle legitimately. EPA also believes the other two
factors are still very important in making legitimacy determinations but
realizes that there are a small number of situations where one or both
of these factors may not be met and the recycling is still legitimate.
In cases where one or both of these factors are not met, the person
demonstrating the legitimacy should be prepared to explain why their
recycling activity is nevertheless legitimate. We have noted that the
generator or recycler may be requested to demonstrate the legitimacy of
its recycling process and explain why one or both of these factors do
not apply to their specific situation.

9.1.2 - The 2007 proposed structure for legitimacy is not appropriate

9.1.2 – Summary

A number of commenters expressed their support for legitimacy (or
certain legitimacy factors) but argued that it should only be applied to
the new exclusions being promulgated. These commenters did not believe
legitimacy (or specific legitimacy factors) should apply to the existing
definition of solid waste exclusions (74, 93, 115, 446, 473, 481, 486,
492, 506). Several commenters expressed the opinion that it is improper
to impose an evaluation of legitimacy on materials that the Agency has
already determined through industry or waste-specific rulemakings are
not solid wastes (449, 528, 537). One commenter stated that it believes
it is improper for three reasons: (1) the Agency did not provide
sufficient notice in its 2007 supplemental proposal to allow for
meaningful comment on this issue, (2) as applied to prior
determinations, the Agency did not provide “fair notice” mandated by
the due process clause, and (3) it is inconsistent with the deregulatory
nature of the 2007 supplemental proposal (528). Another commenter
specifically stated that it believes EPA has already made a legitimacy
determination for recycled wood preservative solutions and wastewater
(449). One commenter found the proposed adoption of the legitimacy
requirements to be the most troubling aspect of the proposed rule, in
part because they felt it is impermissibly narrowing the scope of all
recycling exclusions. This commenter believes the legitimacy
requirements are designed to create a new system that regulators could
use to trump all recycling exclusions as necessary to regulate or
preclude any recycling activity they don't approve of (537).

One commenter stated their opinion that EPA is greatly complicating a
matter that is not that complicated by adding a definition of legitimate
recycling. This commenter believes that legitimate recycling is already
clearly defined by the parenthetical in 40 CFR 261.3(c)(2)(I):
“(However, materials that are reclaimed from solid wastes and that are
used beneficially are not solid wastes and hence are not hazardous
wastes...).” This commenter believes that the variance system exists
to address materials that legitimately should be excluded because they
are reclaimed and that the Agency should promote that instead of adding
the legitimacy criteria to the regulations (479). Another commenter
stated that they did not see the need to address the legitimacy criteria
generically and believe that EPA should address any concerns with the
existing legitimacy criteria through more targeted approaches, e.g., by
examining in-depth waste-specific and industry-specific recycling
practices and addressing the legitimacy of these practices in specific
terms (481).

One commenter noted they oppose the new structure for the same reason
they oppose codifying any of the legitimacy criteria. They believe that
legitimacy of recycling by its nature should be a fact-based
determination and think it is unlikely that any list of codified
requirements or criteria could account for the diversity of
circumstances under which legitimate recycling could take place. They
believe that the proposed criteria will complicate recycling decisions
(520).

Another commenter believes that the new structure does not go far enough
and urges EPA to promulgate the six criteria set forth in the
“Lowrance Memo,” which have been in operation since 1989. This
commenter is unaware of any meaningful situations where a legitimate
recycling process was deemed illegitimate through evaluation of the six
criteria. This commenter is also concerned that if EPA varies from the
existing legitimacy criteria, the states are unlikely to promulgate the
modified criteria, which could result in a crazy quilt of confusing
regulations (525).

One commenter stated that it was not clear if EPA intended to apply the
legitimacy criteria to just hazardous secondary wastes or all recycled
hazardous wastes. They expressed the opinion that if it was intended to
apply to all hazardous wastes, they believe it is more restrictive than
existing requirements and it is adding additional conditions on existing
recycled wastes. This commenter stated that generators would need time
to come into compliance when the rule is finalized (442).

One commenter was specifically concerned with the impact of having to
meet the legitimacy criteria for closed loop systems and suggested
either revising the regulation to retain the closed loop exemption or to
add a presumption that a facility engaged in onsite recycling in such a
manner is presumptively engaged in legitimate recycling (60).

9.1.2 – Response

It has been the Agency's longstanding position that any definition of
solid waste exclusion that is based on the hazardous secondary material
being recycled applies only to materials that are legitimately recycled.
This principle can be traced back to the original definition of solid
waste regulations that were promulgated on January 4, 1985 (50 FR 638).
EPA stresses in the preamble to this final rule that this principle is
unchanged: all recycling of hazardous secondary materials, whether
performed under the final exclusions in this final rule or under one of
the existing exclusions to the definition of solid waste, must be
legitimate recycling. Nonetheless, to avoid confusion among the
regulated community and state and other implementing regulatory agencies
about the status of recycling under the existing exclusions, the Agency
has decided not to codify the legitimacy factors for existing exclusions
in this rule. We expect that states and other implementing agencies will
continue to use the existing legitimacy concept for all recycling as
they have in the past in order to ensure that recycling is real and not
sham. 

In developing the codified legitimacy language, EPA did not intend to
raise questions about the status of legitimacy determinations that
underlie existing exclusions from the definition of solid waste, or
about case-specific legitimacy determinations that have been made by EPA
or the state implementing agencies. Current exclusions and other prior
solid waste determinations or variances, including determinations made
in written letters of interpretation and inspection reports are
unchanged by this rule.

The Agency made this decision in part because a number of commenters (as
summarized above) raised concerns about the application of the codified
legitimacy factors to these existing waste-specific and
industry-specific exclusions. EPA did note in the October 2003 proposal
that we had examined in depth a number of waste-specific and
industry-specific recycling activities and had promulgated specific
regulatory exclusions or provisions that address some aspects of the
legitimacy of these practices in more specific terms than the general
codified legitimacy factors. Examples include the zinc fertilizer
exclusion in 40 CFR 261.4(a)(21), the shredded circuit board exclusion
in 40 CFR 261.4(a)(14), and the comparable fuels exclusion in
261.4(a)(16).  These exclusions all have specific conditions that
address some aspects of legitimate recycling for these specific
hazardous secondary materials. By limiting the codified legitimacy
provision to the recycling exclusions and non-waste determinations
finalized in this rule, EPA is avoiding any implication that we are
revisiting the earlier definition of solid waste exclusions.

However, at the same time, these material-specific exclusions from the
definition of solid waste do not negate the basic requirement that the
hazardous secondary material must be legitimately recycled. For example,
any aspect of legitimacy that is not specifically addressed by the
conditions of a particular exclusion is nonetheless generally applicable
through the fact that all recycling exclusions only apply to legitimate,
or real, recycling.  The Agency reiterates that recycling that is not
legitimate is not recycling at all, but rather “sham recycling” –
discard in the guise of recycling. Hazardous secondary materials that
are sham recycled are discarded and thus, are solid waste. This is true
for all hazardous secondary materials recycled under the new
generator-controlled exclusion, the new transfer-based recycling
exclusion, and the new non-waste determinations, as well as hazardous
secondary materials recycled under the prior definition of solid waste
exclusions.

EPA also maintains that the legitimacy provision being finalized as part
of the recycling exclusions and non-waste determinations is
substantively the same as the existing policy because we developed the
legitimacy factors in 40 CFR 260.43 by closely examining the questions
and sub-questions in the OSWER directive 9441.1989(19) (April 26, 1989)
(a.k.a. the “Lowrance Memo”) and in the various Federal Register
preambles that address legitimate recycling and converting them into
four more direct questions. The analysis showing how the four factors
are derived from the Lowrance memo and other existing policy statements
is contained in the preamble to the final rule. This analysis shows why
EPA believes that the legitimacy factors in 40 CFR 260.43 are equivalent
to the existing legitimacy policy that applies to all hazardous
secondary material recycling.

One reason the Agency chose not to codify the legitimacy factors for
existing exclusions in this rule is to avoid any implication that the
regulated community or implementing agencies would be expected to
revisit and reevaluate past legitimacy determinations, which was a
concern expressed by commenters.  Nevertheless, although we have not
codified the legitimacy factors for existing exclusions in this rule, it
is especially important that the regulated community and implementing
agencies clearly understand that the concept of legitimate recycling,
which is obviously inherent in the existing recycling regulations, is
unchanged and remains applicable and relevant to all hazardous secondary
material recycling, including any recycling excluded under RCRA Subtitle
C. Because the concept of legitimacy (both in existing explanations and
in the codified legitimacy factors) appropriately explains the very
heart of what real recycling is, it is obvious that existing recycling
exclusions only apply to legitimate recycling. 

We are not expecting the regulated community that has been operating
under an existing exclusion to make additional efforts to prove that the
recycling is legitimate but reiterate that all recycling must be
legitimate, whether that recycling is done under an existing exclusion
or under one of the newly promulgated recycling exclusions of this
rulemaking. To be clear that the codified legitimacy provision of the
final rule will not affect how the current legitimacy policy applies to
recycling under existing exclusions, the Agency explicitly designates
the 260.43 legitimacy provision as applying only to the exclusions and
non-waste determinations being finalized in the rule.

In addition, for the reasons discussed above, we do not believe it is
appropriate or necessary to specifically identify recycling conducted
under the existing closed loop recycling exclusion of 261.4(a)(8) to be
presumptively legitimate recycling, as was requested by some commenters.
 The final rule specifies that the codified legitimacy provision in
260.43 only applies to the new recycling exclusions and non-waste
determinations that are being promulgated in this rulemaking. Thus, the
codified legitimacy provisions do not apply to 261.4(a)(8).  However,
the Agency reiterates that all hazardous secondary materials recycling
and hazardous waste recycling must be legitimate, including recycling
that occurs under all of the existing exclusions, including the closed
loop recycling exclusion. 

9.1.3 - All legitimacy factors should/ should not be mandatory

9.1.3 - Summary

One commenter from the 2003 proposal supported a broad exclusion from
the definition of solid waste for all materials that are legitimately
recycled.  This commenter stated that the legitimacy criteria can be
appropriately used to define the boundaries of this broad exclusion and
should only be codified if a broader exclusion is adopted (199).

9.1.3 - Response

In this rulemaking EPA is promulgating two conditional exclusions from
the definition of solid waste, one of which is a broad exclusion for
hazardous secondary materials being reclaimed. As a condition of these
exclusions and the non-waste determinations, EPA is also codifying a
legitimate recycling provision, including four factors that are
applicable to hazardous secondary material recycling under the
exclusions and non-waste determinations. We believe we have struck the
appropriate balance in the legitimacy factors that will result in more
consistent legitimacy determinations but still allow for the flexibility
necessary to apply to a variety of hazardous secondary materials
recycled in a variety of ways. Thus, we believe the legitimacy
principle, as finalized, is flexible enough to be used with the variety
of recycling that will occur under the new recycling exclusions and the
non-waste determinations of this rulemaking. In addition, this
construction of legitimacy, together with the restrictions and
conditions of the new exclusions, appropriately and reasonably defines
which recycled materials are and are not discarded under the new
exclusions.

9.1.3.1 - Make all legitimacy factors mandatory

9.1.3.1 - Summary

In the October 2003 proposal, the Agency requested comment on how the
legitimacy criteria (now called factors) should be structured, including
whether the criteria should all be mandatory. A number of commenters,
particularly the state environmental agencies, did recommend that all
the criteria be mandatory (68, 77, 92, 95, 119, 146, 153, 160, 177, 182,
185, 196, 211, 470, 489, 495, 507, 530, 531, 536, 538, 541, 543, 544,
548, 559, 563, 564, 558). Some of the common reasons given for
recommending all of the legitimacy criteria be mandatory included
concerns about the enforceability of optional criteria (68, 119, 470,
489, 495, 538, 543) and inconsistencies in application if only some of
the criteria are required (77, 177). Of the commenters that believe all
four criteria should be mandatory, several also suggested some type of
variance or petition procedure could be provided for legitimate
recycling that does not meet all of the criteria but can be demonstrated
to still be legitimate (146, 160, 507, 544, 548).

One commenter supported codification of mandatory legitimacy criteria
with an economic/financial component and a prohibition of storage on the
land (92). Another commenter who is concerned about the enforceability
of legitimacy stated their opinion that codifying criteria “to be
considered” would fail to draw a bright line test that is necessary to
ensure legitimate recycling (119). The Association of State and
Territorial Solid Waste Management Officials (ASTSWMO)'s hazardous waste
recycling task force stated that they believe all of the criteria are
important and that a majority of the task force believe that all four
criteria must be met by the generator and/or recycler (153, 543). NEWMOA
states agreed that all four elements of legitimacy should be mandatory
and requested specific guidance regarding the level of diligence and
recordkeeping required (541). Another commenter expressed its opinion
that if a reclaimer only has to consider two of the factors (manage as a
valuable commodity and no significant hazardous constituents in the
product); EPA is opening a loophole that would exclude from regulation
many streams that are not being legitimately reclaimed for the benefit
of a few streams that would be legitimately reclaimed. They feel this
approach would threaten human health and the environment and is
completely unnecessary (507). One commenter stated that EPA is requiring
mandatory consideration of the useful contribution and valuable product
factors but optional consideration of the other two factors (531).

Another commenter felt that EPA's proposed definition of legitimacy does
not go far enough and urged EPA to promulgate the six criteria set forth
in the 1989 “Lowrance memo.” This commenter feels EPA has
essentially shunted aside all but two of the criteria in the Lowrance
memo, giving far greater weight to two of the six criteria and not even
proposing to make these criteria mandatory (525).

One commenter expressed their opinion that EPA making two of the
legitimacy criteria discretionary is arbitrary, capricious, and contrary
to substantial evidence. This commenter believes the two non-mandatory
factors are critical to the concept of legitimate recycling and to the
protection of human health and the environment (559).

At least two commenters specifically expressed concern about the
“managed as a valuable commodity” factor being non-mandatory (538,
543). One commenter stated that if this factor is not mandatory,
discovery of releases may not occur until significant harm has already
taken place since this is a self-implementing program and the evaluation
of this factor is not within the generator's reasonable efforts
evaluation (538). ASTSWMO also stated that codification of this factor
would ensure consistency in determining when an activity is legitimate
recycling and not discard (543).

ASTSWMO also noted that a vast majority of the states that responded to
their survey believed that a legitimacy factor regarding the
concentration of hazardous constituents in the HSM-derived product
should be codified and mandatory (often referred to as the TAR factor)
(543). Another commenter expressed its opinion that the legitimacy
factor on toxics along for the ride is the most important one of all and
must be mandatory (558).

9.1.3.1 - Response

Based on comments received on the October 2003 proposal, the Agency
proposed a new structure in the March 2007 supplemental proposal with
two mandatory legitimacy factors and two legitimacy factors that must be
considered, but not necessarily met in every situation. While most state
implementing agencies argued for making all four legitimacy factors
mandatory, most (but not all) industry commenters did not. The Agency
can see both viewpoints and, in the end, decided upon a course of action
that has resulted in a compromise between the two approaches. The final
design of the legitimacy factors, as reflected in the final regulatory
language codified at 40 CFR 260.43, consists of two factors that must be
met (useful contribution and valuable product/intermediate) and two
factors that must be taken into consideration in making an overall
legitimacy determination. We believe this approach and the associated
regulatory language is clearer than the existing discussions, yet
retains enough flexibility to account for the variety of legitimate
hazardous secondary materials recycling practices that exist today. In
addition, EPA believes that codifying the legitimacy factors in the
regulations for the new recycling exclusions and non-waste
determinations, coupled with the existing documentation provisions of 40
CFR 261.2(f) will provide the state implementing agencies with enough
regulatory authority to successfully enforce these recycling provisions.


EPA also notes that there appears to be some confusion about what it
means to consider the mandatory factors and the two other factors. In
making a legitimacy determination, it is the Agency's position that all
four legitimacy factors must be considered and evaluated. It is not
optional about whether to consider the “manage as a valuable
commodity” and “no significant hazardous constituents” (also known
as no TARs) factors. EPA continues to believe these two factors are also
very important in making legitimacy determinations. They must be
considered and if they are not met, the generator or recycler must be
prepared to demonstrate why the recycling is, nevertheless, legitimate.
The Agency believes this is an enforceable standard and codifying the
legitimate recycling provision in the regulations will go a long ways
towards establishing a well-known, consistent, and enforceable standard
for legitimate recycling.

The Agency did consider the option of codifying all the legitimacy
factors as mandatory with a petition or variance procedure for those
cases where the recycling did not meet one or more of the factors but
was nonetheless still legitimate recycling. However, the Agency decided
the regulatory structure being finalized provides enough flexibility to
the regulated community and to implementing agencies to evaluate those
cases which do not meet one of the two factors that must be considered.
The Agency did not see any additional advantage in setting up a new
petition process when the current system is working and will allow for
consideration of the more unusual legitimate recycling cases. EPA also
notes that commenters did not provide any examples of legitimate
recycling that did not meet the two mandatory factors and only a few
examples of legitimate recycling where the factors that must be
considered were not met. 

It should also be noted that other provisions of the RCRA regulations
continue to apply and will help ensure protection of human health and
the environment when hazardous secondary materials are recycled. For
example, under both exclusions being promulgated, the hazardous
secondary materials must be contained. Any releases from the management
of a hazardous secondary material prior to recycling would be considered
discard if not immediately cleaned up and EPA and the implementing state
agencies have statutory authority to require the cleanup of those
hazardous secondary materials that have been released. In addition,
under the transfer-based recycling exclusion, generators must undertake
“reasonable efforts” to ensure that the hazardous secondary material
will be legitimately recycled. The Agency has revised the reasonable
efforts requirement in this final rule to be more clear that it includes
the generator considering the entire legitimate recycling concept being
promulgated in 40 CFR 260.43.

9.1.3.2 - Make all legitimacy factors non-mandatory

9.1.3.2 - Summary

A number of commenters, mainly from industry, expressed their support
for the legitimacy criteria being guidelines and not rigid standards or
regulatory requirements that all have to be met (60, 83, 85, 89, 102,
112, 127, 138, 149, 152, 157, 162, 169, 179, 180, 181, 199, 203, 222,
468, 481, 490, 491, 526, 534, 557). These commenters expressed their
opinion that EPA needs to retain the flexibility necessary to properly
assess the legitimacy of varying recycling operations and that the
legitimacy criteria should be considered on a case-by-case basis after
all the relevant facts are weighed and balanced (83, 89, 102, 112, 127,
149, 157, 169, 171, 179, 180, 181, 199, 203, 222, 225, 468, 481, 491,
526, 534). One commenter stated that if EPA believes the 1989 guidance
needs to be updated, then EPA should amend the guidance itself but
advised against any hard and fast storage or TAR criteria (89). Another
commenter recommended EPA issue a new guidance document with real-world
examples to assist generators in making such determinations but advised
against inserting legitimacy criteria into the definition of solid waste
(550). Several commenters also agreed with the preamble statements that
there may be situations when a recycling activity does not conform to
one or more of the criteria but is still legitimate recycling and felt
that the Agency should make clear that not all criteria will necessarily
be relevant in any given case (89, 102, 112, 149, 152, 169, 179, 181,
199, 222, 225, 468). 

Some commenters felt that expressing the legitimacy criteria as
regulatory requirements would definitely not result in increased
recycling (62, 85, 555). One commenter said that an “all or nothing”
determination system would be markedly more stringent than the current
system and inconsistent with the stated objectives of the original
proposal (62).

One commenter also noted that the term “criteria” itself may suggest
a standard that must be achieved and asked that the original proposed
criteria be renamed factors, which would highlight that they are
considerations to help guide determinations of legitimacy (152). Another
commenter suggested the criteria be renamed “factors for
consideration” (225). 

One commenter stated that given that EPA's authority to regulate
recycling activities varies along a continuum, the criteria should be
applied differently to different types of recycling activities, and they
gave as an example in-process materials from the primary metals and
minerals industry. They believe there should be a strong presumption
that, unless the in-process materials make no useful contribution to the
production process, the recycling is legitimate. For materials recycled
outside of the generating industry, this commenter said a more searching
evaluation of the legitimacy criteria may be appropriate (225).

One commenter supported keeping the legitimacy criteria as guidance for
greater flexibility and for the ability to provide explanations,
examples, and narrative discussions. Furthermore, this commenter
believes that any regulatory language seeking to distinguish between
sham recycling and legitimate recycling is a powerful signal that all
recycling will be viewed with suspicion and states its opinion that
there is a not-so-subtle implication that recycling is presumed to be
illegitimate unless one can overcome that presumption by demonstrating
to the contrary (481).

Two commenters, while stating their general belief that the two
mandatory criteria are directly related to evaluating whether a material
is being discarded, also said that they do not agree with EPA that the
two criteria should be mandatory for purposes of evaluating whether a
generator meets the proposed exclusions or is engaged in a
“non-waste” activity. They feel making these factors mandatory will
reduce regulatory flexibility and call into question years of prior
regulatory determinations (526, 528). 

9.1.3.2 - Response

After considering the public comments on both the original October 2003
proposal and the March 2007 supplemental proposal, EPA has decided to
finalize the legitimacy structure basically as proposed in 2007. The
first part consists of two factors that must be met, including a
requirement that the hazardous secondary materials being recycled
provide a useful contribution to the recycling process and a requirement
that the product of the recycling process be valuable. EPA considers
these two factors to be fundamental to legitimate recycling and if a
recycling process does not meet them, it is sham recycling. The second
part of the legitimacy structure includes two additional factors that
must be taken into account when a legitimacy determination is made. The
two additional factors are whether the hazardous secondary materials are
managed as a valuable commodity and whether the product of the recycling
process contains significant concentrations of hazardous constituents.
If one or both of these factors are not met, the generator and/or
recycler should be able to demonstrate why the recycling is in fact
still legitimate. There was broad consensus among the public commenters
on both proposals that the two mandatory factors are crucial indicators
of legitimacy. 

The Agency notes that in general there was acknowledgement that the 2007
proposed approach was reasonable even among those commenters who
preferred a different approach. While some commenters expressed their
preference that the legitimacy factors should be guidance or guidelines,
some did state that if the Agency decided to codify the legitimacy
factors, they preferred the structure as proposed in March 2007. Others
expressed the opinion that while they preferred non-mandatory criteria,
the proposed approach was reasonable. Many state implementing agencies,
on the other hand, argued that all the factors should be written as
mandatory requirements that must be met. 

In deciding to finalize the structure as proposed in March 2007 for
these recycling exclusions and non-waste determinations, EPA has decided
upon a course of action that results in a compromise between the two
approaches (all mandatory requirements versus all factors to be balanced
or considered). We believe this approach and the associated regulatory
language is clearer than existing guidance, yet retains enough
flexibility to account for the variety of legitimate hazardous secondary
materials recycling practices that exist today, including those recycled
in-process and those recycled outside of the generating industry. For
those who agreed with EPA that there may be cases where a recycling
practice does not meet one or more of the legitimacy factors, yet is
still legitimate, EPA believes the approach taken in this rulemaking
provides for that possibility where appropriate with the structure where
the two factors must be considered.

EPA agrees with the commenter who suggested factors to be a better term
than criteria and changed the wording in the March 2007 supplemental
proposal to reflect that. This final rulemaking refers to the legitimacy
factors as the key principles of legitimate recycling.

For the commenters who expressed support for keeping the legitimacy
criteria or factors as guidance or suggested simply updating the
guidance, the Agency believes that its preamble to the original
proposal, the supplemental proposal, and the final rulemaking provide a
good deal of guidance on the individual legitimacy factors, as well as
how to make overall legitimate recycling determinations. Many examples
and explanations, as well as much narrative discussion, are provided in
the final rulemaking and the Agency believes that the final rule
preamble contains much of what the commenters suggest would be included
in updated guidance. EPA plans to continue to explore further means of
providing guidance and assistance on legitimacy in the future. 

The Agency strongly disagrees with the commenter who suggests EPA views
all hazardous secondary material recycling with suspicion and has a
general presumption that recycling is not legitimate. Nothing could be
farther from the truth. EPA has long recognized that a great deal of
legitimate hazardous secondary material recycling is occurring and is
promulgating these regulations, including two new recycling exclusions,
to encourage even more of that recycling. However, the Agency also
recognizes, and it is borne out by the recycling studies that were done
as a part of this rulemaking, that the economics of hazardous secondary
material recycling can provide a perverse incentive to claim to be
recycling when in fact treatment or disposal is occurring. 

For the two commenters who agreed that the two mandatory legitimacy
factors are directly related to evaluating whether the hazardous
secondary material is being discarded but disagreed that they should be
mandatory in evaluating whether a generator can use one of the new
recycling exclusions, the Agency respectfully disagrees. The concept of
discard is at the crux of this final rulemaking. If a generator is not
meeting one or both of the mandatory legitimacy factors (useful
contribution and valuable product/intermediate), then that generator is
not truly recycling and thus is not eligible for any exclusion that is
based on the hazardous secondary material being recycled. The Agency
does not believe this will reduce regulatory flexibility and has
specifically stated that we see no reason for prior legitimacy
determinations to be called into question as a result of codifying the
legitimate provision as a condition of the new recycling exclusions and
non-waste determinations. We have also stated that states and other
implementing agencies should continue to use the existing legitimacy
concept for all recycling as they have done in the past in order to
ensure the recycling is real and not sham.

9.1.3.3 - Clarify legitimacy structure

9.1.3.3 - Summary

After the October 2003 proposal, commenters expressed concern that EPA's
proposed legitimacy criteria could be construed as creating four hard
and fast rules or a checklist that must be satisfied in all cases in
order for the recycling to be considered legitimate (89, 181, 442).
Other commenters viewed the four criteria favorably but asked for
clarification on whether all or only some of the four criteria must be
met in order for the recycling to be considered legitimate (104, 164,
185, 196, 219).

One commenter suggested EPA make clear that where all four criteria of
legitimacy are met, the recycling practice would not be found to lack
legitimacy based on a subjective evaluation (i.e., there should be a
safe harbor for legitimate recycling where all four criteria are
satisfied) (178).

With the March 2007 supplemental proposal, EPA proposed a new structure
for legitimacy, with two factors that must be met and two factors that
must be considered. One commenter noted that they believe three criteria
should be mandatory: the two proposed by EPA and the “toxics along for
the ride” criterion (457). Another commenter agreed with the approach
in the 2007 proposal and noted that they are concerned about the
difficulty that small companies and businesses would have in the event
that EPA changed course and decided to make all four factors mandatory
(471.2). This commenter, an association that represents a number of
small businesses, noted that its members were most concerned with having
to interpret the two factors that must be considered and urged EPA to
not alter that aspect of the proposal. This commenter also urged EPA to
add an additional listing for “other relevant factors” to the
legitimacy determination. They felt that absent such language,
regulators would not feel authorized to consider additional information
that companies may be able to provide to demonstrate the legitimacy of
emerging recycling opportunities (471.2).

One commenter noted that while EPA proposed to make two of the four
criteria in 2003 factors for consideration, the commenter did not find
any reassurance that implementing agencies would properly apply these
two as factors instead of mandatory criteria (481).

Two commenters asked the Agency to provide sufficient clarity or
approval with respect to legitimacy determinations and suggested one
piece of objective information might be to require recyclers to be
registered under the International Standards Organization (ISO) for
ISO-9001 and ISO-14001. The commenters noted that there would be other
indicia of qualification that would have to be taken into consideration
in selecting a recycler but that could be one qualification (72, 101,
555).  

One company commented that the legitimacy factors set forth in proposed
40 CFR 261.2(g)(2)(i)(A) and 261.2(g)(2)(i)(C) are redundant because
they both require the secondary material contribute an ingredient that
is recovered (557).

One commenters suggested minor wording changes to the legitimacy
regulatory text (182). 

9.1.3.3 - Response

The Agency has decided on a course of action for legitimacy whereby two
factors must be met (useful contribution and valuable product) and two
factors must be considered (managed as a valuable commodity and no
significant hazardous constituents in the product). If one or both of
the two factors that must be considered are not met, the generator
and/or recycler should be able to demonstrate why the recycling is,
nevertheless, legitimate. The Agency has clarified the preamble and
regulatory language in this final rulemaking to be clear on what factors
must be met for the recycling to be deemed legitimate and notes that we
are essentially finalizing the legitimacy structure as proposed in March
2007 for the two new recycling exclusions and the non-waste
determinations. For the commenters who supported making three or all
four factors mandatory, we have explained in the preamble and in more
detail in this response to comment document that there may be
circumstances under which a legitimate recycling process might not
conform to one or both of the factors that must be considered. The
Agency stresses that we expect those recycling practices to be the
exception, rather than the rule, and in any case, the generator and/or
recycler should be able to demonstrate why the recycling is in fact
still legitimate.

As for the comment to add a listing for “other relevant factors,”
after two public comment periods, no additional factors were identified
and we believe the four factors codified in the legitimacy provision at
40 CFR 260.43 appropriately identify the core principles of legitimate
recycling. Nothing in the regulatory language precludes the regulated
community and the implementing state agencies from considering other
information. In fact, EPA has stressed in the preamble to the final rule
that additional information about the recycling activity may be helpful
and could be used when assessing the four legitimacy factors and in
making a determination about whether a specific recycling activity is
legitimate. We encourage the regulated community and implementing
agencies to use any and all information about the recycling process to
come to an informed decision on the legitimacy of a hazardous secondary
material operation. 

In regard to the commenter that requested a safe harbor if a specific
recycling practice meets all four criteria, the Agency is not entirely
sure what the commenter is requesting. If a specific recycling practice
meets all four factors of legitimacy, the Agency would consider that
practice to be legitimate: Implementing agencies do and should have the
right to ask for information to show that the recycling is legitimate.
The Agency does not see the need to provide a specific “safe harbor”
for a given legitimate recycling practice. 

In response to the commenter who suggested ISO certification for
recyclers be required, the Agency is not convinced the ISO certification
is essential for legitimate recycling. It may be indicative of a good
recycler but we do not believe it necessarily covers the same principles
as the legitimate recycling concept and thus, are not requiring ISO
certification on the part of recyclers as a criterion for legitimate
recycling. 

In regard to the commenter that thought that proposed 40 CFR
261.2(g)(2)(i)(A) and 261.2(g)(2)(i)(C) were redundant, the Agency sees
those provisions (§260.43(b)(1)(i) and §260.43(b)(1)(iii) in the final
regulatory text) as different ways a hazardous secondary material can
contribute and notes that in order to provide a useful contribution, the
hazardous secondary material only needs to meet one. 

In response to the commenter who suggested inserting the word
“listed” before hazardous wastes, the Agency is not making the
change because we think the original wording is clearer.

9.1.4 - The legitimacy factors should/ should not be codified

9.1.4 – Summary

In response to EPA’s proposals to codify the legitimacy factors in the
regulations, EPA received a variety of general comments in addition to
comments specifically supporting or opposing codification. 

(1) One commenter stated that legitimacy is too central of an issue to
leave to guidance and is very relevant to determining whether discard
has occurred, especially compared to some of the considerations EPA has
long included in the definition of solid waste. The commenter stated
that EPA should codify the two factors that EPA proposed to be mandatory
in 2007 but should delete the two factors for consideration. (465) 

(2) Another commenter stated that codification of legitimacy may result
in additional costs and benefits that are not included in the RIA (even
though the codification of the factors is not intended to impose
additional requirements). The commenter asked what EPA thinks those
costs and benefits would be. (479)

(3) One commenter stated that EPA's statement that the proposal is
deregulatory and less stringent in nature is inaccurate because of the
codification of the legitimacy factors and their applicability on all
recycled materials, which is broader than the existing requirements,
even when they only have to be considered. This commenter specifically
mentioned the role of the consideration of the factor for comparing
toxics in the product. The commenter states that EPA appears to address
comments opposed to the codification of this factor by making it a
consideration, but because it can still “overrule” the other three
factors, it is still a primary part of the determination. (506)

(4) Commenters stated that the factors, if codified, must be codified to
ensure flexibility and must be codified with preamble discussion on how
they are to be applied. One commenter stated specifically that they
should be codified as general principles to be balanced. (91, 93) 

(5) One commenter stated that legitimacy factors are adequate
substitutes for management standards in the exclusions being finalized
in this rulemaking. (492) 

 

9.1.4 - Response

(1) EPA agrees with the commenter's statement that legitimacy is a very
important issue in determining whether an entity is operating under an
exclusion. As part of this final rule, EPA has codified legitimacy
provisions as a condition of the new exclusions and of the non-waste
determinations, but, to avoid confusion about the status of recycling
under the existing exclusions, has not codified legitimacy for those
existing exclusions. The existing legitimacy policy continues to apply
for all recycling as it has in the past.  

EPA does not agree with the commenter’s statement that the two factors
to be considered should not be codified with the mandatory factors.
Although the factors to be considered are not always relevant to every
recycling process, EPA still thinks they are often important in
determining legitimacy and has addressed this by making it mandatory
that they be considered, but not necessarily met in every case. 

(2) Although EPA is not codifying the legitimacy provision for all
recycling, we believe that the codified legitimacy factors are
substantively the same as the policy that has been in effect and,
therefore, are not more stringent. 

(3) EPA does not agree with the comment that the legitimacy factors
being finalized in this rulemaking would be more stringent than the
existing policy. EPA is clarifying that it considers these factors to be
consistent with the criteria in the 1989 Lowrance Memo—a main guidance
document on legitimacy. In response to the comment that not meeting the
toxics along for the ride factor can still result in a determination
that recycling is not legitimate even when the other three factors are
met even though it is just a factor for consideration, EPA responds that
this is correct and appropriate. EPA has maintained the factors to be
considered as part of the factors being codified because those factors
are important in the determination of legitimacy. Although they are
sometimes not appropriate to a specific recycling process, EPA does
believe they are important and that in some cases they may indicate that
a recycling process is not legitimate even when other factors are met.
However, EPA notes that it does not think there are frequent cases of
sham recycling that fail just one of the factors: more frequently, the
process will fail several or all of the factors. 

(4) EPA agrees with the comment that the legitimacy factors should be
codified in such a way as to ensure flexibility and with preamble
discussion on how they should be applied. EPA has sought a balance in
its rulemaking between having specific tests and having the flexibility
needed to apply the factors to a wide range of recycling practices in
different industrial and commercial settings. EPA has also added
additional explanation of the factors and additional examples of
legitimate and sham recycling to the preamble of the final rule to
provide guidance on how to apply the factors. EPA has not finalized all
four factors as general principles to be balanced because it believes
that the two mandatory factors must always be met for a recycling
process to be legitimate. The hazardous secondary material must make a
useful contribution to the process or the recycled product and the
recycling process must result in a valuable product. 

(5) EPA does not agree with the comment that the legitimacy factors are
adequate substitutes for management standards in the rulemaking. EPA
believes that these factors are appropriate for distinguishing between
real and sham recycling, but believes that in the case of exclusions
from the definition of solid waste, further conditions or restrictions
may be appropriate depending on the universe of materials covered by the
exclusion and is finalizing those that are appropriate for each of the
exclusions finalized in this rulemaking.  

9.1.4.1 - Codify the legitimacy factors

9.1.4.1 - Summary

(1) In response to its requests for comments in both the 2003 proposal
and the 2007 supplemental proposal regarding whether it should codify
the legitimacy factors, EPA received many comments. A large number of
commenters expressed their agreement with EPA's plan to codify the
legitimacy factors. Twelve entities commented on both the 2003 and the
2007 actions and supported codification in both sets of comments. (43,
44, 52, 68, 73, 77, 91, 92, 95, 97, 98, 104, 110, 112, 119, 122, 129,
130, 217, 140, 144, 145, 146, 148, 149, 153, 164, 167, 171, 177, 185,
193, 194, 210, 211, 213, 219, 456, 457, 458, 470, 488, 471.2, 489, 495,
509, 510, 518, 521, 524, 531, 538, 539, 541, 543, 544, 558, 560, 563)

Several commenters added statements about why they thought it was
important to codify the legitimacy factors. The reasons mentioned were
that codifying legitimacy will be more protective of human health and
the environment, that it will encourage recycling, that it will bring
more clarity to what the requirements are for recycling to be legitimate
and the process for making determinations, that it will lead to more
consistency in how legitimacy is applied in the various states, that it
will provide a basis for enforcing against sham recycling, and that it
puts the burden of proof for legitimacy on industry. One commenter
stated that if the legitimacy requirements are not codified it creates a
system that is not fair to the legitimate recyclers, is unenforceable,
and can only be called a sham itself. (68, 73, 98, 185, 219, 456, 457,
470, 489, 509, 558) 

One commenter in this category specifically reiterated EPA's proposal
that the legitimacy factors should apply to all recycling. (68)

In addition, several commenters also stated that they only supported the
codification of legitimacy for the new exclusions discussed in EPA's
proposal and not for already existing recycling exclusions. One
commenter argued that if legitimacy were to apply to existing
exclusions, that could reopen determinations already made and the
overall rule proposed would not be deregulatory. (473, 492)

Other suggestions mentioned by commenters were that legitimacy should be
codified if the 2003 exclusion EPA called the “Broader exclusion for
legitimate recycling” was finalized or that just the factors that make
up the core of legitimacy (2003's criteria 2 and 3) should be codified.
(74, 119, 460)

(2) Several commenters supported the codification of legitimacy
conditionally. Several commenters expressed that they only wanted the
factors to be codified if they were all non-mandatory and were to be
considered on a case-by-case basis. (74, 93, 180, 199/468, 203)

9.1.4.1 - Response

(1) It has been the Agency's longstanding position that any definition
of solid waste exclusion that is based on the hazardous secondary
material being recycled applies only to materials that are legitimately
recycled. This principle can be traced back to the original definition
of solid waste regulations that were promulgated on January 4, 1985 (50
FR 638). EPA stresses in the preamble to this final rule that this
principle is unchanged: all recycling of hazardous secondary materials,
whether performed under the final exclusions in this final rule or under
one of the existing exclusions to the definition of solid waste, must be
legitimate recycling. Nonetheless, to avoid confusion among the
regulated community and state and other implementing regulatory agencies
about the status of recycling under the existing exclusions, the Agency
has decided not to codify the legitimacy factors for existing exclusions
in this rule. We expect that states and other implementing agencies will
continue to use the existing legitimacy concept for all recycling as
they have in the past in order to ensure that recycling is real and not
sham. 

The Agency made this decision in part because a number of commenters (as
summarized above) raised concerns about the application of the codified
legitimacy factors to these existing waste-specific and
industry-specific exclusions. EPA did note in the October 2003 proposal
that we had examined in depth a number of waste-specific and
industry-specific recycling activities and had promulgated specific
regulatory exclusions or provisions that address some aspects of the
legitimacy of these practices in more specific terms than the general
codified legitimacy factors. Examples include the zinc fertilizer
exclusion in 40 CFR 261.4(a)(21), the shredded circuit board exclusion
in 40 CFR 261.4(a)(14), and the comparable fuels exclusion in
261.4(a)(16).  These exclusions all have specific conditions that
address some aspects of legitimate recycling for these specific
hazardous secondary materials. By limiting the codified legitimacy
provision to the recycling exclusions and non-waste determinations
finalized in this rule, EPA is avoiding any implication that we are
revisiting the earlier definition of solid waste exclusions. However, at
the same time, these material-specific exclusions from the definition of
solid waste do not negate the basic requirement that the hazardous
secondary material must be legitimately recycled and that all aspects of
legitimacy must be taken into account when evaluating the applicability
of these exclusions to potential recycling operations.

(2) In response to the comments that if the factors are codified, they
should be non-mandatory and they should be considered on a case-by-case
basis and the comment that just the factors that make up the core of
legitimacy (2003's criterion 2 and criterion 3 which are the mandatory
factors in the final rule) should be codified, EPA agrees that there is
need for some flexibility in the implementation of legitimacy and has
tried to establish that in the structure of its codified factors. EPA
believes that the two mandatory factors, that the hazardous secondary
materials being recycled provide a useful contribution to the recycling
process or product and that the product of the recycling process be
valuable, are both necessary for a process to be legitimate. EPA
believes that the two other factors, which are the factors that must be
considered, are important in determining legitimacy, but understands
that there will be some situations in which a recycling process does not
conform to one of these factors, but would still be considered
legitimate. Each case will be different and the facts of a specific
situation should be evaluated individually against the two mandatory
factors and the two factors that must be considered. 

9.1.4.2 - Do not codify the legitimacy factors

9.1.4.2 - Summary

(1) EPA received a variety of comments expressing differing degrees of
the opinion that EPA should not codify the legitimacy factors. 

Commenters stated that they are against the codification of the
legitimacy factors in the regulations. (62, 70, 89, 93/472, 102,
123/537, 126, 150, 152/481, 154, 173, 179, 181, 190, 197, 200, 204, 222,
442, 476, 520, 526, 534, 555)

Commenters stated that they do not see the need to codify the legitimacy
factors. One commenter stated that codification is not needed because
the value of the material is more motivating than the avoidance of
disposal costs for it, so it will be managed properly. (83, 102/506,
152, 486, 506, 550)

There were several comments that compared the proposed codification of
legitimacy to the existing guidance in the form of the Lowrance memo.
Commenters stated that they see no benefit in codification over the
guidance and that they are comfortable using the Lowrance guidance.
Three reasons given were that there is more flexibility to the factors
when they are guidance, that there is no simple formula for weighing
factors, and that the guidance is more widely available to the regulated
community than it was in the past. One commenter expressed concern that
over time the codified factors would become less flexible. (83, 93, 102,
152/481, 154, 181/520, 203, 222, 442, 520, 534)

Commenters suggested that EPA should issue an updated guidance and make
sure it is broadly available to the regulated community instead of
codifying legitimacy. One commenter added that this should at least be
the case for currently deregulated materials. (62, 89, 102/506, 222,
550)

Commenters stated that guidance is better than rulemaking. One commenter
stated that this is because there is more opportunity in guidance to
discuss the factors and to provide explanations and examples, since you
cannot fit all that in regulatory text. (152/ 481, 173) 

One commenter stated that there would not be a gain from codification
because the existing guidance already puts the burden on the party doing
the recycling to document why they claim to be legitimate. (520)

In opposing the codification of the factors, commenters also expressed
the opinion that, if codified, legitimacy would be more restrictive than
it was before. Commenters stated that codifying legitimacy would mean
that the factors are more restrictive than they are currently. One
commenter added that if the factors are applied to existing exclusions,
the rulemaking would not be deregulatory. Another commenter argued that
the legitimacy rule would create high compliance burdens, requiring the
collection of information and requiring evaluations not currently
required and not warranted. (102/506, 442, 486, 537)

One commenter stated that the legitimacy rule appears to create a new
“uber-criterion” that regulators can use to trump any and all
existing recycling exclusions as necessary to regulate or preclude any
recycling activity they do not approve of and would provide a basis for
them to regulate materials whether they are discarded or not. (537)

Commenters stated that codification would not increase recycling or
would lead to less recycling. One commenter stated that the structured
nature of the legitimacy factors may cause this outcome while the other
singled out codification of factor 4 as being problematic. Another
commenter stated that codifying legitimacy would lead to mandatory
recordkeeping not previously required. (154, 181, 203, 204, 506, 555)

One commenter stated that, if codified, the legitimacy factors would
sever the legitimacy analysis from any recognizable mooring. Rather than
asking whether a particular recycling exclusion really applies, the new
analysis would require a completely independent overall legitimacy
analysis in which any number of specified and unspecified factors could
be considered—generally without the application of objective
standards—to resolve a question that is not clearly defined anywhere.
(537)

One commenter stated that it would be difficult for small businesses to
comply with the legitimacy factors. (222) 

Commenters stated that they oppose the codification of the legitimacy
factors because of the nature of the factors themselves and potential
problems with their implementation. Commenters stated that they do not
think that hard and fast factors are appropriate or workable for
legitimacy. One concern about set factors was that they would not
appropriately capture all recycling scenarios and there will be
implementation problems if they are codified. (89, 190, 222, 534) 

Commenters stated that the proposed criteria would lead to too much
uncertainty because of the subjective evaluation and balancing involved
in a determination. There would be real questions about the
enforceability of the criteria as regulatory requirements. (150, 179) 
Another commenter added that codification would only be appropriate if
there were rigid tests available to determine when the factors had been
met. (481) 

Commenters stated that putting the generic criteria in the regulations
would serve no purpose when a determination on legitimacy is
fact-specific. (126, 154, 197)

Commenters stated that the legitimacy principles are inappropriate when
the secondary material being recycled is an in-process metal-bearing
secondary material from mineral processing operations that is being
further processed in a beneficiation or primary mineral processing
operation. (89)

One commenter stated that the legitimacy factors EPA proposed are flawed
because they do not incorporate many of the key concepts and
considerations that should be taken into account in a legitimacy
determination. (222) 

Commenters expressed concern that codification of legitimacy would send
a negative message about recycling. Commenters stated that codifying
legitimacy would say that all recycling should be viewed with suspicion
and should be disfavored unless there is nothing any regulator could
find objectionable. (152/481, 173, 537) One commenter added that the
codified legitimacy criteria would call into question the status of
recycling that otherwise falls squarely within the scope of recycling
exclusions. (123)

Commenters stated that they opposed codification of the legitimacy
factors because of EPA's basis for requiring them or because of what the
commenters perceive as EPA's purpose or reason for codifying the
factors. One commenter stated that EPA is trying to justify codification
of legitimacy by saying it will address the universe of recyclers who
conduct marginal operations, but only six percent of the damage cases in
the Agency's study involved on-site recycling. (102/506) 

One commenter stated that the codification of legitimacy is not based on
any direction from the D.C. Circuit Court and is, in fact, a new layer
of regulation on materials that are already exempt and which the Court
already told EPA it does not have authority to regulate. (102) Another
commenter added that codifying legitimacy would essentially allow EPA to
regulate secondary materials that are excluded from regulation and
expressed the opinion that this would lead to less reclamation. (204) 

One commenter stated that EPA should not codify the legitimacy factors
because they have not said that they can not enforce without
codification. (506)

In addition to these comments, commenters suggested that if EPA wants to
codify legitimacy, it should do so as it previously has, on
waste-specific and industry-specific bases. (126, 197)  One commenter
stated that EPA has already published rules to address industry-specific
practices and that these would overlap. (173) 

Commenters stated that the codified legitimacy factors should not apply
to previously existing exclusions, just to the intra-industry recycling
exclusion. (70, 74)

One commenter stated that codifying legitimacy will stimulate new rounds
of interpretation and assessment that would not be productive. (222) 

(2) Commenters on the 2003 proposal stated that codification of the
factors would result in a presumption that all four criteria must be
met, a change that would constrain recycling. (181, 222)

(3) Another commenter added that generators do not have the knowledge or
expertise to make the complex technical and engineering judgments to
evaluate these factors as required under reasonable efforts. (476) 

9.1.4.2 - Response

(1) As discussed above in section 9.1.2. of this chapter, to avoid
confusion among the regulated community and state and other implementing
regulatory agencies about the status of recycling under the existing
exclusions, the Agency has decided not to codify the legitimacy factors
for existing exclusions in this rule. We expect that states and other
implementing agencies will continue to use the existing legitimacy
concept for all recycling as they have in the past in order to ensure
that recycling is real and not sham. However, it has been the Agency's
longstanding position that any definition of solid waste exclusion that
is based on the hazardous secondary material being recycled applies only
to materials that are legitimately recycled. This principle can be
traced back to the original definition of solid waste regulations that
were promulgated on January 4, 1985 (50 FR 638). EPA stresses in the
preamble to this final rule that this principle is unchanged: all
recycling of hazardous secondary materials, whether performed under the
final exclusions in this final rule or under one of the existing
exclusions to the definition of solid waste, must be legitimate
recycling.

In developing the codified legitimacy language, EPA did not intend to
raise questions about the status of legitimacy determinations that
underlie existing exclusions from the definition of solid waste, or
about case-specific legitimacy determinations that have been made by EPA
or the state implementing agencies. Current exclusions and other prior
solid waste determinations or variances, including determinations made
in written letters of interpretation and inspection reports are
unchanged by this rule.

The Agency made this decision in part because commenters raised concerns
about the application of the codified legitimacy factors to these
existing waste-specific and industry-specific exclusions. However, at
the same time, these material-specific exclusions from the definition of
solid waste do not negate the basic requirement that the hazardous
secondary material must be legitimately recycled. For example, any
aspect of legitimacy that is not specifically addressed by the
conditions of a particular exclusion is nonetheless generally applicable
through the fact that all recycling exclusions only apply to legitimate,
or real, recycling. The Agency reiterates that recycling that is not
legitimate is not recycling at all, but rather “sham
recycling”—discard in the guise of recycling. Hazardous secondary
materials that are sham recycled are discarded and thus, are solid
waste. This is true for all hazardous secondary materials recycled under
the new generator-controlled exclusion, the new transfer-based recycling
exclusion, and the new non-waste determinations, as well as hazardous
secondary materials recycled under the prior definition of solid waste
exclusions.

EPA also maintains that the legitimacy provision being finalized as part
of the recycling exclusions and non-waste determinations is
substantively the same as the existing policy because we developed the
legitimacy factors in 40 CFR 260.43 by closely examining the questions
and sub-questions in the OSWER directive 9441.1989(19) (April 26, 1989)
(a.k.a. the “Lowrance Memo”) and in the various Federal Register
preambles that address legitimate recycling and converting them into
four more direct questions. The analysis showing how the four factors
are derived from the Lowrance memo and other existing policy statements
is contained in the preamble to the final rule. This analysis shows why
EPA believes that the legitimacy factors in 40 CFR 260.43 are equivalent
to the existing legitimacy policy that applies to all hazardous
secondary material recycling.

One reason the Agency chose not to codify the legitimacy factors for
existing exclusions in this rule is to avoid any implication that the
regulated community or implementing agencies would be expected to
revisit and reevaluate past legitimacy determinations, which was a
concern expressed by commenters. Nevertheless, although we have not
codified the legitimacy factors for existing exclusions in this rule, it
is especially important that the regulated community and implementing
agencies clearly understand that the concept of legitimate recycling,
which is obviously inherent in the existing recycling regulations, is
unchanged and remains applicable and relevant to all hazardous secondary
material recycling, including any recycling excluded under RCRA Subtitle
C. Because the concept of legitimacy (both in existing explanations and
in the codified legitimacy factors) appropriately explains the very
heart of what real recycling is, it is obvious that existing recycling
exclusions only apply to legitimate recycling. 

We are not expecting the regulated community that has been operating
under an existing exclusion to make additional efforts to prove that the
recycling is legitimate but reiterate that all recycling must be
legitimate, whether that recycling is done under an existing exclusion
or under one of the newly promulgated recycling exclusions of this
rulemaking. To be clear that the codified legitimacy provision of the
final rule will not affect how the current legitimacy policy applies to
recycling under existing exclusions, the Agency explicitly designates
the 260.43 legitimacy provision as applying only to the exclusions and
non-waste determinations being finalized in the rule.

(2) Although EPA is not codifying legitimacy for all recycling, EPA does
want to respond to this comment with the statement that it believes that
the structure of legitimacy in its 2007 supplemental proposal and in the
final rule are clear on the question of which of the four factors are
mandatory and which only need to be considered. The two factors in
§260.43(b) must be met and the factors in §260.43(c) must be
considered in the legitimacy determination. 

(3) In response to the comment that generators do not have the knowledge
or expertise to make the complex technical and engineering judgments to
evaluate these factors under reasonable efforts, EPA believes that the
commenter is referring to the reasonable efforts condition in one of the
exclusions in this final rulemaking and responds that the generator
could use information provided by the reclaimer and their own knowledge
of their hazardous secondary materials to determine if the reclaimer is
meeting the legitimacy factors. They would not, for example, need to
test the products of recycling for TARS themselves.

9.2 - General comments on the legitimacy factors

9.2 - Summary

A number of commenters expressed support and substantial agreement with
certain aspects of the October 2003 proposal and the March 2007
supplemental proposal with regard to the proposed definition of
legitimate recycling. Some commenters noted they were in substantive
agreement with EPA on the first three criteria or factors but had
significant concerns with the “toxics along for the ride” (TAR)
criterion (70, 102, 104). Some commenters expressed their general
support for simplifying the current legitimacy criteria (from the six
criteria in guidance to the proposed four criteria in 2003) and
encouraging recycling by codifying the legitimacy criteria (110, 112,
164, 185, 212).

One commenter specifically noted that they did not anticipate any
problems between the generic legitimacy criteria and more specific
regulatory provisions for a particular recycling practice (138). Another
commenter noted that the legitimacy criteria have merit and would help
ensure that the reuse of hazardous wastes is conducted in an
environmentally appropriate manner. This commenter believes the criteria
will be effective in preventing sham recycling and environmental
degradation from inappropriate hazardous constituent releases (145).
Another commenter noted that in order to distinguish what is legitimate
recycling, EPA has articulated guidelines for making these
determinations based on whether or not the recycling activities closely
resemble production or disposal. This commenter stated this is a viable
approach that can be used to define the boundaries of discard for a
broad recycling exclusion (199). Another commenter supported the need to
distinguish between legitimate (i.e., true recycling) and “sham”
recycling and stated that it is the responsibility of the regulated
entity to ensure legitimacy and, if requested, to demonstrate that its
recycling activity is legitimate (457).

Others expressed their support for the use of legitimacy criteria for a
broad recycling exclusion but noted there should be some practical
limitations with its use. For example, one commenter thought the use of
legitimacy criteria for onsite transportation of secondary materials is
not necessary (74). Another commenter found the criteria workable for
the recycling business but did not support them as necessary for the
primary metals business (143).

A number of commenters expressed support for EPA's efforts to clarify
and codify the legitimacy criteria but felt the criteria are too
general. Specifically, some commenters want more objective, numerical or
specific criteria and others requested EPA better define terms used in
the legitimacy criteria including “valuable,” “useful,” and
“significant” (84, 165, 175, 188, 231, 484, 536). One commenter went
on to state that EPA should more clearly define legitimate recycling
relative to (1) dilutive recycling practices, (2) value of recovery
versus treatment costs, and (3) fate of hazardous constituents (484).
Others expressed support for clarifying the criteria but wanted the
flexibility provided by the current guidance to be retained, in order
for criteria to be applicable to a wide diversity of recycling practices
(180). Two commenters representing the environmental community stated
their opinion that the vagueness inherent in the legitimacy criteria and
EPA's failure to define clear parameters of what is and is not
legitimate recycling render the criteria virtually meaningless (231,
559).

One commenter objected to the adoption of legitimacy criteria, stating
that the proposed rule gave little indication of how the criteria would
apply and did not provide clear standards. This commenter stated there
are serious practical problems with any approach that leaves the
regulated community dependent on informal “case-by-case”
determinations. First, the commenter noted that agency time and
resources are scarce and it can take too long to get an issue resolved
by a state agency. Second, this commenter noted that the more subjective
the criteria and the more “case-by-case” the determination, the
greater the risks to the regulated community (123).

One commenter stated that the legitimacy criteria should be re-evaluated
to eliminate inconsistency and redundancy (106).  

One commenter requested that proposed §261.2(g) be revised to ensure
that persons claiming that their recycling process is exempt from
regulation under 40 CFR 261.6(c)(1) must be able to demonstrate that
their recycling activity is legitimate (140, 563).

9.2 - Response

The Agency agrees with the commenters who expressed support for the
legitimacy factors and believes that the codified legitimacy factors
will result in a simplified approach to legitimacy for the new recycling
exclusions and non-waste determinations and, at the same time,
distinguish between real recycling and sham recycling. The Agency is
also hopeful that the concept of legitimate recycling, along with the
two recycling exclusions and non-waste determinations being promulgated
in this final rule, will increase the amount of hazardous secondary
material recycling being undertaken and ultimately result in the
conservation of natural resources. 

We disagree with the commenters who felt that the concept of legitimate
recycling should be limited to off-site recycling. The Agency is not
aware, after two public comment periods, of any legitimate recycling
that is occurring that does not meet the two mandatory factors of
legitimate recycling and can not foresee any situations under which
those two factors are not relevant. As we reiterated in the preamble,
the legitimacy provision in 40 CFR 260.43 is substantively the same as
the existing legitimacy policy that applies to all recycling. 

In response to the commenters who sought additional clarity, definition,
or bright-line tests for various terms in the legitimacy factors, the
Agency has incorporated the ideas generated during the comment process
into the final rule, as appropriate. We have decided not to develop
specific definitions or precise tests but instead have bolstered our
preamble discussion on the meaning of these terms and included more
explanation and examples in the final rule preamble on each factor. Our
decision not to include specific bright-line tests for the final
legitimacy factors reflects the fact that legitimacy determinations do
not lend themselves to the application of absolute distinctions,
especially given the breadth and depth of recycling practices and
recycled hazardous secondary materials that exist in industry today. The
complexities of defining such terms as “valuable product,” “useful
contribution,” and “significant” so that they can be determined
through a bright-line test and are still appropriate across industries,
different recycling processes, and a variety of recycled hazardous
secondary materials are too great for the Agency to be able to design a
simple and straightforward system of tests to be used in making such
determinations. In addition, we believe that legitimacy determinations
are best made on a case-by-case basis, with the facts of a specific
situation in hand. 

The Agency would also like to reiterate that legitimacy determinations
are self-implementing (which has always been the case) and the regulated
community is not required or expected to receive approval or
authorization from a state implementing agency. However, if a person has
any questions as to the legitimacy of a particular recycling activity,
it is certainly appropriate to approach the appropriate regulatory
agency for assistance in making a legitimacy determination. EPA is also
interested in providing further guidance to the states and regulated
community on making legitimacy determinations and will be exploring
those options further.

The Agency has further refined the legitimacy regulatory text, found at
40 CFR 260.43 in this final rulemaking, and believes that any
inconsistencies or redundancies within the legitimacy provisions have
been addressed.

In response to the commenter who requested the Agency specifically refer
to 40 CFR 261.6(c)(1), the Agency has decided to codify the legitimacy
provision as a condition of the new recycling exclusions and the
non-waste determinations. Recycling that is occurring under 40 CFR
261.6(c)(1) is unchanged by this final rule. Of course, all recycling,
whether performed under the final exclusions or under one of the
existing exclusions to the definition of solid waste, must be
legitimate. 

9.2.1 - General comments on the mandatory factors of legitimacy

9.2.1 - Summary

One commenter noted that it was generally supportive of codification of
the two mandatory factors, assuming that additional language was added
regarding the weighing and balancing of the criteria and the need for
case-by-case assessments. This commenter noted that the two mandatory
factors should be relevant in all circumstances and would be evaluated
in advance in the ordinary course of business before a company would
embark on a recycling or reclamation activity (471.2).

9.2.1 - Response

The Agency agrees with this commenter and is finalizing the two
mandatory factors in the legitimacy provision of 40 CFR 260.43 in this
final rule. We have determined that the two factors that must be met are
crucial to evaluating legitimate recycling and are at the very core of
what it means to recycle legitimately. EPA also believes the other two
factors are still very important in making legitimacy determinations but
has realized that there are situations where one or both of these
factors may not be met and the recycling is still legitimate. The Agency
has not added specific language to the legitimacy regulatory text about
weighing and balancing the factors but has emphasized in the preamble to
this final rule that legitimacy determinations need to be made on a
case-by-case basis after considering all the information about the
recycling practice. 

9.2.1.1 - General comments on Legitimacy Factor 1: Useful contribution

9.2.1.1 - Summary

Several commenters expressed the opinion that when materials are
legitimately recycled as evident by the fact that the materials are
still “useful,” the materials are not discarded (143). One commenter
went on to state that the very purpose of the legitimacy criteria is to
ensure that recyclable materials are providing a useful function and
serving a true purpose in the marketplace without any elements of
discard (149). Another commenter stated that they believe the current
motivation for recycling is not economic gain but proper stewardship of
resources. They further commented that, in some instances, the costs of
recycling may be higher than hazardous waste disposal but this could be
threatened if these generic legitimacy criteria are adopted as
regulations and applied strictly (154). Another commenter felt that the
original criterion as proposed in 2003 needed further clarification,
particularly the part of the factor that stated, “evaluating this
criterion should include consideration of the economics of the recycling
transaction.” This commenter felt that this statement could be
misconstrued and urged EPA to either delete this reference in this
factor entirely or to make it crystal clear that there is no presumption
of illegitimacy just because the generator pays the recycler (178).

9.2.1.1 - Response

The Agency agrees with the commenters who believe that providing a
useful contribution is central and fundamental to the concept of
legitimate recycling and, as such, is finalizing it as part of the core
part of the legitimate recycling provision in §260.43.

Additionally, the Agency has clarified the role of economics in
relationship to this factor. In the original October 2003 proposal,
criterion 2 read, “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.” In the
March 2007 supplemental proposal EPA revised its position on the
consideration of economics as explained in the preamble (72 FR
14200–14201).  Instead of being a consideration under the old
criterion 2 (now called Factor 1 in the regulatory language), EPA now
believes that the economics of the recycling transaction is better taken
into consideration as part of the overall legitimacy determination.
Thus, we believe we have addressed the commenters' concerns about too
strict a reading of economics in regard to this factor.

9.2.1.1.1 - Support for Factor 1

9.2.1.1.1 - Summary

A number of commenters supported EPA's position that legitimate
recycling must involve a hazardous secondary material that provides a
useful contribution to the recycling process or to a product or
intermediate of the recycling process (Factor 1) (70, 74, 83, 85, 93,
97, 104, 112, 122, 124, 127, 137, 152, 168, 178, 197, 199, 203, 225,
454, 457, 458, 465, 473, 476, 478, 481, 489, 492, 521, 524, 528, 534,
543). The supportive comments include the following statements: this
factor is a reasonable indicator/measure of legitimacy (70, 93, 476);
this is one of the criteria that are essential in distinguishing
legitimate recycling from waste management (i.e., sham recycling) (104);
this is the only criterion that may be appropriate because it relates
directly to the issue of legitimacy (152); we believe these criteria are
sound (178); this is the most important criterion for evaluating the
legitimacy of recycling (197); we believe such criterion is the key to
the legitimacy of recycling (225); this factor is fundamental to the
definition of legitimacy (457); this factor is necessary to real
recycling (465); and the factor is reasonably objective but allows for
necessary flexibility in making legitimacy determinations (473). One
commenter noted that if a material does not contribute in any way to a
production or recycling process or a product of the process, it clearly
is not being recycled in any meaningful way (481). Others stated that if
the hazardous secondary material does not provide a useful contribution,
the process is obviously sham recycling (489). ASTSWMO (the Association
and State and Tribal Solid Waste Management Officials) noted that the
vast majority of states (86%) believe that useful contribution is a
basic and vital factor that distinguishes recycling from waste
treatment. In addition, several commenters also mentioned that they
supported the examples EPA used in the preamble discussion of this
factor (122, 127, 152).

One commenter also expressly agreed with the Agency that not every
component of the hazardous secondary material would have to contribute
to the process in order to meet this factor (85). Others expressed their
opinion that the contributing aspect of the hazardous secondary material
does not automatically have to be the hazardous component. One example
provided was the plastic component of spent blast media providing the
useful contribution in the manufacture of composite lumber (104).

One commenter noted that they concur with the Agency on this factor and
illustrated how recyclable materials are typically handled in their
industry. Shipments must meet conditions of acceptance and the industry
has developed a number of internationally accepted commodity
specifications that their customers have come to rely on. If the
specifications are not met, the shipments are rejected (97).

A couple of commenters did express the opinion that while they supported
the useful contribution factor for the exclusions being promulgated in
this final rule, they did not think EPA should apply the factor to
existing exclusions (74, 473).

9.2.1.1.1 - Response

EPA appreciates all the supportive comments received on Factor 1, which
reads that legitimate recycling must involve a hazardous secondary
material that provides a useful contribution to the recycling process or
to a product or intermediate of the recycling process. The Agency agrees
with the majority of commenters that this factor is essential to
legitimate recycling and as such, is codifying this factor as part of
the core part of the legitimate recycling provision in 40 CFR 260.43(b)
of this final rule. 

The Agency has reiterated its longstanding position that not every
constituent or component in a hazardous secondary material would have to
contribute to a recycled product or intermediate or to the recycling
process in order for there to be an overall contribution. Thus, we agree
with commenters who raised questions about this and have restated our
position in the preamble to the final rule to be more clear.

In addition, the Agency has responded to comments on how legitimacy
applies to existing exclusions in Section 9.1.2 of this response to
comment document.

9.2.1.1.2 - Opposition to Factor 1

9.2.1.1.2 - Summary

One commenter opposed this factor entirely, stating “it is an
artificial and unnecessary disincentive to require the secondary
material to positively contribute to the recycling/manufacturing process
or product in order for that activity to be covered under the
‘legitimacy criteria’ of the proposed rule.” The commenter went on
to explain its opinion that legitimate reuse of secondary materials can
be achieved if the inclusion of these materials does not negatively
impact the process or product but positive contribution may not be able
to be demonstrated (99). Another commenter felt that adding the two
mandatory factors would add considerable text to the CFR without
accomplishing anything beyond reciting principles that are clear on the
face of existing regulations (537).

9.2.1.1.2 - Response

EPA respectfully disagrees with the commenter's statement that as long
as the hazardous secondary material does not negatively impact the
process or product that should be enough to be deemed legitimate
recycling. Putting a hazardous secondary material into a process where
it provides no benefit is simply avoiding disposal by pretending to use
the material in production. This is not recycling. In addition, such
activity avoids responsible and safe management of the hazardous
constituents involved with no benefit through production or resource
conservation. The Agency is aware of sham recycling situations where the
hazardous secondary materials do not contribute to the process or the
recycled product, yet may not actually negatively impact the process or
product, especially in situations where the hazardous secondary
materials are introduced in much smaller volumes than the other
ingredients to the process. As part of finalizing this factor, the
Agency added a number of different ways a material could contribute to
the regulatory text at 40 CFR 260.43(b)(1).

The Agency also disagrees with the commenter who believes adding the
mandatory factors to the Code of Federal Regulations only adds
considerable language that does not accomplish anything. The vast
majority of commenters agree that this factor is a necessary and
critical component of any legitimate recycling. Although we do agree
that this concept is already part of the existing regulations, we
believe that codifying the concept in the legitimacy provision in 40 CFR
260.43 for the two new recycling exclusions and the non-waste
determinations will make that much clearer to users of those
regulations.

9.2.1.1.3 - Consideration of economics for useful contribution (only
2003 comments)

9.2.1.1.3 - Summary

In October 2003, EPA proposed that one of the criteria for defining
legitimate recycling include “consideration of the economics of the
recycling transaction.” This consideration was within criterion (2)
for “useful contribution” and we included in the preamble a
discussion of how the consideration worked and its relationship to
existing legitimacy policy.

Our preamble discussion was supported by many commenters that agreed
with the following points:

“Who pays whom” can be an indicator of legitimacy.

In many legitimate recycling transactions, the generator pays the
recycler to accept materials; this is not uncommon, particularly where
recycling profit margins are narrow or the cost of transportation and/or
deconstruction of the product to obtain the material to be recycled can
outweigh the value of the material to be recycled. These costs can be
disproportionably higher for small generators with more frequent
shipping needs.

The economic consideration is important to a legitimacy determination,
but no test should be established.

Some commenters believed secondary material must be marketable to the
public in order for it to have sufficient value for the recycling
process to be legitimate recycling.

Some commenters also stated that they support a specific requirement to
consider economic factors as a part of legitimacy criterion (2). Many
commenters responded with the following examples of how to consider the
economics of a recycling transaction:

If the generator pays more than the transportation costs, the
transaction could be questionable.

If the recycler pays the generator for a recyclable material, it is a
clear indicator of useful contribution.

If more than 50% of the revenue is from generator fees rather than from
selling the finished recycled product, then the purported recycling is
really waste disposal and should be considered sham recycling.

If the value of the end product is less than 50% of the price for
generator fees, this should be evidence that the material is
“waste-like” and should be recycled at a RCRA permitted facility.

If the material has a negative value, then it should be regulated under
RCRA universal waste regulations or another less burdensome RCRA
regulatory alternative.

Recyclers rely on up front processing fees since the product can have
little or no value or is produced at cost exceeding market value. In
these situations, market failure and bankruptcy are common and have been
observed in the market place.

If a net positive sum is paid for a material, it is a product;
conversely, if the cost of managing the material's disposal is greater
than the value received from the sale of recycled products, then the
material is a waste.

An activity is manufacturing if it involves the use of materials with a
greater value than the cost of its management; conversely, materials
with a value that is less than the cost of management is a waste and
should be regulated.

We also heard from many commenters that they opposed the codification of
criterion (2) and/or any test for evaluating economics and they gave the
following reasons:

All commodities, virgin or secondary, fluctuate in price, so a numerical
test for evaluating all recycling transactions for economic sufficiency
is not possible.

The consideration of economics may get applied inflexibly if the current
guidance is adopted in the criteria.

Economic viability must be viewed on a long-term basis due to price
fluctuations.

A test should not focus on which way funds flow in the recycling
transaction.

A company may enter into a long-term contract to supply a material that
may later be considerably less valuable, and this should not jeopardize
the validity of the transaction.

The economics of recycling transactions vary greatly by industry and
activity so one test would not work for all recycling scenarios.

It may be more expensive to recycle than to dispose, as is the case
under the current regulatory scheme, but generators may choose to pay
the price to recycle in order to reduce their environmental footprint;
therefore, they should not be penalized for paying to recycle, but
rather rewarded.

All criteria and specific facts must be evaluated.

Recycling does not need to be profitable to be legitimate and may be
“economical only relative to disposal.” A few commenters suggested
EPA incorporate preamble language about economics from another
rulemaking that supports its position.

We also received one comment on each of the following positions
representing some form of opposition to consideration of economics: 

One commenter does not support codification of criterion (2), but, if it
were codified, the commenter argued EPA should reiterate that recycling
does not need to be profitable to be legitimate and that an evaluation
should compare the cost of treatment and disposal by the generator
versus the cost of recycling or reuse. Avoiding higher disposal costs
can make the difference between turning a profit on a production run or
not, especially at the research and development stage. 

Economic considerations should not be the primary criterion for
evaluating the legitimacy of recycling operations.

EPA should delete the reference to economic consideration because it is
complex and changing; many factors should be considered to determine
whether material provides a useful contribution, and economic
consideration is the least relevant.

EPA must clarify the ambiguity between the legitimacy criteria;
specifically, in some situations, the value of the recycled product will
not cover the cost of recycling (criterion (3)), but could provide a
useful contribution to the product (criterion (2)).

The preamble discussion of the economics of the recycling transaction is
too different from the impression left by the proposed regulatory
language.

Recycling small-scale batch materials may not be profitable because of
the limited quantity and infrequency of availability, and the ability to
recycle these materials is particularly important during a research and
development phase when the cost of managing materials has a great impact
on production.

Finally, some commenters provided another suggestion for improving this
consideration:

Include within the final rule language that “EPA is not proposing a
particular economic test for evaluating this criterion, nor [does the
Agency] 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.”

(0067, 0070, 0091, 0093, 0112, 0119, 0122, 0129, 0138, 0149, 0152, 0153,
0154, 0159, 0162, 0168, 0178, 0180, 0199, 0203, 0204, 0222, 0225)

9.2.1.1.3 - Response

This final rule does not codify specific regulatory language on
economics, but EPA offers further guidance and clarification on how
economics may be considered in making an overall legitimacy
determinations. The Agency has removed the economic consideration from
the “useful contribution” legitimacy factor and, instead, has
explained in preamble language how the economics of a recycling
transaction can be considered under all the legitimacy factors. This
guidance is similar to the preamble discussion in the March 2007
supplemental proposal, which was built upon the discussion from the
October 2003 proposal. The Agency believes that clarifying how economics
has traditionally been implemented via previous preamble and policy
statements will not impact existing legitimacy determinations. 

Specifically, EPA believes that consideration of the economics of a
recycling activity can be used to inform and help determine whether the
recycling operation is legitimate. Positive economic factors would be a
strong indication of legitimate recycling, whereas negative economic
factors would be an indication that further evaluation of the recycling
operation may be warranted in assessing the legitimacy factors. This
approach recognizes the concerns expressed by commenters about codifying
language related to the consideration of economics. We also believe that
by taking out the economic consideration from criterion (2) (as proposed
in 2003) and making it an overall consideration for informing a
legitimacy determination, we have removed the ambiguity of its
application to other criteria as cited by one commenter.

EPA believes that none of the examples suggested by the commenters for
consideration the economics of a recycling transaction are applicable to
a wide universe of recycling activities. We also acknowledge that
fluctuations in markets for hazardous secondary materials and recycled
products, and subsequent impacts in revenue flows, create another
challenging aspect of developing a test for the consideration of
economics. Therefore, we believe that it is not possible to craft an
economic test for legitimacy that can accommodate all legitimate
recycling activities. As stated in section IX of the final rule, we
believe that this preamble discussion provides sufficient guidance on
how to consider economics in legitimacy determinations without
interfering with business decisions related to recycling hazardous
secondary materials.

9.2.1.1.4 - Other

9.2.1.1.4.1 - Factor 1: Contribution to the process

9.2.1.1.4.1 - Summary

Several commenters spoke directly to the issue of how a hazardous
secondary material contributes to the recycling process or product of
the recycling process. In our October 2003 proposal, EPA indicated that
not every component of a hazardous secondary material does or must
contribute to the recycling process or recycled product in order for
there to be an overall contribution and we received comments directly on
that point. In particular, one state agency favored allowing the
non-hazardous component of hazardous secondary materials to provide the
useful contribution (104) and several commenters agreed that not all of
the hazardous secondary material would have to contribute for this
factor to be met (149, 179). Another state agency asked us to clarify
that the statement “not every component of a hazardous secondary
material would necessarily have to contribute to the product or the
process to meet this criterion” was applicable only in the context of
this factor (182).

One commenter thought in general that our examples were appropriate with
one exception. The commenter thought using a hazardous secondary
material to replace a carrier or catalyst in a recycling process should
be looked at differently from other examples where a material
contributes directly to the process. Where there is no direct
contribution to the product, this commenter felt that the consideration
of the economics should be more important, particularly the economic
value of the carrier/catalyst being replaced (65).

ASTSWMO commented that their task force members believe a secondary
material's contribution to the process or product must be transparent,
able to be demonstrated, and evident (153). In addition, the state
association noted that if some value in the hazardous secondary material
is not regained or put to valuable use, then the recycling is not
manufacturing but actually waste treatment (543).

Another commenter expressed the opinion that this factor raises awkward
and unnecessary questions. Specifically, this commenter asked about an
example where there is direct use of secondary materials for a useful
purpose that does not actually “produce” a useful product, such as
using a secondary material to decontaminate equipment (537). Another
commenter, the association that represents industrial laundries, noted
that reusable shop towels are themselves valuable commodities that are
recycled by being cleaned and returned to service and thus are both the
secondary material and the product of the recycling process (493).

9.2.1.1.4.1 - Response

It has been the Agency's longstanding policy that not every constituent
or component in a hazardous secondary material would have to contribute
to a recycled product or intermediate or to the recycling process in
order for there to be an overall contribution. For example, the use of
hazardous secondary materials in zinc fertilizer is considered
legitimate recycling when the zinc, a non-hazardous constituent, is the
main contribution to the fertilizer. Another example is the use of glass
from cathode ray tubes (CRTs) used in copper smelters as a fluxing
agent. In this case, the glass provides a useful contribution by
facilitating the manufacturing process. Thus, we agree with commenters
who supported this approach and have restated our position in the
preamble to this final rule. We also agree that this statement is
applicable to Factor 1 (useful contribution) and not specifically
relevant or applicable to the other legitimacy factors, including Factor
4 (concentrations of hazardous constituents).

In response to the commenter who believes that economics should be of
increased importance when the useful contribution is indirect (i.e., as
a catalyst or carrier in the recycling process), we have further
explained our thinking on how the economics of the recycling transaction
may be considered in making a legitimacy determination and agree with
the commenter that it may be particularly relevant in cases where the
useful contribution is indirect.

The Agency also agrees with ASTSWMO that the useful contribution must be
able to be demonstrated as evident by the regulatory language being
adopted in 40 CFR 260.43(b)(1). Furthermore, EPA agrees with the
relative importance of this factor and as such is codifying it as a
mandatory factor that must be met in order for the recycling to be
considered legitimate.

In response to the commenters who asked if the direct use of a secondary
material could ever be considered legitimate recycling, the Agency
agrees that there are situations in which a secondary material can be
used directly and believes in those situations, the secondary material
would be considered the product and the legitimacy determination would
be undertaken by assessing whether it is a legitimate product or
substitute for a commercial product.

9.2.1.1.4.2 - Factor 1: Efficiency of the process

9.2.1.1.4.2 - Summary

Another issue related to Factor 1 (useful contribution) that was
discussed in the October 2003 proposal was the efficiency of a recycling
process in recovering or regenerating the useful component of the
hazardous secondary material. One example the Agency provided was the
recovery of copper from a hazardous secondary material. We stated that
where the process was reasonably efficient and recovered all but a small
percentage of the copper, it looked like legitimate recycling. However,
where a small percentage of copper in the hazardous secondary material
is recovered, sham recycling may be indicated. However, we did not opine
on recovery rates in the middle range (e.g., 50% of copper recovered
from a particular recycling process) and some commenters asked for
clarification, including how the factor applies to hazardous secondary
materials that are contributing to the recycling process either as a
carrier or a catalyst (152, 197, 225, 231). One commenter noted that a
recycling process may be inefficient for a variety of technical or
economic reasons and that alone does not mean it is illegitimate. The
commenter went on to give a number of industry-specific examples (152).
Another commenter disagreed with EPA's statement that one should look to
the efficiency of a recycling process in recovering or regenerating the
useful component of a recyclable material. Specifically, the commenter
noted that extractive metallurgy proceeds incrementally and that all
metal cannot be extracted in one fell swoop (197).  Another commenter
agreed with the earlier commenter's concern about the preamble
discussion about efficiency of recycling and noted that they were
especially concerned that it could be interpreted as requiring 90-95% of
the target metal, a recovery rate they stated often cannot be achieved
even with virgin materials. They asked EPA to clarify in the final rule
that it intends only a reasonable efficiency of recovery (225). Another
commenter noted that the proposed regulation does not indicate at what
point a hazardous waste will be considered to not provide a “useful
contribution” to the recycling process. That commenter went on to
state that the regulation does not explain whether recovery of something
more than a “small fraction” and less than 90% would satisfy this
legitimacy factor (231).

9.2.1.1.4.2 - Response

The Agency is clarifying in the final rule preamble and regulatory text
that the useful contribution of a hazardous secondary material to the
recycling process or product can be demonstrated in a number of ways. We
provided a number of different ways a material could contribute to the
process in the preamble to the October 2003 proposed rule and did not
mean to imply that the hazardous secondary material would have to meet
all of the examples to provide a useful contribution. For example,
hazardous secondary materials could provide a useful contribution to a
process by serving as a carrier or catalyst and the process efficiency
would not weigh in the demonstration of this factor in that case. In
general, the regulated community should look to typical industry
recovery rates in similar manufacturing processes to determine if the
recycling recovery rates are reasonably efficient in terms of making a
useful contribution to the recycling process or product. In addition, it
should be noted that EPA would generally look at the quantity or the
rate of recovery of the overall process, not the recovery rate of a
single step in the process, when analyzing this factor for legitimacy.
For example, if one step in the process recovers a small percentage of
the constituent, but the overall process recovers a much larger
percentage , the Agency would consider the overall efficiency of the
recycling process in determining whether the hazardous secondary
materials are providing a useful contribution. This assumes that there
is enough of the target constituent present in the hazardous secondary
materials to contribute meaningfully to the recycling activity.

While EPA believes that the efficiency of the recycling process is a
valid factor [for the reasons stated above], the Agency notes that,
while relevant, efficiency would not necessarily be dispositive of
whether the recycling is legitimate. This is suggested by the D.C.
Circuit in the API II case.  The court did consider, in that case,
whether the relatively small amount of oil recovered from primary
oil-bearing wastewater treatment could support EPA's decision that the
process was treatment, rather than production. The fact that the court
considered the issue seems to indicate that the efficiency of the
process has some relevance to whether a material is discarded or not.
The API II court was not able to draw a conclusion from EPA's reasoning,
but its consideration of the issue shows that it has some relevance.
With respect to the oil-bearing wastewaters in API II, the court said
that a small amount of oil relative to facility output is not
sufficient, by itself, to show discard.  216 F.3d at 57. Specifically,
“The rock of a diamond mine may only contain a tiny portion of
precious carbon, but that is enough to keep miners busy.” Id. This
seems to indicate that the efficiency of a recycling process would be a
relevant consideration as the recycler or the Agency evaluates a
process, although it would need to be considered along with all relevant
factors in the overall legitimacy determination.  

Furthermore, the Agency appreciates commenters who provided
site-specific/industry-specific examples that they believe demonstrate
how process efficiency can be evaluated and reiterates that the breadth
of recycling practices and recycled hazardous secondary materials that
exist in industry is the main reason why legitimacy determinations must
be made on a case-by-case basis after considering the facts of a
specific recycling operation. We reiterate that looking at process
efficiency is simply one way (of several) that one can demonstrate that
the hazardous secondary material is providing a useful contribution to
the recycling process or product of the recycling process.

9.2.1.1.4.3 - Factor 1: Residuals

9.2.1.1.4.3 - Summary

In the discussion of useful contribution in the October 2003 proposal,
in the context of process efficiency, we stated that a “pattern of
mismanagement of the residues” may be an indicator of sham recycling.
We received several comments asking us to explain the connection between
useful contribution of the hazardous secondary materials and management
of residues. Several commenters questioned this statement and disagreed
that how a facility managed its residues had any bearing on whether the
hazardous secondary materials going into a recycling process were being
legitimately recycled (104, 152, 160, 225).

One commenter noted that while the ultimate disposition of the hazardous
component of the hazardous secondary material should be evaluated, they
do not believe that how it is disposed of should cause the recycling to
be “sham.” This commenter noted that if the hazardous constituents
appear in the end-product, that aspect should be considered under Factor
4 of legitimacy (104). Another commenter noted that whether a material
is legitimately recycled and the disposition of the residues from that
legitimate recycling process should be independently evaluated (160).  

Two commenters also stated that the handling of residues should have no
bearing on the issue of whether the inputs to the recycling process are
being legitimately recycled or instead discarded. The commenters went on
to note that if the residues are mismanaged, any amount released to the
environment might be viewed as wastes and thus subject to regulation but
that the status of the recycling process itself and of inputs to the
process should not be affected (152, 225). 

9.2.1.1.4.3 - Response

The Agency agrees with the commenters who suggested that how the
residuals from the recycling process are managed is not an indicator of
whether the hazardous secondary materials provide a useful contribution
and thus is not a factor in determining whether legitimate recycling is
occurring. For these reasons, we are making it clear that the actual
management of recycling residuals is not a specific consideration in
making legitimacy determinations. However, it should be noted that if
only a small percentage of the hazardous secondary material is used
(e.g., 2%) and a high percentage (e.g., 98%) ends up in the residuals,
which are then disposed of, this may be an indication that the hazardous
secondary materials are not making a useful contribution and thus are
actually being discarded (i.e., sham recycling) and not truly recycled.

Therefore, as part of the new recycling exclusions promulgated in this
final rule, we are requiring that any residuals that are generated from
the recycling process be managed in a manner that is protective of human
health and the environment. Specifically, there is a requirement for
hazardous secondary material generators to make reasonable efforts to
ensure that the hazardous secondary materials are legitimately recycled
and, among other things, that the reclaimer manages the hazardous
secondary materials in a manner that is protective of human health and
the environment, including how any recycling residuals are managed.
Finally, we note that the generation of residuals that are solid wastes
are subject to the waste characterization and identification
requirements in 40 CFR part 261 as a newly generated waste.

9.2.1.1.4.4 - Implementation of Factor 1

9.2.1.1.4.4 - Summary

Several commenters had specific concerns or questions about implementing
this legitimacy factor. One state agency asked for more explanation
about what is a useful contribution and noted that a case can be made
that “useful” is anything better than no contribution (175, 536).
Another state agency asked for further clarification on our statement
that when more than one secondary material is introduced into the
recycling process, each secondary material must make a useful
contribution. In particular, this commenter asked how it should be
determined when two or more secondary materials are combined at or near
the point of generation (69). Another commenter pointed out that
historical information about past management of a material as a waste
should not be used in isolation to dismiss a claim of legitimate
recycling and noted that technologies, markets, and products are in
constant flux and new opportunities for recycling can arise that were
previously not viable (203).

9.2.1.1.4.4 - Response

EPA has added more explanation and examples to the preamble of this
final rule that help explain and better illustrate all of the legitimacy
factors, including Factor 1 (useful contribution). In addition, the
Agency added language identifying specific ways that a hazardous
secondary material can be shown to provide a useful contribution to the
regulatory text found at 40 CFR 260.43(b)(1). As for situations where
more than one secondary material are combined at or near the point of
generation, the facility should be able to show how both materials
contribute to the recycling process or product of the recycling process.

EPA agrees with the commenter who noted that new opportunities for
recycling may come along and that past management of a hazardous
secondary material as a waste is not necessarily an indicator that it is
not being legitimately recycled if circumstances have changed that make
recycling viable.

9.2.1.1.4.5 - Factor 1: Miscellaneous comments

9.2.1.1.4.5 - Summary

Several commenters provided miscellaneous comments on Factor 1: useful
contribution. One commenter noted they concur with this factor and
offered their recyclables program as an example. Scrap recyclables
received by a scrap processor must meet conditions of acceptance, which
precludes receipt of materials that contain potentially hazardous and/or
regulated PCB materials, CFCs, mercury and other contaminants that would
prevent them from being processed to meet existing consumer
specifications. They noted that the scrap recycling industry has
developed a number of internationally accepted commodity specifications
(including approximately 300 plus grades of ferrous and non-ferrous
metals, 6 grades of glass cullet, 51 grades of paper, and 61 grades of
plastics) (97). Another commenter agreed this factor can be satisfied by
meeting the criteria laid out in proposed §261.2(g)(i) but did not
agree that those criteria should be the exclusive means of satisfying
this factor (476).

9.2.1.1.4.5 - Response

The Agency agrees that commercial or industry specifications can be
helpful in demonstrating legitimacy and in particular, Factor 1: useful
contribution.

In addition, the Agency was unable to identify and commenters did not
identify any other ways a hazardous secondary material could contribute
to the recycling process so the list in §260.43(b)(1) was not changed
in the final rule from what was proposed at §261.2(g)(i). However, the
regulatory language does not preclude other considerations when looking
at the codified factors in making a legitimacy determination. In fact,
we encourage the regulated community and implementing agencies to use
any and all information about a recycling process to come to an informed
decision on the legitimacy of that recycling operation.

9.2.1.2 - General comments on Legitimacy Factor 2: Valuable product or
intermediate

9.2.1.2 - Summary

Two commenters had general questions about the implementation of this
factor. One commenter indicated their basic concern with this factor was
that it did not address how much of the original hazardous secondary
material needs to be recovered for the recycling to be deemed
legitimate. The commenter gave two examples they have encountered: (1)
large quantities of wastewater contaminated with a small quantity of oil
(e.g., one inch of oil on top of 20,000 gallons of water) where the oil
is recovered and the wastewater is discarded, and (2) metal processing
of electroplating sludge containing part-per-million quantities of
metals where the metal recovered from the sludge is minimal and the
residuals are disposed. In both of these cases, the commenter believes
it is questionable whether the actual intent is truly recovery of a
“valuable commodity” or disposal of a marginally valuable waste. The
commenter thinks some type of verifiable minimum recovery volume or
percentage is needed to know whether the intent is really recovery or
disposal (482). The second commenter supports the factor but thinks the
Agency has not gone far enough in addressing all of the issues within
the factor. The commenter suggested the Agency refine the factor by
addressing the following issues: How does the recovery value versus the
treatment cost weigh in the determination? How much “useful
contribution” or “valuable product” must the recycling process
yield? Does one ounce per hundred tons qualify (484)?  

9.2.1.2 - Response

The D.C. Circuit specifically rejected in API II the argument that these
comments allude to that EPA has no authority to impose conditions on
material that is not “discarded.”  The point is that the conditions
imposed by the legitimacy factors, for example that product made from
hazardous secondary materials must have some monetary or intrinsic
value, in fact do regulate “discard.”  As the court stated, “[T]he
premise of EPA's rule is sound precisely because it is meant to regulate
only discarded materials. EPA can regulate material ‘discarded’
through sham recycling even though it cannot regulate under RCRA
materials that are not discarded.” 216 F.3d at 59. Of course, in any
specific case, the recycler and EPA in its regulatory capacity will need
to decide whether the recycled material is being used in a valuable
product or not.  

For those commenters who asked for more clarification of the term
“valuable,” the Agency provided more guidance in the preamble to the
final rule and additional examples to help illustrate how this
legitimacy factor is to be applied. We agree with the commenter that the
examples provided where the amount of valuable product recovered is
miniscule may be an indication of sham recycling and further
investigation is warranted. However, specific questions related to this
legitimacy factor (such as a specific numeric requirement for how much
valuable product the recycling process must yield) cannot be answered in
a national rulemaking on legitimate recycling because the answers will
vary depending on the case-specific situation. The Agency plans to
explore the possibility of further guidance on site-specific legitimacy
determinations in the future. 

9.2.1.2.1 - Support for Factor 2

9.2.1.2.1 - Summary

A number of commenters supported EPA's position that legitimate
recycling must include a recycling process that produces a valuable
product or intermediate (Factor 2) (70, 74, 83, 85, 91, 93, 97, 104,
112, 119, 122, 124, 127, 137, 143, 149, 153, 162, 168, 199, 203, 225,
454, 457, 458, 465, 470, 473, 476, 478, 481, 489, 492, 501, 521, 524,
528, 534, 543). The supportive comments include the following
statements: in looking at the value/usefulness of the product produced
from a secondary material, the Agency will likely get an even better
gauge of legitimacy (70); this is the other criterion that is essential
in distinguishing recycling from waste management and demonstrates that
recycling is akin to manufacturing (104); this factor is a reasonable
indicator/measure of legitimacy (112, 143, 458, 476); we agree that this
criteria is familiar and largely self-explanatory (127); these are
reasonable factors and appropriately focus on the real considerations in
a recycling transaction (149); this criterion is well-worded and
-intentioned (168); this is an important indicator of the legitimacy of
a recycling activity (203); this factor is fundamental to the definition
of legitimacy (457); this factor is necessary to real recycling (465);
‘beneficial reuse or recycling” clearly includes the concept of a
valuable product, the basis of all legitimate recycling (470, 489); the
factor is reasonably objective but allows for necessary flexibility in
making legitimacy determinations (473); the underlying logic is that a
material is being treated as a valuable commodity rather than as a
waste, which is a common sense criterion that is also embodied in the
first three legitimacy factors (492).

One commenter noted that the value of a hazardous secondary material as
a raw material or product is the basis for any legitimate recycling;
anything else is merely waste management. Production of a valuable
product from hazardous secondary materials is essential to
differentiating “sham” recycling from legitimate recycling (489).
ASTSWMO noted that it is important to a vast majority of states that a
valuable product is produced from the recycling of hazardous secondary
materials, and that this factor is codified and mandatory (543). In
addition, several commenters also mentioned that they supported the
examples EPA used in the preamble discussion of this factor (91, 97,
122, 127).

9.2.1.2.1 - Response

EPA appreciates all the supportive comments received on Factor 2, which
reads that for legitimate recycling, the recycling process must produce
a valuable product or intermediate. The Agency agrees with the majority
of commenters that this factor is essential to legitimate recycling and
as such, is codifying this factor as part of the mandatory factors of
the legitimate provision in 40 CFR 260.43(b) of this final rule. 

9.2.1.2.2 - Opposition to Factor 2

9.2.1.2.2 - Summary

One commenter stated that EPA may be overstepping its authority by
imposing legitimacy criteria on products made with recycled materials
because the safety of products is a function of laws and regulations
other than RCRA, including TSCA, the Food Drug and Cosmetics Act, FIFRA
and others (102). Another commenter stated their opinion that this
proposed legitimacy criterion was of dubious merit because it is
redundant (with Factor 1: useful contribution), potentially misleading,
and could be unduly restrictive (152). A third commenter expressed their
opinion that codifying the two mandatory factors would add considerable
text to the CFR without accomplishing anything beyond reciting
principles that are clear on the face of existing regulations (537).

9.2.1.2.2 - Response

EPA disagrees with the commenter that the Agency may be overstepping its
authority because it is imposing legitimacy criteria on products made
from secondary materials.  The fact of the matter is that legitimacy
determinations do not impose requirements on products but rather impose
requirements on the hazardous secondary materials. If the hazardous
secondary materials are not included in products that have value, the
recycling would be a sham. In fact, the D.C. Circuit specifically
rejected in API II the very argument that these comments make that EPA
has no authority to impose conditions on material that is not
“discarded.” The point in that case is that the conditions imposed
by the legitimacy factors, for example whether the secondary material
being recycled is or is not useful to the product, in fact do regulate
“discard.”  As the court stated, “[T]he premise of EPA's rule is
sound precisely because it is meant to regulate only discarded
materials. EPA can regulate material 'discarded' through sham recycling
even though it cannot regulate under RCRA materials that are not
discarded.” 216 F.3d at 59. EPA also notes that contaminants in
products produced from secondary materials were specifically considered
in Safe Food, 350 F.3d at 1266-70.  

EPA also disagrees that this factor is redundant with Factor 1 (useful
contribution). The factors focus on two distinct components of real
recycling: the secondary materials used in recycling must provide a
useful contribution and there must be something of value produced from
recycling those materials. The Agency is aware of sham recycling
situations where the hazardous secondary materials do not produce a
valuable product or intermediate, but where the secondary material
nonetheless may have provided a useful contribution. The two factors
address different steps in the recycling process. The Agency was unable
to determine any legitimate recycling scenarios that did not produce a
product or intermediate that was of value. 

The Agency also disagrees with the commenter who believes adding the
mandatory factors to the Code of Federal Regulations only adds
considerable language that does not accomplish anything. The vast
majority of commenters agree that this factor is a necessary and
critical component of any legitimate recycling and as such, the Agency
is codifying this factor in the legitimacy provision of 40 CFR 260.43
for the two new recycling exclusions and the non-waste determinations
added by this final rule.

9.2.1.2.3 - Factor 2: Definition of “valuable”

9.2.1.2.3 - Summary

Many commenters supported the Agency's discussion of valuable product
from both a monetary and an intrinsic standpoint (74, 85, 91, 97, 112,
122, 129, 149, 199, 203, 458, 507, 524, 543). For example, one commenter
stated that value, in this case, is not only assessed based on market
value of a reclaimed product, but also its value to the industrial
process (85). Another commenter was especially supportive of EPA's
acknowledgment that recycled materials not sold to third parties can
still have value by showing that the recycled product replaces an
alternative product or material that would otherwise have to be bought
(149). A different commenter noted that, at least in regard to metals,
the price is determined through international markets and is subject to
significant cyclical variations. They did not believe a determination of
value and thus legitimacy when commodity prices are high should be
negated when prices go down and thus, they believe the main
consideration has to be whether the process recovers metals from
hazardous secondary materials as a useable intermediate or saleable
product (524). Several commenters also expressed support for the idea of
a “safe harbor” for products having positive economic value (91,
122, 129). 

Several commenters expressed their support for the examples presented in
the preamble discussion of this factor (91, 97, 122). One commenter
noted their general agreement with this factor and discussed the
recycling of electroplating sludge and ion exchange canisters for metals
recovery. They noted that the metals in these materials not only make a
useful contribution to the recycling activity, but they are the product.
This commenter noted that in many cases the metal content of these
secondary materials is analogous to virgin metal ores from which the
metals are extracted. The metals recovered from these materials are
clearly valuable (478). Another commenter also supported this factor as
a prerequisite to legitimate recycling and gave an example of automotive
paint filter sludge mixed with waste solvent and slathered on automotive
underbodies as “rust-proofing.” This commenter noted that the value
of this secondary material is negligible compared to commercial
rust-proofing products (521).

Several commenters noted that in evaluating value/usefulness, a
product's fate over a reasonable stretch of time should be examined.
Market conditions fluctuate and may cause the “value” of a product
to decline precipitously at times (70, 93). One commenter suggested two
years to be a reasonable period of time (143). Another commenter noted
that in aggressively competitive markets, a manufacturer may choose to
operate at a loss for a particular product to maintain market presence
and while such situations do not continue indefinitely, EPA needs to be
sensitive to the need to respond to competitive and fluctuating global
markets (203). ASTSWMO acknowledged that organizations should be
permitted to supplement the cost of having a material legitimately
recycled. Due to fluctuations in commodity prices, ASTSWMO recognized
that some recycled products, such as recycled aluminum or recycled oil,
vary substantially in value and that there are periods of losses and
profits (543).

A number of commenters also agreed that this evaluation should be done
on a case-by-case basis (70, 93).

Some commenters simply asked for more clear use and meaning of the term
“valuable product” in the preamble (43) and/or further guidance on
what the Agency means by the term “valuable product” (69). One
commenter asked, what is a valuable product or intermediate? They felt
that the question of value is open to significant interpretation. They
asked if the value depends on the selling price and if the generator
gives away the material, is there an implication that the material does
not have value? They stated that it would be far better to define what
EPA means by “valuable” in the regulation than to use some
unenforceable guidance or interpretative document (175, 536). Another
commenter asked a number of questions about this factor, including: What
definition is used for valuable product? Does it need to be sold? Can't
the cost of delivering the product exceed the price paid? Does it need
to be sold to a third party? Are there time limits on how quickly it
must be sold (484)?

One state agency commented that they believe this criterion is essential
and support its use in defining legitimate recycling but did believe the
criterion was insufficient in the case where a generator or recycler
uses its own end-product (104). The commenter provided the following
example: a generator produces a hazardous secondary material that it
uses as an ingredient to make a product. The secondary material is
appropriately stored and managed, it is similar to a raw material
normally used in the production process, it contributes a desirable
characteristic to the product, and the levels of toxics in the product
are similar to analogous products. Furthermore, the product meets
applicable industry standards. However, sale of the product is quite
limited due to color variation in the product and the recycler has
difficulty producing the needed quantities of product of consistent
color for large applications. The recycler is only able to sell 40% of
the product that it produces in a year and continues production. The
recycler itself uses the product to reduce inventory and make the
recycling appear more successful. The commenter suggested that this
criterion be rewritten to require the end-product of an industrial
process (that uses an intermediate derived from a hazardous secondary
material or a hazardous secondary material as an ingredient) be a
valuable product and sold to a third party (104). 

In addition, ASTSWMO noted that all of its task force members support
the criterion but several members were concerned that it did not guard
against a generator or recycler using its own end-product in order to
make the product appear successful and, hence, make the recycling appear
legitimate. They also stated that the criterion should be revised to
clearly state the expectation that the end-product be a valuable product
and sold to a third party. Also, several members suggested the criterion
specify a percentage of product that must be sold or used in a specific
time frame (153). In ASTSWMO's comments on the supplemental proposal,
they again stated the vast majority of states support this factor and
want it codified and mandatory. They did support the concept of valuable
in the intrinsic sense (i.e., used or purchased by others) and thought a
use or market for the product should be identified by the reclaimer and
the generator should be required to know the product manufactured from
its hazardous secondary materials (543).

Another commenter said that they generally support this criterion but
are concerned about concepts discussed in the preamble, such as
“intrinsic value,” because they are too subjective and
unenforceable. The commenter felt that allowing a waste-derived raw
material or intermediate to be sold as a loss leader totally negates the
value test. This commenter thought that a loss leader situation
indicated the waste-derived product is really being dumped on the market
and has no tangible value (119). A second commenter acknowledged that
regulators are expected to determine whether a recycled product is
valuable economically or intrinsically, but said the Agency failed to
explain how implementing agencies should evaluate this quality (231). A
third commenter asked the Agency to clarify that a product can be
valuable even when it is sold at a loss, as well as when the product is
sent to a third party under some other economic arrangement (481).

Several commenters expressed support for EPA's recognition that there
may be several steps in the recycling process which all serve a unique
function in producing a valuable product (149, 199). They noted this is
especially true in cases where a particular recycling step may not, in
and of itself, yield a readily useable project, but the step is
nonetheless part of a legitimate recycling chain because it is necessary
to facilitate the next recycling step. One commenter gave the example of
where a metal-bearing secondary material undergoes particle size
reduction to make the material amenable for the final step of
incorporating it into a final product (149).

Several commenters felt that the wording of this criterion could cause
confusion among regulators and the regulated community. They felt there
was some confusion between the preamble and the regulatory text for this
criterion. These commenters were concerned that the regulatory language
would be read too stringently to mean that a processing step would not
meet the criterion unless that step, by itself, yields a salable
product. The commenter also thought the concepts of “sold at a loss”
and not sold at all but rather sent to a third party as part of some
other economic arrangement did not carry through to the regulations
(152, 225, 481). A different commenter also questioned the proposed
regulatory language in light of the preamble discussion of this
criterion. In particular, this commenter was concerned about this
provision, when read in conjunction with the definition of a
“generator” might appear to limit it to on-site recycling by a
generator. The commenter noted that did not appear that EPA meant to
limit this factor to a specific generator location but requested
clarification of this point (197). 

Two commenters were concerned that this criterion implies that a product
needs to actually be sold or used as a condition of meeting the
criterion. They thought this did not appear to be consistent with the
intent as discussed in the preamble (and with which this commenter
agrees) that recyclers who have not yet arranged for sale to a third
party or have not yet used the material could still demonstrate they
meet this criterion (212). The second commenter said under this criteria
as written, it appears that a new product could not be considered
“valuable” because it will not yet have been sold. They felt this
would stifle innovation and impede, rather than promote, “resource
conservation and recovery” (476).

9.2.1.2.3 - Response

EPA agrees with commenters who stated that a recycled product's value
may be either monetary or intrinsic. Clearly, not all valuable products
are sold. Many legitimate recycling situations exist where the
intermediate or the recycled product has value and is used on-site, sent
off-site to another facility owned by the same company, or traded
between companies. There are a number of established networks across the
country where hazardous secondary materials are exchanged among and
across industries. EPA does not intend to interfere with these ongoing
exchanges where such materials are being legitimately recycled.
Additionally, EPA thanks the commenters for their support of the
examples provided in the preamble and has elaborated on the discussion
in the preamble to this final rule.

While the Agency agrees with commenters that positive economic value is
a strong indication of a “valuable product,” the Agency cannot
expressly establish a safe harbor for products having positive economic
value. For one thing, legitimacy determinations are made on a
case-by-case basis, taking into account the other factors (which a
number of commenters supported). To be legitimately recycled, the
hazardous secondary material must make a useful contribution and must
result in a valuable product or intermediate. The other two legitimacy
factors must also be considered in the overall legitimacy determination.
Positive economic value of the product, while an important indicator of
legitimate recycling, is not enough, in and of itself, to be the only
determining factor.

For those commenters who asked for more clarification of the term
“valuable,” the Agency provided more guidance in the preamble to the
final rule and additional examples to help illustrate how this factor is
to be applied. However, some of the specific questions (such as exactly
how much valuable product must the recycling process yield) cannot be
answered with a specific numeric cut-off in a national rulemaking on
legitimate recycling because the analysis will vary depending on the
case-specific situation. The Agency plans to explore the possibility of
issuing further guidance on legitimacy determinations in the future. The
Agency does agree that this factor, along with the other legitimacy
factors, has to be looked at on a case-by-case basis in making an
overall legitimacy determination. 

The Agency also agrees that taking into account the product or
intermediate's value over time is important and that the exact
“value” of a product on any given moment in time is not the best way
to determine if the product or intermediate is valuable. We reiterate
that we encourage the regulated community and implementing agencies to
use any and all information available to come to an informed decision on
this factor, as well as the other factors. In cases where market
fluctuations exist, the person demonstrating legitimacy, as well as the
implementing agency, should take these fluctuations into account as part
of determining whether this factor is met.

In addition, the Agency clarified in the regulatory text of the final
rule that the product of the recycling process can be either a
commercial product or intermediate, as long as it has value to the end
user. We also clarified that the regulated community does not need to
evaluate each step in the recycling process to determine if the final
products or intermediates are valuable. Rather, the recycler or
generator making the determination should look at its final product or
intermediate to demonstrate its value. 

In response to the state agencies that asked EPA to add a requirement
that the end-product of the recycling must be sold, the Agency has
determined that this would be overly restrictive for this mandatory
legitimacy factor. We understand that intrinsic value is harder to
demonstrate than the value of a recycled product that is sold in the
open marketplace, but we provided several examples of ways that the
intrinsic value of the recycled intermediate or product used on-site can
be demonstrated in the preamble to the final rule. Some examples include
showing that the recycled product replaces an alternative product or
material that would otherwise have to be purchased or demonstrating that
a recycled product or intermediate meets established product
specifications or industry standards

.

In response to the concerns about preamble statements that a product may
be sold at a loss and still be considered valuable, the Agency continues
to believe that is the case. Several commenters also supported the idea
that selling a product at a loss or as a loss leader can be part of an
overall business strategy. The person claiming his recycled product is
valuable even though it is sold at a loss still must be able to
demonstrate its value and explain why it is still valuable even though
it was sold at a loss. The Agency does agree, however, that to meet this
factor a product sold at a loss will require a full demonstration of
other considerations demonstrating the product is nevertheless valuable,
such as, for example, that the product will not always be sold at a loss
over time. As for concerns about the factor being too subjective to be
enforceable, the Agency has provided more guidance and examples in the
preamble to this final rule but reiterates that overall legitimacy
determinations are made on a case-by-case basis taking into account the
nature of the hazardous secondary material and the recycling process.

As part of this factor, the Agency did not specify a percentage of
product that must be sold or used in a specific time frame because this
is a consideration that can not be defined in a broadly applicable
national rulemaking with a specific or numeric cut-off. Although failure
to use or sell a recovered product, or some portion of recovered
product, may be a consideration in determining whether a product is
valuable, the analysis will vary depending on the facts of each
case-specific situation. The Agency also does remind commenters that
speculative accumulation continues to apply to the definition of solid
waste exclusions, including the two exclusions and the non-waste
determinations of this final rule.

In regard to the comments that expressed some confusion between the
intent of the preamble and the regulations, EPA has explained in great
detail that valuable product can be demonstrated in many different ways
and that the product does not have to be sold to be considered valuable.
We have reiterated in the final rule preamble that discussion. We also
did not intend to limit legitimate recycling to either products that are
sold or used on-site by the generator of the hazardous secondary
material and do not believe the regulatory language is limiting in that
way. The regulatory language states “The product or intermediate is
valuable if it 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 or intermediate in an industrial process.”
We intend the word “recycler” to be read broadly. For example, if
the generator sends his hazardous secondary material to a facility owned
by the same company to be recycled as a substitute for a commercial
product or as an ingredient or intermediate in an industrial process,
that facility would be considered a recycler. 

Similarly, EPA did not intend to limit legitimate recycling to recyclers
who have not yet arranged for the sale of the product to a third party
or who have not yet used the material. However, those generators or
recyclers still should be able to demonstrate the intermediate or
product is valuable by explaining either how it will be sold or how it
will be used as an effective substitute or ingredient or intermediate in
an industrial process. 

9.2.1.2.4 - Factor 2: Miscellaneous comments

9.2.1.2.4 - Summary

A few commenters provided comments on the regulatory text for this
factor. One commenter thought the factor could be satisfied by meeting
the criteria enumerated in proposed 40 CFR 261.2(g)(2)(ii) but does not
agree that those criteria are the exclusive means of satisfying this
factor (476). A second commenter noted that the regulatory text allows
for use by the generator (or recycler), instead of being sold to a third
party. This commenter notes that the term generator is defined in the
RCRA regulations as “any person, by site” whose act or process
produces a material and thus, this factor could potentially be read to
require the use of the recycled product by the generator at the site of
generation. The commenter believes such limitation would be clearly
inappropriate, noting that a product would be valuable even if used by
the generator at a different site or by a related corporate entity
(481).

9.2.1.2.4 - Response

EPA did not intend to limit this factor in the ways mentioned by the
commenters above. For example, if a recycled product or intermediate is
used by the generator at a different site, that would be considered
“used by the generator” for the purposes of legitimacy. 
Furthermore, it should be noted that the regulatory language does not
preclude other considerations when looking at the codified factors in
making a legitimacy determination. In fact, we encourage the regulated
community and implementing agencies to use any and all information about
a recycling process to come to an informed decision on the legitimacy of
that recycling operation.

9.2.2 - General comments on the factors to be considered in a legitimacy
determination

9.2.2 - Summary

(1) Several commenters urged that EPA not include the two factors to be
considered in the final rule. Another commenter added that the two
factors to be considered should not be adopted because without a bright
line, they would destroy any semblance of a safe harbor needed for this
rule to be deregulatory to encourage recycling and because they are
unclear. One commenter stated that the ambiguous and absolute nature of
the factors would discourage recycling in the precious metals industry.
(89, 465, 476, 535)

Another commenter stated that the legitimacy factors are problematic
because, if adopted, they would give rise to a rebuttable presumption
that recycling is not legitimate but they would not provide a means to
identify the material that is discarded—instead they allow materials
to be regulated whether they are discarded or not because they do not
state definite rules.  (537)

(2) One commenter stated that the definition of solid waste case law
makes clear that these factors will be considered with other relevant
factors to the extent that they bear upon the actual intent of the
recycler--whether it is using the hazardous secondary materials to make
a product or is disposing it in the guise of recycling. (89)  

(3) One commenter stated that EPA was correct in concluding that the two
factors to be considered should not be mandatory because legitimate
recycling does not necessarily conform to these factors. (478) 

(4) One commenter stated that the two factors to be considered are two
of the most important in terms of protecting human health and the
environment. (559)

(5) One commenter stated that EPA recommends that if a facility finds in
a legitimacy determination that either of the two factors to be
considered are not applicable, the facility should document why the
recycling is legitimate, but there is no requirement that the
documentation be available to anyone for review. This information should
be required to be recorded somewhere and the analysis and documentation
should be part of the facility's notification to EPA and the state and
should be available to generators auditing to meet the reasonable
efforts requirement and to the public. (475)

(6) One commenter stated that proposed 40 CFR 261.2(g)(3) is a vague and
unenforceable provision with no standards and that EPA has not provided
a sound and rational explanation for leaving tremendous discretion to
agencies and courts on these essential factors. (559)  

9.2.2 - Response

(1) EPA has enhanced the discussion of the two factors to be considered
to make their meanings and applications more clear in the final rule
than they were in the proposal and to reduce ambiguity. EPA does not
believe that bright line tests are appropriate for the legitimacy
factors, as discussed in paragraph (6) of this section, but has tried to
clarify its meaning regarding legitimacy. 

EPA disagrees that the factors to be considered give rise to a
rebuttable presumption that recycling is not legitimate. When examining
materials excluded due to recycling, the implementing agency must be
able to determine if a recycling process is real recycling and not sham
to be able to confirm that the materials should be managed as excluded
materials. That these factors must be considered does not lead to the
presumption the commenter describes. 

In response to comments such as the one received in 2003 that these two
factors are too absolute and to account for situations where one of
these factors is not met but the recycling is legitimate, EPA has
designed the structure for legitimacy so that these factors must be
considered instead of having to be met. 

(2) In response to the comment that the factors to be considered should
be considered with other factors only to the extent that they bear upon
the intent of the recycler, EPA states that it believes that the
legitimacy factors should all be considered as a whole in the making of
a case-by-case legitimacy determination. Examined together, the factors
can illustrate whether the hazardous secondary materials are being
recycled or if the process is a sham intended to dispose of the
materials in the guise of recycling.  

(3) EPA agrees with the comment that the two factors to be considered
should not be made into mandatory factors because there are cases of
legitimate recycling that do not conform with one of these two factors.
To account for the cases where they are not applicable, in the final
rule these factors must be considered in a legitimacy determination, but
do not necessarily have to be met.  

(4) In response to the comment that the two factors to be considered are
the most important in terms of human health and the environment, EPA
states that it believes that these factors are important and have to be
met in many cases for recycling to be legitimate. The factor that states
that materials must be managed as analogous raw materials are managed
can be left unmet while the process maintains legitimacy only if the
materials do not meet the factor to the letter, but are still being
managed in such a way that is similar to management of valuable
materials, for example, in a way as to minimize the likelihood of a
release. In the case of the factor that compares toxics in the product
made from secondary materials to the product made from raw materials,
EPA states that cases where the factor may not be met but the recycling
is legitimate include situations where there is no exposure to the
product either because it is an intermediate or remains part of an
industrial process or because it is not available to the environment.
EPA believes that its statement that these cases can meet the legitimate
recycling requirement both encourages real recycling that resembles
manufacturing and does not threaten human health and the environment. 

(5) EPA recommends that if a facility determines that either of the two
factors to be considered are not applicable, the facility should
document why the recycling is legitimate and requires that any person
claiming exclusions or exemptions based on the recycling of hazardous
secondary material be able to demonstrate that the recycling is
legitimate per 40 CFR 261.2(f). EPA believes that this requirement is
consistent with how legitimacy has operated under the guidance and is
appropriate for this self-implementing requirement. 

(6) EPA disagrees with the comment that §260.43(c) (proposed
§261.2(g)(3)) is vague and unenforceable and has no standards. Although
EPA has decided not to include specific bright-line tests for the final
legitimacy factors, this is because the factors must apply to the wide
variety of recycling practices and recycled hazardous secondary
materials that exist in industry. The complex regulatory system for
different types of industries or processes that would be necessary in
the design of a bright-line test approach would not be efficient or
accessible to most generators, especially small businesses. In fact,
such a test would essentially result in case-by-case evaluations because
of the variability of the situations involved. Thus, EPA believes these
determinations are best made on a case-by-case basis where careful
consideration of the specific facts of each situation is necessary and
that case-by-case determinations would be more valuable than a test
would be. The standards in the factors to be considered were developed
with these case-by-case determinations in mind. In enforcement of all
the legitimacy factors, EPA notes that in the case of enforcement
action, the burden of proof is on the persons claiming that their
hazardous secondary material is not a solid waste and that appropriate
documentation must be provided to the enforcing agency to demonstrate
that the material is not a solid waste. 

9.2.2.1 - General comments on Legitimacy Factor 3: Managed as a valuable
commodity

9.2.2.1 - Summary

(1) One commenter stated that other regulatory programs cover releases
and that EPA must recognize that industry does not necessarily attach a
stigma to secondary materials—in an industrial process a raw material
is a raw material and a secondary material will not automatically be
relegated to an inferior management status just because it is a
secondary material. (74) 

(2) One commenter stated that if EPA finalizes an inter-industry
exclusion, as proposed in the 2003 proposal, a more stringent legitimacy
test, such as one requiring storage in tanks, containers, buildings, or
non-permeable pads may be appropriate. (168)

One commenter stated that this legitimacy factor is a reason there is no
need for standards to prevent discard in the exclusions that are a part
of this rule. (472)

(3) One commenter stated that EPA is correct in stating that land
storage is not a specific indicator of sham recycling. (179)

(4) One commenter asked how the “managed as a valuable commodity”
factor would be defined. Would the factor be satisfied by hauling the
material in a similar truck and storing it in a similar manner or would
it include considerations of whether treatment cost outweighs the
recovery value of the treatment? The commenter stated that a definition
like that would have little impact on current status. (484)

9.2.2.1 - Response

As a condition to the exclusion in the final rule, EPA is finalizing, as
Factor 3, the first of the additional factors that must be considered,
the principle that hazardous secondary materials being recycled should
be managed in the same manner as other valuable materials. This factor
requires those making a legitimacy determination to look at how the
hazardous secondary material is managed before it enters the recycling
process. In EPA’s view, a recycler will value hazardous secondary
materials that provide an important contribution to its process or
product and, therefore, will manage those hazardous secondary materials
in a manner consistent with how it manages a valuable feedstock. If, on
the other hand, the recycler does not manage the hazardous secondary
materials as it would a valuable feedstock, that behavior may indicate
that the hazardous secondary materials may not be recycled, but rather
released into the environment and discarded. 

(1) In response to the comment that other regulatory programs cover
releases, EPA points out that this factor is designed to help identify
real recycling by comparing management of secondary materials to the
management of the analogous raw materials in industrial processes. The
fact that other regulatory programs may cover releases of these
materials is not relevant to the purpose of the factor and nor is it
relevant for determining that a recycler values these materials like
analogous raw materials. EPA recognizes that industry does not
necessarily attach a stigma to secondary materials and that many of them
are useful ingredients in industrial processes. In fact, this legitimacy
factor in particular is designed to help distinguish those secondary
materials that are being treated like raw materials based on the concept
that similar management of the materials is an indicator of legitimate
recycling. 

(2) In response to the comment about the need for a more stringent
legitimacy test in an inter-industry exclusion, the Agency notes that it
is not finalizing an inter-industry exclusion as proposed in 2003. EPA
has incorporated the legitimacy provisions as a condition of the final
exclusions and the non-waste determination and has made them distinct
from the other conditions because they are designed specifically to
determine if real (not sham) recycling is taking place. 

(3) EPA agrees that land storage is not a specific indicator of sham
recycling and notes that some analogous raw materials are stored on the
land. However, EPA notes that if secondary materials are stored on the
land in ways that analogous raw materials are not, this would not meet
this factor. In addition, EPA notes that actual releases to the
environment of hazardous secondary materials would be considered discard
under RCRA. 

(4) In response to how “managed as a valuable commodity” is defined,
EPA responds that the hazardous secondary material must be managed, at a
minimum, in a manner consistent with the management of the analogous raw
material and, if there is not an analogous raw material, the hazardous
secondary material should be contained. This factor looks at the
management of the material so, if the secondary material has similar
physical and chemical properties as the material it substitutes in the
process, the factor would most likely be met by hauling the material in
a similar truck and storing it in a similar manner. Whether treatment
cost outweighs recovery value of the treatment is not relevant to this
factor, but could be relevant in determining whether the hazardous
secondary material provides a useful contribution to the recycling
product or process (Factor 1). 

9.2.2.1.1 - Support for Factor 3

9.2.2.1.1 - Summary

(1) Commenters to both the 2003 proposal and the 2007 supplemental
proposal stated that this factor is a reasonable indicator of legitimacy
and supported it as proposed. Reasons given for this opinion were varied
and included all of the following: the factor is fair and equitable as
well as familiar and self-explanatory; requiring that a hazardous
secondary material being recycled be handled like a virgin alternative
is an objective measure and there is already an inherent economic
incentive to mange the materials appropriately; the factor is consistent
with industry practices; recyclers have no interest in losing the
materials they are trying to use as ingredients; the factor should help
regulators assess legitimate recycling vs. sham recycling. The factor
would be consistent with the Agency's previous case-by-case decision
making processes in rulemakings and with court decisions. (70, 83, 85,
93, 97, 112, 124, 127, 149, 162, 199, 203, 211, 458, 473, 521) 

(2) One commenter stated that this factor is the most important and most
relevant one of the four and another stated that management of these
materials as valuable commodities is essential to legitimacy. (168, 470)

9.2.2.1.1 - Response

(1) EPA agrees with commenters who stated that the factor saying that
secondary materials should be managed as valuable commodities is a
reasonable indicator of legitimacy and that is should be finalized as
part of legitimacy. 

(2) Although EPA does believe that this factor is important and that it
should be considered in every legitimacy determination, EPA is making
this a factor to be considered instead of a mandatory factor because it
recognizes that there may be some situations in which a material is not
managed exactly as a raw material is managed, but is still managed with
appropriate controls in place to indicate that the material is valued as
a feedstock and is being legitimately recycled.  

9.2.2.1.2 - Opposition to Factor 3

9.2.2.1.2 - Summary

(1) Commenters stated that the factor is relevant but not needed because
there are other existing significant disincentives to mismanagement.
Another commenter added that this factor is unnecessary because the
requirements in it are already covered by the conditional exclusions
with which it is proposed. (74, 152, 478) 

One commenter stated that there is no environmental need for this factor
because there is no damage until there is a release into the
environment, at which point the material is discarded and is subject to
RCRA.(89)

One commenter stated that releases from units storing secondary
materials should not be covered by hazardous waste regulations at all,
but should be covered by the Clean Air Act, the Clean Water Act, and
other authorities, including state programs, such as the Arizona Aquifer
Protection Program, and that existing state regulatory programs to
address releases are proof that secondary materials are contained enough
for what is needed as part of a legitimacy determination. (152/481, 465)

One commenter stated that the text of the 2003 criterion did not address
what the focal point of the criterion should be: whether there are
significant losses or releases so that the material is not being
recycled and poses a threat to human health and the environment.
Releases covered by other laws would not be considered significant, but
that determination would have to be made case-by-case in coordination
with the other legitimacy factors. (225)

(2) Commenters stated that this factor is unlawful because EPA is
asserting the ability to regulate the storage and management of all
secondary materials destined for recycling and this is in direct
contravention of the D.C. Circuit Court's mandate in the ABR decision,
because the D.C. Circuit ruled that EPA has no jurisdiction to regulate
characteristic by-products and sludges from mineral processing that are
further processed in mineral processing or beneficiation units to
recover metal values. The commenter argued that EPA is trying to pass
the same condition under the rubric of promulgating legitimacy criteria.
Another commenter added that EPA has no mandate to regulate materials
not covered by the law and that if the secondary material feedstock is
handled differently it is not the government's business if it has not
been discarded. (89, 143, 152/481)

Commenters added that the ABR decision said that storage before
recycling and the manner of that storage have no bearing on the question
of discard. If the material is stored in a manner that results in a
release, EPA cannot claim that all the material was discarded. One
commenter added that EPA is trying to manufacture jurisdiction over
management of secondary materials through the legitimacy factors.
(152/481, 197, 465, 528, 537)

One commenter stated that it is hard to see how questions about the
management of a material have any relevance to legitimacy. (537)

(3) One commenter stated that in the Safe Food case decision, the Court
mentioned that management practices might be one factor that could be
used to distinguish products from wastes, but that the discussion in the
decision was clearly not passing judgment on the appropriateness of this
legitimacy factor. Another commenter added that EPA can take into
account the manner in which a material is handled when determining
legitimacy, but that is a far cry from imposing actual storage or
management conditions on every entity recycling secondary materials.
(89, 152/481)

One commenter also stated that the Safe Food case only looked at the
narrow situation of zinc micronutrient fertilizers and that the decision
made in that case is not necessarily relevant to determining if other
materials in other situations are discarded. (152)

(4) Commenters stated that in the Safe Food decision, the Court put more
weight on the management of the product of the recycling than on the
management of the secondary materials and that the Court stated that if
the product was not discarded, then the secondary materials used in the
production of the product cannot be wastes and are not subject to
independent evaluation based on storage or other factors. (152/481, 197)

(5) One commenter stated that there may be valid reasons for a facility
to handle analogous raw materials in dissimilar units. Some examples are
that the materials are segregated for economic accounting purposes; that
there are logistical differences in where the materials are coming from
or going to; how they are transported; what volume of material has to be
managed; or what the production needs are. The commenter argues that EPA
states that any difference such as these could result in the whole
operation being called sham and that this could happen even if the
secondary material is stored inside and is compared to a material stored
outside, which would make no sense. (152/481)

(6) One commenter asserted that at 68 FR 61562 in its preamble
discussion, EPA incorrectly cited AMC I footnotes 14 and 20, regarding
descriptions of releases of materials into the environment. (152)

(7) One commenter stated that management may sometimes be relevant to
legitimacy, but there are problems with EPA's proposal. That commenter
and others stated that the wording and benchmarks in the factor are too
vague to provide guidance, ignore practical realities, and could lead to
overzealous regulators calling legitimate recycling practices “sham
recycling.” One commenter stated that generators do not typically have
the knowledge or expertise to make the complex technical and engineering
judgments needed to evaluate the two factors to be considered under
legitimacy. One commenter stated that in Factor 3 the word
“minimize,” in particular, could be interpreted as too stringent.
(89, 152/481, 225, 476)

(8) One commenter was concerned that adding this factor would result in
detailed negotiations over how materials can be handled even when the
material is covered by a recycling exclusion already. (537) 

One commenter stated that the addition of an analysis of whether a
material is contained, which is not required in the current exclusion
for reclaimed characteristic sludges and by-products, calls into
question all prior applications of that exclusion, making increased RCRA
regulation a possibility. The commenter adds that , therefore, this rule
would not be deregulatory. (528)

(9) Another commenter stated that the term “contained” in the
legitimacy factors should be interpreted consistently with the way
“contained” is used in conditional exclusions in the same rule.
(481)

(10) Commenters stated that this factor should be one of the mandatory
factors in the rule. Reasons included the concern that history has shown
that sham recyclers will operate in any market where there is money to
be made by skirting the rules and that the end result is often
significant environmental damage at a significant cost to the public;
that if it is not mandatory, discovery of releases may not occur until
harm has already taken place; that the evaluation of this factor is not
in the reasonable efforts evaluation; and that being mandatory will lead
to greater consistency between states in determining when an activity is
legitimate recycling. One commenter stated that EPA has potentially
weakened the shipping and storage requirements for recycled material
under the guise of adding flexibility when considering this factor. One
commenter stated that the factor should be redrafted to be appropriate
for all situations instead of being made non-mandatory. (475, 538, 543,
559)

9.2.2.1.2 - Response

(1) In response to comments that the factor is not needed because of
disincentives to mismanagement in other places, specifically, in the
exclusions, or because damage to the environment will not occur until
there has been a release, EPA states that this factor is designed to
help identify real recycling by comparing management of secondary
materials to the management of the analogous raw materials in industrial
processes. The fact that other regulatory programs cover releases of
these materials is not relevant to the purpose of the factor and in
determining that a recycler values these materials like analogous raw
materials. 

Likewise, EPA does not think that it would be appropriate to make the
existence of releases the focal point of the factor, as suggested by a
commenter, for the same reason—the factor is meant to identify real
recycling and certain manufacturing processes may involve some small
releases. EPA notes that once hazardous secondary materials have been
released into the environment, they must be managed as hazardous waste. 

Regarding the applicability of RCRA to releases from units storing
excluded secondary materials, if these materials are released into the
environment, they are no longer excluded and are hazardous wastes
subject to RCRA. 

 

(2) EPA disagrees with comments that that the Agency has no jurisdiction
over the storage and management of materials destined for recycling and
covered by this factor. This argument, common among some of the comments
to this rule, focuses on a misinterpretation of the court decisions on
the matter. It begins with a tautology that EPA lacks any authority to
impose conditions on materials that are never discarded. However, this
begs the ultimate question to be decided with respect to secondary
materials that are reclaimed. The mere assertion that material is not
discarded does not make it so. This argument is the same that was made
by industry in API II and was soundly rejected by the D.C. Circuit.
Specifically, the court stated the following:  

     Industry petitioner CMA makes one argument, premised solely on
Chevron step one.  CMA argues that EPA has no authority to regulate any
petrochemical recovered oil under any circumstances because such
materials are not “discarded.” The reasonableness of the conditions
adopted by EPA as part of its exclusions are not challenged because, in
CMA's opinion, no such conditions may be imposed.  

     This Chevron plain meaning argument fails because EPA is correct
that abandoning a material is discarding even if labeled recycling. EPA
is not violating AMC I's definition of discard. To the contrary, the
premise of EPA's rule is sound precisely because it is meant to regulate
only discarded materials. EPA can regulate material “discarded”
through sham recycling even though it cannot regulate under RCRA
materials that are not discarded. Speculatively accumulated recovered
oil is a clear example of a condition imposed under the exclusion which
shows that some petrochemical recovered oil can indeed be considered as
discarded. Even if, assuming for the sake of argument, the rule's many
conditions might incidentally regulate oil containing chemicals not
caused by sham recycling (and therefore not discarded), that is beyond
the claim we consider today. Presumably a refiner in a specific case
could attempt to show that additional chemicals in the oil are not a
product of adulteration, not discarded, and outside EPA's authority to
regulate such material under RCRA. We therefore deny CMA's petition as
to petrochemical recovered oil.  

216 F.3d at 59.  

Accordingly, the proper objections to EPA's requirements would be that
they are not reasonable indicia of discard or that there is no
opportunity to show that material is, in fact, not discarded. In this
rule EPA has explained why the conditions and requirements imposed are
reasonable indicia of discard and there would be ample opportunity in
enforcement proceedings for companies to show that their material is, in
fact, not discarded.  

In addition, EPA is very disappointed that comments continue to
misinterpret statements taken out of context in D.C. Circuit opinions.
The comment stating that in the ABR decision the court rejected the
notion that the “dividing line between ‘waste’ and nonwaste is the
manner of storage” of secondary materials prior to recycling (ABR, 208
F.3d at 1051) is especially egregious. The court, indeed, criticized EPA
for saying that any placement on the ground regardless of how long it
was stored before reinsertion into the production process was prohibited
because the material is discarded.  ABR at 208 F.3d at 1051 (material
“placed on the ground for only a few minutes before being put back
into the production” would be subject to RCRA). This by no means says
that any storage whatsoever of recycled material is not subject to RCRA.
 

In this rule, EPA has made every effort to make material subject to its
regulations only if it is discarded. Any placement on the land will not
result in material being considered a waste, only material placed on the
land not in accordance with conditions directly related to discard. This
explanation, which appears in several places in the rulemaking record,
deals directly with discard and is consistent with the D.C. Circuit's
discussion of that term.  Land-based storage is by no means prohibited,
but material stored on the land so that it is carelessly released to the
environment is hardly undiscarded material. This concept is echoed in
the legitimacy factors as well.  

The comments persist in misinterpreting the case law regarding
land-based storage. The important point is that ABR did not hold that
storage before reclamation, even on the land, automatically makes
materials discarded or not discarded. Rather, it held that “at least
some of the secondary material EPA seeks to regulate as solid waste (in
the mineral processing rule) is destined for reuse as part of a
continuous industrial process and thus is not abandoned or thrown
away” (208 F.3d at 1056). The court just as readily noted:  

Some mineral processing secondary materials covered under the Phase IV
Rule may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate under RCRA.

Id.  

The comments continue to provide the “broad abstraction” rejected by
the court, but EPA fully expects that the appropriate detail, based on
the Agency's rule, will be the way the industry will operate in the
future.  

Specifically regarding the legitimacy factor, EPA thinks that it has
jurisdiction in this area and that evaluating how materials are managed
and whether they are managed as valuable materials is both appropriate
and relevant to evaluating legitimate recycling, because management can
be an indication of whether the secondary materials are being managed as
part of a manufacturing process. 

(3) The comment that the Safe Food decision did not specifically address
the appropriateness of the factor is correct in that the actual
legitimacy factors were not challenged in Safe Food. However, EPA has
presented its reasoning as to why each legitimacy factor is relevant to
discard in its rulemaking record. In addition, EPA notes that it is not
imposing storage or management conditions on recycling entities. Rather,
the Agency is establishing criteria under which material would be
discarded. The conditions imposed are themselves “meant to regulate
only discarded materials.” (API II, 216 F.3d at 59) 

EPA strongly disagrees with the comment that the decision in Safe Food
is not relevant to other cases. There is nothing in the Safe Food
opinion which states that the broad principles involved in determining
whether material is discarded only apply to zinc micronutrient
fertilizers. The Agency acknowledges that the validity of the legitimacy
factors, including the factor dealing with management as a commodity,
must stand or fall on the reasonableness of the factor.  

 

EPA has the authority to determine what is and what is not legitimate
recycling and believes that this factor can be critical in considering
whether materials are being legitimately recycled. In addition, EPA
believes that as finalized, this legitimacy factor is consistent with
the case law surrounding the definition of solid waste, including the
Safe Food decision mentioned by the commenters. 

(4) EPA disagrees with the comment's interpretation of the Safe Food
decision. It would make no sense to ignore the evaluation of the
management of the feedstocks. They need to be treated as commodities,
also. Treatment of feedstocks as wastes—poor management,
indiscriminate releases to the environment, etc.—would be inconsistent
with their status as non-wastes under API I or AMC II.  

In the first place, we need to examine the relevant language of Safe
Food:   

The EPA's explanation is that market participants treat the exempted
materials more like valuable products than like negatively-valued
wastes, managing them in ways inconsistent with discard, and that the
fertilizers derived from these recycled feedstocks are chemically
indistinguishable from analogous commercial products made from virgin
materials.  

We need not consider whether a material could be classified as a
non-discard exclusively on the basis of the market-participation theory.
At oral argument EPA counsel rested the agency's case on the
combination: market participants' treatment of the materials, together
with EPA-required management practices and contaminant limits assuring
substantial chemical identity. If this combination is enough to
establish that the recycled fertilizers are not “discarded” when
used on the land, it follows that feedstocks used to manufacture them
are also not “discarded”—and therefore not waste—since the
feedstocks are ingredients in a non-discarded final product.  

Petitioners principally attack the legal and factual basis for the EPA's
identity principle. As a matter of law, petitioners claim—correctly,
as far as we know—that no court has yet endorsed the identity
principle that the EPA urges. But this is hardly surprising, as
petitioners point to no case where the EPA had both proposed the
principle and been challenged. The question, apparently of first
impression, is whether the identity principle, when used in conjunction
with indicators like market valuation and management practices, is a
reasonable tool for distinguishing products from wastes. We find that it
is. Nobody questions that virgin fertilizers and feedstocks are products
rather than wastes. Once one accepts that premise, it seems eminently
reasonable to treat materials that are indistinguishable in the relevant
respects as products as well.  

Safe Food, 350 F.3d at 1269.  

Under the court's language, the “exempted materials” include
“these recycled feedstocks,” as well as the fertilizer products. The
feedstocks would need to be treated as valuable products and managed in
ways “inconsistent with discard.” Clearly, the feedstocks could not
be managed as wastes. Otherwise, they would be wastes and the materials
derived from them would be wastes.  

The identity principle, which applies to the level of contaminants in
the fertilizer product, is a different issue from management of
feedstocks and products as valuable materials.  This is an issue
different from the discussion of the identity principle and the issue of
Toxics Along for the Ride (TARs), which would focus on the fertilizer
product.  

(5) EPA agrees with the comment that in some specific cases there may be
valid reasons for a facility to handle analogous raw materials in units
different than those the hazardous secondary material is handled in,
particularly if the material is managed as protectively or more
protectively than the analogous raw materials. EPA took this comment
into consideration when determining that it was appropriate to finalize
this factor as a factor to be considered and recommends that a recycler
who believes that its process does not meet this factor but is still
legitimate be prepared to demonstrate why the recycling is legitimate. 

(6) EPA regrets the misciting of the footnotes from AMC I and withdraws
the citation. The Agency has not considered the preamble footnote for
any decision made in this rule.  

(7) EPA agrees that management of the secondary material may be relevant
to legitimacy and believes that it usually is. Regarding the factor
being too vague, EPA has decided not to include specific bright line
tests for the final legitimacy factors because the factors must apply to
the wide variety of recycling practices and recycled hazardous secondary
materials that exist in industry. The complex regulatory system of tests
for different types of industries or processes that would be necessary
in the design of a bright line standard would not be efficient or
accessible to most generators, especially small businesses. In fact, a
bright-line test would essentially result in case-by-case evaluations
because of the variability involved. Thus, EPA believes these
determinations are best made on a case-by-case basis where careful
consideration of the specific facts of the situation would be more
valuable than a test would be. The standards in the factors to be
considered were developed with these case-by-case determinations in
mind. 

Regarding the concern that generators would not have the expertise to
make legitimacy determinations in order to make reasonable efforts, EPA
responds that the generator could use information provided by the
reclaimer and their own knowledge of their hazardous secondary materials
to determine if the reclaimer is meeting the legitimacy factors.

In addition, in response to comments, EPA no longer uses the term
“minimize” in the regulatory text for this factor. 

(8) In response to comments on increased negotiations on whether
recycling is legitimate and, therefore, excluded, or a revisiting of the
legitimacy of materials that have been managed as excluded, EPA responds
that although the legitimacy factors being finalized are consistent with
those in the legitimacy guidance that have always been applicable to
excluded recycling, EPA has not codified the legitimacy provision in
this final rule for all recycling in order to reduce confusion about the
status of recycling under existing exclusions. The current legitimacy
policy in preamble statements and the Lowrance Memo remain applicable to
these recycling exclusions, under which recycling must be legitimate,
and should be used in making those legitimacy determinations. 

(9)  EPA agrees with the comment that the term “contained” in the
legitimacy factors should be consistent with the use of “contained”
in the conditional exclusion portion of the final rule and has used the
terms consistently in the final rule. 

(10) EPA does not agree with the comment that this factor should be one
of the mandatory factors in the rule. Although EPA agrees that this
factor is very important and that it must be considered in every case,
EPA believes that there are some situations in which a recycling process
may not meet the factor exactly, but it is still clear that the
materials are being managed as valuable materials and in such a way that
is similar to management of valuable commodities, for example, in such a
way as to minimize the likelihood of a release. These are the cases
where the factor can be considered but not met. Conversely, if materials
are not being managed in the same manner as other valuable materials,
the fact that this factor is not met would be critical to the legitimacy
determination. EPA believes that the regulatory structure that would be
necessary to make this factor applicable to a wide variety of recycling
throughout industry would be inefficient, unwieldy, and inaccessible to
the regulated community. 

9.2.2.1.3 - Factor 3: Management standards

9.2.2.1.3 - Summary

(1) Commenters stated that this factor does not necessarily protect the
environment or minimize releases to the environment because raw
materials are not always managed in a controlled fashion when that
management costs more than they are worth and that there should be more
stringent management standards for hazardous secondary materials. One
commenter added that workers don't always make the connection between
reclaimable materials and monetary savings and, therefore, proper
management of hazardous secondary materials is not always a high
priority. (68, 119, 153, 185, 462) 

Commenters stated that this factor should include the requirement that
the materials must be managed to minimize the potential for releases to
the environment in all cases, not just when there is not an analogous
raw material with which to compare it. One of these commenters suggested
that there be a storage and management standard based on the type of
material and the method of storage used and one suggested that this
requirement be comparable to RCRA's standards for hazardous waste. (92,
104, 119, 153, 185)

One commenter added that adding more management standards may be more
stringent than the existing requirements, but that is not a sufficient
reason to not impose more protective storage and management conditions. 
(104) 

Commenters suggested that there be specific storage requirements as part
of this factor. Two commenters recommended that storage of hazardous
secondary materials should be in tanks, containers, containment
buildings, or covered piles on an impervious surface with provisions to
collect and properly manage any runoff. One commenter stated that tanks
and containers should be required to be closed to prevent loss of
volatile materials. One commenter stated that the factor should prohibit
storage in an unlined surface impoundment, waste pile, or other similar
land disposal unit or in a leaking non-land disposal unit. (153, 185,
186)

One commenter stated that to facilitate inspections, facilities storing
hazardous secondary materials in vessels in poor condition should
automatically fail the legitimacy evaluation and that the factor should
include a requirement that the facility keep an inventory of volume,
chemical composition, date of acquisition, and physical characteristics
of each vessel. (182) 

Commenters on the 2003 proposal stated that EPA should include a
prohibition against land storage as part of this factor. One commenter
added that without this prohibition, the rule could potentially result
in discard. One commenter stated that outdoor storage is almost certain
to produce releases to the environment and that would be against the
preventative nature of RCRA and that without this prohibition, the
burden of proof falls on the enforcement agencies to demonstrate that
releases have occurred, which could be a difficult or impossible task.
One commenter stated that the cost of providing containment is not
cost-prohibitive considering what the generator saves from the rule and
argued that EPA can provide specially for cases in which land storage is
a part of normal manufacturing. (68, 92, 98, 104, 119, 130, 153)

One commenter stated that as an alternative to a land prohibition, EPA
could add clarifying phrases to the regulations: “secondary materials
are managed to minimize their loss” and “any releases of the
hazardous secondary materials to the environment would be considered
discard under RCRA.” (68)

(2) One commenter stated that evaporation or combustion of contaminants
in lieu of treatment or recovery should violate this factor. (186)

(3) One commenter stated that if materials are released they must become
hazardous wastes regardless of whether they are recovered “in a timely
manner.” (559)

(4) One commenter asked if materials that are not released in an
incident would be considered discarded as well. (535)

(5) One commenter stated that open piles exposed to the elements do not
minimize the threat of releases to the environment, but in some cases
just a roof may be enough to protect against releases. The commenter
stated that this determination has to be done case-by-case. (104)

One commenter stated that storage of secondary materials in a pile that
is subject to state air laws to control blowing dust and to water
quality laws to protect surface water and/or groundwater should not be
deemed to be discard, that is, should not fail a legitimacy
determination. This commenter added that even though management in this
way may result in minor releases to the environment, they cannot be
considered significant regardless of how an analogous raw material is
managed. (225)

(6) One commenter stated that if EPA finalizes this factor as proposed
in 2007, it should define “contained” in the legitimacy factors in a
manner consistent with how it is defined in the exclusions finalized
with it. The commenter generally supported EPA's definition of
“contained” in the proposal: “a recyclable material is contained
if it is placed in a unit that controls the movement of the hazardous
secondary material out of the unit” and stated that this presumably
means that the design elements of the unit can demonstrate the necessary
containment. (481)

(7) One commenter stated that EPA should recognize that there are state
regulatory programs to control or address releases that are proof that
secondary materials are adequately contained for purposes of a
legitimacy determination. (481)

(8) One commenter argued that EPA's requirement that materials be
contained if there is not analogous raw material is new and expands
EPA's current regulatory jurisdiction. (528)

One commenter stated that EPA should take out the second half of the
factor and not require containment when there is no analogous raw
material. (528)

(9) Commenters stated that the physical form of materials may justify
different handling. (91, 122, 129) 

Commenters also stated that there might be valid reasons for handling
analogous materials in dissimilar units, but do not state examples of
those reasons. (225, 481)

Similarly, one commenter noted that the appropriate storage of a virgin
material varies considerably with the material and the needs of a user,
so this factor may have limited use in implementation. (521)

Commenters argued that a hazardous secondary material may not need to be
managed identically to a more costly raw material, though they specified
that they did not mean that the secondary material should be managed in
a less environmentally acceptable manner. One commenter added that the
secondary material should have to be managed in a manner that affords
similar protections to the environment and public health. (91, 122, 137)

(10) One commenter stated that how materials are managed says more about
the nature of a facility's operation than it does about the legitimacy
of the process. (478)

(11) One commenter stated that they agreed with EPA's 2003 proposal that
management of hazardous secondary materials should be consistent with
management of raw materials when they are analogous and the management
should minimize the potential for release when there are no analogous
raw materials, but added that industry does not place the same stigma on
secondary materials that EPA does and stated that there are already
economic disincentives for companies to allow the release of secondary
materials, such as existing regulations and liability issues. (74)

(12) One commenter suggested that EPA require that materials are stored
to preserve their value. (543)

(13) One commenter stated that EPA should be evaluating the storage of
the finished product instead of the storage of the secondary material
since the Safe Food decision stated that feedstocks are not discarded
and are not waste. (197)

(14) One commenter suggested that management of hazardous secondary
materials under this factor should be consistent with or as protective
of the environment as management of the analogous raw material where
“consistent with” can be defined as less likely to be contained and
no more likely to be released. (470) 

(15) One commenter asked whether someone handling hazardous secondary
materials as they do hazardous wastes would meet the requirement to
manage them as a commodity, since hazardous wastes are usually handled
in a more protective manner than commodities. (119)

(16) One commenter noted that in evaluating this factor, regulators
could even consider details like whether hazardous secondary materials
are stored in super sacks or drums, as in EPA's preamble example. (537)

(17) One commenter stated that shop towels are already managed properly
and the intent of this proposal to create legitimate recycling is
already served. (493)

(18) One commenter stated that the regulation should be rewritten as an
introductory phrase and two subsections and be made mandatory. They
state that this will make it more clear that the situation where a
powdery material is transported in a supersack and the raw material is
transported in steel drums could be “consistent” management and meet
the factor because management does not have to be identical. (558)

(19) One commenter stated that EPA gave an example of metal dusts as a
material that will likely be managed well because of its value. The
commenter stated that although these dusts have some minimal market
value, the cost to collect and manage them often outweighs their value
and this will play into management decisions. The commenter suggested
that the generator will manage properly the material that is easy to
collect, but fugitive dust is swept or vacuumed up and disposed of and
argued that damage cases have occurred from mismanagement of flammable
swarf. (470)

9.2.2.1.3 - Response

(1) In response to comments that EPA should base this factor only on
minimizing releases, EPA does not think that it would be appropriate to
make releases the focal point of the factor because the factor is
designed to identify real recycling by comparing management of secondary
materials to the management of the analogous raw material in industrial
processes and certain manufacturing processes may involve some small
releases. 

EPA has determined that specific requirements such as those suggested by
the commenters are more appropriate as separate conditions of the
recycling exclusions rather than as part of the legitimacy
determination. EPA notes that once hazardous secondary materials have
been released into the environment, they must be managed as hazardous
waste. 

In addition, EPA notes that it has decided not to use the term minimize
because of the very different ways it can be interpreted. 

(2) EPA does not think that the commenter’s statement that evaporation
or combustion of contaminants in lieu of treatment or recovery is an
appropriate concern for this factor, which addresses management of the
materials prior to recycling. This kind of concern is more appropriately
addressed in the useful contribution factor. 

(3) In response to the comment that materials should become wastes upon
release whether they are recovered in a timely manner or not, EPA states
that under the rulemaking a hazardous secondary material is contained if
it is placed in a unit that controls the movement of that material out
of the unit. Sometimes a material may escape from primary containment
and may be captured by secondary containment or some other mechanism
that would prevent the material from being released to the environment.
Any materials that had been released would be considered discarded if
not immediately recovered and would be subject to appropriate
regulation, but EPA believes that in cases where the materials are
immediately recovered, the ability for the facility to meet this factor
should not be affected. EPA also notes that the final rule no longer
uses the phrase “in a timely manner” in discussing this concept. 

(4) In response to the comment on whether materials not being released
in an incident being considered discarded, EPA has addressed this in its
discussion of the meaning of contained. In the event of a release from a
unit, the hazardous secondary materials that remain in the unit may or
may not be considered discarded. They would be considered solid wastes
if they are not managed as a valuable raw material, intermediate, or
product, and as a result, a significant release from the unit were to
take place. If such a significant release were to occur, the hazardous
secondary materials remaining in the unit would be considered solid and
hazardous wastes and the unit would be subject to the appropriate
hazardous waste regulations. Conversely, a tank or a surface impoundment
in good condition may experience small releases resulting from normal
operations of the facility. Sometimes a material may escape from primary
containment and may be captured by secondary containment or some other
mechanism that would prevent the material from being released to the
environment. In that case, the unit would retain its exclusion from RCRA
hazardous waste regulation and the hazardous secondary materials in the
unit would still be excluded from the definition of solid waste, even
though any such materials that had been released would be considered
discarded if not immediately recovered and would be subject to
appropriate regulation. It should be noted, however, that a
“significant” release is not necessarily large in volume and that an
unaddressed small release from a unit could cause significant damage
over time. 

 

(5) EPA agrees with the commenter that determinations about whether a
specific situation meets this factor should be made on a case-by-case
basis. In general, EPA believes that if a hazardous secondary material
is analogous in its physical and chemical attributes to a raw material
that is stored on the ground, then storing the hazardous secondary
material in the same way would meet this factor. EPA notes that any
releases of the hazardous secondary material that are not immediately
cleaned up would have to be managed as hazardous waste. EPA does not
think that state air and water regulations are relevant to this factor,
which looks at the management of the material differently than these
regulations and is concerned with determining to what extent this
management is management of a valuable commodity rather than a waste.

(6) EPA agrees with the comment that in the final rule “contained”
should be defined in the same way throughout and, therefore, has done
so. 

(7) In response to the statement that EPA should recognize materials as
“contained” if they meet state programs designed to address
releases, EPA replies that because of the individual nature of
legitimacy determinations, recognition that compliance with such a state
program means that materials are “contained” would have to be done
as part of a determination on a case-by-case basis depending on the
specifics of a state program and the relevance of that particular state
program to the legitimacy factor. 

(8) In response to the comment that the containment part of the factor
is new and expands EPA's jurisdiction, EPA notes that it is not
codifying the legitimacy provision in this rulemaking for all recycling.
However, recycling under definition of solid waste or hazardous waste
exclusions has always had to be legitimate recycling. EPA believes that
the factors in this rule are consistent with those articulated
previously by the Agency in the Lowrance memo and Federal Register
preambles. Specifically, although the Lowrance Memo did not use the term
“contained,” one of the questions did ask whether the secondary
material was being managed to “prevent loss.” This factor's primary
focus is on storage in a manner consistent with the analogous raw
material. However, EPA realized that in some processes, there is not a
raw material that can be called “analogous” and, in order to make it
so that the facilities with those processes could still evaluate the
legitimacy of their recycling, EPA added the fall back requirement that
the materials be contained if there is no analogous product to achieve
the same standard of secondary materials being managed as valuable
commodities.

(9) EPA agrees with the comment that in some specific cases there may be
valid reasons for a facility to handle analogous raw materials in
dissimilar units than the hazardous secondary material, particularly if
the material is managed as protectively or more protectively than the
analogous raw materials. EPA took this comment into consideration when
determining that it was appropriate to finalize this factor as a factor
to be considered and recommends that a recycler who believes that its
process does not meet this factor but is still legitimate be prepared to
demonstrate why the recycling is legitimate. 

(10) Although EPA agrees that how a facility manages its materials does
provide insight into the nature of that facility's operation, EPA
disagrees with the commenter's implication that this factor is not
relevant to the legitimacy of a recycling process. In EPA's view, a
recycler will value hazardous secondary materials that provide an
important contribution to its process or product and, therefore, will
manage those materials in a manner consistent with how it manages a
valuable feedstock—specifically, the raw material analogous to the
secondary material, if there is one. Materials that are not managed in
such a careful manner may be released into the environment and discarded
and are likely not involved in legitimate recycling. 

(11) EPA thanks the commenter for their support and states that it
recognizes that industry does not necessarily attach a stigma to
secondary materials and that many of them are useful ingredients in
industrial processes. In fact, this legitimacy factor in particular is
designed to help distinguish those secondary materials that are being
treated like raw materials are based on the concept that similar
management of the materials is an indicator of legitimate recycling. 

(12) EPA thanks the commenter for their suggestion on the wording of
this factor. Although the concept of storing the secondary material to
preserve its value does seem relevant to this factor, EPA has decided
that it is most appropriate to require that the materials be stored in a
manner consistent with an analogous raw material, if there is one, and
that it be contained if there is no analogous raw material because this
approach more fully reflects the legitimacy of a recycling process. 

(13) EPA disagrees with the comment's interpretation of the Safe Food
decision. It would make no sense to ignore the evaluation of the
management of the feedstocks. They need to be treated as commodities,
also. Treatment of feedstocks as wastes—poor management,
indiscriminate releases to the environment, etc.—would be inconsistent
with their status as non-wastes under API I or AMC II.  

In the first place, we need to examine the relevant language of Safe
Food:   

The EPA's explanation is that market participants treat the exempted
materials more like valuable products than like negatively-valued
wastes, managing them in ways inconsistent with discard, and that the
fertilizers derived from these recycled feedstocks are chemically
indistinguishable from analogous commercial products made from virgin
materials.  

 

We need not consider whether a material could be classified as a
non-discard exclusively on the basis of the market-participation theory.
At oral argument EPA counsel rested the agency's case on the
combination: market participants' treatment of the materials, together
with EPA-required management practices and contaminant limits assuring
substantial chemical identity. If this combination is enough to
establish that the recycled fertilizers are not “discarded” when
used on the land, it follows that feedstocks used to manufacture them
are also not “discarded”—and therefore not waste—since the
feedstocks are ingredients in a non-discarded final product.  

Petitioners principally attack the legal and factual basis for the EPA's
identity principle. As a matter of law, petitioners claim—correctly,
as far as we know—that no court has yet endorsed the identity
principle that the EPA urges. But this is hardly surprising, as
petitioners point to no case where the EPA had both proposed the
principle and been challenged. The question, apparently of first
impression, is whether the identity principle, when used in conjunction
with indicators like market valuation and management practices, is a
reasonable tool for distinguishing products from wastes. We find that it
is. Nobody questions that virgin fertilizers and feedstocks are products
rather than wastes.  Once one accepts that premise, it seems eminently
reasonable to treat materials that are indistinguishable in the relevant
respects as products as well.  

Safe Food, 350 F.3d at 1269.  

Under the court's language, the “exempted materials” include
“these recycled feedstocks,” as well as the fertilizer products. The
feedstocks would need to be treated as valuable products and managed in
ways “inconsistent with discard.” Clearly, the feedstocks could not
be managed as wastes. Otherwise, they would be wastes and the materials
derived from them would be wastes.  

The identity principle, which applies to the level of contaminants in
the fertilizer product, is a different issue from management of
feedstocks and products as valuable materials. This is an issue
different from the discussion of the identity principle and the issue of
Toxics Along for the Ride (TARs), which would focus on the fertilizer
product.  

(14) EPA thanks the commenter for suggesting a definition of
“consistent with.” EPA has not included this definition in its final
rule, but believes that its explanation in the preamble that secondary
materials should be managed in the same manner as valuable raw materials
captures the same concepts as the commenter describes. 

(15) If a facility is managing hazardous secondary materials in a manner
more protective than how they manage their analogous raw materials, such
as managing them under the RCRA Subtitle C hazardous waste requirements,
they would meet this factor. 

(16) Because of the individual and case-by-case nature of legitimacy
determinations, the specific facts of a situation, like what unit’s
hazardous secondary materials and the analogous raw materials are stored
in, are very relevant to the evaluation of this factor. Without
examining the details of a specific case, the determination cannot be
made accurately. 

(17) EPA thanks the commenter for their opinion on whether shop towels
would meet this factor but notes that it does not think that this
national rulemaking is an appropriate forum for making individual
legitimacy determinations. 

(18) EPA thanks the commenter for their suggestion on the regulatory
text but has decided to finalize the regulatory language for this factor
basically as proposed. EPA believes that the regulation is clear that
management of the secondary material and the raw material do not have to
be exactly identical if they are “consistent.” 

EPA does not agree with the comment that this factor should be one of
the mandatory factors in the rule. Although EPA agrees that this factor
is very important and that it must be considered in every case, EPA
believes that there are some situations in which a recycling process may
not meet the factor exactly, but it is still clear that the materials
are being managed as valuable materials and in such a way that its
similar to management of valuable materials, for example, in such a way
as to minimize the likelihood of a release. These are the cases where
the factor can be considered but not met. Conversely, if materials are
not being managed in the same manner as other valuable materials, the
fact that this factor is not met would be critical to the legitimacy
determination. EPA believes that the regulatory structure that would be
necessary to make this factor applicable to a wide variety of recycling
would be inefficient, unwieldy, and inaccessible to the regulated
community.

(19) EPA notes that although its preamble examples are designed to
illustrate how the legitimacy factors may be applied generally in
certain types of situations, they are not intended to take the place of
the necessary case-by-case legitimacy determination that must be made
for a specific recycling process taking into consideration the facts at
that facility. If only some portion of hazardous secondary materials are
being managed in a way that would meet this factor, that must be
considered in the case-specific legitimacy determination. 

9.2.2.1.4 - Factor 3: Definition of “valuable”

9.2.2.1.4 - Summary

(1) Commenters stated that the definition of “valuable” in the
factor is not clear and is subject to varying interpretations. One
commenter argued that the term should be eliminated because it was
unclear. One commenter wondered if all secondary materials must be
managed as if they were precious metals or jewels. (89, 98, 122,129,
484)

One commenter suggested that valuable should be defined to mean “of
significant or substantial value” to ensure that the factor provides
an incentive to manage the materials well. (98) 

Commenters stated that the key to the factor is not the value of the
material, but whether it is managed in a manner that minimizes releases
because the material is likely chosen because it is more economical than
the raw material it replaces. One commenter added that “valuable
commodity” is not defined and, therefore, should be removed from the
factor. (91, 129)

(2) One commenter asked specifically about the effect treatment cost has
on the value determination. They stated that if the treatment cost
outweighs the recovery value, the material would not truly be managed as
a valuable commodity and added that if that criterion were to be used,
this rule would have little effect on current status. (484)

9.2.2.1.4 - Response

(1) In response to comments requesting more clarification of the term
“valuable,” the Agency provided more guidance in the preamble to the
final rule and additional examples to help illustrate our thinking about
how this factor is to be implemented. The concept guiding this factor is
that the materials are managed as valuable commodities. However, the
specifics spelled out in 40 CFR 260.43(c)(1) (proposed 40 CFR
261.2(g)(3)(i)) are designed to explain how it is to be determined
whether that standard is met. Thus, a separate definition of
“valuable” is not required. The standard to be met is that the
materials are to be managed, at a minimum, in a manner consistent with
the management of the analogous raw material or, if there is no
analogous raw material, that they be contained. EPA believes that these
provisions are appropriate for determining whether the materials are
being managed with the same care that raw materials that were purchases
are managed even if the hazardous secondary material is a material that
the recycler received at very low cost or for free. Therefore, EPA
believes these standards are appropriate for determining if recycling is
legitimate. 

(2) EPA does not think that whether treatment cost outweighs recovery
value is relevant to this factor, but could be relevant in determining
whether the hazardous secondary material provides a useful contribution
to the recycling product or process (Factor 1). 

9.2.2.1.5 - Factor 3: Definition of “analogous”

9.2.2.1.5 - Summary

(1) One commenter stated that a clarification that a material need not
be managed as an “analogous” feedstock if by its nature that
management would not make sense should be in the regulatory text, not
just the preamble. (89)

Similarly, commenters stated that the physical form of materials may
justify different handling and asked how this is accounted for by the
analogous raw material requirement and what it means for defining what
“analogous” means in this context. (91, 129) 

One commenter asked whether ore would be a relevant “analogous
material” to secondary materials such as baghouse dust, slag, spent
anodes, and spent crucibles. They further noted that these materials are
solids or particles instead of liquid slurry and, therefore, would be
stored differently. They stated that this different management surely
should not make the recycling illegitimate. (89)

(2) Commenters stated that the standard that analogous raw materials
have “similar” physical or chemical properties is vague and
facilities may have to guess whether their materials are similar enough
to virgin raw materials to be “analogous.” Both commenters argued
that the same problem occurs with whether storage units are similar
enough to pass the factor. One commenter stated that to assure
generators that there will be adequate defenses against allegations of
sham recycling, EPA should require monitoring and sampling plans to
evaluate what is analogous and should provide statistical criteria
(e.g., no more than two standard deviations over the mean concentrations
of constituents) to define “analogous.” (152/481, 165, 225)

(3) One commenter stated that EPA should include comparisons to
analogous raw materials or products since the material might most
closely resemble a product. (212)

(4) One commenter stated that there is always an analogous raw material
and argued that it should always be considered as part of this factor.
(509)

(5) One commenter stated that requiring a comparison to an analogous raw
material would call the legitimacy of their process into question
because the only thing to compare the secondary materials to is not
really analogous. (526)

One commenter stated that in their process, there really is no analogous
raw material to spent pulping liquor stored in a surface impoundment.
(115)

9.2.2.1.5 - Response

(1) EPA has not made the change to the regulatory text requested by the
commenter. EPA believes that in the situation the commenter
described—when it would not make sense for the secondary material to
be managed like the raw material—that the materials would not be
analogous and, therefore, the facility would have to meet the second
part of the factor and make sure that its secondary material is
contained. EPA has added further explanation on this factor to the
preamble to address this issue and notes that differences in physical
properties between the materials could result in them not being
“analogous.” 

(2) EPA has decided not to include specific bright-line tests for the
final legitimacy factors because the factors must apply to the wide
variety of recycling practices and recycled hazardous secondary
materials that exist in industry. The complex regulatory system for
tests for different types of industries or processes that would be
necessary in the design of a bright line test would not be efficient or
accessible to most generators, especially small businesses. In fact, a
bright line approach would essentially result in case-by-case
evaluations because of the variability involved. Thus, EPA believes
these determinations are best made on a case-by-case basis where careful
consideration of the specific facts of the situation is necessary and
would be more valuable than a test would be. The standards in the
factors to be considered were developed with these case-by-case
determinations in mind. If a recycler is unsure about whether its
materials or storage units are similar, it can rely on the second part
of the factor and make sure that the hazardous secondary material is
contained. 

(3) In response to the comment that the comparison in this factor should
include a comparison to analogous products, EPA believes this would only
be relevant if that “product” were an intermediate that is also a
feedstock into a process. Then it would be appropriate to compare the
hazardous secondary material feedstock to the analogous “product”
feedstock. The language of the final factor would allow this comparison.
If there are no analogous raw materials, then the recycler would have to
meet the second part of this factor and ensure that its hazardous
secondary material is being contained. 

(4) EPA does not agree with the commenter's assertion that there is
always an analogous raw material for a recycling process. The Agency
received comments from several sources stating that their production
processes have been designed around the use of a particular recycled
material for which there would not be an exact substitute if it were no
longer available. EPA believes that the second part of this factor is
appropriate for ensuring that those materials without analogous raw
materials are managed as valuable commodities. 

(5) In response to the comment that certain processes do not have
analogous raw materials, EPA recognizes this and believes that the
second part of this factor, which states that the hazardous secondary
materials must be contained, is appropriate for ensuring that those
materials without analogous raw materials are managed as valuable
commodities. 

9.2.2.1.6 - Factor 3: Standard to minimize the potential for releases

9.2.2.1.6 - Summary

One commenter stated that the term “minimize” should be removed from
the regulatory text because it was not defined for the regulated
community. (212) 

Commenters stated that the term “minimize” is unclear and could be
interpreted to be more limiting than the commenters thought it should
be. Commenters stated that it literally means the best available
technology or Subtitle C standards. One commenter added that it could be
read to apply to insignificant releases and another added that it could
be interpreted to require some management measure to be taken in every
case to reduce or minimize releases. One commenter stated concern that
the term would be interpreted so stringently as to prevent practical and
affordable management of the materials and suggested it be removed from
the regulatory text. One commenter asked what EPA means by the term if
not this strict interpretation. (89, 152, 168, 225) 

Commenters stated that the term “minimize” is too unclear and could
be interpreted to allow more storage situations than they thought should
be allowed. One commenter asked if “minimize” would mean that a
recycler could store spent catalyst in the open on concrete with a ditch
around the pad and stated that that would result in an unacceptable
increase of risk to the environment. Another commenter added that the
use of the term “minimize” may be read to allow minimal releases,
which would run contrary to the principle that releases would constitute
discard. (98, 144)

One commenter asked whether storage in a surface impoundment would
“minimize the potential for releases to the environment” and stated
that because the current §261.4(a)(6) exclusion permits such storage
and because EPA states that everything presently excluded would be
excluded under the new rules, storage in the surface impoundment should
be legitimate. The commenter states that the language stating that land
storage is not prohibited should be in the regulatory text instead of
the preamble to reduce confusion. (115)

One commenter asked how far into the system “minimize” goes. They
also asked if “minimize” address releases through pollution control
equipment or water treatment systems. They additionally asked that if
the intention is that generators and recyclers only need to have methods
in place to minimize the release, at what point would their methods be
deemed unacceptable? (69)

9.2.2.1.6 - Response

In response to comments about the term “minimize”—used in this
factor in the 2003 proposal—EPA modified the language of the factor in
the 2007 supplemental proposal to state instead that “[w]here there is
no analogous raw material, the hazardous secondary material should be
contained.” This change addresses the ambiguity of the term
“minimize” since we believe that the standard for “contained” is
clearer than the standard to “minimize potential releases to the
environment.” EPA is also defining the term “contained” in the
same way throughout the final rule: a recyclable material is
“contained” if it is placed in a unit that controls the movement of
that material out of the unit. Any materials that are released would be
considered discarded if not immediately recovered and would be subject
to appropriate regulation. 

9.2.2.1.7 - Factor 3: The effect on existing exclusions

9.2.2.1.7 - Summary

Several commenters asked specific questions about what the effect of
Factor 3 would be on existing exclusions. 

One commenter asked whether management under the criteria of
§261.4(a)(17) would meet Factor 3. They stated that, literally read, a
regulator could argue that it does not because the materials are not
stored outside on the ground, which they added was an absurd result.
(89) 

One commenter stated that this factor should not apply to precious
metals because of the value of the materials. (89)

One commenter asked how this factor applies to spent pulping liquor
managed under the §261.4(a)(6) exclusion. (115)

One commenter stated that the containment requirement is new and not
required by the current regulatory exclusion for characteristic sludges
and by-products at §261.2(c)(3). (528)

One commenter asked how this factor would relate to the facility's
wastewater treatment system. If a release from the wastewater treatment
system occurred would that be considered in a legitimacy determination?
(69)

9.2.2.1.7 - Response

To avoid confusion among the regulated community and state and other
implementing regulatory agencies about the status of recycling under the
existing exclusions, the Agency has decided not to codify the legitimacy
factors for existing exclusions in this rule. Nevertheless, it has been
the Agency's longstanding position that any definition of solid waste
exclusion that is based on the hazardous secondary material being
recycled applies only to materials that are legitimately recycled. We
expect that states and other implementing agencies will continue to use
the existing legitimacy concept for all recycling as they have in the
past in order to ensure that recycling is real and not sham. For more
discussion see section 9.1.2. of this chapter of the Response to
Comments Document. 

9.2.2.1.8 - Factor 3: Miscellaneous comments

9.2.2.1.8 - Summary

(1) One commenter stated that saying that a material might not be
considered analogous if it contains hazardous constituents that the raw
material does not contain seems like back door implementation of the
TARs factor. (182)

(2) One commenter suggested that EPA's examples of metals refining
should recognize that metals refining is a multi-step process. (182)

(3) One commenter stated that when considering a land-based unit, local
conditions along with the specific measures a facility employs, such as
liners, leak detection measures, inventory control and tracking, control
of releases, or monitoring or inspection during construction and
operation of the unit should be evaluated. (481)

(4) Commenters stated that the term “timely” should be defined. One
commenter added that it seems unenforceable and provides an incentive to
delay cleanup indefinitely. (521, 543)

(5) One commenter asked whether materials not released from units that
have releases would also be considered disposed. (535)

9.2.2.1.8 - Response

(1) EPA believes that its definition of “analogous raw material” as
a raw material for which the hazardous secondary material substitutes
and which serves the same function and has similar physical and chemical
properties as the hazardous secondary material is an appropriate
definition. Looking at the chemical properties and hazardous
constituents in the raw material and the secondary material in the
evaluation of this factor is particularly relevant because it may not be
appropriate to manage materials with different chemical properties in
the same way. In addition, EPA does not see a problem with the overlap
between this factor and the toxics along for the ride factor that the
commenter mentions. 

(2) EPA recognizes that metals refining is a multi-step process and has
mentioned this aspect of the industry in its preamble to the final rule
in the context of legitimacy. 

(3) In response to the comment on suggestions of things to consider when
evaluating this factor for a land-based unit, EPA notes that legitimacy
determinations are made on a case-by-case basis and, therefore, local
conditions and the specific features and performance of the land-based
unit are appropriate for evaluation. 

(4) EPA is no longer using the term “timely” in the regulatory text
for this factor. 

(5) This comment appears to address the concerns of the exclusion being
finalized in this rulemaking and this response is in that context,
although similar thinking is appropriate in the case of the legitimacy
factors. In the event of a release from a unit, the hazardous secondary
materials that remain in the unit may or may not meet the terms of the
exclusion. They would be considered solid wastes if they are not managed
as a valuable raw material, intermediate, or product, and, as a result,
a “significant” release from the unit were to take place. If such a
significant release were to occur, the hazardous secondary materials
remaining in the unit would be considered solid and hazardous wastes and
the unit would be subject to the appropriate hazardous waste
regulations. Conversely, a tank or a surface impoundment in good
condition may experience small releases resulting from normal operations
of the facility. Sometimes a material may escape from primary
containment and may be captured by secondary containment or some other
mechanism that would prevent the material from being released to the
environment. In that case, the unit would retain its exclusion from RCRA
hazardous waste regulation and the hazardous secondary materials in the
unit would still be excluded from the definition of solid waste, even
though any such materials that had been released would be considered
discarded if not immediately recovered and would be subject to
appropriate regulation. It should be noted, however, that a
“significant” release is not necessarily large in volume and that an
unaddressed small release from a unity could cause significant damage
over time. 

9.2.2.2 - General comments on Legitimacy Factor 4: Toxics along for the
ride

9.2.2.2 - Summary

(1) EPA received several comments from commenters with concerns about
Factor 4. One commenter stated that they have concerns with the TARs
factor as proposed in 2003. Other commenters stated that they do not
object to the TARs factor in the 2007 supplemental proposal because it
remains non-mandatory, but did think that does remain problematic to
codify it. One commenter stated that a legitimacy determination should
be based on relevant facts and determinations, not on a “hard and
fast” TARs factor. One commenter stated that the standard should be
more clear, but still not necessarily rely on analytical testing if
process information is available. Another commenter stated that the
factor is too ambiguous and becomes no less so by being codified. (60,
89, 203, 472, 486, 506)

One commenter stated that TARs is “just” a consideration, but was
concerned that it acts as a primary factor because, according to EPA, it
can overrule the other three factors. (506) 

One commenter stated that in the past, EPA considered imposing similar
TARS-related tests on mineral processing secondary materials processed
for the recovery of their metals when promulgating 40 CFR 261.4(a)(17).
Several commenters stated that this would be unworkable and in the end,
the Agency decided not to promulgate them and instead merely required
that the material be legitimately recycled. (89)

(2) One commenter stated that the TARs factor is the most important
factor in legitimacy because all toxics improperly transferred from
hazardous secondary materials to the recycled products are discarded and
not recycled. However, another commenter stated that the factor should
be flexible and hazardous materials in the product should only count
against it if they diminish the usefulness of the product. Similarly,
another commenter stated that the TARs factor should include the concept
in subparts (A) and (B) of the regulatory language proposed in 2007 that
the significant quantities or significantly elevated quantities of
hazardous constituents are not necessary to the product or of sufficient
use to the product. (60, 558)

(3) One commenter stated that the TARs factor is problematic because it
refers to the product of the recycling process and presumably does not
include the resolves that are discussed, but that the distinction is
unclear. (535)

(4) One commenter asked whether the non-waste determination requirement
that differences between hazardous secondary materials and commercial
products and intermediates be insignificant is the same as requiring
that there are no toxics along for the ride? (516)

9.2.2.2 - Response

As a condition of the final exclusion EPA is finalizing, as Factor 4,
the second of the additional factors that must be considered, the
requirement that those making a legitimacy determination look at the
concentrations of the hazardous constituents found in the product made
from hazardous secondary materials and compare them to the
concentrations of hazardous constituents in analogous products. Any of
the following three situations could be an indicator of sham recycling:
a product that contains significant levels of hazardous constituents
that are not found in the analogous products; a product with hazardous
constituents that were in the analogous products, but contains them at
significantly higher concentrations; or a product that exhibits a
hazardous characteristic that analogous products do not exhibit. Any of
these situations could indicate that sham recycling is occurring because
in lieu of proper hazardous waste disposal, the recycler could have
incorporated hazardous constituents into the final product when they are
not needed to make that product effective in its purpose. This factor,
therefore, is designed to determine when toxics that are “along for
the ride” are discarded in a final product and therefore the hazardous
secondary material is not being legitimately recycled. 

(1) In response to commenters who expressed concerns about the TARs
factor as it was described in the proposed rule in 2003 or about the
implications of the changes in the supplemental proposal in 2007 on the
original proposed rule, EPA has clarified what it means by the TARs
factor in the preamble to the final rule, has clarified the regulatory
text, and has added examples to the preamble to describe how the factor
would work in implementation so that it is appropriate for application
to a variety of materials and industries. EPA agrees with the comment
that the factor should be based on relevant facts and determinations and
has not developed a specific TARs test that must be met for this factor.
EPA has also determined that codifying the TARs factor is appropriate
and has described its reasoning in the preamble to the final rule and
elsewhere in this document. 

In response to the comment that not meeting the toxics along for the
ride factor can still result in a determination that recycling is not
legitimate even when the other three factors are met even though it is
just a factor for consideration, EPA responds that this is correct and
appropriate. EPA has maintained the factors to be considered as part of
the final legitimacy approach being codified because those factors are
important in the determination of legitimacy. Although they are
sometimes not appropriate to a specific recycling process, EPA does
believe they are each important enough to impact the overall
determination of legitimacy when relevant. However, EPA notes that it
does not think there are frequent cases of sham recycling that fail just
one of the factors; more frequently, the process will fail several or
all of the factors.

(2) EPA agrees with the commenter that the TARs factor is an important
part of a legitimacy determination and that illegal disposal of toxics
in products—which is sometimes indicated by the presence of elevated
concentrations of toxics in the product—is both a legitimacy and a
human health and environmental concern. However, EPA stresses that it
believes that to make an accurate legitimacy determination, the results
of the evaluation of all four legitimacy factors have to be considered
based on the facts of the individual recycling process and the materials
in question.

(3) EPA is unclear by what the commenter means when they state that the
three subparts of the Factor 4 proposed regulatory text “refer to the
‘product’ of the recycling process, which presumably does not
include the resolves which are discussed, but this distinction is
unclear.” EPA is unfamiliar with the meaning of the term
“resolves” in this comment. If the commenter is requesting
information on how residuals of a recycling process that may contain
hazardous constituents from the hazardous secondary material are
managed, EPA notes that any residuals that are generated from a
recycling process must be managed in a manner that is protective of
human health and the environment and that if the residuals are solid
waste, they are subject to the waste characterization and identification
requirements in 40 CFR part 261 as a newly generated waste. 

(4) In response to the question regarding whether the requirement in the
non-waste determination that the chemical and physical identity of the
hazardous secondary material is comparable to commercial products and
intermediates is the same as requiring that there are no toxics along
for the ride, EPA notes that this requirement is not identical to the
TARs factor. The TARs factor involves a comparison of the product of the
recycling process to the analogous product of the process without use of
hazardous secondary materials, while the non-waste determination
requires an evaluation of the hazardous secondary material being
regulated. In general, however, both requirements should result in the
materials going into the recycling process looking like the materials in
a manufacturing process and toxics not being illegally disposed in
products. 

9.2.2.2.1 - Support for Factor 4

9.2.2.2.1 - Summary

(1) Some commenters agreed generally with the formulation and inclusion
of the factor addressing “toxics along for the ride” in a legitimacy
determination. One of these commenters stated a concern about the
subjectivity of the language used in the regulatory text of the factor,
but, in the end, supported it as written because of the need for the
factor to apply to a wide range of recycling circumstances. Another
commenter agreed that a specific formula is not appropriate for this
factor. (91, 98, 149, 484, 489)

Another set of commenters addressed the question of mandatory factors
versus factors to be considered and agreed that it is important for this
factor to be considered but that in the structure of legitimacy, it
should not be one of the mandatory factors. One commenter stated that
the TARs factor should be looked at in particular with the factor that
states that a secondary material must provide a useful contribution to
the product or recycling process and that it is more important when the
evidence supporting the useful contribution factor is weak. Four
commenters stressed that it should not be mandatory because the
existence of TARs does not necessarily mean recycling is not legitimate.
One commenter stated that the TARs factor being non-mandatory is
consistent with the court decision in the Safe Food case since the court
said absolute identity was not required between the recycled product and
the product made from virgin materials. (104, 143, 458, 460, 463, 473,
486, 529, 534)

One commenter stated that this factor is the most important of the four
and that it should be strong, effective, and enforceable. (119)

(2) One commenter stated that if the TARs factor is adopted, a
presumptive variance mechanism should be allowed to be administered at
the Agency's regional level or at the state level on a case-by-case
basis so that the factor is only applied when applicable. (143)

9.2.2.2.1 - Response

(1) EPA thanks the commenters for their support of the TARs factor and
agrees that this factor is important to legitimacy and should be
included in the final rulemaking but that it must be structured so as to
be applicable to a wide variety of recycling. Therefore, EPA agrees with
the commenters who stated that there should not be a specific test for
this factor and with those who stated that this factor should not be one
of the mandatory factors but is more appropriate as a factor to be
considered. EPA believes that the final factor is strong, effective, and
enforceable by implementing agencies. 

EPA, however, is at a loss to understand how the Safe Food case
discussion can be used to support the fact that the TARs condition is
not mandatory. The court did note that it was not called upon to decide
whether the “market participation” condition by itself is sufficient
to render a material not a solid waste. Further, the court indicated
that there are a number of different ways in which identity could be
established. The levels of contaminants could be the same for products
made from raw materials or recycled materials or the levels could be
“identical” from a standpoint of risk if levels in products made
from recycled materials are considerably higher or lower than those in
products made from raw materials. These determinations, however, do not
deal with whether the TARs condition should be mandatory or not.  Again,
EPA wishes to let the public know that extreme interpretations of case
law are not credible and are not helpful in comments.

(2) EPA agrees with the commenter that the TARs factor should be
examined on a case-by-case basis so that it is applied where it is
applicable to the recycling process in question. EPA has not finalized a
variance mechanism for cases where the TARs factor is not applicable,
but suggests that if a facility determines that TARs are not applicable
in the case of their process and product, they keep records of that
determination so they are prepared to document the legitimacy of their
process if asked by the implementing agency. As in the past, the
regulated community is welcome to consult its implementing agency on
specific processes for assistance in making a legitimacy determination. 

9.2.2.2.2 - Opposition to Factor 4

9.2.2.2.2 - Summary

(1) Commenters stated that they oppose or do not support the TARs factor
or stated that it is flawed or that it needs revision. Many of these
commenters added more specific comments on their concerns, which are
addressed here or in subsequent sections of the Response to Comment
Document. 

One commenter stated that the TARs factor is far too restrictive to be
practical, while another stated that the possibility of chemicals from
hazardous secondary materials does not justify the burden from this
factor because all products contain impurities which vary with the
nature of the feedstocks and that the factor would not keep chemicals
out of products like teething rings. Another commenter added that this
factor is not justified by bad actors in industry or EPA's studies. 

Commenters specified that the TARs factor would be overly restrictive or
misses the mark, either because parts (i) and (ii) of the factor (as
proposed in 2003) restrict recycling regardless of the threat to human
health and the environment, because a product can contain TARs and pose
no threat to human health and the environment because of the form or use
of the product or because sometimes nothing in the process is replaced
by the hazardous secondary material. Some of these commenters suggested
that the factor focus on whether the toxics are released into the
environment instead. 

Another commenter stated that a codified TARs factor would increase
regulation, particularly the costs to provide adequate documentation
that the factor is met. One commenter added that EPA has not attempted
to quantify the costs of codifying the TARs factor. 

(48, 70, 83, 97, 89, 102, 123, 124, 137, 152/481, 168, 170, 178, 203,
225/465, 476, 506, 197/526)

Commenters stated that the TARs factor would result in decreased
recycling either because its requirements would result in legitimate
recycling being called sham or because the regulatory barriers and
uncertainties about the factor would discourage recycling. One commenter
stated that the TARs factor is not appropriate because the free market
system will best determine if a particular recycling activity is
valuable. (89, 123, 200, 203, 506, 478, 481)

One comment in response to the 2003 proposal stated that this factor
would go from something that has to be considered sometimes to one that
must be met every time. Another commenter stated that TARs should not be
a separate factor, but may be relevant to the valuable product factor.
(89, 465)  

(2) Two commenters stated that the TARs factor is too ambiguous and
would lead to uncertainty in areas of compliance and enforcement and one
commenter stated that the TARs factor would cause costly case-by-case
and subjective decisions difficult for the regulated community and
regulators to make since it is uncertain how much sampling and analysis
would have to be done to make a determination. (102, 124, 506) 

(3) Several commenters had suggestions on how EPA might change the TARs
factor. One commenter stated that the regulatory language should reflect
the Safe Food decision by stating that if there is no substantive
difference in risk between the products, the differences in their
hazardous constituent makeup are meaningless. One commenter to the 2003
proposal stated that the product made from reclaimed material should
present no meaningful difference in its constitutional makeup than the
product made from virgin raw materials. A commenter on the 2007
supplemental proposal added that the TARs rule should specify that a
hazardous secondary material-derived product is indistinguishable in the
relevant aspects from the asserted equivalent product. (74, 93, 543) 

Commenters also stated that the Safe Food decision indicated that EPA
could consider comparisons of hazardous constituents only looked at the
case of zinc fertilizer. They added that there is no reason the court
might say the same in the case of other materials and that the court did
not say that where differences do exist between materials, they can be
called wastes, just that when they do not exist, the materials are not
wastes. (152, 528)

(4) One commenter stated that hazardous constituents in a useful product
are not discarded.  They added that if recycling fails the legitimacy
test, then the secondary materials have to be discarded, resulting in
the landfilling of useful components. One commenter stated that the TARs
factor does not pertain to the question of discard. (481/152, 537)

(5) One commenter argued the TARs factor was inappropriate because in
the case that a secondary material contains higher concentrations of
certain hazardous constituents than a virgin material and a high
percentage of these constituents are destroyed in the process, some
could end up in the product and the process could be determined to be
sham. (178)

(6) One commenter stated that in some cases the comparison of toxic
constituents in the recycled product to those found in an analogous
product made from raw materials will be difficult to make. (197)

(7) Commenters stated that the toxics along for the ride factor should
be one of the mandatory factors instead of being a factor to be
considered in a legitimacy determination. Two commenters stated that the
presence and concentration of hazardous constituents in the product of a
recycling activity is a strong indicator of legitimacy and that allowing
toxics to be in recycled products that are not in analogous products is
allowing these toxics to be disposed of. One commenter stated that this
factor was the most important factor in a legitimacy determination. One
commenter stated that if it is not mandatory, it leaves a loophole and
threatens human health and the environment. One commenter stated that
the TARs factor should be mandatory, but the recycling should not be
automatically disqualified. Instead, the burden of proof of legitimacy
regardless of the TARs should be on the generator. One commenter stated
that they did not agree with EPA's example on page 14199 of the 2007
supplemental proposal for not making this factor mandatory because they
felt that in the example the hazardous secondary material would not fail
the TARs factor because the other solvent was contributing positively to
the paint. (457, 470, 507, 516, 543, 558, 539)

(8) One commenter stated that the TARs factor should be a condition of
the exclusion with which the legitimacy factors were proposed. Another
commenter suggested that the TARs factor include at least minimal
specific standards. (521, 531)

(9) One commenter stated that allowing TARs into products in the easiest
way to commit sham recycling. A product with TARs should be considered
“use constituting disposal.” (538)

9.2.2.2.2 - Response

(1) EPA thanks those commenters who disagreed with the TARs factor for
their comments and suggestions. EPA has used the suggestions in the
final rule where it thinks appropriate to clarify the meaning and
implementation of the TARs factor, but has decided to codify this factor
in the final exclusions and non-waste determinations as one of the
legitimacy factors that must be considered in every situation but does
not necessarily have to be met for recycling to be legitimate. EPA is
not codifying the legitimacy provisions for all recycling, and,
therefore, the existing legitimacy policy still applies to those
recycling scenarios. 

EPA believes that Factor 4 is important in identifying situations in
which hazardous constituents are discarded by being incorporated into a
product made from hazardous secondary materials, which would be a
practice of sham recycling, but recognizes that there may be some
situations in industry for which the TARs factor is not relevant
because, for example, there are increased concentrations of toxics in a
product but that product is used in an industrial process where there is
no exposure to the environment, no risk to human health, and no impact
on the usefulness of the product.

EPA does not agree that the free market is best for regulating the
recycling market because it has seen in its damage cases situations in
which hazardous toxics have been incorporated into products that were
then sold. In particular is the case of leaded sands from foundries
being made into children's play sand.

(2) In response to comments that the TARs factor is too ambiguous, EPA
has added further explanation and examples to its preamble in the final
rule. After considering the comments on the alternative options of a
bright line or a risk-based approach in the 2003 proposal, EPA has
determined that neither approach is workable for a factor that must be
designed to address the universe of all recycling in all industries. EPA
believes that any bright line would have to be somewhat arbitrary and
would likely leave out some types of recycling that are legitimate. EPA
does believe that placing the legitimacy factors in the regulations
should improve both compliance with them by the regulated community and
enforcement of them by the implementing agencies, even without specific
tests for this factor and the others. 

(3) EPA thanks the commenters for their suggestions on the design of the
TARs factor. EPA has changed the language of the preamble and regulation
in the final rule, as appropriate, in response to the suggestions. To
account for some of the ideas the commenters express in these comments,
EPA has determined that instead of changing the TARs factor, EPA should
clarify that under the structure for legitimacy laid out in the 2007
supplemental proposal and in the final rule, the risk of exposure from a
product with elevated levels of toxics compared to the analogous product
can be considered as part of the determination and can play a role in a
facility's determination that its recycling is legitimate. EPA has
authority to define legitimate recycling and to include a consideration
of toxics in its definition of what is legitimate recycling. 

EPA also disagrees with the comment that the decision in Safe Food is
not relevant to other cases. There is nothing in the Safe Food opinion
which states that the broad principles involved in determining whether
material is discarded only applies to zinc micronutrient fertilizers.  

(4) EPA does not agree with commenters who state that hazardous
constituents in a useful product are never discarded. For example, if
the recycler has incorporated hazardous constituents into the final
product where they are not needed to make that product effective in its
purpose, then the recycling process is not legitimate and those
hazardous constituents would be considered discarded in the final
product. 

(5) EPA disagrees with the comment that the factor is inappropriate
because in some cases high levels of hazardous constituents might be
destroyed in a process and high levels could also end up in the product.
EPA does not think that using a process that destroys hazardous
constituents is the basis of a legitimate recycling process but, rather,
that the recycling should look like a manufacturing process. If the
hazardous secondary material has a concentration of hazardous
constituents that is high enough to allow for high amounts of them to be
removed during the process but for amounts to make it through to the
product in levels significantly higher than an analogous product made
from raw materials, EPA believes that this could signify that the
hazardous secondary material is not suitable for use in that process and
is simply being run through it in lieu of proper disposal and,
therefore, thinks that the TARs factor is appropriate as part of a
legitimacy determination.   

(6) EPA has clarified in its final rule preamble that if a recycler is
not able to compare the product of its process to an analogous product,
it can choose to compare the hazardous secondary material input to an
analogous raw material input instead in order to make a TARs
determination. 

(7) EPA agrees with commenters that the TARs factor is an important
factor in making a legitimacy determination and that elevated
concentrations of toxics in a recycled product can be an indication that
hazardous constituents are being run through a manufacturing process in
a way that makes the recycling illegitimate. However, EPA also
recognizes that its legitimacy factors have to apply to many types of
recycling and that in some cases elevated concentrations might not lead
to the conclusion that recycling is not legitimate. We believe the
approach in the final rule to make two of the factors “factors to be
considered” is clearer than the existing guidance, yet retains enough
flexibility to account for the variety of legitimate hazardous secondary
materials recycling practices that exist today. Similarly, EPA believes
that in order for the TARs factor to be applicable to a wide variety of
recycling scenarios, it is not possible to have a specific test or
standards as part of the factor. 

In addition, EPA believes that the codified legitimacy factors, coupled
with the existing documentation provisions of 40 CFR 261.2(f), will
provide the state implementing agencies with enough clarity to
successfully enforce legitimacy under the exclusions and non-waste
determinations in this final rule. Under its TARs factor, EPA does not
believe that there would be an additional threat to human health and the
environment from the recycled product than from the product of
manufacturing because TARs must be considered in all cases. Situations
in which there is an increased threat to human health and the
environment from the product of the recycling would not qualify as
situations in which the TARs factor is not applicable, thus the TARs
factor would be taken into account in the legitimacy determination.  

(8) Because the TARs factor is designed as part of the legitimacy
requirements to help distinguish real recycling from activities that are
more like waste management, EPA has determined that the TARs factor
belongs as part of the legitimacy factors and not as its own condition
of an exclusion.

(9) Although a product with significant toxics along for the ride would
indicate that a recycling process is not legitimate, EPA would not
characterize a product with toxics along for the ride as “use
constituting disposal” as the commenter did. Use constituting
disposal, as defined in the regulations at 40 CFR 261.2(c)(1), and as
implemented, specifically addresses various cases of land placement,
which would not necessarily be the case for a product failing TARs. The
Agency agrees with the commenter's general point, however, that
significant TARs can be indicative of disposal or discard.  

9.2.2.2.3 - Factor 4: Definition of “significance”

9.2.2.2.3 - Summary

(1) Commenters stated that they thought that the terms “significant
amounts of hazardous constituents” and “significantly elevated
levels of hazardous constituents” were not adequately discussed in the
preamble or regulatory text and, therefore, that they were vague,
unclear, or unworkable. Many commenters stated that the terms should be
made clearer but one commenter stated that attempts to exactly define
“significant amounts” or “significantly elevated levels” would
be arbitrary at best. Commenters added that states and facilities will
likely have different ideas of what is “significant” and that this
term being unclear would make it hard for anyone to know if the factor
has been met and, therefore, that in some cases there will be less
recycling because those recycling do not know how the regulators will
interpret the term. 

One commenter stated that the term “significant” being unclear will
likely lead to states requiring expensive laboratory analysis and stated
that, for example, Appendix VIII hazardous constituent analysis is about
$3,000 per sample. Another commenter added that it is unreasonable and
unrealistic to expect generators to evaluate whether levels of Appendix
VIII hazardous constituents are significant. One commenter stated that
the impurity levels in the ores used in the mineral processing industry
vary even if the levels in the secondary materials do not, and this can
cause differences in the product. Similarly, one commenter stated that
in some cases a facility may not be trying to avoid disposal and may not
be threatening the environment, but the levels of impurities may vary.
The commenter argued that it is unclear if this would qualify as
“significant.” One commenter stated that used oil, if regulated as
hazardous waste, would not qualify as legitimate if the TARs factor were
strictly interpreted because the levels of contaminants allowed in used
oil are all multiples of the levels found in virgin petroleum fuel
products.

(43, 74, 89, 95, 102, 104, 124, 138, 148, 153, 156, 162, 164, 170, 171,
175/536, 180/ 524, 185, 190/ 535, 197, 210, 231, 476, 481, 506, 559)  

One commenter added that the meaning provided in explanations in the
preamble will be lost over time, while another stated that opinions on
the meaning of the term” significant” could change over time and
subject facilities to unanticipated RCRA regulation. One commenter added
that the ambiguous meaning of significant may cause the regulated
community to habitually seek agency review to ensure they meet the
factor, leading to burden for the states. One commenter added that
without this definition, the factor is unenforceable or very difficult
and expensive for a regulatory agency to enforce, and another stated
that there should be a bright line for both the generator and the
regulating authority. (68, 156, 171, 185, 190, 543, 559)

One commenter added that although the terms need clarification, the
commenter believes the factors are helpful in evaluating legitimacy on a
case-by-case basis. (210)

Several commenters had questions about whether the levels of hazardous
constituents in specific cases would be considered “significant”: 

is “significant” determined by UTS hazardous waste standards, which
are very low, or by product specifications, which could be very high and
do not contemplate the presence of hazardous constituents? (484)

Would an increase of 0.0000001% to 0.0000003% be significant because it
represented a trebling of the amount of hazardous constituents? (89)

What levels of impurities, such as the trace amounts of chromium and
nickel that leach over time from stainless steel piping holding acids,
would be considered “significant”? (102)

Within an acetic anhydride plant, very expensive and scarce rhodium is
used as a catalyst. The recovery of the catalyst is essential to
continuation of the process. The catalyst recovery unit on-site recovers
the rhodium at a value of $40,000 per hour. Residue from the unit is
sent off-site and managed as D004. The recovered rhodium contains trace
amounts of arsenic because the methanol coming into the plant in the
process is produced by gasification of coal, which puts arsenic into the
methanol. It is unlikely that there is any analogous acetic anhydride to
compare the acetic anhydride made with recovered rhodium to so the
facility would have to compare the recovered rhodium to virgin rhodium.
Would the trace amounts of arsenic in the recovered rhodium be a
significant amount? (102)

What exactly would be considered “significant”? For example, at a
facility with a 1 ppm limit for selenium would a product with .9 ppm be
considered significantly elevated as compared to .1 ppm or .5 ppm
selenium? (152/ 481)

In addition, several commenters had suggestions for how EPA could make
the definition of “significant” in these two parts of the TARs
factor clearer: 

EPA should provide examples of successful demonstrations of compliance
with the TARs factor since “significant” can mean different things
to different people. (194)

EPA should add a narrative explanation to the text of the regulation to
help define significance. For example, EPA could add “NOTE: Generators
may determine whether the presence of hazardous constituents are
“significant” by process knowledge or testing. In evaluating the
“significance” of levels of hazardous constituents in recycled
products for the purpose of this criterion, several factors are
relevant, including the type of product, how it will be used, and by
whom. The presence of a “hazardous constituent” will not be
considered significant if it does not compromise the efficacy and safety
of the reclaimed product.” (60)

EPA should replace “significant” in the factor with a less
subjective standard such as the bright-line or risk-based approaches
discussed in the 2003 preamble. (177) 

The concept of what is “significant” should consider whether the
elevated levels compromise the quality of the product. (127) 

A 10X UTS or an analysis and a statistical t-test performed on ten
replicate samples of the raw material and waste should be performed.
(119)

EPA should use LDR restrictions when hazardous constituents are in
hazardous secondary materials and not in the raw material. EPA could
also set an artificial threshold of something like no more than five
times greater for hazardous secondary materials with higher levels of
hazardous constituents than in the original product. (148)

The Court decision in the Safe Food case should guide EPA in
determinations about whether levels are “significant.” The
constituents and the materials should be looked at in a broader context.
(149)

The factor should be made self-implementing by defining
“significant” to mean “a level of hazardous constituents that
causes a product to potentially violate federal or state product safety
standards.” (171)

“Significant” should be defined to mean “the presence of an
appendix VIII constituent, or hazardous waste characteristic, that is
not found in similar non-recycled consumer products or present at a
level more than 25% over what is routinely present in similar product. A
revised MSDS shall accompany any recycled product sent for consumer or
industrial use.” (543)

(2) Commenters also stated that they agreed that the factor's use of the
term “significant” is appropriate and practical because the question
of significance has to apply to a wide range of recycling circumstances
and is best addressed on a case-by-case basis. One commenter just
emphasized that the term significant has to be applied case-by-case.
(89, 98, 102, 149, 178, 199)

(3) One commenter stated that the regulated community should not object
to analytical tests to determine significance due to cost because the
cost is small compared the cost of negative impact on human life or an
environmental receptor should a release occur. This analysis is like
testing under the delisting program, which this exclusion should be at
least as protective as. (119)

9.2.2.2.3 - Response

(1) In response to the commenters who sought additional clarity,
definition, or bright-line tests for the term “significant” in this
factor, the Agency has incorporated the ideas generated during the
comment process into the preamble to the final rule, as appropriate. We
have decided not to develop a specific bright line definition or test
for significance, but instead have bolstered our preamble discussion on
the meaning of the term and included more explanation and examples in
the final rule preamble. Our decision not to include a specific
bright-line test for the final legitimacy factors reflects the fact that
legitimacy determinations cannot be made using absolute distinctions
because of the breadth and depth of recycling practices and recycled
hazardous secondary materials that are covered by the final exclusions. 

The complexities of defining “significant” so that it can be
determined through a bright line test and still be appropriate for such
a wide variety of industries, recycling processes, and recycled
hazardous secondary materials are too great to design a simple and
straightforward test to be used in making such determinations. In fact,
because of the variability of the situations to which the test is
applicable, attempting to do so would essentially result in case-by-case
evaluations. Thus, we believe that legitimacy determinations are best
made on a case-by-case basis, with the facts of a specific situation in
hand. The Agency does not think it is appropriate to respond to specific
requests in the comments for determinations on whether concentrations in
certain commenter examples would be considered “significant.” The
specific facts and circumstances of the recycling process would have to
be taken into account in a case-by-case determination. Such case-by-case
determinations for specific recycling scenarios are outside the scope of
this general rulemaking. 

In response to the comment regarding generators being expected to
evaluate significance in the recycling process, EPA believes the
commenter is referring to the requirement to check that recycling is
legitimate as part of reasonable efforts in the conditional exclusion in
the final rule. EPA notes that the requirement for the generator is that
they inquire to the reclaimer about the legitimacy of their process
until they feel confident from the responses they receive that the
materials are recycled legitimately. 

(2) EPA thanks the commenters for their support and agrees that the use
of the term “significant” is appropriate and practical and that it
has to be applied case-by-case in a legitimacy determination. 

(3) EPA is not mandating in its final rule how a facility makes its
determination of whether there are significant or significantly elevated
concentrations of hazardous constituents in the product of a recycling
process. EPA expects that recyclers will be familiar with the
constituents that make up the materials in their process and their
products. Although analytic tests are not required, EPA agrees with the
commenter that there are certainly situations in which testing would be
the most thorough and accurate way to make a determination that there
are not significant levels or significantly elevated levels of these
constituents and that a product made from recycled materials does not
pose a risk greater than an analogous product made from raw materials.
However, EPA notes also that testing may not always be required to make
this determination, but that a facility must be able to demonstrate that
their recycling is legitimate in all cases. 

9.2.2.2.4 - Factor 4: Evaluate toxics in the secondary material or in
the product

9.2.2.2.4 - Summary

(1) Comments supported EPA's proposal that the TARs factor should focus
on a comparison of hazardous constituents in the product of the
recycling process to the hazardous constituents in an analogous product
made from virgin raw material rather than comparing the secondary
material going into the process with an analogous raw material. Many
stated they felt it was a more appropriate comparison than the
comparison of secondary materials. (Not all of these commenters support
TARs—some made it clear that that is what they prefer only f the TARs
factor is finalized.) The commenters provided various reasons why this
approach is appropriate for this factor: 

it is supported by the Safe Food case where the Court looked at whether
there was any meaningful difference in the products. One commenter added
that the Court looked at the contaminant limits to assure substantial
chemical identity between the recycled product and analogous products
and called this the “identity principle.” (74/486, 93/472, 149, 203,
550)

manufacturing processes are often designed to safely remove any
undesired constituents, so they produce a product with significantly
lower levels of toxics than the hazardous secondary material. (74, 91,
129, 179, 187, 465)

this approach better promotes recycling without compromising the safety
of products or increasing environmental risk. (196)

it is in conformity with the evaluation of environmental impacts using a
life-cycle approach. (159)

if EPA were to apply the TARs factor to the secondary material,
virtually no metal-rich secondary materials generated by precious metals
producers would be deemed legitimately processed. (89)

One commenter noted that a distinction should be made in wastewater or
waste treatment cases where dilution takes place or the activity is
treatment without a permit.

(74/486, 83, 89, 91/ 529, 93/ 472, 97, 102, 107, 122, 129, 149, 159,
162, 179, 196, 199, 203, 215/553, 465, 526, 528, 550)

Commenters also stated that EPA should clarify that when TARs are being
evaluated in the product of a recycling process, it does not necessarily
have to be the finished good or article but could be a product that is
more intermediate and that it is the person recycling who determines
what the product being compared is. (199, 203)

(2) Commenters opposed or expressed concern about the focus for the TARs
factor being placed on the final product rather than the secondary
material because the process could include some elements of waste
management, the end product may be far down the chain of management, or
because the factor creates an opportunity for dilution. One commenter
added that the recycling process could be illegal treatment and disposal
without a permit, especially in the case of something like benzene that
would evaporate and not end up in the residuals. One commenter stated
that they disagree with EPA and think that this shift is substantively
different than EPA's longstanding policy on TARs in legitimacy. (119,
489, 516, 521, 543)

One commenter stated that they believe that this change should not apply
when the materials are excluded under §261.2(e)(1)(i) and (ii) for
use/reuse because these exclusions preclude reclamation, so the
hazardous constituents cannot be removed in the process. It could be
argued that if they are present in the secondary material at higher
levels than the raw material that they would then show up in the product
at higher levels, but if other ingredients naturally contain the same
toxics, those in the secondary material could be masked in the final
product. (182/516)

(3) Commenters stated that they support being able to test their
secondary materials instead of their product for differences in
constituent levels if they prefer. Commenters added that it should be
made more clear that this is allowed. One commenter suggested adding
“or raw material feedstock” to each of its three TARs tests. Some
commenters stated that EPA should focus its evaluation on the secondary
materials only when necessary. (74, 91, 93, 178, 187, 199)

One commenter stated that the alternative application of the factor to
secondary materials when comparison of products is not possible is
impracticable and costly. (506)

(4) Commenter stated that as another alternative, recyclers should be
able to demonstrate that their process achieves substantial removal of
toxic constituents in the feedstock as a way to show they meet this
factor. (91, 128, 178)

9.2.2.2.4 - Response

(1) EPA thanks commenters for their support of its proposal that in most
cases the TARs factor should focus on a comparison of hazardous
constituents in the product of the recycling process rather than
comparing the hazardous constituents in the secondary material going
into the process. EPA agrees that this approach is appropriate for these
materials, is consistent with the court cases on this subject, and, in
many cases, should be easier to implement. In response to one commenter,
EPA notes that each case must be looked at individually and in the
context of all the factors and, therefore, if hazardous materials pass
TARs only because they are diluted, but the process fails some of the
other factors, the recycling can still be found to not be legitimate.
EPA also notes that any residuals from the recycling process need to be
managed under Subtitle C controls, if appropriate. EPA, however, has
decided not to rely on the market incentives or industry standards that
some comments have argued would prevent exposure to toxics in all cases.
The Agency, as well as commenters, have noted situations in which
significant toxics have found their way into products in spite of these
other incentives or standards—such as contaminants in children's
playground sand. In cases where a product meets an industry
specification that addresses the hazardous constituents of concern from
the hazardous secondary material, that would be an indication that the
process would meet the factor. 

EPA also notes and has clarified that if a facility chooses to evaluate
toxics along for the ride in an intermediate product of a process, they
can make that evaluation to fulfill this factor instead of comparing the
final products. 

(2) EPA believes that the presence of hazardous materials in the
recyclable secondary materials is less relevant to assessing the
legitimacy of recycling than their presence in the product, primarily
because much recycling, like manufacturing, involves removal or
destruction of some hazardous materials. EPA notes that this could
appear to be a change from some application of the policy established in
the Lowrance Memo, but notes that under the Lowrance Memo, the recycler
addressed question (1) “Is the secondary material similar to an
analogous raw material or product?” and the sub questions included
there as well as the second question under (6), which is “Are the
toxic constituents actually necessary (or of sufficient use) to the
product or are they just “along for the ride”?” Under the
balancing factors in the Lowrance Memo, the recycler was, therefore,
evaluating the secondary material in the context of the final product
and whether the constituents in the final product are doing something or
are “along for the ride.” Therefore, EPA finds that this change is
not a substantive change from the Lowrance Memo. 

 

In addition, the analysis of the product makes more sense from a
practical standpoint when it is considered along with the factors
looking at whether the secondary material is useful to the recycling
process and whether the process results in a valuable product. Even if
some toxic constituents are removed in the process, the recycling could
still be legitimate. Of course, the ultimate determination is whether
the process is dominated by the production process or the waste disposal
process. Manufacture from a raw material could also result in removal of
toxic constituents. Thus, mere removal of constituents in not
dispositive of whether the recycling is legitimate. 

EPA notes that because the specific legitimacy provision in this final
rule is applicable only to the exclusions and non-waste determinations
finalized in the rule, the comment about altering this factor for 40 CFR
261.2(e)(i) and (ii) is no longer applicable. Legitimacy determinations
relevant to these provisions should be made as they have been in the
past under the existing legitimacy policy, laid out in the preamble
statements and Lowrance Memo. 

 EPA notes also, that the legitimacy determination has to be made after
looking at all four factors and that the analysis of all the factors
indicates whether the recycling as a whole is legitimate. In particular,
if a hazardous secondary material is being put into the recycling
process and the hazardous constituents are destroyed but the other
constituents are not used in the process or the product, that would not
meet the mandatory factor requiring that the secondary material make a
useful contribution to the recycling. 

In addition, EPA has made it clear in its preamble to the final rule
that comparing the hazardous secondary material to an analogous raw
material is an option for meeting this factor. If a recycler is unable
to compare products, they are able to compare the secondary material to
the raw material instead.     

(3) In response to comments regarding the discussion in the proposed
rule about those making a determination being able to compare the
hazardous secondary material to the raw material instead of comparing
the product of recycling to an analogous product, EPA agrees with the
commenters who stated that this was a useful option for when comparison
of products is not practical or is costly. EPA does not agree with
commenters who state that the alternative itself is not practicable. As
EPA is requiring that this factor be considered, it is appropriate to
provide this alternative. EPA, however, has not changed the regulatory
text for this factor to include the option to look at the secondary
material instead of the product. EPA believes that adding the
alternative to the regulatory text is not necessary because the
comparison of the products should be the primary goal of the factor, but
that if a comparison of the feedstock materials shows that there is not
a significant difference in the hazardous constituents they contain,
then that is an indication that there will not be a significant
difference in the products either. EPA has made it clear in its preamble
to the final rule that comparing the hazardous secondary material to an
analogous raw material is an option for meeting this factor.    

(4) EPA does not agree with the commenter who stated that a
demonstration that the process achieves substantial removal of toxic
constituents should be a way to meet this factor. EPA does not believe
that a test of this sort would be sufficient to establish that
significant levels of toxic constituents are not being carried through
to the product. However, EPA does note that in every case-by-case
legitimacy determination, the facts of the specific process and specific
materials should be considered and the nature of the recycling process
may play a role in a determination.

9.2.2.2.5 - Factor 4: Comments on regulating products of recycling

9.2.2.2.5 - Summary

(1) Commenters stated that EPA should avoid making regulatory decisions
on the relative risks of products and that RCRA is not a
product-regulating statute so any requirements regarding hazardous
constituents, product-safety, or product-quality are beyond EPA's
authority and jurisdiction under RCRA. One commenter added that RCRA is
not a product-regulating statute even when a baby toy is made from
hazardous waste. Commenters also stated that TARs that are fixed in a
product are not discarded and not part of the waste management problem. 
(70, 74, 89, 93, 102/ 506, 104, 122, 123/ 537, 143, 152, 190, 197, 203)

(2) Commenters stated that a hazardous characteristic determination
should not be applied to products, especially since they were developed
to apply to specific waste management scenarios. Even a product that
fails a characteristic may not necessarily pose a significant hazard in
its use. One commenter stated that they have a philosophical problem
with this application of the characteristic. (180/ 524, 481)

(3) One commenter added that it is not common to review products for
Appendix VIII constituents. (506)

(4) Commenters stated that toxics along for the ride are not a realistic
threat because there are redundant mechanisms in place in law to deal
with irresponsible producers and product safety. The redundant
mechanisms and protections mentioned were other agencies such as the
Consumer Products Safety Commission, as well as toxic tort liability;
TSCA; the Consumer Product Safety Act; the Food, Drug and Cosmetics Act;
FIFRA; MSDS sheets that are required to identify constituents; product
quality standards; and disclosure and labeling laws. One commenter added
that scrap, in particular, has product standards and is regulated by
other programs already. (74/486, 83, 89, 93/ 472, 97, 102/ 506, 122,
152, 170, 197, 203, 225) 

(5) One commenter stated that, generally, producers won't add something
to their product if it affects the quality or safety of their product.
(152)

(6) One commenter stated that although it is not EPA's responsibility to
enforce product safety standards and that marketing unsafe products
could subject businesses to civil lawsuits and loss of customers, they
recommended that the TARs factor nevertheless be finalized and that any
proposed product made from hazardous secondary materials that has
possible safety issues be referred to the U.S. Consumer Product Safety
Commission or other applicable federal agency for a safety evaluation
and that non-consumer products be referred to OSHA if there is a safety
concern. (543)

9.2.2.2.5 - Response

As an initial response, EPA wishes to note that, again, the Agency has
received comments that distort the case law. In this case comments make
the spurious claim that EPA may not set contaminant limits in the
products made from recycled secondary materials. The comments,
generally, refer to EPA's lack of authority to regulate products. EPA
wishes to make it very clear that it is not regulating products in this
case. Instead, the Agency is establishing conditions to ensure that
secondary material is not discarded. Cases have held that EPA may
establish contaminant levels in products to ensure that the contaminants
are not discarded and products are not adulterated through sham
recycling. See, e.g., Safe Food 350 F.3d at 1266-72; API II 216 F.3d at
58-59.  

(1) EPA does not agree with commenters who state that EPA cannot include
this factor as part of the legitimacy determination because RCRA is not
a product-regulating statute and, therefore, this factor is outside of
its jurisdiction. EPA disagrees because with this factor it is
addressing waste materials that find their way into products. This
factor is designed as part of the definition of what constitutes
legitimate recycling. If the recycler has incorporated hazardous
constituents into the final product where they are not needed to make
that product effective in its purpose, then the recycling process is not
legitimate and those hazardous constituents would be considered
discarded in the final product. EPA has the authority to define what is
legitimate recycling, including looking at the toxics in the process and
product, and therefore has the authority to include this factor. EPA's
intent in this factor is to assure that the recycling process compares
directly to normal industrial production. Because some products made
from raw materials can pose risks, EPA believes that the comparison of
the products made from secondary materials and those made from raw
materials is a relevant test to compare the recycling to normal
industrial production and, therefore, to evaluate the legitimacy of the
recycling. 

(2) EPA disagrees with comments that the hazardous characteristics
cannot be applied to products in the manner that EPA is describing in
the TARs factor. The commenters seem particularly concerned with the
toxicity characteristic. Although the characteristic is modeled on
management in a landfill as the commenters describe, it is also true
that it is one indicator of a material's propensity to result in
exposure to hazardous constituents through the pathway of leaching into
groundwater. EPA makes it clear in its preamble to the final rule that
the manner in which a product is used and whether there are exposure
pathways can be considered when deciding whether the TARs factor is
relevant. If the entity performing the determination believes that the
recycling does not meet this factor but is legitimate nonetheless, EPA
suggests that the facility evaluate the nature of the presence of
hazardous constituents in its process and be prepared to demonstrate
both that it considered this factor and the reasons it believes the
factor is not relevant.

(3) In response to the comment that it is not common to review products
for Appendix VIII constituents, EPA responds that it believes that this
kind of examination of products is relevant and appropriate for
determining that recycling is legitimate. EPA believes that it is
critical to consider the presence of hazardous constituents that could
have come through the recycling process and ended up in the product and
that recyclers should be familiar with the makeup of their products,
particularly when hazardous secondary materials are a feedstock. If an
examination of the product for these constituents is not possible, the
recycler can, instead, compare the constituents of the hazardous
secondary material to the constituents in the analogous raw material
instead. 

(4) In response to the commenters who listed other authorities, laws,
and agencies that regulate product safety and stated that the TARs
factor would therefore be a redundant mechanism, EPA responds that
although in many cases these other mechanisms may apply, none of them
are designed to evaluate the legitimacy of the recycling process or the
extent to which a recycling process compares to normal industrial
production. This factor is designed to be used with the other factors to
illustrate whether a whole process is legitimate and the authorities
listed by the commenters cannot be asked or relied upon to fill that
role, though a facility or implementing agency may be able to use
information from some of them to help evaluate this factor in some
cases. For example, if a product meets widely accepted industry
standards and specifications that address the hazardous constituent of
concern in a particular case, that would be a good indication that the
recycling process meets this factor. In addition, EPA notes that a
facility's responsibility to comply with these authorities should make
the evaluation of its product for the TARs factor simpler. 

(5) In response to the comment that producers will not add something to
their product if it effects the quality or safety of their product, EPA
responds that although this may be the case for many producers, the fact
that there have been many cases of products that are unsafe due to
hazardous constituents proves that this is not always the case. In fact,
it is appropriate to specifically consider the TARs in products because,
by definition, the products in these cases have been produced using
materials that would be hazardous wastes if not recycled. For example,
sand from foundries with high levels of lead made it into children's
play sand despite the obvious compromising of the safety of the product.
If a producer that uses hazardous secondary materials in its process is
already screening its product for quality and safety for their own
purposes, compliance with this factor should not be difficult because
significant levels of hazardous constituents should not be making their
way into the product. 

(6) EPA agrees with the commenter that the TARs factor should be
incorporated into the legitimacy determination. Although EPA has not
included any mandatory referrals to the Consumer Product Safety
Commission, OSHA, or other federal agency in its regulation, in the
event of an enforcement action that focuses on this factor, EPA would
leave it to the implementing agency to determine what actions need to be
taken to protect the public from any products presenting a risk to the
consumer that may have been sold and distributed. 

9.2.2.2.6 - Factor 4: Products that exhibit a hazardous characteristic

9.2.2.2.6 - Summary

(1) Commenters stated that when hazardous secondary material causes a
product to exhibit a hazardous characteristic that products made from
raw materials do not, the recycling should not be legitimate. One
commenter supported the inclusion of the provision that secondary
materials should not exhibit a hazardous waste characteristic not
exhibited by the analogous raw material and that the characteristic test
would be relevant in many cases. One commenter added that it is not
protective of human health and the environment to allow products in
commerce if hazardous secondary materials increase their toxicity and
that high levels of hazardous constituents are a clear danger. (98, 470,
538, 543)

(2) One commenter suggested that to the extent that a recycled material
will not be incorporated into a product (e.g., a solvent used for
degreasing or an acid used for cleaning in the manufacturing process) or
is incorporated only into a product to which a consumer would not be
exposed, then only the third test in the TARs factor should form the
basis for a legitimacy determination. As such, any product of recycling
that will not be subject to consumer contact should be considered
legitimate to the extent that the material meets or exceeds the TCLP
standards and contains no more than 0.5 percent total TAR. If warranted,
EPA could also preclude such products of recycling—to the extent that
they are not acutely toxic—from containing anything other than trace
amounts of those acutely toxic materials identified in 261.33. TARs not
expected in the product could be required to be disclosed on a label.
(124)

(3) Commenters stated that application of hazardous waste
characteristics to products is misplaced. The characteristics test is
meant to simulate waste materials co-disposed in a municipal waste
landfill, which products are not, so a product failing the TCLP would
not be relevant to legitimacy. One commenter stated that they have a
philosophical problem with applying a hazardous characteristic
determination to products. (89, 152/481, 197, 524)

(4) One commenter stated that the only example they could offer of a
group of materials that would be affected by the characteristic test
would be metal-bearing secondary materials that are reclaimed as
substitutes for raw ore. Such materials often contain TCLP metals not
found in the raw ore, thereby possibly violating this factor even if
these TCLP metals are reclaimed or wind up in a residue that is properly
managed. Another commenter described their process where within the
acetic anhydride plant, very expensive and scarce rhodium is used as a
catalyst and the recovery of the catalyst is essential to continuation
of the process. Residue from the unit is sent off-site and managed as
D004. The recovered rhodium contains trace amounts of arsenic because
the methanol coming into the plant in the process is produced by
gasification of coal, which puts arsenic into the methanol. It is
unlikely that there is any analogous acetic anhydride to compare the
acetic anhydride made with recovered rhodium to so the facility would
have to compare the recovered rhodium to virgin rhodium. The commenter
asked whether the trace amounts of arsenic in the recovered rhodium be a
significant amount. One commenter stated that the Used Oil regulations
of 40 CFR part 279 already define on specification used oil destined for
fuel. They stated that if the proposed lead and barium criteria are
applied to used oil fuels, some off-specification and some
on-specification used oil fuels would then be regulated as hazardous
wastes. This is because they could exceed Toxicity Characteristics and
not be eligible for recycling as fuels. The used oil regulations already
provide specific criteria for both on and off specification. The
commenter concluded that deficiencies in this tested regulatory program
do not justify such a change in the Used Oil Management Standards. (98,
102, 215)

9.2.2.2.6 - Response

(1) EPA has included the third test in the TARs factor for legitimacy
because it believes that there may be cause for concern or further
investigation into a recycling practice if the inclusion of a hazardous
secondary material in a recycling process results in the product of that
process exhibiting a hazardous characteristic that the products made
from virgin raw materials do not. However, EPA does not agree that this
should lead to an automatic finding that the recycling is not legitimate
because it believes that there are some cases in which a recycling
process could not meet this factor but still be legitimate, such as the
situation where the product of the recycling is a material that stays in
an industrial process where there is not an opportunity for exposure.
The determination on whether the results of the evaluation of this
factor are relevant to legitimacy need to be made on a case-by-case
basis. 

(2) EPA does not agree with the commenter's suggestion that it vary the
requirements for meeting this legitimacy factor depending on whether the
material will be incorporated into the product or not. Although
hazardous constituents from a hazardous secondary material that is not
incorporated into a product but is used instead as part of the recycling
process may not be very likely to end up in the product, this will
result in it being easy for recyclers to show that their product meets
this factor. EPA does not believe it is appropriate to complicate this
factor by trying to establish situations in which certain parts of the
factor apply and others do not. 

(3) EPA disagrees with commenters that the hazardous characteristics
cannot be applied to products in the manner that EPA is describing in
the TARs factor. The commenters seem particularly concerned with the
toxicity characteristic. Although the characteristic is modeled on
management in a landfill as the commenters describe, it is also true
that it is one indicator of a material's propensity to result in
exposure to hazardous constituents through the pathway of leaching into
groundwater.  EPA makes it clear in its preamble to the final rule that
the manner in which a product is used and whether there are exposure
pathways can be considered when deciding whether the TARs factor is
relevant. If the entity performing the determination believes that the
recycling does not meet this factor but is legitimate nonetheless, EPA
suggests that the facility evaluate the nature of the presence of
hazardous constituents in its process and be prepared to demonstrate
both that it considered this factor and the reasons it believes the
factor is not relevant.

(4) EPA received very few examples from commenters of specific recycling
processes that might be affected by this third paragraph in this
legitimacy factor and does not think that it will be applicable in a
great many situations, but is including it because it believes that the
case where a recycled product exhibits a hazardous characteristic that
the analogous product does not exhibit from something other than a toxic
constituent would be an indication of recycling not being legitimate.
EPA does not think that this rulemaking is the appropriate place to make
case-specific legitimacy determinations because a determination must be
made on a case-by-case basis taking into consideration all the factors
as well as the specifics of the facility and the materials. Such
case-by-case determinations for specific recycling scenarios are outside
the scope of this general rulemaking. 

9.2.2.2.7 - Factor 4: Bright line approach

9.2.2.2.7 - Summary

In the October 2003 proposed rule, EPA took comment on two alternative
approaches to this factor. One of these was an approach that would
establish a specific numerical limit to define “significant” for the
purpose of the factor. 

(1) OPPOSE BRIGHT LINE APPROACH

Several commenters opposed EPA's bright line approach alternative to the
proposed TARs factor. (74, 85, 89, 91, 93, 102, 112/ 458, 122, 149, 162,
199, 203) 

Commenters had varied reasons for specifically opposing the bright line
approach. Some commenters stated that they believed that a bright line
approach would be unworkable, that setting precise ingredient
specifications would be an endless, expensive, and futile process, and
that it would lead to inflexible but arbitrary results that would be
over-regulation, under-regulation, or both. Commenters stated that they
opposed the bright line approach because it would not be appropriate for
the wide array of secondary materials, processes, toxicity levels of
chemicals, and products that it would have to apply to and because a
one-size-fits-all approach will not work in this situation. One
commenter stated that such an approach might restrict recycling. One
commenter stated that efforts to draw bright lines on trace
concentrations of hundreds of constituents has not been functional for
delineating between wastes and non-wastes to date and results in an
unacceptable degree of uncertainty when the factor has to apply to
billions of pounds of materials routinely recycled as manufacturing
ingredients. One commenter stated that the bright line approach would be
unwarranted because the regulations should not be imposing any set rules
dealing with “significance” or “non-significance.”

(74, 85, 89, 91, 93, 102, 112/458, 122, 138, 149, 162, 199, 203) 

One commenter stated that for the TARs factor, the term significant is
subjective but, all-in-all, is better than the bright-line option
because it has to allow for a wide range of recycling circumstances.
(98)

One commenter stated that defining a bright line would be difficult and
argued that EPA should examine TARs in the secondary material instead of
in the product. (119) 

(2) SUPPORT BRIGHT LINE APPROACH

Several commenters also supported EPA's bright line alternative to the
2003 proposed TARs factor and had various reasons for doing so.
Commenters supporting the bright line approach stated that it would
provide the recycler and the overseeing agency with a parameter that is
clear, able to be demonstrated, and enforceable, providing ease of
implementation by the recycler and the overseeing agency. They added
that without the bright line, it would be difficult and expensive for a
regulator to refute a claim of no significant concentrations. One
commenter stated that although the bright line would have its own
limitations, having it would substantially reduce the subjectivity that
the factor contains. (92, 95, 104, 153, 177, 543) 

Commenters also provided various suggestions on how a bright line
approach might be structured: 

It could be based on state or federal soil cleanup target levels for
industrial exposure scenarios or some other risk-based approach. (92)

It could use a 5% or 10% limit relative to virgin products. (95)

The bright line level could be set at one standard deviation above the
highest concentration of each of the hazardous constituents found in
analogous products. The test could have an option for the recycler to
demonstrate no unexpected risk from recycled end products if it does
contain elevated levels. The test could include an evaluation of the
end-uses of the product, route of exposure during use, and the
bioavailability of the hazardous constituents of concern during use. The
methods would need to be established and valid. If the presence of the
constituent poses a risk, the recycler should label the product
regarding its presence. (104) 

EPA could describe a range of methods and when they may be appropriate
to use in demonstrating that the relative risk of hazardous constituents
in secondary materials is in line with the analogous raw materials or at
least below a level of concern for human health and the environment.
Methods discussed could include comparison of concentrations of
hazardous constituents, analysis of fate of hazardous constituents, and
risk assessments. (153)

A compromise between the bright line and risk based approach could be to
propose a bright line approach as a primary approach and then give the
generator the option of using the risk-based approach if the application
of the bright line was unacceptable. Then those who can afford the
risk-based approach can take advantage of it. (138) 

(3) One commenter stated that they believe the real bright line
delineation for this factor is merely whether the product is made
commercially available. (85) 

(4) One commenter stated that a bright line approach would not be needed
if the Agency relied on industry or manufacturer specifications instead.
(97) 

(5) One commenter stated that if EPA takes the bright line approach, EPA
must address the issue of organic and inorganic constituents routinely
burned in smelting and other reclamation processes. (186) 

9.2.2.2.7 - Response

(1) EPA thanks the commenters for their thoughts on this issue and
agrees with those who stated that they believed that a bright line
approach to the TARs factor would be unworkable and complex because of
the nature of the legitimacy requirement and its need to apply to
materials in varying recycling processes in many different industry
sectors.  

(2) EPA thanks the commenters for their thoughts on the bright line
approach to the TARs factor and for their various suggestions on how
such an approach might be structured. EPA has considered these comments
but has determined that although an absolute line set by a bright line
approach may add clarity to the factor, it would likely do so at the
expense of recycling because the line would have to be at least somewhat
arbitrary. For example, a bright line selected to implicate cases where
very small increases in extremely toxic constituents (e.g., dioxin) are
of concern from a risk perspective would necessarily also implicate many
cases where very small increases of less toxic constituents exist, but
are not of concern from a risk perspective. Alternatively, a less
sensitive bright line might fail to implicate some egregious examples of
dangerous exposure to highly toxic constituents. The nature of the
suggestions EPA received illustrate how a “bright line” would be
arbitrary. EPA believes that the variety of recycling processes and
hazardous secondary materials that are subject to this factor requires a
factor that is flexible and believes that the case-by-case approach for
examining the factors that is described in the final rule is most
appropriate for the legitimacy factors. In addition, because EPA has
determined that this factor is one of the factors that must be
considered as part of a legitimacy determination but does not have to be
met for the recycling to be legitimate, EPA does not see a value in
developing a complex and most-likely arbitrary approach to the TARs
factor. Because failing to meet the factor would not automatically
result in the recycling not being legitimate, EPA believes that it is
more appropriate for the TARs factor to be more applicable to many
situations so that how the facts of those situations relate to toxics
along for the ride can be examined on a case-by-case basis as part of a
legitimacy determination.  

(3) EPA disagrees with the commenter who stated that the bright line for
this factor is whether the product is made commercially available.
Products containing hazardous constituents from hazardous secondary
materials that are run through a recycling process in lieu of discard
can be in a product that is made commercially available, which would
result in those constituents being discarded in the guise of recycling.
The mere fact that a product has been put up for sale does not
necessarily mean that there are no significant TARs or result in the
factor being met. 

(4) Although EPA has decided not to finalize a bright line approach, we
do want to note in response to this comment about industry and product
specifications that although these specifications can play a role in
helping a recycler or implementing agency make a determination on this
factor, we do not think that reliance on specifications would be an
adequate substitute for the factor because some products and
intermediates do not have product specifications and because many
product specifications do not address the constituents that would be of
concern from the hazardous secondary materials. 

(5) EPA notes this comment, but has not adopted the bright line approach
in its final rule. 

9.2.2.2.8 - Factor 4: Risk-based approach

9.2.2.2.8 - Summary

In the October 2003 proposed rule, EPA took comment on two alternative
approaches to this factor. The second was an approach that would
evaluate this factor based on the risks posed by the hazardous
constituents in each hazardous secondary material in each recycling
process.

(1) OPPOSE A RISK-BASED APPROACH

Several commenters stated that they either opposed the idea of having a
risk-based approach as part of the TARs factor or stated that they
supported having no risk-based approach. Commenters offered various
reasons for their opposition to a risk-based approach. Commenters stated
that a risk-based approach is unworkable since it is too complex—in
defining what is “acceptable risk” in the definition and in
conducting the assessment. Commenters also argued that requiring risk
assessments is impractical and that performing them is expensive and
time consuming. In addition, they argued that even after a risk
assessment, the generator or recycler cannot be sure that EPA would
agree with its methods or its results. Commenters stated that a
risk-based approach would lead to arbitrary results and possible
over-regulation, under-regulation, or both, and that the added burden
would chill the use of recycled products. Some commenters singled out a
risk-based approach as being difficult for small businesses. Commenters
argued that a full risk analysis is not the same as the Court's approach
in the Safe Food case—the Court's approach involved a limited
examination for a significant risk differential. Commenters argued that
having a risk-based approach is beyond EPA's authority because it is not
related to discard and because RCRA does not deal with the risk of
products.

(74, 83, 85, 89, 91, 93, 102, 119, 122, 138, 149, 162, 178, 179, 199,
203, 216)

One commenter stated that using the term significant is subjective but,
all-in-all, better than using the risk-based plan. (98) 

One commenter stated that although they do not think a risk-based
approach is necessary, some common sense evaluation of the associated
risks may be appropriate and necessary, but only the constituent that
would have rendered the secondary material hazardous should have to be
evaluated. (162) 

One commenter stated that designing a risk-based approach would be
extremely complex and argued that that is why EPA should apply its TARs
test to the secondary material to build in another margin of protection.
(119) 

(2) SUPPORT A RISK-BASED APPROACH

Some commenters supported the risk-based approach to the TARs factor.
One commenter supported a risk-based approach since it would reduce the
subjectivity of the factor. Some commenters stated that the TARs factor
should be revised to focus on whether the final product actually
threatens human health and the environment by including statements in
the regulatory text qualifying that hazardous constituents in the
product cause the recycling to fail TARs only if they threaten human
health and the environment. One commenter stated that hazards to the
users should be addressed if toxics in a product are elevated. One
commenter added that risk should be part of the significance
determination and requested clarification on what is an excessive amount
of hazardous constituents in a hazardous secondary material as it
relates to risk to human health and the environment

(48, 52, 162, 177, 185, 509) 

Some commenters offered suggestions on how a risk-based approach could
work: 

Risk could be able to be considered by the recycler as an option if the
levels of toxics are found to be high. Commenters suggested evaluation
of the uses of the end product, routes of exposure during use, and
bioavailability of the hazardous constituents of concern during use.
(91, 104, 112, 138) 

EPA could describe a range of methods that are appropriate for
demonstrating that risk is in line with analogous secondary materials: a
comparison of concentrations of hazardous constituents, an analysis of
the fate of the hazardous constituents, risk assessments. (185) 

EPA could provide guidance that could be used to establish a bright line
for determining whether TARs constitute a threat to human health or the
environment, thereby rendering the product unusable and the recyclable
material a waste. (509) 

 

(3) One commenter stated that if EPA used product specifications as a
basis for this factor it would no longer have to examine using a
risk-based approach. (97) 

(4) One commenter stated that EPA has always subjected the cement kiln
industry to risk assessments despite their complexity and hopes that
EPA's acknowledgement of the complexity of risk assessments is reflected
in future rulemakings. (172) 

9.2.2.2.8 - Response

(1) EPA thanks the commenters for their thoughts on this issue and
agrees with those who stated that they believed that a risk-based
approach to the TARs factor would be extremely complex to design and to
implement because of the nature of the legitimacy requirement and its
need to apply to materials in varying recycling processes in all
different industry sectors and because of the inherent case-by-case
nature and complexity of risk assessments and in determining after
completion of a risk assessment, what the implications of the findings
are. EPA, however, agrees with the commenter who stated that although a
risk-based approach is not necessary, some evaluation of risk can be
appropriate in making a legitimacy determination. 

(2) EPA thanks the commenters for their thoughts on the risk-based
approach to the TARs factor and for their suggestions on how such an
approach might be structured. EPA has considered these comments but has
determined that although using a risk-based approach could possibly
reduce subjectivity in the evaluation of the factor, it would be
extremely complex to design the factor in such a way that it is
applicable to many recycling and product use scenarios and would be
complex for facilities to complete risk assessments for all their
products, especially if EPA were to require full risk assessments. EPA
does not think this approach is workable or appropriate in this case.
Therefore, EPA is not finalizing a risk-based approach for this factor. 

Some commenters suggested that if levels of toxics are found to be high,
a recycler can consider risk as a back up. EPA thinks that a showing on
the basis of a risk assessment that levels of toxics in a product that
are higher than in the analogous product made from raw material pose no
risk would be very useful thing for a facility to have if it believes
that its recycling is legitimate despite those elevated levels of
toxics. EPA has stated in its explanation of “significant” in this
factor that things such as how a product is used, by whom, the
availability of the hazardous constituents to the environment, and
possible exposures are relevant in considering whether elevated levels
of toxics are “significant.” A risk assessment addressing these
questions and others would be a way for a facility to show that it has
thoroughly examined these questions in the context of this factor. 

(3) Although EPA has decided not to finalize a risk-based approach, we
do want to note in response to this comment about industry and product
specifications that although these specifications can play a role in
helping a recycler or implementing agency make a determination on this
factor, we do not think that reliance on specifications would be an
adequate substitute for the factor because some products and
intermediates do not have product specifications and because many
product specifications do not address the constituents that would be of
concern from the hazardous secondary materials.

(4) EPA notes the commenter's statement regarding the complexity of risk
assessments, but does not think that it is appropriate to discuss other
potential rulemakings in the context of this Response to Comments
Document.

9.2.2.2.9 - Factor 4: Miscellaneous comments

9.2.2.2.9 - Summary

(1) One commenter on the 2003 proposal asked what would be considered a
toxic constituent and whether there is a specific regulatory definition
that applies. One commenter stated that the second sentence in proposed
40 CFR 261.2(g)(3)(ii)(C) should be a separate paragraph because it
refers to (A), (B), and (C). (69, 563) 

(2) One commenter stated that the language in proposed
§261.2(g)(3)(ii)(B) should be amended to reflect EPA's longtime
recognition that Appendix VIII constituents are not TARs if they
contribute positively to the product and are not used in excess. (516,
558) 

(3) One commenter requested that EPA clarify—in the context of the
fencepost example in its 2003 proposal (pg. 61579)—that the product of
the reclamation operation is the reclaimed material, not what the
reclaimed material is used to make. One commenter asked, “If the
recycling process results in the landfill of UTS constituents that would
otherwise be prevented from land disposal, is the process still
considered legitimate?” One commenter suggested that EPA's commonly
referenced example of a materials eligible for legitimate reuse—spent
pickle liquor (K062)—would not pass a strict application of the
proposed legitimacy factors. It has hazardous constituents not present
in virgin ferric chloride, has hazardous constituents that are present
in virgin ferric chloride at significantly higher concentrations and
possesses characteristics of hazardous waste that virgin ferric chloride
does not. In addition, one commenter stated that in the case of shop
towels, the product may contain trace levels of constituents that do not
affect the towels' function. The commenter added that there is no impact
on human health and the environment associated with recycling shop
towels because the contaminants that are washed away are managed under
hazardous waste regulation and, therefore, this factor would have no
regulatory impact on the legitimacy determination for shop towels. (165,
182, 484, 493) 

(4) One commenter stated that EPA's focus for TARs should be whether the
material is used or sold to avoid disposal: (1) Does the recycling
product or secondary material contain constituents that one would not
expect to find given the production process from which it was generated?
(2) Are there constituents in the material or product that are unrelated
to any of the original feedstocks or their chemical reaction products?
(3) Do the suspect constituents conflict with the user's relevant
product or process specifications? (93) 

(5) One commenter stated that EPA should distinguish between secondary
materials used as ingredients or feedstocks in the manufacture of a
product or an intermediate product from those secondary materials used
as substitutes in waste treatment. A great deal of “beneficial
reuse” and “continued use” is simply waste treatment under a
different name. For example, often the heavy metals in waste acid or
alkaline are simply lost or diluted out in the treatment process.
Nowhere is this more obvious than in the use of spent pickle liquors,
K062, in publicly owned treatment works. By EPA's legitimacy criteria,
this is sham recycling. (159) 

(6) One commenter stated that for the US to be more sustainable as an
industrial system, there is a need to accept that some recycled
feedstocks contain hazardous constituents not in virgin products. (48)

9.2.2.2.9 - Response

(1) EPA thanks the commenters for their comments on the regulatory text
for the TARs factor. In response to comments requesting clarification on
what EPA meant in the 2003 proposed regulatory text by “hazardous
constituents,” EPA has clarified in the regulatory language that to
meet this factor the product of the recycling process cannot include
significant concentrations or significantly elevated concentrations of
hazardous constituents found in Appendix VIII of 40 CFR part 261. In
response to the comment about the second sentence in proposed 40 CFR
261.2(g)(3)(ii)(C), EPA has moved the concept that if the factors to be
considered are not met it might be an indication that the material is
not legitimately recycled to make it clear that this concept applies to
both factors to be considered. In the regulatory text being finalized in
this rulemaking, this concept can be found in 40 CFR 260.43(c)(3). 

(2) EPA has not changed the regulatory text in response to the comment
that the usefulness of a hazardous constituent to a product be
considered in the TARs factor, but does agree that if the hazardous
constituent in question is valuable to the product is a relevant
consideration in a legitimacy determination and would distinguish
between legitimate recycling where that ingredient is an important part
of what makes the product valuable and when the hazardous constituent is
simply “along for the ride” and not playing a role in the process.
Considerations such as this one are one of the reasons why EPA has
designed the legitimacy determinations to be made on a case-by-case
basis where all four factors have to be taken into consideration. 

(3) In response to the commenters' requests for a clarification on the
legitimacy of a particular process, reclaimed wood preserving solution
made to use fence posts that are placed on the ground, the landfilling
of certain constituents that would not otherwise be landfilled, K061, or
the reuse of shop towels, the Agency stresses that individual legitimacy
determinations have to be made on a case-by-case, site-specific basis
that take into consideration all the facts of a certain situation. It is
not in the scope of this rulemaking to address the legitimacy of
individual site-specific recycling situations. 

(4) EPA thanks the commenter for their suggestions on how the TARs
factor could work. EPA agrees that the questions posed by the commenter
would be relevant in making a legitimacy determination and in evaluating
the results from the test it has finalized in the TARs factor to see if
the levels of Appendix VIII hazardous constituents in the product are at
elevated concentrations, but is not adding them to the regulatory text
for this factor. Theses concepts can be considered in making an overall
legitimacy determination. 

 

(5) EPA's codification of the legitimacy factors in this rulemaking is
designed to continue to distinguish between real recycling and waste
treatment under the guise of recycling. The situation the commenter
describes would most likely be covered under the existing legitimacy
policy unless the recyclers took advantage of the new exclusion. Because
legitimacy determinations require a case-by-case analysis of all the
facts, we do not believe that this rulemaking is an appropriate place to
make a determination on a specific recycling scenario.   

(6) EPA thanks the commenter for their ideas on how to make the US's
industrial system more sustainable. EPA believes that the choices it has
made for this legitimacy factor under the exclusions and non-waste
determinations in the final rule present the flexibility needed to
encourage and allow legitimate recycling under its rules while
discouraging disposal in the guise of recycling and allowing
implementing agencies to enforce against violators of the legitimacy
requirements. 

9.2.2.2.10 - Implementation concerns regarding Factor 4

9.2.2.2.10 - Summary

(1) Commenters stated that the TAR factor will result in uncertainty and
expense in implementation since it will require measuring statistical
differences in numerous constituent concentrations in heterogeneous
materials. (70, 74, 93)

One commenter stated that for each product made, it is typical for
manufacturers to conduct reviews of the products in accordance with
established company safety practices, which are directed at safe
handling and use of the product. These evaluations consider knowledge of
the raw materials, the process, chemical analyses, and health and safety
information to decide whether to commercialize a product, how to label
it, and how to ensure it is managed safely in use. The commenters stated
that the consideration of TARs applies a burden of proof on chemical
manufacturing that is likely unachievable and that facilities will incur
additional recordkeeping and analysis costs to demonstrate compliance if
“recycle” applies to any material that has been used and is
subsequently sent back through the manufacturing process. The commenter
continued that they know of no instance in which an EPA or state
inspector has included TARs in onsite recycling audit protocols so
clearly this hasn't been a universally imposed on recycling activities
in the past, that they expect that regulators will ask questions like
“Can't you manage your columns consistently?” and “Why is there
such variability?” when there is variability in product streams,  and
that they cannot afford to review such processes when the environment is
not being endangered. (102/ 506)

(2) Commenters stated that the TARs factor will result in implementation
problems and potentially high costs since generators will have to know
the use their material is being put to at downstream manufacturing
facilities and asked how that is done and how one might determine that a
sample of the final product is made from raw materials rather than
recycled materials. (70, 74, 93, 102/506, 123) 

(3) Commenters stated that in some cases there are no products made
completely from virgin material to compare the products of their
recycling processes to and, for that reason, they would have to redesign
their entire processes to even check if it complied with this factor.
Commenters stated that in some cases, levels of hazardous constituents
can make a process sham when it makes no sense, like when levels are
still very low but higher than in products made from virgin materials
and when the product meets vigorous specifications. (89, 102, 152, 168,
178) 

(4) One commenter asked that, given the many different places within
these manufacturing divisions where one could sample the acid being
reused, which is the appropriate sampling point? Also, how often should
it be sampled, given the likely variance within the processes. The
commenter also asked how much sampling or proof would ever be enough to
demonstrate that levels are not elevated or that there is no risk.
Wouldn't this depend on the experience of the inspector and the
inspector's ability to make difficult technical decisions as well as how
would a regulator make a determination of significance and would it vary
by regulator? (102/ 506) 

(5) Commenters stated that Appendix VIII hazardous constituent analysis
is very expensive and not cost-effective: from $2,000 to $5,000 per
sample. One commenter added that several of these constituents have no
analytic methods associated with them and one stated that evaluation of
lab results for hazardous constituents are subject to tremendous
subjectivity. (156, 165, 215, 506) 

One commenter stated that EPA should not allow knowledge of hazardous
secondary materials to be sufficient for meeting the TARs factor.
Laboratory analysis is needed-this is implicit but not stated in the
regulatory language. (527) 

(6) Commenters stated that the example shows that in implementation,
TARs could be the determining factor even when all the other factors are
met. (506) 

(7) Commenters stated that the current qualitative and subjective
legitimacy factors could be interpreted and applied differently in
different states and EPA Regions and by different personnel within a
state. More specific guidance is needed. (165) 

(8) Commenters stated that OSHA does not require a hazardous constituent
on an MSDS until it is 1% by weight of the material-this is a huge
amount for some hazardous constituents and, therefore, not an
appropriate requirement to rely on. (527) 

(9) One commenter stated that where hazardous secondary materials are
used for a beneficial purpose in a process, a comprehensive laboratory
analysis should be required of the process residues or treatment sludges
and that EPA has only indirectly considered the significant potential
dilution issues in this rulemaking, whereas dilution and related issues
have been directly considered and addressed in the LDR program with
respect to hazardous wastes. (527) 

9.2.2.2.10 - Response

(1) EPA notes that this final rule codifies the legitimacy provision for
the new exclusions and non-waste determinations and that legitimacy
determinations for existing exclusions should be made under the existing
legitimacy policy. However, EPA believes that because of the design of
the factors and the overall structure of legitimacy, the factors it is
adding to the regulations, including the TARs factor, are consistent
with the factors under the existing legitimacy policy for the reasons
outlined in the 2003 proposal and, therefore, are not more restrictive
than the current policy. 

 

EPA believes that evaluating TARs as a part of the legitimacy
determination is an important step, as distinct from a manufacturer’s
general review of its products. Although very many products made from
recycled hazardous secondary materials are safe for their users, the
Agency is aware of cases where the Toxics Along for the Ride could
threaten human health and the environment, making this analysis relevant
and important when examining a recycling process. 

(2) In response to confusion from commenters on how to apply this factor
if the final product is created downstream in a manufacturing process,
EPA has made it clear in its preamble to the final rule that comparing
the hazardous secondary material to an analogous raw material is an
option for meeting this factor. If a recycler is unable to compare
products because the end product they feel is appropriate for the
comparison appears further down the management chain, they are able to
compare the secondary material to the raw material instead.     

(3) In response to concerns that there are products in some industries
that are always made from recycled materials, meaning that there are no
analogous products to compare them to, EPA clarifies that it will not be
necessary for facilities to revamp their entire processes to evaluate
this factor. In many cases they should be able to examine the final
product of the reclamation for TARs and evaluate them against product
specifications—where there are applicable specifications—instead of
looking at intermediates from every step of the reclamation, as several
described in their comments. Similarly, EPA understands that in some
cases it would make no sense for a process to be considered sham when
concentrations are elevated because the product meets strict
specifications or the levels are still very low. EPA has made the TARs
factor a factor to be considered instead of a mandatory factor to take
into account exactly those situations where the recycling is legitimate
even in the case that this factor is not met. If a facility considers
the factor and decides that it is not applicable to its process, EPA
suggests that the facility evaluate the nature of the presence of
hazardous constituents in its process and be prepared to demonstrate
both that it considered this factor and the reasons it believes the
factor is not relevant.

(4) EPA recognizes that there are specific questions regarding
implementation of the TARs factor in specific processes. The Agency
stresses that individual legitimacy determinations have to be made on a
case-by-case, site-specific basis taking into consideration all the
facts of a certain situation. It is not in the scope of this rulemaking
to evaluate the legitimacy of individual site-specific recycling
situations as the answers will depend on the facts of the process. As in
the past, the regulated community is welcome to consult its implementing
agency on specific processes for assistance in making a legitimacy
determination. 

(5) EPA is not mandating in its final rule the specifics of how a
facility makes its determination of whether there are significant or
significantly elevated concentrations of hazardous constituents in the
product of a recycling process. EPA expects that recyclers will be
familiar with the constituents that make up the materials in their
process and their products. Although analytic tests are not required,
EPA agrees with the commenter that there are certainly situations in
which testing would be the most thorough and accurate way to make a
determination that there are not significant levels or significantly
elevated levels of these constituents and that a product made from
recycled materials does not pose a risk greater than an analogous
product made from raw materials. EPA notes that testing may not always
be required to make this determination, but that a facility must be able
to demonstrate that their recycling is legitimate in all cases.

(6) EPA agrees with the commenter's statement that in some cases not
meeting the TARs factor can make a recycling process not legitimate even
when the other factors are met. EPA believes that this is correct and
appropriate. EPA has maintained the factors to be considered as part of
the factors being codified because those factors are important in the
determination of legitimacy. Although this factor is sometimes not
appropriate to a specific recycling process, EPA does think it is
important enough that in some cases it may indicate that a recycling
process is not legitimate even when the other factors are met. However,
EPA notes that it does not think there are frequent cases of sham
recycling that fail just one of the factors; more often, the process
will fail several or all of the factors.

(7) EPA thanks the commenter for its request for more guidance on the
legitimacy factors. EPA has provided more description of how the
requirements work in the 2007 supplemental proposal and in the final
rule and hopes to be able to issue more guidance in the future to assist
the regulated community and the implementing agencies.  

(8) EPA does not expect that those evaluating TARs as part of a
legitimacy determination would rely on OSHA's MSDSs to make this
evaluation in cases where the information on the MSDSs would not be
sufficient or appropriate to adequately show whether the levels of
hazardous constituents are elevated in a product as compared to an
analogous product.

(9) Regarding the comment about the process residues and sludges from a
recycling process, EPA has determined that a requirement to manage
residues properly is not directly related to a legitimacy determination.
However, EPA notes that residuals that are solid waste are subject to
the waste characterization and identification requirements of 40 CFR
part 261 as newly generated waste. In addition, as part of the
transfer-based exclusion in the final rulemaking, EPA is requiring that
any residuals that are generated from the recycling process be managed
in a manner that is protective of human health and the environment.
Dilution of hazardous constituents through “recycling” is one of the
questions that the legitimacy factors as a whole are designed to get at.
An evaluation of whether the hazardous constituents in a secondary
material were simply being diluted in a recycling process would be
addressed in evaluations of the useful contribution factor and the
toxics along for the ride factor.  

9.2.2.2.11 - Factor 4: Scope

9.2.2.2.11 - Summary

(1) Commenters stated that the TARs factor is not appropriate for mining
and mineral processing industries or for phosphate fertilizers because
the virgin ore that goes into the process has varying levels of
impurities depending on where it originated, making the required
comparison between materials made from virgin raw materials and those
made from secondary materials difficult to make. The commenters making
this statement made several arguments about why the factor is not
appropriate for their industry: 

in mining and mineral processing industries, producers and recyclers
could not apply the TARs test without revamping their production
operations at great cost because few products are made from virgin
materials alone;

there is no evidence of environmental harm from the production and sale
of ore deriving in part from hazardous materials; 

if they were to be deterred from recycling because of this factor, just
one of our facilities would fail to recover 4,400 ounces of gold—$1.76
million at 2003 prices; 

product specifications that products in the primary metals industry must
meet will keep impurities down.

(89, 152/481, 180, 197/526, 465) 

Commenters added that the TARs factor has no bearing on whether
recycling is legitimate in the primary metals and minerals industry. A
metals recovery process could produce a high grade metal but also
concentrate the impurities from the ore, which may deem it a “sham”
even if the product meets high grade specifications. As the AMC I
decision states, primary metals production proceeds by the step-wise
concentration of the minute metal values found in natural ores. One
commenter added that this would not be sham because the process was not
undertaken to get rid of impurities, but to recover the metals. (89,
152/481, 180/524, 528) 

(2) Commenters stated that the TARs factor should only be applicable to
products produced from secondary materials that are generated and reused
in another industry and that, therefore, contain non-indigenous toxics
not contained in the virgin feedstock. In the same industry, the nature
of hazardous constituents in the secondary material would be the same as
those in the raw material. Another commenter stated that they oppose the
application of this factor to products that are recycled and reused or
reclaimed and sold to a third party as part of the industrial process.
It should only be applicable if the product is made commercially
available. (85, 89, 180/ 524)

(3) One commenter stated that the second aspect of this factor seems to
address just the 40 characteristic constituents and ignore the 480
Appendix VIII hazardous constituents associated with listed waste. All
potential hazardous constituents must be evaluated. (119) 

9.2.2.2.11 - Response

(1) EPA received several comments discussing the application of this
factor to the mining and mineral processing industry that stated that
the factor would not be relevant to the processes in that industry or
would be especially hard to implement or costly for that industry. EPA
notes that unless the recycler was taking advantage of one of the
exclusions or non-waste determinations in the final rule, they would be
covered by the existing legitimacy policy, rather than the legitimacy
provision in this final rule. 

In general, however, EPA does not think it is appropriate to exempt the
mining and mineral processing industry or any other industry from the
requirements of the toxics along for the ride factor in its final rule.
EPA finds that the concept of TARs is an important part of the concept
of legitimacy and is thus important to evaluating the legitimacy of all
recycling operations, whether the recycling is occurring under one of
the new recycling exclusions and thus, subject to 40 CFR 260.43 or
whether the recycling is under an existing definition of solid waste
exclusion and thus, continues to fall under the existing legitimacy
policy. 

If taking advantage of the provisions of this final rule, however, EPA
does not think it would be necessary for mineral processing facilities
to revamp their processes to evaluate this factor. In many cases they
would be able to examine the final product of the reclamation for TARs
and evaluate them against product specifications where there are
applicable specifications instead of looking at intermediates from every
step of the reclamation, as they described in their comments. In
addition, EPA has made the TARs factor a factor to be considered instead
of a mandatory factor to take into account those situations where the
recycling is legitimate even in the case that this factor is not exactly
met. If a facility considers the factor and decides that it is not
applicable to its process, EPA would suggest that the facility evaluate
the nature of the presence of hazardous constituents in its process and
be prepared to demonstrate both that it considered this factor and the
reasons it believes the factor is not relevant. 

(2) EPA does not agree with the comment that the TARs factor should only
be applicable to products produced from secondary materials generated in
a different industry than they are used in or only when made
commercially available. EPA has made this a factor to be considered
instead of a mandatory factor to take into account those situations
where the recycling is legitimate even in the case that this factor is
not met. If a facility considers the factor and decides that it is not
applicable to its process, EPA suggests that the facility evaluate the
nature of the presence of hazardous constituents in its process and be
prepared to demonstrate both that it considered this factor and the
reasons it believes the factor is not relevant. 

(3) In response to the comment that it was unclear in EPA's 2003
proposal which hazardous constituents are addressed in this factor, EPA
has clarified in the regulatory language that to meet this factor the
product of the recycling process cannot include significant
concentrations or significantly elevated concentrations of hazardous
constituents found in Appendix VIII of 40 CFR part 261. 

9.2.2.2.12 - Factor 4: Relevance of TARs to legitimacy

9.2.2.2.12 - Summary

(1) Commenters stated that the TARs factor has no bearing on whether a
recycling process is legitimate. A commenter added that even though EPA
says not every component has to contribute, under this factor a small
amount of hazardous components could make the recycling process sham.
Commenters stated that a better test of legitimacy would be whether the
secondary material in the process is suited for that use and does not
affect product quality. If it has functional value as a raw material and
the secondary material and the product meet the industry specifications,
it should be called legitimate. A commenter added that mining products
in particular have to meet rigid specifications and/or contract
requirements. Other commenters stated that Material Safety Data Sheets,
contracts, and other similar instruments could also play a role in the
TARs factor. One commenter added that many industrial and consumer
products are inherently hazardous and/or toxic and existing regulations
mandate their appropriate management. (70, 74, 93/472, 102, 152/481,
168, 203, 216, 460, 486, 506, 526, 528) 

One commenter added that if levels are raised compared to analogous
products, a second evaluation should assess the impact of the
constituents on product effectiveness and the hazard to the user before
a legitimacy determination is made. (162) 

One commenter stated that the proposed TAR factor does not get at
whether the hazardous constituents are being intentionally added to
products to avoid disposal costs, while another stated that the TARs
factor is relevant to legitimacy, particularly when evidence supporting
the useful contribution factor is weak and that both factors need to be
looked at together. (83, 104) 

(2) Commenters stated that many secondary materials will have different
concentrations of constituents than the virgin material used to make the
product and that many products made both from virgin materials and
secondary materials contain impurities that add or detract little from
the usefulness of the product. Commenters stated specifically that cases
with elevated levels of hazardous constituents can still be legitimate,
like zinc fertilizer. Some commenters stated that increased metallic
impurities would not be an indication of sham recycling because the
refining process concentrates both target and non-target metals from
ores. Therefore, different levels of impurities alone should not impact
the legitimacy determination—they just mean that different inputs or a
different process was used. One commenter added that only in extreme
cases with very high levels of impurities would the toxics along for the
ride pose a problem for the utility or safety of the product. (70, 74,
83, 89, 91, 93/472, 102, 127, 152/ 481, 170, 178, 203, 478, 528) 

 

(3) One commenter suggested that the legitimacy factor be whether the
person making the product has evaluated the threat to human health and
the environment of the hazardous constituents in the product. (83) 

(4) Commenters stated that the Courts have taken into consideration the
presence of hazardous constituents, but in those cases it was just one
factor. Specifically, they stated that the Safe Food decision suggested
that a comparison of hazardous constituent concentrations could be used
to determine legitimacy, but that was only in the narrow case of zinc
fertilizers and that there is no reason to think the Court would find
the same way in other circumstances. (89, 152/481, 528) 

(5) One commenter stated that the differing uses of products made from
recycled materials and the properties of each individual toxic of
concern need to be considered in an assessment of the TARs factor. (458)


9.2.2.2.12 - Response

(1) EPA does not agree with commenters who stated that the toxics along
for the ride factor has no bearing on whether or not recycling is
legitimate. EPA believes that this factor is an important way of
determining that a recycling process is actually recycling and not a
“sham.” If concentrations of hazardous constituents in the product
from the recycling process are elevated as compared to products made
from analogous raw materials, it could be because the hazardous
secondary material was simply run through a manufacturing process so
that the person managing that material could claim that it was recycled
instead of discarding it at a higher cost. These materials cannot be
said to be recycled because they are not adding value to the product but
are providing somewhere for the toxics to go that is not proper
disposal. For this reason EPA agrees with the commenters who suggest
that it is valuable to look at this factor in conjunction with the
useful contribution factor. EPA believes that an accurate legitimacy
determination comes from an examination of all the factors together.
Toxics that are illegally disposed of by being incorporated into a
product can also become exposure risks and could harm human health and
the environment. 

EPA does not think it is appropriate to rely on product specifications
and other authorities to cover the requirements in this factor. Reliance
on specifications would not be an adequate substitute because some
products and intermediates do not have product specifications and
because many product specifications do not address the constituents of
concern from the hazardous secondary materials. Regarding other
authorities, they are not designed to evaluate the legitimacy of the
recycling process or the extent to which a recycling process compares to
normal industrial production. This factor is designed to be used with
the other factors to illustrate whether a whole process is legitimate
and the authorities listed by the commenters cannot be relied upon to
fill that same role in the legitimacy process, though a facility or
implementing agency may be able to use some of them to help evaluate
this factor in some cases. In addition, in response to the comment that
this factor does not adequately get at whether the materials are
intentionally being added to products to reduce disposal costs, EPA
states that the factor as it is finalized looks more appropriately at
the facts of the recycling case rather than at the intent of the
recycler, but that looked at as a whole, all the legitimacy factors
together are likely to indicate when a recycler is not intending to
actually recycle the secondary materials. EPA also notes that
variability in raw materials and products may and should be taken into
account when making the comparisons in the TARs factor. 

(2) Partially in response to comments that express concern that many
secondary materials will have different concentrations of constituents
than the virgin material used to make the product, either because of the
nature of the product and the hazardous secondary materials or because
they come from source materials, such as ore, with different levels of
impurities, EPA has determined that it is appropriate to make this
factor a factor to be considered and not a mandatory factor. If the
facts of the examples referred to by the commenters are examined on a
case-by-case basis and the TARs factor is found to not be relevant to
that case, EPA suggests that the facility be prepared to demonstrate
both that it considered this factor and the reasons it believes the
factor is not relevant. 

(3) EPA believes that as part of a legitimacy determination to evaluate
how much a recycling process is like manufacturing and is not disposal,
or “sham recycling,” it is appropriate to compare the product from
the recycling process to a product made from raw material because if the
products have comparable levels of hazardous constituents, that is an
indicator that the recycling process is like the manufacturing process
on this front and because there would be no additional threat to human
health and the environment from the recycling product than from the
product of manufacturing. 

(4) EPA believes that it is appropriate to take the presence of
hazardous constituents into account in a legitimacy determination and
that it has the authority to do so in defining what is real recycling.
The Agency's authority to consider hazardous constituents is not just
discussed in the decision to the Safe Food case but also, for example,
in the decision to API II, where the court mentions hazardous
contaminants as a reason recycling could be considered sham. 

(5) EPA agrees with the commenter that the application and use of the
product is relevant in an assessment of the TARs factor. In some
situations a recycling process may not meet the factor but still be
legitimate, which is why EPA has included this factor in the rule as a
factor to be considered, not a mandatory factor. EPA makes it clear in
its preamble to the final rule that the manner in which a product is
used and whether there are exposure pathways can be considered when
deciding whether the TARs factor is relevant. If the entity performing
the determination believes that the recycling does not meet this factor
but is legitimate nonetheless, EPA suggests that the facility evaluate
the nature of the presence of hazardous constituents in its process and
be prepared to demonstrate both that it considered this factor and the
reasons it believes the factor is not relevant.

9.2.2.2.13 - Factor 4: Risk concerns

9.2.2.2.13 - Summary

(1) One commenter stated that in the TARs factor, risk to human health
and the environment depends on the use of the product made from
hazardous secondary materials. The commenter stated that levels of
hazardous constituents that are inappropriate in a pacifier may be okay
as an input to an industrial process. The commenter argued that,
therefore, parts (i) and (ii) of the factor should only apply to
products intended for consumer use rather than industrial use. (124) 

One commenter stated that the actual risk presented by the product may
be more important than the existence of elevated levels of hazardous
constituents-a case-by-case evaluation is therefore needed. (458) 

(2) Commenters stated that it is not protective to let products enter
commerce if they have elevated levels of hazardous constituents in them
due to being made from hazardous secondary materials and that high
concentrations of hazardous constituents in a product are a clear danger
to the public, the user, and the environment. Commenters added that when
toxics along for the ride increase the risk of adverse environmental or
health effects, this is an element of discard and recycling should not
be legitimate.  (470, 538, 543) 

(3) One commenter stated that when a product made from hazardous
secondary materials has the same risk as the hazardous secondary
materials did, nothing is gained from the recycling process and risk of
exposure is likely increased. (521)  

9.2.2.2.13 - Response

(1) EPA does not agree with the commenter's suggestion that it vary the
requirements for meeting this legitimacy factor depending on whether the
product is intended for commercial or industrial use. EPA does not
believe it is appropriate to complicate this factor by trying to define
situations in which certain parts of the factor apply and others do not.
EPA does however believe that its case-by-case approach for this factor
addresses these concerns. EPA has stated in its explanation of
“significant” in this factor that things such as how a product is
used and by whom and the availability of the hazardous constituents to
the environment are relevant in considering whether elevated levels of
toxics are “significant.” 

(2) In response to the comments that it is not protective of human
health and the environment to let products with elevated levels of
hazardous constituents enter commerce and that recycling should not be
legitimate if it increases the risk of adverse environmental or human
health effects, EPA agrees and does not believe that its action in
codifying the legitimacy factors will increase risk of these effects. In
fact, the TARs factor is designed specifically to address these types of
concerns. Cases where this factor may not be met but the recycling is
legitimate include situations where there is no exposure to the product
either because it is an intermediate or remains part of an industrial
process or because it is not available to the environment. In cases
where elevated toxics in a recycled material would pose an increased
risk to the public or the environment over the analogous product, this
would impact the value of the product, covered also in Factor 2, and
would indicate that the toxic constituents are being discarded in the
product in lieu of treatment and, thus, are toxics along for the ride. 

(3) This example demonstrates why the comparison in this legitimacy
factor between the product of the recycling process and the analogous
product made from raw material is the most appropriate way to evaluate
toxics in the legitimacy determination. As in this type of case, if use
of hazardous secondary materials increases the risk of exposure to
hazardous constituents from the recycled product as compared to a
product made from raw materials, the recycling process would,
appropriately, likely not meet the TARs factor. 

9.2.2.2.14 - Factor 4: Application of factor on a case-by-case basis

9.2.2.2.14 - Summary

(1) Commenters stated that they agreed with EPA's preamble statement
that the TARs factor is most appropriately addressed on a case-by-case
basis and not with generic limits that are intended to apply to all
recycling cases. Commenters added that one-size-fits-all will not work
for this factor and that the Courts and EPA have applied this concept on
a case-by-case basis in the past. One commenter added that a TARs
analysis cannot take place in a vacuum. (85, 89, 91, 97, 102, 107,
112/458, 122, 129, 149, 199)  

(2) Commenters stated that products with elevated levels of hazardous
constituents should be able to be approved by EPA or the state on a
case-by-case basis or that if the toxic along for the ride in a
particular situation is not a problem or a risk, a simplified
presumptive variance mechanism should be allowed for a Region or state
to exempt that situation by letter on a case-by-case basis. (137, 143) 

9.2.2.2.14 - Response

(1) EPA agrees with commenters that the TARs factor is most
appropriately addressed on a case-by-case basis and has finalized the
legitimacy factor as case-by-case evaluations that can take into
consideration the relevant facts of a recycling activity and use those
facts to make a determination of significance if there are toxics
present that are not in analogous products or if there are elevated
levels of toxics or hazardous characteristics. 

(2) EPA has not finalized an approval process or variance mechanism for
cases where the TARs factor is not applicable, but suggests that if a
facility determines that the levels of toxics in their product are
elevated but that the TARs factor is not applicable in the case of their
process and product, they keep records of that determination so they are
prepared to document the legitimacy of their process if asked by the
implementing agency. As in the past, the regulated community is welcome
to consult its implementing agency on specific processes for assistance
in making a legitimacy determination. 

9.2.3 - Consideration of economics for legitimate recycling

9.2.3.1 - Preamble discussion about consideration of economics for
legitimacy

9.2.3.1 - Summary

In 2007, EPA offered further guidance and clarification on how economics
may be considered in making legitimacy determinations. We requested
comment on whether to maintain the preamble discussion about
“consideration of economics” as informing overall legitimacy
determinations, as well as how economic consideration is consistent with
prior legitimacy determinations under the Lowrance Memo, and other ways
that economic consideration may support legitimacy determinations.

EPA received only positive comments on the preamble discussion about
consideration of economics in legitimacy. All commenters, who are from
generating industries and associations, reacted favorably to the
discussion and a few offered additional points of consideration or
suggested edits to the language. These commenters preferred that we
maintain the preamble guidance for “consideration of economics” and
opposed the codification of a separate legitimacy factor. Several
commenters stated that they approved of the following statements in the
preamble: prices for hazardous secondary materials may fluctuate over
time; recycling operations using hazardous secondary materials differ
from more traditional manufacturing operations; a recycler may be able
to charge a generator and still be a legitimate recycling operation; and
economic considerations are indicators of whether recycling is
legitimate.

Commenters also stressed that industries must be evaluated on a
long-term basis because market prices will fluctuate over time,
therefore, it may make sense to pay for recycling at times in order to
keep the operations available in the future; economic considerations
vary by industry, size of a generator, and recycled product or
intermediate; transportation cost may be included within the price of
recycling materials even though that cost may not add to the “value”
that hazardous secondary materials contribute to the recycling process;
“[economic consideration] can and should be used to demonstrate that
the recycling process produces a valuable product;” EPA should
“clarify the need for a broad approach to assessing relative economics
of different [recycling] activities and costs” because conditions vary
greatly among recyclers; and any test for legitimacy cannot focus on
which way funds flow for recycling activities because price fluctuations
could make recycling costs exceed the value of materials.

Additional guidance was proposed by a few commenters. One suggested that
EPA clearly state that payment for recyclable materials must be more
than “nominal” for the recycling to be legitimate and offered two
specific examples of prices for materials that are more than nominal.
Another commenter stated that “any economic focus should be on the
reclamation operation's product, not on the… input to the reclamation
process.” One commenter urged EPA to “recognize that even if [a
reclamation process] broke even or lost money, it still can be an act of
corporate social responsibility… [to conserve] raw materials,” and
asked EPA to offer a “safe harbor” for legitimacy if the recycling
process produces a valuable product. Similarly, a commenter stated that
a generator may choose to recycle to “provide needed raw materials for
a vital supply chain” or because it wants a “more environmentally
preferable management option based on ethical or societal
considerations.” However, this commenter also stated that
“legitimate recycling may not occur if the economics do not warrant
it,” which seems to contradict its other statement. A few commenters
also asked that EPA clarify that consideration of economics entails a
flexible and broad approach that allows many recycling scenarios, such
as small-scale recycling of hazardous secondary materials from batch
manufacturing that may not be profitable due to the amount of recycling
that occurs. Finally, a commenter requested that EPA “establish a
rebuttable presumption that [recycling] is legitimate where the recycler
pays for the [hazardous] secondary materials.” Additionally, one
commenter asked that EPA clearly state that the economics of a recycling
activity “are” relevant to legitimate recycling determinations,
rather than use “may be relevant.” 

(0452, 0458, 0463, 0471.2, 0472, 0478, 0481, 0484, 0485, 0486, 0491,
0492, 0524, 0529, 0534, 0564)

9.2.3.1 - Response

EPA has maintained in the final rule a preamble discussion very similar
to the March 2007 supplemental proposal of how economics may be
considered in making legitimacy determinations. We believe that
providing guidance on this topic, rather than codifying a separate
factor to be considered, is most appropriate because the economics of
recycling activities vary greatly, as evidenced by commenters'
responses. 

We appreciate commenters' suggestions for clarifying the preamble
discussion and believe that the guidance we have provided allows for the
scenarios that commenters put forth. We agree that in general any
payment for hazardous secondary materials should be more than nominal;
however, we recognize that many different recycling scenarios exist and
that a scenario could allow for a small payment by either the recycler
or generator. Likewise, we think the preamble discussion allows for
recycling scenarios that represent acts of corporate social
responsibility and small-scale recycling that may not be profitable due
to the amount processed. For this reason, while we support the premise
that the economic factors influence legitimate recycling, we cannot
agree with the statement that legitimate recycling only occurs if
warranted by economics. We do not agree that the economic focus for
legitimacy interests should be solely on the reclamation operation's
product, and not on the hazardous secondary material inputs to the
recycling process. The recycling activities allowed under this
rulemaking vary too much to make such a conclusion. In addition, we can
envision a scenario where a recycler pays for hazardous secondary
materials that are illegitimately recycled; thus, we cannot support the
“rebuttable presumption” suggested by a commenter. Finally, as
stated in the preamble, consideration of economics has long been a part
of the Agency's concept of legitimacy, as is evident in the Lowrance
Memo and earlier preamble text (50 FR 638, January 4, 1985 and 53 FR
522, January 8, 1988; see also American Petroleum Institute v. EPA
(“API II”), 216 F.3d 50, 57-58 (DC Cir. 2000)). Consequently, we
agree with the comment that the economics of a recycling activity are
relevant to a legitimate recycling determination, insofar as
consideration of economics can clarify whether the hazardous secondary
material inputs provide a useful contribution and whether the product of
recycling is of value.

9.2.3.2 - Regulatory requirement for consideration of economics for
legitimacy

9.2.3.2 - Summary

In 2007, EPA offered further guidance and clarification on how economics
may be considered in making legitimacy determinations. We requested
comment on whether to codify specific regulatory language on economics
or maintain the preamble discussion about “consideration of
economics.” 

The majority of commenters did not want a separate factor codified for
consideration of economics. These commenters, who are from generating
industries, generally supported the preamble discussion of economics and
legitimacy, and wanted the consideration to remain a “sub factor taken
into account,” but not required under the regulations. They supported
their views with the following rationales: economic consideration is
already inherent within the proposed legitimacy criteria; codification
is unnecessary: instead EPA should put in place environmental safeguards
and allow the markets to dictate whether recycling occurs; economics is
too variable and imprecise; consideration of economics should only be
used “as a means to clearly demonstrate legitimacy, but not to
demonstrate ‘sham recycling’”; and no specific test is feasible,
since prices for hazardous secondary materials fluctuate long-term and
are cyclical. One commenter representing several states supported the
inclusion of economic consideration within legitimacy factor (2), but
specified that there should be no requirement that “the ‘value’ of
the [recycled] product always equal or exceed the cost of producing
it” since market prices for materials vary and “there are periods of
losses and profits.” (see section 9.2.1.2.3. of this document for more
information about the definition of legitimacy factor (2).)

A few commenters supported codifying a separate factor for economic
consideration and one commenter supported additional regulatory language
for how to consider the economics of recycling, but not necessarily a
separate factor. These commenters included one state and recycling
industry companies. The state commenter suggested developing regulatory
language to make economic consideration an enforceable factor using
existing EPA language that recycling will have a net financial return to
the generator. Another commenter asked that regulatory agencies
routinely review a recycler's economic factors, as materials
availability, demand for recycled products, and other costs fluctuate
over time. One commenter appears to support regulatory language by
stating that without an economic assessment, many hazardous secondary
materials that have no value and “a high potential to negatively
impact human health and the environment” may be inappropriately
excluded from the definition of solid waste as legitimate recycling. 

(0452, 0457, 0458, 0463, 0468, 0471.2, 0478, 0481, 0495, 0507, 0518,
0524, 0526, 0528, 0529, 0534, 0543)

9.2.3.2 - Response

EPA agrees with those commenters who argued that economic considerations
are inherent within the legitimacy factors. We believe that one specific
factor cannot encompass all economic scenarios for the universe of
hazardous secondary materials recycling subject to this rulemaking.
Furthermore, we do not believe that codifying a separate enforceable
factor would strengthen the legitimacy requirements, but we do believe
that articulating how economic considerations can influence the
legitimacy factors (such as factor (2)) adds value to the legitimacy
determinations made by state regulators and the regulated community. 

Based on the comments we received and historical consideration of
economics via the Lowrance Memo, the Agency is not codifying specific
regulatory language on economic considerations. Instead, the final rule
preamble offers guidance and clarification on how economics may be
considered in making legitimacy determinations, similar to the preamble
discussion in the March 2007 supplemental proposal. We believe that
guidance on consideration of economics is necessary and that markets for
recyclable hazardous secondary materials do not always function well on
their own, as evidenced by the study of environmental problems. 

In response to comments that supported a codified factor for economic
consideration, we believe that legitimate recycling activities vary too
much to establish that recycling must always produce a net financial
return to the generator. We agree that a positive financial return to
the generator would support a legitimacy determination; however, we
think that it would be too difficult to establish in regulations what
would define a net financial return for all recycling activities. We
agree that there is value in considering the economics of a recycling
activity over time, as prices of hazardous secondary materials will
change and demand for recycled products may shift. As such, we think
that the current preamble guidance allows adequate flexibility for
considering economics and that a specific requirement to routinely
review the economics of a recycling activity is unnecessary. Lastly, we
believe that the existing legitimacy policy, specifically factor (1)
(managed as a valuable commodity), preclude hazardous secondary
materials without value from being recycled. Therefore, we think that
the commenter's interest in defining legitimacy through a hazardous
secondary material's value is best addressed through the legitimacy
provision codified in the final rule, as well as the preamble guidance. 

9.2.4 - Additional legitimacy criteria/factors that should be considered

9.2.4 - Summary

One commenter would like to see speculative accumulation (currently
found at 40 CFR 261.1(c)(8)) added to the list of criteria to be
considered when determining the legitimacy of a recycling activity. This
commenter also noted that they would like speculative accumulation to be
used as one factor to be considered in evaluating whether abandonment
had occurred, rather than as a “trump” card (203).

Another commenter noted that they believed EPA had overlooked an
important criterion from the 1989 guidance memo: what degree of
processing is required to produce a finished product. This commenter
felt that this is an important criterion because it provides for
evaluating intermediate reclamation steps that may be really waste
treatment (119).

One state commenter offered the following as useful information in
determining whether legitimate recycling is occurring: the percentage of
material that will be a useful component or that will aid in the
recycling process, the degree to which processing is required, the
market value of the material in its processed and unprocessed states,
and the storage timeframes prior to and after recycling (509). Another
state commenter recognized that all criteria regarding legitimate
recycling cannot be addressed in a single regulatory requirement and
noted that there may be other criteria that need to be considered on a
case-by-case basis in making a legitimate recycling determination (539).

One industry commenter recommended an additional listing of “other
relevant factors,” which would allow both regulators and the regulated
community latitude to consider and give weight to circumstances and
factors not captured by the codified language. This commenter stressed
that this is particularly important to encourage new and innovative
recycling (222).

9.2.4 - Response

In this final rulemaking, the Agency is not changing the current
speculative accumulation provisions that apply to all hazardous
secondary materials that are not solid wastes and has not reopened the
speculative accumulation requirements that have been part of the
Agency's regulations since 1985 and have been upheld by the D.C.
Circuit. The existing speculative accumulation provision directly ties
to whether a material is being discarded by virtue of being abandoned
(or generally no longer being used as a product) and is not necessarily
related to whether discard occurs at the actual recycling stage because
the recycling is a sham, i.e. not legitimate. The Agency does recognize
that issues with these two provisions can arise in the same recycling
scenario: that is, a material that is being sham recycled can sometimes
also be accumulated speculatively. However, we believe the two
provisions should be independent and thus, we are codifying the
legitimacy provision in 40 CFR 260.43 for the recycling exclusions and
non-waste determinations and are not changing the speculative
accumulation provisions of 40 CFR 261.1(c)(8).

In addition, the Agency is not including a specific criterion or factor
that addresses the degree of processing in recycling. In the October
2003 proposal, the Agency noted that the original 1989 guidance included
the question: “What degree of processing is required to produce a
finished product?” and the Agency explained in the 2003 proposal that
this question was aimed at distinguishing recycling operations that
involve direct use or reuse of hazardous secondary materials from
recycling operations that involve reclamation rather than determining if
the recycling is legitimate. Since recycling can be considered a form of
waste treatment, the Agency does not believe the degree of processing is
particularly relevant to whether the recycling is legitimate or sham and
we determined that this concept did not need to be captured in the
legitimacy factors. No other commenters objected to dropping the degree
of processing as a legitimacy criterion or factor and we are thus
finalizing the legitimacy provision without that concept as a factor.

In response to the comments that indicated other useful information
could be used in legitimacy determinations or requested to list other
criteria, the Agency agrees that the information provided in the
comments could be useful in making an overall legitimacy determination
using the codified legitimacy factors and does not believe the codified
legitimacy language precludes these other considerations from being
taken into account within the legitimacy factors. In fact, we encourage
the regulated community and implementing agencies to use any and all
information about the recycling process that fit within the legitimacy
factors to come to an informed decision on the legitimacy of a specific
hazardous secondary material recycling operation. However, no other
specific legitimacy factors were identified and we believe the four
factors codified in the final rule include the critical principles of
legitimate recycling. 

9.3 - Purpose and intent of legitimacy factors

9.3 - Summary

(1) Commenters supported the concerns that hazardous wastes should be
legitimately recycled and agreed that boundaries need to be set to
create a standard for making recycling determinations. The commenters
gave various reasons for their support of legitimacy. Commenters stated
that these factors are sensible and consistent with the objectives of
the proposal, can be intelligently and effectively applied, and, if
applied as described in the 2003 preamble, will ensure the correct
balance of promoting recycling and protecting human health and the
environment and will better promote legitimate recycling activities. One
commenter stated that the legitimacy factors are valuable for
demonstrating that some forms of recycling are not akin to discard and
for distinguishing sham recycling from legitimate recycling. One
commenter stated that they think codified legitimacy will lead to less
ambiguity for the regulated community, even though there will be some
ambiguity in making determinations. One commenter stated that the
legitimacy factors are needed to assure the public that proper materials
management is occurring. One commenter stated that use of the legitimacy
factors will reveal that many materials that regulators think are
regulated may actually be being managed as unregulated materials at the
current time. One commenter stated that the legitimacy requirements
address the Agency's concern of product stewardship.

(43, 62, 85, 91, 110, 168, 172, 196, 211, 536, 555) 

Several commenters supported the intent of legitimacy with some
conditions. One commenter stated the specific implementation questions
about the factors should be answered or the exclusions run the risk of
overzealous interpretations (to either extreme), while others stated
that the factors should not be codified. One commenter stated the
legitimacy should hinge on whether the material's value is greater or
less than the cost of management.  (222, 484) 

(2) Several commenters had suggestions on how legitimacy should be
applied. Commenters stated that future legitimacy determinations should
follow the pathway established by the existing exclusions or that EPA
should preserve previous determinations on legitimacy. One commenter
stated that EPA should make it clear whether enforcement agencies only,
industry or anyone can make a determination of legitimacy and stated
that if anyone is entitled to make a legitimacy determination, it may
lead to disputes. Similarly, one commenter stated that there should be a
reasonable and efficient process to enable a facility to work with the
Agency to confirm a secondary material's contribution to the recycling.
(62, 98, 172, 524) 

(3) Commenters stated that the regulatory language should clarify that
factors are guidelines, not rigid tests. Commenters stated that the
factors should be used in a case-by-case determination system with
subjective evaluation and balancing, as a one-size-fits-all approach is
not workable and that this point should be made in the regulatory text.
One commenter stated that the factors must be applied differently to
different types of recycling. One commenter added that the 2003 proposal
required a consideration of each of the factors with an implication that
they all must be met. (60, 62, 83, 89, 91, 93, 157, 172, 199, 222, 225) 

(4) Commenters had various opinions on the appropriate scope of the
legitimacy factors being promulgated. 

One commenter stated that EPA should clarify whether the legitimacy
requirements apply to all hazardous wastes being recycled or just this
exclusion. One commenter asked which recycling provisions the legitimacy
factors apply to. That is, do they apply to 261.2 Table 1; 261.2(e);
261.4(a) and (b); 261.6(a)(3); 266; 273; 279? (98, 442) 

Commenters stated that the legitimacy factors should be applied to all
recycling. To have factors apply in some cases and not in others would
be confusing. (138, 172) 

Commenters stated that the legitimacy factors should not be imposed on
existing exclusions, just to those that are new in this final rule. One
commenter added that these exclusions were not subject to them
previously and one commenter stated that EPA has not explained the need
to apply these factors to existing exclusions. One commenter added that
exclusions already have long-standing criteria as part of them, that it
is not justified to add new requirements and that EPA could be
overstating its case for precaution based on damage cases because some
of the facilities described in the cases were in operation as long as 50
or 100 years ago before the powerful incentives came into play in 1982.
One commenter stated that they assume that compliance with specific
requirements under pre-existing recycling provisions, such as 40 CFR
part 279 for used oil, will meet the legitimacy criteria. Otherwise,
this is a new provision for all recycling exclusions. (70, 93/472, 179,
199, 473, 486, 528, 534)

In addition, one commenter stated that the Agency should retain existing
exclusions, such as the closed loop exclusion and one commenter asked
whether facilities currently operating under 40 CFR 261.6 and 40 CFR
part 266 need to demonstrate legitimacy when a determination has been
previously made and there is no evidence of problems. (60, 518) 

One commenter stated that re-refining distillation bottoms, excluded at
279.10(e)(4) should be made specifically subject to the legitimacy
factors. EPA should already have in its possession sufficient laboratory
data demonstrating that they would come nowhere close to meeting three
of the factors. (156)  

Commenters stated that the broad application of the legitimacy factors
to all recycling is contrary to the intent of the rule to be
deregulatory and will impose a burden. One commenter added that this is
particularly true when a system already qualifies for the closed loop
exclusion. One commenter added that the fact that the rule was more
restrictive should have been addressed in the State Authorization
section of the preamble. One commenter stated that these are new
requirements and asked if EPA intends no changes to the universe of
materials excluded from RCRA regulation, why apply legitimacy to
existing exclusions? (60, 74/486, 102, 442, 472, 486, 528) 

Commenters also stated that there is a difference between the legitimacy
regulation and the sham recycling policy. They stated that the factors
presume recycling to be illegitimate by defining what is legitimate
instead of what is sham and that the regulatory language on legitimacy
indicates that the Agency will view all recycling with suspicion. One
commenter stated that this presumption is not supported by the facts
because the vast majority of recycling is legitimate and that this
presumption creates obstacles to resource conservation and recovery. One
commenter added that the Agency is implying that recycling practices
that do not meet the factors must be sham and, therefore, tightly
regulated. One commenter added that EPA should make it clear that there
is a presumption that recycling is legitimate and are concerned that the
factors and the requirement to demonstrate indicate the opposite. (129,
152/481, 173, 225, 537)

(5) One commenter stated that it is troubling that EPA suggested that
the legitimacy of a recycling process relates more directly to how it
compares to industrial production than to the risks posed by recycled
products because many industries have actually changed their processes
to accommodate recycling. (127) 

(6) One commenter stated that the legitimacy factors should be revised
to reflect a broader inclusion of activities that can occur without
being deemed disposal. (137) 

(7) One commenter stated that EPA is incorrect in its expectation that
more explicit legitimacy factors will encourage recycling. That will
only happen if their meaning is clear and their application to a
particular material can be conclusively determined before the material
is recycled. (190) 

(8) One commenter asked what “demonstrate legitimate recycling”
means. (518) 

(9) One commenter asked whether the consideration of economics in
legitimacy applies when determining when economically significant
quantities of precious metals are present—a precondition of 40 CFR
part 266 subpart F, or if EPA would require that there be a net positive
return for precious metals to qualify. (516) 

(10) One commenter stated that EPA fails to provide the regulated
community with sufficient explanation regarding the imposition of the
contemplated “legitimate recycling” factors to provide meaningful
comment, in violation of the Administrative Procedure Act (APA) and that
under the APA, an administrative agency engaged in a rulemaking must
provide the regulated community with, among other things, the “terms
or substance of the proposed rule or a description of the subjects and
issues involved.” EPA's proposed regulatory language states that
“persons who recycle hazardous secondary materials must be able to
demonstrate that the recycling is legitimate.” The commenter continued
by stating that there is no discussion in the 2007 supplemental proposal
of how EPA proposes to apply the criteria to existing regulatory
determinations and to existing regulatory exclusions. The commenter
stated that, in effect, by a single sentence in its 2007 supplemental
proposal, EPA has called into question every existing regulatory
determination by EPA or an authorized state and every RCRA regulatory
exclusion found in Title 40 parts 260–299 of the CFR without providing
a rationale for doing so and without adequately considering the costs of
doing so. The commenter added that any attempt by EPA to apply the
legitimate recycling factors to prior waste determinations would violate
the due process clause. The due process clause requires that regulated
entities receive fair notice of the conduct that a government agency
expects them to adhere to prior to imposing penalties. As noted by the
D.C. Circuit, the Due Process Clause prevent deference from validating
the application of a regulation that fails to give fair warning of the
conduct it prohibits or requires. We find EPA's statement that it
“generally do[es] not see the need for the regulated community or
overseeing agencies to revisit prior waste determinations and expect any
written determinations from those agencies to, in effect, be
grandfathered” to be confusing. The use of the term “waste
determination” instead of “legitimacy determination” is confusing
because it brings into question determinations of “solid waste” vs.
“hazardous waste.” In addition, why does EPA use the word
“generally”? Does EPA believe that in some cases prior
determinations will require revisiting? (528)

9.3 - Response

(1) EPA thanks the commenters for their comments on the value of
codifying legitimacy generally. After considering comments EPA has
decided not to codify the legitimacy factors for existing exclusions in
this final rule. EPA’s longstanding position that any definition of
solid waste exclusion that is based on the hazardous secondary material
being recycled applies only to materials being legitimately recycled is
unchanged, however. One reason EPA is not codifying the legitimacy
factors for existing exclusions is to address comments on how this
action would effect existing exclusions and confusion about the status
of those exclusions.  

Regarding proper materials management, EPA agrees that the question of
whether the cost of management outweighs the value of the material is a
valid question, but does not think that the entire determination should
hinge on that fact. Instead, all the factors must be looked at together
and the economics of the recycling process can inform how the factors
are evaluated with questions such as this one. 

(2) EPA thanks the commenters for their suggestions on how the
legitimacy factors should be implemented. Regarding the question of who
can make a legitimacy determination, EPA expects that these
determinations will be made by a facility about their own process to
ensure that recycling is legitimate and by agencies implementing the
RCRA program in the course of their implementing duties. Generators
sending materials to recyclers operating under recycling exclusions may
make inquiries regarding the legitimacy of their process, but would not
be expected to make their own determinations. EPA has not codified a
process for facilities to work with their implementing agency on making
a determination, but, as in the past, the regulated community is welcome
to consult its implementing agency on specific processes for assistance
in making a legitimacy determination. 

(3) EPA agrees with commenters that the legitimacy factors are most
appropriately addressed on a case-by-case basis and has finalized the
legitimacy factors to be case-by-case evaluations that can take into
consideration the relevant facts of a recycling activity and use those
facts to make determinations of legitimacy. EPA has designed the
structure of legitimacy and the individual factors to be flexible enough
to be applicable to various recycling processes and types of secondary
materials. 

(4) Regarding the scope of legitimacy in the final rule, to avoid
confusion among the regulated community and state and other implementing
regulatory agencies about the status of recycling under the existing
exclusions, the Agency has decided not to codify the legitimacy factors
for existing exclusions. We expect that states and other implementing
agencies will continue to use the existing legitimacy concept for all
recycling as they have in the past in order to ensure that recycling is
real and not sham. 

EPA also maintains that the legitimacy provision being finalized as part
of the recycling exclusions and non-waste determinations is
substantively the same as the existing policy because we developed the
legitimacy factors in 40 CFR 260.43 by closely examining the questions
and sub-questions in the OSWER directive 9441.1989(19) (April 26, 1989)
(a.k.a. the “Lowrance Memo”) and in the various Federal Register
preambles that address legitimate recycling and converting them into
four more direct questions. The analysis showing how the four factors
are derived from the Lowrance memo and other existing policy statements
is documented in the preamble to the final rule. This analysis shows why
EPA believes that the legitimacy factors in 40 CFR 260.43 are equivalent
to the existing legitimacy policy that applies to all hazardous
secondary material recycling.

One reason the Agency chose not to codify the legitimacy factors for
existing exclusions in this rule is to avoid any implication that the
regulated community or implementing agencies would be expected to
revisit and reevaluate past legitimacy determinations, which was a
concern expressed by commenters.  Nevertheless, although we have not
codified the legitimacy factors for existing exclusions in this rule, it
is especially important that the regulated community and implementing
agencies clearly understand that the concept of legitimate recycling,
which is obviously inherent in the existing recycling regulations, is
unchanged and remains applicable and relevant to all hazardous secondary
material recycling, including any recycling excluded under RCRA Subtitle
C. Because the concept of legitimacy (both in existing explanations and
in the codified legitimacy factors) appropriately explains the very
heart of what real recycling is, it is obvious that existing recycling
exclusions only apply to legitimate recycling. 

We are not expecting the regulated community that has been operating
under an existing exclusion to make additional efforts to prove that the
recycling is legitimate but reiterate that all recycling must be
legitimate, whether that recycling is done under an existing exclusion
or under one of the newly promulgated recycling exclusions of this
rulemaking. To be clear that the codified legitimacy provision of the
final rule will not affect how the current legitimacy policy applies to
recycling under existing exclusions, the Agency explicitly designates
the 260.43 legitimacy provision as applying only to the exclusions and
non-waste determinations being finalized in the rule.

(5) EPA has designed the legitimacy factors to identify legitimate
recycling, which is when the recycling process more closely resembles
normal industrial manufacturing rather than waste management. This does
not mean that the recycling process has to be identical to a
manufacturing process to make the same product, as the chemistry and
physical form of the feedstock may be different if recycled materials
are in use. However, the process examined as a whole, with the help of
the legitimacy factors, should resemble and be operated like a
manufacturing process rather than a waste management process. 

(6) EPA is not clear on exactly what revisions the commenter is
requesting, but believes that the final legitimacy factors are broad
enough and flexible enough to be applicable to all recycling processes
and all secondary materials that will be covered under the provisions of
this final rule. 

(7) In response to comments asking for more clarity in the terms it uses
in the legitimacy factors, EPA has bolstered its preamble discussion on
the meaning of these terms and has included more examples than were in
the 2003 proposal and the 2007 supplemental proposal to this rulemaking.
EPA has decided that specific tests for each term in each factor are not
appropriate for legitimacy determinations because of the variety of
recycling processes the factors must apply to. 

(8) By “be able to demonstrate legitimate recycling,” EPA means that
in the event of an enforcement action to implement Subtitle C of RCRA,
the persons claiming that their recycling activity is legitimate would
have the burden to provide documentation showing how the hazardous
secondary materials provide a useful contribution to the recycling
process and how the product of the recycling activity—whether it is a
consumer product or process intermediate—is valuable. In addition, the
documentation would have to show that the hazardous secondary material
generator or recycler considered the other two factors and determined
for each of them either that the activity meets the factor or that the
factor does not apply to this recycling activity and why it is not
relevant or appropriate to consider. This is consistent with a
person’s responsibilities under existing 40 CFR 261.2(f). 

(9) Subpart F of 40 CFR part 266 details the applicable requirements for
precious metals recycling. The scope of the universe of materials to
which Subpart F applies is defined, in part, by the standard that
economically significant quantities of precious metals are recovered.
This standard is an independent standard not discussed or proposed to be
changed in either the 2003 or 2007 proposals. This is outside the scope
of this rulemaking. Recycling must be legitimate to take advantage of
the reduced requirements of subpart F of part 266, but this is a
separate and different evaluation than the standard of whether
economically significant quantities of precious metals are recovered. 

(10) As explained above and in section 9.1.2. of this chapter of the
Response to Comments document, EPA has not codified the legitimacy
factors for all recycling in this final rule. 

9.3.1 - How legitimacy factors compare to the guidance on legitimacy

9.3.1 - Summary

(1) Commenters stated that these factors would be a departure from how
determinations have been made for the past twenty years because they
would not allow the determination to focus on the totality of all the
relevant facts and circumstances and would strip the subjectivity needed
to balance the factors from the determination. One commenter added that
the Lowrance memo has open-ended questions that do not state or imply
that particular storage measures must be used or particular levels must
not be present for recycling to be legitimate as the codified factors
would. One commenter stated that hard and fast factors have never been
relied on for a determination and failure of just the storage factor or
of the TARs factor has never been used as a reason for recycling to be
deemed not legitimate. One commenter expressed concern that state
officials would now have to make the same difficult legitimacy decisions
as in the past, but have to apply them broadly and that going from
specific cases to broad applicability to all recycling, that makes all
recycling suspect. (89, 102, 481) 

Commenters stated that if the legitimacy factors are codified to apply
to all hazardous wastes, it would be more restrictive than the existing
requirements in the guidance, there would be a higher compliance burden,
and the rule would not be deregulatory. One commenter added that there
was no need for the legitimacy factors to be applied to the materials
that are already excluded because they are already subject to legitimacy
evaluations and the applying legitimacy to these exclusions is
subjecting them to new requirements without notice and comment.  One
commenter added that applying the legitimacy factors to all existing
exclusions could have unintended consequences of changing how the
exclusions apply. (65, 442, 472, 537) 

Some commenters stating that legitimacy should not be codified stated
that there is no need to codify the legitimacy guidance. One reason was
that the guidance has worked and that they are not aware of any
situation in which the existing guidance has proven inadequate for
distinguishing between legitimate and sham recycling while another was
that the clarity some stakeholders want through codification will not be
achieved because legitimacy determinations are complex. Commenters also
stated that if the factors are promulgated they won't be used in the
same way as the guidance has been as EPA claims and asks why EPA would
raise this issue in rulemaking if it expected the regulatory community
not to revisit determinations. (102, 152/481, 486) 

One commenter stated that EPA should make it clear that prior legitimacy
determinations are grandfathered and remain valid and that all
determinations that mining or mineral processing recycling activity is
legitimate should remain in place. (481) 

(2) One commenter stated that as they understand it, EPA's proposed
factors to codify do not significantly differ from the guidance EPA has
been applying over the years particularly as the factors are general and
subject to interpretation in each case. They added that they support the
factors if they are to be used to determine what is truly recycling.
(144) 

(3) Commenters stated that replacing the existing guidance with
regulations would simplify the considerations, but “balancing” the
factors as the guidance recommends might be complex, but is necessary.
One commenter stated that the guidance is too flexible, making it too
easy to be ignored and not enforced. (44, 524, 558) 

(4) One commenter stated that the legitimacy factors are superfluous and
a regrettable proposal for environmental interests. (479) 

9.3.1 - Response

(1) As stated above, the Agency has decided not to codify the legitimacy
factors for existing exclusions. We expect that states and other
implementing agencies will continue to use the existing legitimacy
concept for all recycling as they have in the past in order to ensure
that recycling is real and not sham.

One reason the Agency chose not to codify the legitimacy factors for
existing exclusions in this rule is to avoid any implication that the
regulated community or implementing agencies would be expected to
revisit and reevaluate past legitimacy determinations, which was a
concern expressed by commenters. Nevertheless, although we have not
codified the legitimacy factors for existing exclusions in this rule, it
is especially important that the regulated community and implementing
agencies clearly understand that the concept of legitimate recycling,
which is obviously inherent in the existing recycling regulations, is
unchanged and remains applicable and relevant to all hazardous secondary
material recycling, including any recycling excluded under RCRA Subtitle
C. Because the concept of legitimacy (both in existing explanations and
in the codified legitimacy factors) appropriately explains the very
heart of what real recycling is, it is obvious that existing recycling
exclusions only apply to legitimate recycling. 

Because there is no change to the existing exclusions under this final
rule, it is not necessary to consider the status of prior legitimacy
determinations for existing exclusions. Since the rule makes no changes
to the exclusions, no change is caused to any prior
determinations—they have the same status and effect as before the
final rule.

(2) EPA agrees with the commenter that the legitimacy requirements in
the final rule do not differ significantly from the guidance EPA has
provided on legitimacy over the years through preamble discussions and
memorandum. An analysis showing how the four factors are derived from
the Lowrance memo and other existing policy statements is documented in
the preamble to the final rule. This analysis shows why EPA believes
that the legitimacy factors in 40 CFR 260.43 are equivalent to the
existing legitimacy policy that applies to all hazardous secondary
material recycling.

  

(3) In designing the legitimacy factors to be codified in the final
rule, EPA sought a structure for legitimacy that would be flexible
enough to be applicable to various recycling scenarios, but that would
also provide enough of a structure that it would improve certainty for
the regulated community and would improve the enforceability of
legitimacy for the implementing agencies. EPA believes that the
structure of the legitimacy factors in the final rule achieves this
balance. In response to the 2003 proposal, there was general agreement
among the legitimacy commenters that a recycling process cannot be
legitimate if the hazardous secondary material being recycled does not
provide a useful contribution to the recycling process or product and if
the recycling process does not yield a product or intermediate that is
useful to someone and meeting these factors is mandatory in a legitimacy
determination. However, the other two factors are finalized as factors
that must be considered in every case, but the process can, after
analysis of the facts of the case, be determined to be legitimate in
some cases even when it does not meet those factors. In this way, EPA
has retained the flexibility of the legitimacy guidance to take into
consideration specific industries or specific recycling processes where
either of the factors to be considered is not relevant in determining
legitimacy. 

(4) EPA notes that the commenter believes that the legitimacy factor are
superfluous and a regrettable proposal for environmental interests. The
commenter did not provide reasons for this belief, and, therefore, EPA
is not able to respond to the comment with any specifics. EPA believes
that the legitimacy policy that applies to all recycling and the
specific recycling factors codified in this rule are important because
they ensure that recycling under EPA’s exclusions is real recycling
and not a process designed to discard materials in the guise of
recycling.

9.3.2 - Examples of how legitimacy, as described in 2007, might apply to
processes

9.3.2 - Summary

One commenter provided the following example on closed loop recycling
and stated that according to the proposed changes, legitimacy
demonstrations could be required in multiple places: 

The raw materials flow through a process reactor followed by multiple
processing steps necessary to produce the refined product. In this
example, the stream leaving the reactor is only characteristically
hazardous. With the exemptions in §261.4(a)(8) and §261.2(e)(1), the
internal recycle streams are excluded from RCRA jurisdiction. (486)

One commenter provided the following example of how the proposed
§261.2(g) relates to §261.4(a)(16) [Comparable fuels]:  

A hydrocarbon-based stream generated from at least two sites that is a
characteristic byproduct and is burned in boilers to provide heat to a
heat transfer fluid essential for the process. Until promulgation of the
comparable fuels exemption (§261.38), these boilers were regulated as
BIF units under 40 CFR part 266 subpart H. These sites made the
demonstration that the streams were eligible for the comparable fuels
exemption, and under §261.4(a)(16) these materials were not solid
waste. 

The commenter stated that in this example, it is not clear how the
legitimacy criteria would even be applied since the comparable fuels are
consumed in the boiler process and the heat transfer fluids have no
contact with the combustion products, but if EPA applies legitimacy
criteria to all recycling, some sort of legitimacy demonstration would
become necessary anyway. 

The commenter added that it would not be de-regulatory at all to require
additional scrutiny in order for the comparable fuels to remain
excluded. Also, the combustion units that burn these materials are no
longer BIF units because these excluded streams were their only
materials to burn. The commenter expressed concern that any new
legitimacy requirement could potentially compromise the regulatory
status of these combustion units unnecessarily, possibly negating the
efficacy of §261.38 and stated that they not believe that these units
would be eligible to re-enter BIF interim status if the regulatory
status were indeed compromised. They stated that the §261.38 provisions
should be more than adequate to demonstrate the exclusion in
§261.4(a)(16) without adding more conditions from proposed §261.2(g).
The annual amount of material is approximately 2.5 MM pounds.  

The commenter stated that if EPA believes that the existing conditions
in §261.38 are sufficient, then EPA should either omit §261.38 from
consideration in proposed §261.2(g) or revise the language of
§261.4(a)(16) to indicate that proposed §261.2(g) is satisfied by the
existing §261.38 conditions. (486) 

One commenter asked whether compliance with specific criteria or
requirements under pre-existing recycling provisions, such as those in
40 CFR Part 279 for used oil will implicitly meet the legitimacy factors
in the final rule. (534) 

9.3.2 - Response

EPA thanks the commenters for providing examples of how they believe
legitimacy applies to their processes. EPA has not codified the
legitimacy provisions for all recycling in this final rule, so the
processes described in these examples, as well as in the 40 CFR part 279
provisions for used oil, continue to be covered by the existing
legitimacy policy, as they have been in the past. EPA, however, believes
that because of the design of the factors and the overall structure of
legitimacy, the factors it is adding to the regulations are consistent
with the factors under the existing legitimacy policy for the reasons
outlined in the 2003 proposal and in the 2008 final rule. 

9.3.3 - Examples of how legitimacy, as described in 2003, might apply to
processes

9.3.3 - Summary

One commenter stated that the rigid proposed legitimacy requirements
leave no room for a regulator to take into account whether the secondary
material being recycled is an in-process metal-rich material that is
being further processed in primary production units as part and parcel
of the primary production process or whether any metallic hazardous
constituents contained in the final product of the production process
and that may derive from recycled secondary materials are indigenous to
the production process and, therefore, no different in nature and kind
than the ordinary hazardous constituents that may be contained in a
product of that nature. (89) 

 

9.3.3 - Response

In response to comments on the 2003 proposal EPA proposed a new
structure for the legitimacy factors in the 2007 supplemental proposal
that has been included in the final rule. There was general agreement
among the 2003 commenters that a recycling process cannot be legitimate
if the hazardous secondary material being recycled does not provide a
useful contribution to the recycling process or product and if the
recycling process does not yield a product or intermediate that is
useful to someone and meeting these factors is mandatory in a legitimacy
determination. However, the other two factors are finalized as factors
that must be considered in every case, but the process can, after
analysis of the facts of the case, be determined to be legitimate in
some cases even when it does not meet those factors. In this way, EPA
has retained the flexibility of the legitimacy guidance to take into
consideration specific industries or specific recycling processes where
either of the factors to be considered is not relevant in determining
legitimacy. 

Furthermore, EPA notes that unless the recycler was taking advantage of
one of the exclusions or non-waste determinations in the final rule,
they would be covered by the existing legitimacy policy, rather than the
legitimacy provision in this final rule. 

9.4 - Industry-specific examples of legitimate recycling

9.4 - Summary

Several commenters submitted examples of industry-specific recycling
practices and how those practices relate to legitimate recycling. One
commenter gave the example of recycling spent pickle liquor in Kraft
pulp mills and discussed how it met three legitimacy criteria (useful
contribution, valuable product/intermediate, and “toxics along for the
ride”) (115).  Another commenter discussed the example of recycling
oil-bearing spent catalysts and the residuals from putting those
materials through a thermal desorber (475). A third commenter discussed
the recycling of reusable shop towels in the industrial laundry industry
and their conclusion that these towels are legitimately recycled (493).

9.4 - Response

The Agency appreciates the information about specific recycling
scenarios and thanks the commenters for providing examples. However,
individual legitimacy determinations have to be made on a case-by-case,
site-specific basis. It is not in the scope of this rulemaking to
address the legitimacy of individual site-specific recycling situations.
Furthermore, EPA notes that unless the recycler was taking advantage of
one of the exclusions or non-waste determinations in the final rule,
they would be covered by the existing legitimacy policy, rather than the
legitimacy provision in this final rule. 

9.4.1 - Examples of cases where the legitimacy factors are not relevant

9.4.1 - Summary

Several commenters noted that there is a broad spectrum of recycling
activities and that some legitimacy criteria may be more appropriate
than others for recycling of in-process materials versus materials
recycled outside of the generating industry. One commenter noted that
the only criteria that they believe can be required for in-process
materials recycled within the primary metals and minerals industry is
that the in-process materials make a useful contribution to the
production process (152). Another commenter noted that while they do not
in principle have any objections to the codification of criteria for
legitimate recycling, they do feel there may be difficulties in applying
these criteria to the primary metal extraction, beneficiation, and
mineral processing industry. This commenter believed that difficulties
in applying legitimacy arise because this industry involves sequential
recovery of metals resulting in the production of in-process and
intermediate materials, which should not be considered reclamation of
hazardous secondary materials or wastes (180, 524). The commenter did
note they were pleased with the Agency's statement that previous
legitimacy determinations made or approved by EPA or the states are
essentially grandfathered (524).

One commenter gave an example of re-refining distillation bottoms used
as a feedstock to manufacture asphalt products, most of which are
applied to the land as an example of a secondary material that they
claim would not meet the legitimacy criteria, specifically the TARs
criterion (156).

Another commenter gave an example of reusing spent pickle liquor (K061)
and stated it would not pass a strict application of the legitimacy
criteria due to the presence of hazardous constituents not found in or
at higher concentrations than that found in virgin ferric chloride
(165).

9.4.1 - Response

The Agency respectfully disagrees with the commenter that the only
legitimacy criterion that can be applied to hazardous in-process
materials is the useful contribution factor. The Agency has the
authority to determine whether a hazardous secondary material is being
discarded. Sham recycling is one means of “discard.” The courts have
upheld this authority in U.S. v. Self, 2 F. 3d 1071, 1079 (10th Cir.
1993); U.S. v Marine Shale Processors, 81 F. 3d 1361, 1366 (5th Cir.
1996); Marine Shale Processors v. EPA, 81 F. 3d 1371, 1381-83 (5th Cir.
1996) and American Petroleum Institute v. EPA, 216 F.3d 50, 58-59
(D.C.Cir. 2000).  EPA shows in the record for this rulemaking the
reasonableness of the various factors in the legitimacy requirements.
The factors will stand or fall on their reasonableness. There is no case
law expressing any kind of limitations on the legitimacy criteria.
However, EPA reminds commenters that the codified legitimacy provision
of 40 CFR 260.43 is a condition of the two new recycling exclusions and
the non-waste determinations and that all other recycling excluded under
existing definition of solid waste exclusions continues to operate under
the existing legitimacy concept. Legitimacy determinations are best made
on a case-by-case basis, taking into account all of the information
available about the specific hazardous secondary materials and recycling
practice. To be legitimate under the legitimacy provision of §260.43,
the recycling must meet the two mandatory factors (useful contribution
and valuable product). Furthermore, the other two factors (managed as a
valuable commodity and no significant hazardous constituents in the
product) must be considered and if not met, the generator/recycler must
be able to demonstrate why the recycling is still legitimate.

Furthermore, the Agency notes that individual legitimacy determinations
have to be made on a case-by-case, site-specific basis. It is not in the
scope of this national rulemaking to address the legitimacy of
individual site-specific recycling situations.

9.4.2 - Examples where legitimacy factors are not met, but recycling is
legitimate

9.4.2 - Summary

Several commenters supported EPA's position that there may be particular
recycling scenarios where the recycling may not meet one or both of the
two factors to be considered (managed as a valuable commodity and no
significant hazardous constituents in the product) but the recycling may
still be legitimate (70). One commenter gave extensive details on its
examples to explain how it believes its in-process gold-bearing
secondary materials are processed legitimately on-site to recover gold
and other metal values (89). Another commenter questioned EPA's
authority to codify the legitimacy criteria, stating they believe the
legitimacy criteria could be applied to define as solid waste material
that is not being discarded or disposed of in any ordinary sense of
those terms. This commenter went on to give a hypothetical example of a
chemical still bottom (a secondary material) that is combined with a raw
material to produce a chemical product that is sold for millions of
dollars per year. According to the commenter, the still bottom is
obviously not discarded, which should be the end of the solid waste
inquiry. They believe that adopting the legitimacy criteria would mean
the inquiry is just starting and would raise a lot of issues that
shouldn't be raised (123).

Another commenter gave the example of alternative fuels burned for
energy recovery in cement kilns and discussed how that example would
fare under each legitimacy criterion. The commenter noted that it
believes this recycling scenario meets three criteria easily: managed as
a valuable commodity, provides a useful contribution, and makes a
valuable product. For the “no significant hazardous constituents in
the product” criterion, the commenter notes this has been a confusing
part of determining true recycling. They believe that the key point is
that the product does not contain significant amounts of hazardous
constituents available to the environment and that are not found in
analogous products (172).

One commenter gave examples of chemicals recycled onsite: heptane
recycled onsite in the production of multiple intermediates that are
subsequently used in the manufacture of many diverse chemical products,
acid recycled onsite, and the recycling of rhodium in the manufacture of
acetic anhydride and methanol.  In these examples, the commenter was
concerned about how to evaluate the “no significant hazardous
constituents in the product” legitimacy factor (506).

9.4.2 - Response

The Agency has decided to codify the legitimacy factors essentially as
proposed in the March 2007 supplemental proposal for the two new
recycling exclusions and the non-waste determinations of this final
rule. To be legitimate, the recycling must meet the two mandatory
factors (useful contribution and valuable product). Furthermore, the
other two factors (managed as a valuable commodity and no significant
hazardous constituents in the product) must be considered and if not
met, the generator/recycler must be able to demonstrate why the
recycling is still legitimate. We believe this structure will allow for
legitimate recycling similar to those scenarios described in the
comments. However, EPA reminds commenters that legitimacy determinations
are best made on a case-by-case basis, taking into account all of the
information available about the specific hazardous secondary materials
and recycling practice. It is not in the scope of this rulemaking to
address the legitimacy of individual site-specific recycling situations.


Furthermore, the Agency respectfully disagrees with the commenter who
questioned whether EPA has the authority to make legitimacy
determinations on secondary materials at all, including the hypothetical
chemical still bottoms. The Agency has always had the authority to
determine whether a hazardous secondary material is being discarded.
Sham recycling is one means of “discard.” The courts have upheld
this authority in U.S. v. Self, 2 F. 3d 1071, 1079 (10th Cir. 1993);
U.S. v Marine Shale Processors, 81 F. 3d 1361, 1366 (5th Cir. 1996);
Marine Shale Processors v. EPA, 81 F. 3d 1371, 1381-83 (5th Cir. 1996)
and American Petroleum Institute v. EPA, 216 F.3d 50, 58-59 (D.C.Cir.
2000). 

9.5 - Enforcement and documentation/ demonstration of legitimacy

9.5 - Summary

Several commenters asserted that the legitimacy factors (called criteria
in the 2003 proposal) must be codified in order to be enforceable (153,
460, 470, 509, 538). A number of states, including ASTSWMO, noted that
codification of legitimacy will make recycling much easier to enforce
(531, 543). A number of comments also expressed their belief that
generators and/or recyclers should be required to document and keep
records of their claims that a recycling activity is legitimate (69, 76,
110, 153, 171, 185, 460, 475, 488, 539, 543, 544, 558).  One state
specifically commented that EPA should explore “self-certification”
by the generator of the hazardous secondary material to demonstrate that
they are meeting the legitimacy criteria (185). Other commenters
requested that legitimacy determinations not only be documented, but
also be required to be submitted as part of the notification process
(475, 544). Another commenter requested that reclaimers be required to
provide signed certification to generators that they meet the legitimacy
criteria and keep a copy in their files (507). ASTSWMO argued that these
records must be maintained onsite by the recycler and available upon
request by the regulatory agency (153).

Several commenters expressed concerns about enforcing the legitimacy
factors, especially the two factors that must be considered. A few
believed that it was critical for a generator or recycler who believes
one or more of these factors are not applicable to demonstrate and
document why the recycling is still legitimate, even though one or both
factors is not appropriate to that particular recycling practice (153,
538, 539, 543). One commenter was concerned about having to demonstrate
legitimacy for the “no significant hazardous constituents in the
product” factor, given that the term “significant” is not defined.
This commenter noted that the risk of regulatory surprise is made
greater by the regulatory language that says the person claiming a
recycling exclusion must demonstrate that the recycling is legitimate
(190).

Some comments simply expressed the view that regulatory oversight of
recycling facilities, monitoring of recycling practices, and enforcement
will still be required to ensure that legitimate recycling occurs (72,
153, 457, 538, 555, 559).  One commenter noted that even though there is
no current statutory or regulatory requirement to provide notice or
certify legitimacy, the regulated community routinely gathers data and
keeps records establishing legitimacy. This commenter believes that
compliance with the new recycling exclusions can be evaluated by EPA on
exactly the same basis and without overstepping its RCRA authority
(520).

One state commenter also recommended codifying a statement from the
original 1985 definition of solid waste regulations that says “persons
claiming that they are recycling hazardous wastes in a manner excluded
by regulation have the burden of proof that they are within the terms of
the exclusion” (110).

One commenter argued that legitimacy should not apply to existing
exclusions (see section 9.1.2 of this document for the response to that
point) and likewise that §261.2(f) does not apply to the existing solid
waste exclusions of §261.4(a) (74).

One coalition of environmental organizations noted that the proposed
exclusions and legitimacy criteria would effectively nullify any
pre-enforcement review. In addition, the commenter stated that the
vagueness inherent in the legitimacy criteria and EPA's failure to
define clear parameters of what is and is not legitimate recycling make
enforcement nearly impossible (231, 559).

Another industry commenter objected to adopting the legitimacy
regulations at all, claiming that the regulations would impose
staggering compliance burdens and discourage recycling (537). Another
industry commenter stated that legitimacy criteria in the past has been
in the form of guidance and that the Agency cannot enforce based on
guidance. As such, generators were never required to develop and
maintain records to demonstrate legitimacy. This commenter believes that
it will be the generator's responsibility to develop and maintain data
for review upon request even if promulgated as to be “considered.”
(102).

9.5 - Response

The Agency believes that codification of the legitimacy provision of 40
CFR 260.43 will be helpful for oversight and enforcement of the new
recycling exclusions from the definition of solid waste, as well as for
the non-waste determinations. Codification of the legitimacy provision
will also improve enforcement against sham recyclers, which we expect to
help build confidence in and acceptance of hazardous secondary materials
recycling. The Agency, however, is not requiring specific recordkeeping
or documentation of legitimacy in this rule, in part because it has been
the Agency's longstanding position that any definition of solid waste
exclusion that is based on the hazardous secondary material being
recycled must be legitimately recycled. This principle can be traced
back to the original definition of solid waste regulations that were
promulgated on January 4, 1985 (50 FR 638). In addition, making a
legitimate recycling determination to ensure that hazardous secondary
materials being recycled are eligible for a RCRA exclusion has always
been self-implementing and it is not our intent to change the regulatory
burden with this rulemaking. 

We believe that codification of the legitimacy provision in §260.43
will clarify and improve legitimacy determinations related to the two
new recycling exclusions and non-waste determinations and how someone
applies legitimacy to these recycling provisions, but do not believe
that a new self-certification or additional recordkeeping is necessary
for documentation. Codification will help with legitimacy demonstrations
and we will monitor how codification of the legitimacy provision is
implemented and make any necessary changes in a future rulemaking.

The Agency has, however, determined that for the purpose of the
legitimacy factors in the final rule, 40 CFR 261.2(f) applies. Section
261.2(f) states that, in the context of an enforcement action to
implement Subtitle C of RCRA, a person claiming that a material is not a
solid waste or is conditionally exempt from regulation is responsible
for showing that they meet the terms of the exclusion and must provide
appropriate documentation to show why they are eligible. For the
legitimacy provisions finalized in this rulemaking, this provision
requires (as it always has) that persons claiming that their recycling
activity is legitimate have the burden to provide documentation showing
how the hazardous secondary materials provide a useful contribution to
the recycling process and how the product of the recycling
activity-whether it is a consumer product or a process intermediate-is
valuable. In addition, the documentation would have to show that the
hazardous secondary material generator or recycler considered the other
two factors and determined for each of them that either the activity
meets the factor or that the factor does not apply to this recycling
activity and why it is not relevant or appropriate to consider. 40 CFR
261.2(f) has always required demonstration of eligibility, including
that the recycling is legitimate for the recycling exclusions to be
applicable.

We note that the applicable burdens of proof and evidentiary standards
in EPA's administrative cases are discussed in Re: General Motors
Automotive - North America, 13 E.A.B. ____, slip opinion pp. 70-74 (EAB
6/20/08) (found at the EAB's website: epa.gov/eab).  That discussion
also notes that “parties claiming the benefits of an exception to a
broad remedial statutory or regulatory scheme have the burden of proof .
. . to show that they meet the terms of the exception.”  Further,
EPA's regulations at 40 CFR 261.2(f) provide that the person claiming an
exclusion must provide appropriate documentation to demonstrate that he
meets the conditions of the exclusion or exemption.  If EPA initiates an
enforcement action, the burden is on the Agency to prove by a
preponderance of the evidence that the respondent has committed a
violation, or (in the case of a criminal action) that the defendant is
guilty beyond a reasonable doubt.  

In addition, as part of the final rule’s transfer-based exclusion, the
hazardous secondary material generator has to undertake reasonable
efforts to ensure its hazardous secondary materials will be legitimately
recycled pursuant to §260.43. As part of the reasonable efforts
requirements, generators must document their reasonable efforts per
§261.4(a)(24)(v)(B).

The Agency believes that the codified legitimacy factors, the
enforcement provisions of existing §261.2(f), and the reasonable
efforts required on the part of generators sending hazardous secondary
materials to be recycled under the new transfer-based exclusion will
ensure that the Agency and its state partners can effectively enforce
the recycling regulations and ensure legitimate recycling is occurring. 

9.6 - Other approaches to legitimate recycling

9.6 - Summary

Several commenters came up with other types of approaches for dealing
with some of the more complicated issues related to codification of
legitimate recycling. One commenter noted that EPA should establish a
way for states and businesses to reconcile different opinions on
legitimacy and suggested an appeals board made up of states and EPA
(44). 

A few commenters suggested issuing some type of updated guidance instead
of codifying the legitimacy factors (79, 102). One commenter stated that
a comprehensive guidance document for evaluating the legitimacy of
different types of use, reuse, and recycling of hazardous secondary
materials would provide the necessary flexibility to apply the
appropriate legitimacy considerations (79). 

One commenter suggested an alternative means to dealing with legitimacy
determinations would be to set up a new variance procedure under 40 CFR
part 260 (147).

One state commenter noted that hazardous secondary materials are also
subject to the same regulatory framework as other industrial products
and thus, would be subject to other regulatory scrutiny, such as DOT and
OSHA regulations. This commenter also noted that regulations that
include basic management standards that are universally accepted for
products would also provide evidence that the material is managed as a
commodity (160).

Another commenter expressed their opinion that there should be more
stringent legitimacy criteria for the reuse of hazardous secondary
materials in the treatment of wastes and wastewater than for the reuse
of hazardous secondary materials in the manufacture of products. This
commenter gave as an example the reuse and continued use of spent acidic
and alkaline solutions in wastewater treatment (163).

9.6 - Response

EPA acknowledges that consistency among states is an issue that has been
brought up over the years of implementing the definition of solid waste
regulations as they relate to legitimate recycling. However, the Agency
believes that the codified legitimacy factors will provide the state
implementing agencies with a clearer framework for making legitimacy
determinations for the new recycling exclusions and the non-waste
determinations and the preamble to both the supplemental proposal and
the final rule provide more explanation and examples of how the factors
work. The Agency expects more consistent legitimacy determinations among
the states to be made as a result of the codification of a condition of
legitimate recycling as part of the new broader recycling exclusions and
reminds commenters that all recycling must be legitimate, whether under
an existing definition of solid waste exclusion or one of the new
recycling exclusions in this final rule. Therefore, the Agency does not
believe there is a need to establish an appeals board at this time.

The Agency will, of course, monitor the implementation of this
rulemaking, including the legitimate recycling regulations, and will
assess the need for further guidance and other mechanisms for achieving
more consistency as the rule is implemented.

In response to those commenters who suggested adopting a new variance
procedure for determining on a case-by-case basis whether a specific
recycling activity is legitimate, the Agency did consider the option of
codifying all the legitimacy factors as mandatory with a petition or
variance procedure for those cases where the recycling did not meet one
or more of the factors but was nonetheless still legitimate recycling.
However, the Agency decided the regulatory structure being finalized in
this rule provides enough flexibility to the regulated community and to
implementing agencies to evaluate those cases which do not meet one of
the two factors that must be considered. The Agency did not see any
additional advantage in setting up a new petition process and believes
that the current system, improved by codification, will allow for
consideration of the more unusual legitimate recycling cases.

EPA agrees with the state commenter who noted that other federal
regulatory programs will also apply to products made from recycled
hazardous secondary materials, including both DOT for the transportation
of hazardous materials and OSHA for the protection of workers who work
with and/or manufacture products made from hazardous chemicals. EPA also
agrees that information about other regulatory programs may be useful in
evaluating the legitimacy factors.

As to the comment that there should be more stringent legitimacy
criteria for the use of hazardous secondary materials in the treatment
of wastes and wastewaters, EPA believes the concept of legitimacy
captures the critical elements of legitimate recycling and acknowledges
that in circumstances that warrant closer attention, implementing state
agencies have the authority to ask for more information. However,
individual legitimacy determinations have to be made on a case-by-case,
site-specific basis. It is not in the scope of this rulemaking to
address the legitimacy of individual site-specific recycling situations.


In addition, EPA plans to consider additional guidance on legitimacy
determinations in the future.

10 - Effects of the Proposed Rule on Other programs

10 - Summary

EPA received several miscellaneous comments on the effects of the
proposed rule on other programs.

One commenter noted that one of the objectives identified by RCRA and
EPA policy is to encourage product substitution or process change [RCRA
1003(a)(6)].  The commenter observes that there may be generators who
choose to rely on the proposed exclusion and who will continue their
existing hazardous secondary materials generating practices, rather than
consider and implement product substitutions or process changes that
would result in a net hazard reduction. Yet preamble discussions about
the effects of the proposal on other programs (such as pollution
prevention and toxics reduction), and about the economic impacts and
benefits of the proposal, do not appear to address the potential that it
may be more convenient for some generators to use the proposed exclusion
than to change to less hazardous products. The commenter suggests that
these potentially unintended impacts of the proposal be addressed in the
final rule preamble to ensure the benefits and tradeoffs have been fully
considered in encouraging recycling and promoting other desirable goals,
such as using green" product substitution to replace or minimize
hazardous materials in industrial processes.  [0212-17]

One commenter was concerned that the proposed regulations may have a
deleterious affect on solid waste management operations, public and
private. Counties are heavily involved in the management of
non-hazardous solid waste within their borders. Increased confusion as
to what constitutes proper management of hazardous waste could directly
affect facilities that manage non-hazardous solid waste. Less training,
confusion on the part of the regulated public, potentially less
regulatory scrutiny, reduced requirements for evaluation of wastes and
documentation thereof, less planning for potential emergencies and
decreased awareness of cradle-to-grave responsibility, among other
problems, could all contribute to an increase in the improper disposal
of hazardous waste at our solid waste management facilities. In
particular, the commenters believe that the potential that many
generators of hazardous secondary materials will provide less training
to their employees on the identification, handling, management and
proper disposal of hazardous secondary material could ultimately result
in an increase in hazardous waste being mixed with non-hazardous solid
waste. Training employees to recognize when a waste must be evaluated
and how to do it is key to properly managing hazardous waste.  The
commenters believe that the reduced emergency preparedness that will
likely result if the proposed regulations are adopted could also
potentially result in an increase in hazardous waste being shipped
through our non-hazardous solid waste system. Employees who are not
trained on how to respond to emergencies, including dealing with cleanup
residuals, are more likely to respond inappropriately to emergencies and
to improperly manage the residuals that result.

[0462-29]

One commenter was concerned that EPA's land-based units exclusion for
hazardous secondary materials sets a dangerous precedent under RCRA. The
commenter stated that the impact of this large-scale deregulation of
hazardous waste may have devastating implications for the regulation of
several other solid waste streams. EPA is currently considering
promulgating RCRA subtitle D regulations for coal combustion waste and
cement kiln dust.  These wastes, particularly coal combustion waste, are
widely used as structural fill and minefill.  If it is determined that
coal combustion waste and cement kiln dust deposition in mines or pits
can be construed as "reclamation" or a form of recycling, EPA may
similarly wish to remove coal combustion waste and cement kiln dust from
the universe of solid waste.  The deregulation of such voluminous toxic
waste streams would wreak havoc on human health and the environment. 
The failure of EPA to place the most minimal controls on land-based
units holding formerly hazardous wastes, does not bode well for EPA's
prospective treatment of land-based deposition of these larger solid
waste streams.

[0559-57]

 

10 - Response

 

 In response to several miscellaneous comments on the effects of the
proposed rule on other programs:

(1) EPA disagrees that the final rule exclusions would cause generators
to use the proposed exclusion rather than to change to less hazardous
products.  Although the exclusions in the final rule are less burdensome
than the Subtitle C hazardous waste regulations, the conditions of the
exclusion still pose implementation costs, and CERCLA liability is still
a factor to be considered.  EPA believes that generators will continue
to work towards reducing toxic chemicals whenever it is technically
feasible to do so.

(2) EPA believes that the conditions of the final rule, including
notification, recordkeeping of shipments, and confirmation of receipts
makes it unlikely that hazardous secondary materials would be co-mingled
with non-hazardous wastes.  Generators are still responsible for
properly identifying their secondary materials, including determining
whether they are solid wastes and if so, whether they are hazardous. 
This obligation is not affected by the final rule.

(3) The final definition of solid waste only applies to hazardous
secondary materials that are reclaimed and meet the restrictions and
conditions of the exclusions.  RCRA Subtitle D and other programs are
not affected.

10.1 - Conforming changes to existing exclusions

10.1 - Summary

EPA received overwhelming comments opposing the proposed "conforming
changes" to existing exclusions in the October 2003 proposal (68 FR
61578-61580). Commenters noted that existing exclusions are familiar to
both the states and the regulated community, and making wholesale
adjustments would have had unintended consequences in many cases.  
Commenters provided many detailed and specific examples of unintended
impacts to several exclusions and exemptions.  As a result of these
comments, in the March 2007 supplemental proposal EPA proposed to retain
the existing exclusions exactly as written (72 FR 14205), a decision
universally supported by the comments.

[0060-27, 0070-6, 0070-7, 0074-16, 0074-22, 0078-1, 0083-17, 0089-55,
0091-22, 0093-35, 0093-57, 0097-13, 0102-6, 0102-25, 0102-26, 0102-27,
0104-25, 0113-1, 0114-1, 0115-1, 0115-7, 0119-45, 0120-1, 0120-5,
0122-18, 0129-10, 0138-2, 0149-17, 0155-1, 0155-3, 0155-4, 0167-1,
0171-1, 0174-4, 0179-22, 0179-32, 0184-5, 0189-1, 0199-28, 0199-34,
0200-1, 0203-13, 0204-7, 0205-4, 0206-1, 0207-2, 0216-7, 0222-52,
0446-1, 0446-2, 0446-4, 0446-6, 0449-1, 0465-2, 0468-19, 0471.2-65,
0481-14, 0486-16, 0486-59, 0487-2, 0494-10, 0524-4, 0524-6, 0528-10,
0535-11,  0547-1, 0553-2, 0553-5, 0560-2]

EPA received one comment that supported the October 2003 proposal to
replace existing exclusions with the broad exclusion, which stated that
this would be advantageous for regulatory authorities in that the
proposal better defines the parameters used to evaluate whether an
exemption legitimately applies.  [0194-1]

One commenter to the March 2007 supplemental proposal noted that part of
the preamble, which addresses the newly proposed land-based recycling
exclusion, mentions pulping liquor as an example of raw materials and
hazardous secondary materials that EPA "recognize[s] . . . "can be and
are stored in land-based units." 72 FR 14,186. The commenter believed
that this passage could be misconstrued to suggest that spent pulping
liquor might be covered by the land-based exclusion, contrary to EPA's
clear intention that pulping liquor be covered by the existing exclusion
in § 261.4(a)(6). To avoid confusion,  the commenter suggests that EPA
strike "pulping liquors" from any similar passage that might appear in
the preamble to the final rules.

[0446-3]

Other commenters suggested that EPA should specifically state that
various exclusions and alternative regulatory structures are not
affected by the final rule exclusions:

40 C.F.R. § 261.1(e)(1) material used directly as an ingredient or a
substitute for virgin materials or returned to the original process

40 C.F.R. § 261.2(c)(3), Unlisted byproducts or sludges that are
reclaimed 

40 C.F.R. § 261.3(a)(1) Bevill mixture rule

40 C.F.R. § 261.4(a)(5), In-situ mining exclusion 

40 C.F.R. § 261.4(a)(4), Spent sulfuric acid exclusion 

40 C.F.R. § 261.4(a)(8), Secondary materials that are reclaimed and
returned to the original process exclusion 

40 C.F.R. § 261.4(a)(13), Recycled scrap metal exclusion 

40 C.F.R. § 261.4(a)(14), Shredded circuit boards exclusion 

40 C.F.R. § 261.4(a)(17), The exclusion applicable to spent materials
generated within the mineral processing industry that are recovered by
mineral processing or beneficiation 

40 C.F.R. § 261.4(a)(20),(21), The zinc fertilizer exclusions 

40 C.F.R. § 261.4(b)(7) Bevill rule

40 C.F.R. § 261.5 Conditionally Exempt Small Quantity Generators

40 C.F.R. § 261.33 Commercial chemical products

40 C.F.R. § 262.20 (e) Secondary material recycled pursuant to tolling
agreements

40 C.F.R. § 266.70, The precious metals exemption (particularly that
such materials do not require financial assurance)

40 C.F.R. § 266.100(g), The counterpart to the exemption for precious
metals 

40 C.F.R. § 266.100(d), The "smelting, melting and refining furnace"
exemption 

Commenters also requested that EPA clarify that existing regulatory
determinations remain valid, including variances regarding the recycling
of F006 

[0441-3, 0465-2, 0467-5, 0467-9, 0469-2, 0481-14,  0481-64, 0481-79,
0481-80, 0524-4, 0535-11, 0553-2, 0553-5, 0560-2]

10.1 - Response

EPA agrees with comments supporting retaining the existing exclusions,
exemptions and alternative regulatory structures for various materials.
These regulations are familiar to both the states and the regulated
community, and making wholesale adjustments would have had unintended
consequences in many cases.  The agency reiterates that materials
managed according to these existing provisions will not be affected by
the exclusions in the final rule.   In addition, prior determinations
made by EPA or the state regulatory authority are not affected by the
final rule.  However, the final rule also does not limit the regulatory
agency's authority to revisit regulatory determinations for other
reasons.

10.1.1 - Definition of metals recovery

10.1.1 - Summary

Some comments dealt with the provisions of the regulation that deal with
properly defining which types of burning operations solely involving
metals recovery rather than burning for energy recovery or burning for
destruction.  Provisions explaining the type of operations that process
hazardous secondary material "solely for metals recovery" are found in
40 CFR 266.100(d).

A commenter requested that EPA clarify that the adoption of the proposed
"generator control" exclusion and "transfer-based" exclusion would have
no impact on 40 CFR 266.70 the precious metals exemption , 40 CFR
266.100(g) the counterpart to the exemption for precious metals, and 40
CFR 266.100(d), the "smelting, melting and refining furnace" exemption.

Another commenter noted that Marine Shale Processors, Inc v. USEPA, 81
F.3d 1371 at page 1375 states "In 1991, EPA promulgated new rules
requiring that all devices using thermal combustion to treat hazardous
waste have either a Subpart O permit or a new form of permit for
recycling facilities called a Boiler and Industrial Furnace permit.
Final Rule Burning of Hazardous Waste in Boilers and Industrial
Furnaces, 56 FR 7134, 7138 (1991). These regulations ended the exception
from the permit requirements for facilities engaged in recycling." 40
C.F.R. Subpart H Boiler and industrial Furnace regulations define 12
types of manufacturing devices (boilers and furnaces) that qualify for
this exemption. However, 40 C.F.R. 260.10 definitions and 40 C.F.R.
Subpart H do not define manufacturing. The commenter stated that EPA
must clearly define manufacturing since this is the only exception where
recycling is allowed that uses thermal combustion. In addition, the EPA
must clarify that this exemption only applies to facilities engaged in
manufacturing and not to facilities engaged in waste management. 
Another commenter requested EPA address industries that partially
reclaim metals from sludges and wastewaters that are later fully
reclaimed by smelting or electro-winning including the minimum metal
content of the metal sludges and wastewaters that must be received by
the reclamation facility for this activity to be considered legitimate
recycling.  Another commenter requested that EPA clarify that burning
for the purpose of destruction or partial destruction is not legitimate
recycling even if materials or energy is recovered, unless it is
performed in a boiler or industrial furnace.

[0105, 0108, 0118, 0481]

10.1.1 - Response

EPA agrees with comments that the final rule exclusions should have no
impact on 40 CFR 266.70 (precious metals exclusion) and 40 CFR
266.100(d) and (g) (conditional exclusions from the boiler and
industrial furnace (BIF) regulations for "smelting, melting, and
refining furnaces" and precious metals recovery furnaces). Because these
exclusions are exclusions from certain hazardous waste regulations, not
solid waste exclusions, as a general matter, EPA believes that
facilities should have a choice of whether they manage their materials
as hazardous waste under these exclusions or seek an exclusion from the
definition of solid waste through today's final rule.

However, part of what 40 CFR 266.100(d) accomplishes is to define when
an operation involving burning is solely a metals recovery operation
rather than a burning for energy recovery or destruction operation,
neither of which is eligible for today's exclusions. As noted by the
commenters, manufacturing via metals recovery is the only type of
exception where recycling is allowed that uses thermal combustion.  The
distinction between burning for solely metals recovery and burning for
energy recovery or burning for destruction is important, and EPA did not
intend to revise how such material recovery operations were identified,
nor did EPA ask for comment on such a revision. 

Thus, for the purpose of defining the type of burning for metals
recovery to be allowed under these exclusions, EPA will reference the
requirements in 40 CFR part 266, subpart H that defines when a
"smelting, melting, and refining" furnace is solely engaged in metals
recovery, but will not require the other conditions that are not related
to distinguishing legitimate materials recovery from burning. Therefore,
under today's final rule, hazardous secondary materials burned for
metals recovery would still be required to meet the minimum metals and
maximum toxic organic metals content specified in 40 CFR part 266 and
the residuals must meet the requirements specified in §266.112 (as part
of defining operations solely involving metals recovery), and would
continue to be exempt from BIF permits, but they would not be subject to
hazardous waste manifests and storage permits, as long as the conditions
of the exclusions promulgated in today's rule are met.

10.1.2 - Should a regulated entity be allowed to choose which exclusion
to follow in those cases where more than one exclusion could apply and,
if so, should the entity be required to document the choice made?

10.1.2 - Summary

Opposition to Proposed Approach

Many commenters opposed EPA's proposal to require generators with
currently-excluded secondary materials to meet conditions of the
existing exclusions rather than using the proposed exclusions, and
instead supported the alternative in which the regulated entity chooses
the most appropriate exclusion to be used. (72 FR 14205)  Commenters
stated that EPA's proposal to compel the regulated entity to continue
using an existing exclusion rather than making use of a different
exclusion limits the flexibility of the generator with no concurrent
environmental benefit.  The existing exclusions and the new exclusions
all define the absence of discard, even if they go about it in a
slightly different way.  For example, while the proposed new exclusions
may not have some of the prescriptive management conditions that some
existing exclusions include, the codified legitimacy criteria
(particularly the one addressing how a material is managed) are an
adequate substitute for such conditions. Imposing an additional layer of
conditions upon existing exclusions would be contrary to EPA's stated
purpose in proposing the rule. See 72 Fed. Reg. 14174. See also 68 Fed.
Reg. 61560.  Such new conditions would also conflict with EPA's stated
intent "not . . . to make substantive changes as to how currently
excluded materials would need to be managed or regulated."

[0089-56, 0472-62, 0468-19, 0473-11, 0479-10, 0481-81, 0486-17, 0486-60,
0492-53, 0524-6, 0524-15, 0528-11, 0535-12]

Comments on Documentation

Some commenters supported the option of requiring the entity to document
their choice of exclusions, noting it would help State agencies ensure
compliance with just one set of requirements.   [0461-10, 0468-19] 
Other commenters opposed requiring documentation, noting that generators
are required to determine if a solid waste is a hazardous waste.  40
C.F.R. § 262.11. As part of that overall determination, a generator
must decide whether any of the exclusions in 40 C.F.R. § 261.4 apply. 
For almost 30 years, this system has worked well with no requirement
that a generator document that a particular exclusion applies.  No
reason exists now to modify that system to require documentation of
which exclusion might apply.  Moreover, EPA has not even suggested a
possible rationale in the 2007 Supplemental Proposal to require such
documentation.  The existing obligation in 40 C.F.R. § 261.2(f) to be
able to provide documentation of why a material is excluded should be
sufficient. [0481-81, 0492-54]

 

Support for Proposed Approach

Other commenters supported EPA's proposal to require generators with
currently-excluded secondary materials to meet conditions of the
existing exclusions rather than using the proposed exclusions.  Any
final rule should be clear that generators operating under existing
conditional exclusions, e.g. wood preserving chemicals recovered from
drip pads, must continue to comply with those conditions. Otherwise
there will be no regulated drip pads. Hazardous waste compliance must
necessarily be absolute, otherwise, compliance will be chaotic, and
attorneys will be the only winners in resolving subjective decisions.
The specific exclusions have been developed with careful consideration
of the hazardous proprieties of the materials and conditions set to
ensure proper management of these hazardous properties. If EPA were to
change its current position and allow reclaimers to choose which
exclusion to use, then selecting the use of the DSW exclusion could
circumvent any special conditions that are included in the proposed
spent catalyst exclusion and in other exclusions that have been
implemented. EPA should maintain the current clear requirement that
existing conditional exclusion requirements should be the applicable
conditions and supersede any "generic set of conditions" under this
proposal. [0470-6, 0475-37, 0495-18, 0564-15]

Wood-Preserving Hazardous Secondary Materials

One commenter requested that EPA clarify how the proposal that the 
transfer-based exclusion "would not address materials that are currently
excluded from the definition of solid waste according to other existing
provisions of 40 CFR part 261.4(a)” applies to wood preserving wastes.
Because the current 261.4(a)(9) exclusion does not apply to recycling of
materials generated off-site, the commenter believes that the proposed
transfer-based exclusion would cover recycling of wood preserving
solutions generated off-site and transferred for reuse to preserve wood
at the receiving facility. Because applicability of the transfer-based
exclusion may not be clear in this situation, the commenter requested
that EPA add the following clarifying language to the preamble of the
final rule: "Note, however, that if materials are currently excluded
from the definition of solid waste in some, but not all situations, then
these materials would be eligible for exclusion under today's
transfer-based exclusion for the situations in which they are not now
excluded. For example, wood preserving solutions are currently excluded
from the definition of solid waste if they are reused on-site. Because
off-site transfer and reuse in the wood preserving process is not
currently excluded, such transfer and reuse would be eligible for
coverage by today's exclusion." [0449-3, 0449-4]

Closed-Loop Exclusion

Some comments specific focused on the closed-loop exclusion, commenting
that they see no need to require that materials reclaimed using the
closed-loop exclusion under 261.4(a)(8) continue to be required to use
this exclusion. In fact, continued use of this approach can result in
reduced reclamation of valuable materials. A perfect example of this
negative impact is contained in EPA's RCRA Online #140879, which
involves the commenter's site. Because a minor percentage of the
reclaimed solvent could not be returned to the original process
generating it the entire spent solvent material (many thousands of
gallons per year) had to be discarded as hazardous waste because the
conditions of the exclusion could not be met. EPA should not allow such
unintended impacts to continue. The proposed new exclusions are as
protective of human health and the environment as this existing
exclusion. As long as there is no element of discard involved in a
recycling process then a generator/recycler should be allowed to choose
which exclusion to use.  DuPont has not reviewed all of the existing
exclusions that have conditions associated with them.  If there are one
or two where it clearly makes sense to require use of the existing
exclusion because EPA feels that use of the new exclusions would not be
as protective as the existing one, then the Agency should identify only
those existing few - not all of them. [0491-34, 0516-12]

Spent Catalysts

One commenter who commented on both the 2003 and 2007 proposals was
concerned with the interaction with possible future exclusions,
specifically for spent catalysts. The commenter has already proposed a
set of conditions specific to spent catalysts. Such an approach would
remove certain unneeded regulatory burdens, such as a RCRA permit, yet
keep in place enough detailed, enforceable rules to ensure that
generators, reclaimers and state agencies follow exactly what steps are
needed for safe spent catalyst management. The commenter believes that
spent catalysts are hazardous secondary materials that have unique
properties that require their own set of conditions to ensure safe and
effective management. The commenter believes that allowing a generator
and reclaimer to use the general, non waste specific provisions and
conditions of the proposed DSW rule ignores the unique properties of
spent catalyst that have long been recognized by the Agency and led to
the specific listing of spent catalyst as listed waste K171/K172.  

The commenter states that EPA should also include in the final rule a
provision that allows EPA to establish other waste specific exclusions
with special conditions in the future. The current proposal does not
mention what options or approach EPA may take, if waste specific
conditional exclusions are needed and promulgated in the future. It
would appear that EPA assumes that there will be no need to establish
conditional exclusions for specific wastes in the future. Mismanagement
of some hazardous secondary materials would certainly appear to be
likely in the future; if this very generic, general broad brush
conditional exclusion is adopted and applied to all hazardous secondary
materials. EPA should consider what action it may need to take in the
future to ensure proper management of certain hazardous secondary
materials, if needed in the future. The commenter believes EPA should
add a provision stating that existing conditional exclusions and any
future conditional exclusions would take precedent over this general
proposal.  [0144-1, 0144-4, 0475-37, 0475-41]

Spent Lead-Acid Batteries

Many of the comments opposing allowing generators a choice of exclusions
were specific to spent lead acid batteries. Commenters stated that
allowing a facility to choose which exclusion applied could undercut the
applicability of Section 266.80 by allowing some used lead-acid battery
reclaimers to use the proposed conditional exclusions in lieu of 266.80.
The battery industry has operated well under this regulatory scheme, and
the commenters support the continuation of these regulations rather than
the deregulation of all "legitimate" recycling as has been suggested.
Deregulation under RCRA is not necessary to promote recycling of lead
and may, in fact, decrease the effectiveness of current incentives for
recycling.  Nonferrous metals, in fact, have a high rate of recycling
despite the current RCRA regulations. In particular, recycling rates for
lead-acid batteries have increased since the imposition of RCRA
requirements. EPA, Municipal Solid Waste in the United States, 2001
Facts and Figures, Table 13, at 69. EPA found that recovery of lead-acid
batteries for recycling has increased since 1980 due to the growing
number of communities that have restricted batteries from disposal at
landfills or combustion facilities. Id. at 72. Relaxation of RCRA
requirements would run counter to these actions, and may eliminate an
incentive to recycling spent lead-acid batteries.

Commenters note that the lead-acid battery recycling industry has an
unfortunate history of cases from years past of environmental harm
resulting from improper management of lead-acid batteries. Several
commenters have found that "a significant number of superfund sites are
former lead battery recycling operations; the liability exemption for
recyclers of lead batteries is the provision with the greatest impact on
the CERCLA program." John C. Cruden, CERCLA Overview, SF 97 ALIABA 397,
424-25 (2001); see also Charles de Saillan, Superfund Reauthorization: A
More Modest Proposal, 27 Envtl. L. Rep. 10201 n.232 (1997) (describing
the hazards associated with badly managed battery recycling sites). A
survey of lead battery recycling sites published in 1997 identified 47
sites containing some form of battery waste material that have been
listed on the NPL or investigated since the inception of CERCLA,
including landfills, salvage yards, battery breaking, and lead smelters.
See Tim Nedwed & Dennis A. Clifford, A Survey of Lead Battery Recycling
Sites & Soil Remediation Processes, 17 Waste Management 257, 260 (1997).
In July of 1991, 18 lead battery sites were on the RCRA Corrective
Action List. Id.

The inception of RCRA requirements decreased the number of contaminated
sites associated with lead-acid battery recycling. In 1991, there were
29 defunct lead-acid battery recycling sites that had been or were being
addressed under the Superfund Program. Michael D. Royer, et al., Control
Technologies for Remediation of Contaminated Soil and Waste Deposits at
Superfund Lead Battery Recycling Sites, 42 J. Air Waste Manage. Assoc.
970, 970 (1992). These sites included facilities involving battery
breaking, secondary lead smelting, or both operations. Id. Based on the
information on CERCLIS, sites listed on the NPL that involved lead-acid
battery recycling all relate to operations that occurred prior to 1990,
or were listed prior to 1990. Indeed, the operations at many of these
sites ended by 1984.

Commenters also noted that failure to clarify the rule with respect to
recycling of lead-acid batteries and their components could lead to
regulatory inconsistencies that could subject some portions of the
lead-recycling industry to less stringent regulations than others. For
example, under the proposed rule, a battery breaker could argue that it
would qualify for one of the new exclusions that paradoxically would
subject the battery breaker to less stringent regulations than the
regulations that would apply to recyclers of intact batteries.
Commenters also note that the 261.2 generator controlled and 261.4
transfer-based exemptions included in the supplemental proposal are not
designed to apply to a system of multiple small generators (garages,
retailers, etc.) such as the one used in lead battery collection
networks.

[0073-3, 0073-8, 0109-3, 0109-6, 0109-7, 0109-9, 0109-12, 0143-8,
0483-2, 0483-4, 0487-1, 0487-2, 0487-3, 0514-1, 0514-3, 0514-3, 0514-4,
0514-10, -514-12]

Precious Metals 

Two commenters focused on the precious metals reclamation exclusion
under 40 CFR 266 Subpart F.  The commenters state that it makes no sense
to require special conditions for managing the reclamation of these
materials when other hazardous secondary materials do not have to meet
such conditions.  To require that materials using existing exclusions
containing conditions continue to meet those conditions after
promulgation of these new exclusions is analogous to the existing
regulations where characteristic byproducts that are reclaimed are not
solid wastes, but spent materials that are reclaimed are solid wastes. 
No element of discard is involved in either case, but recycling is
discouraged for spent materials.  [0439-1, 0491-34]

"Recyclable Materials"

One commenter focused on the regulations applicable to "recyclable
materials" in 40 CFR 261.6, which provides the standards for
transporters, generators, and facility operators that manage "recyclable
materials." Based on the definition in 40 CFR 261.6(a)(l), many
recyclable materials will also meet the criteria for the proposed term,
"hazardous secondary materials that are reclaimed" (HSMTAR). However,
the existing standards for recyclable materials are significantly more
stringent that the standards in the proposed 40 CFR 261.4 for HSMTAR.
Therefore, there will be situations where materials will be subject to
two sets of regulations that are contradictory in nature.  [0439-1]

More Information Needed

One commenter stated that the rule needed to be further developed before
opining on this issue.  This commenter believes there are significant
deficiencies in the proposed rule that must be fixed prior to making
such a determination. Probably to avoid the potential for gross
circumvention of the speculative accumulation rules by generators the
exclusion should be declared and documented; however, this could be
problematic for permitted facilities managing reclamation residuals and
would also have potential impacts on how the material should be
declared.  This commenter agrees this is a quandary that must be
resolved and is caused by the EPA proposing to allow storage up to the
permitted period by non-permitted facilities. This commenter believes
this is another detail that cannot be resolved until the speculative
accumulation concept for this rule is clarified. [0479-45]

Another commenter recognizes that generators qualifying for more than
one exclusion or exemption have historically been allowed to utilize
whichever one they prefer.  For example, a generator producing a
wastewater treatment sludge from which significant metals are reclaimed
is allowed to utilize either the 265.1(c)(10) wastewater treatment unit
exemption for their wastewater treatment process or the 261.6(c)(2)
recycling exemption, with advantages and disadvantages for both. 
However, the March 26 proposal is so sweeping that the commenter
believes that each existing exclusion should be evaluated to determine
whether the requirements of an existing exclusion should, from an
environmental protection standpoint, be left in place by denying certain
waste streams from qualifying for the proposed exclusions too.  For
example, compliance with the 261.4(a)(14)(ii) requirement that circuit
boards be free of mercury switches and lithium metal batteries prior to
shredding is believed to be a requirement that EPA would not want
sidestepped by being able to utilize one of the proposed exclusions
instead of 261.4(a)(14).  

[0516-31]

10.1.2 - Response

EPA agrees with comments supporting EPA's proposal to require generators
and recyclers with currently-excluded secondary materials to meet the
material-specific conditions of the existing solid waste exclusions in
40 CFR 261.4(a) rather than using the final rule exclusions.    The
conditions that were developed for those exclusions were found to be
necessary and appropriate under case-specific rulemakings that
determined when the hazardous secondary material in question is not a
solid waste. When developing these rulemakings, the Agency reviewed the
specifics of each of the particular materials and the particular
management methods, and developed individualized conditions and
restrictions tailored to the materials and management methods to
identify which of the materials are not solid wastes.  For example,
broken cathode ray tubes must be transported in closed containers (40
CFR 261.4(a)(22)) and shredded circuit boards need to be free of mercury
switches and relays (40 CFR 261.4(a)(14)).  These individualized
exclusions are specifically designed to address these particular
materials and include conditions and restrictions addressing particular
issues identified by the Agency in its investigation of the material and
its management.   

Therefore, the final rule requires that hazardous secondary materials
specifically subject to the material-specific exclusions must continue
to meet the existing conditions or requirements of these
material-specific exclusions in order to be excluded from the definition
of solid waste. Moreover, industry and the states are familiar with
these requirements and EPA believes that changing them would only lead
to confusion in the regulated community. 

In addition, to be clear, because the material-specific exclusions are
most appropriate for the materials they were designed to cover, they
remain the controlling exclusions for these materials into the future.
In other words, specific materials covered by the existing
material-specific exclusions may only be excluded from the definition of
solid waste under those exclusions, and the final rule exclusions are
not applicable.

For most of the exclusions in 40 CFR 261.4(a), this provision will have
no practical effect because the current exclusion either (1) has no
conditions, (2) has conditions that overlap with those of the final rule
exclusions (i.e., no speculative accumulation, or land disposal),  (3)
does not involve reclamation, or (4) involves hazardous secondary
materials burned for energy recovery or used in a manner constituting
disposal. These include the exclusions in 40 CFR 261.4(a)(1)–(7), 40
CFR 261.4(a)(10)–(13), 40 CFR 261.4(a)(15)–(16), 40 CFR
261.4(a)(18), and 40 CFR 261.4(a)(20)–(21).  The exclusions in 40 CFR
261.4(a) that are for a specific material and include conditions that
are more specific than those included for the exclusions being finalized
today are those for (1) spent wood preserving solutions (40 CFR
261.4(a)(9)), (2) shredded circuit boards (40 CFR 261.4(a)(14)), (3)
mineral processing spent materials (40 CFR 261.4(a)(17)), (4) spent
caustic solutions from petroleum refining liquid treating processes (40
CFR 261.4(a)(19)), and (5) cathode ray tubes (40 CFR 261.4(a)(22)). For
each of these cases, EPA has made a material-specific determination of
when such a material is not discarded and therefore not a solid waste
and such a determination is more appropriately applied to these
materials than the general conditions of today’s final rule. The
conditions of the material-specific exclusion essentially help define
when that material is legitimately recycled and not discarded.

Wood-Preserving Hazardous Secondary Materials

EPA agrees that the current solid waste exclusion for wood preserving
hazardous secondary materials in 40 CFR 261.4(a)(9) is limited to
on-site recycling. Thus, if managed on-site, these materials would need
to comply with the existing conditions to be eligible for an exclusion
from the definition of solid waste. However, since the current exclusion
does not apply to hazardous secondary materials sent off-site, and the
substance of the exclusion (i.e., drip pad requirements) applies to a
management method not applicable to off-site transfers, the new
exclusion in today's rule would apply to hazardous secondary materials
that are sent off-site for reclamation. Thus, if sent off-site for
legitimate reclamation, these materials could be eligible for today's
exclusion if the restrictions and/or the conditions are met. 

Closed-Loop Exclusion

EPA also agrees that hazardous secondary materials recycled via the
closed-loop exclusion at 40 CFR 261.4(a)(8) could be recycled under a
different process and still be eligible for today's exclusions. The
closed-loop exclusion is based on the premise that hazardous secondary
materials reclaimed in a continuous process within an industry are not
discarded and, therefore, are not solid wastes subject to EPA's RCRA
jurisdiction. (See AMC I.) In fact, closed loop recycling is a subset of
materials reclaimed in a continuous industrial process, since materials
may be reclaimed in a continuous process outside of a closed loop
system. EPA did not make a finding that any particular hazardous
secondary material must be reclaimed in a continuous process. The Agency
only determined that closed-loop recycling, in general, should be
excluded. Today's exclusions, however, allow any hazardous secondary
materials to be excluded if reclamation meets the restrictions and/or
conditions set forth in the rules. Thus, a facility currently engaged in
closed-loop recycling could change their processes and still be
excluded, as long as all applicable restrictions and/or conditions are
met. 

Spent Catalysts

In addition to the solid waste exclusions currently in 40 CFR 261.4(a),
EPA is planning to propose-in a separate rulemaking from today's final
rule to amend its hazardous waste regulations to conditionally exclude
from the definition of solid waste spent hydrotreating and hydrorefining
catalysts generated in the petroleum refining industry when these
hazardous secondary materials are reclaimed (see entry in the
Introduction to the Fall 2007 Regulatory Plan, 72 FR 69940, December 10,
2007). Spent hydrotreating and hydrorefining catalysts generated in the
petroleum refining industry are routinely recycled by regenerating the
catalyst so that it may be used again as a catalyst. When regeneration
is no longer possible, these spent catalysts are either treated and
disposed of as listed hazardous wastes or sent to RCRA-permitted
reclamation facilities, where metals, such as vanadium, molybdenum,
cobalt, and nickel are reclaimed from the spent catalysts.

EPA originally added spent hydrotreating and hydrorefining catalysts
(waste codes K171 and K172) to the list of RCRA hazardous wastes found
in 40 CFR 261.31 on the basis of toxicity (i.e., these materials were
shown to pose unacceptable risk to human health and the environment when
mismanaged) (63 FR 42110, August 6, 1998). In addition, EPA based its
decision to list these materials as hazardous due to the fact that these
spent catalysts can at times exhibit pyrophoric or self-heating
properties. 	

It is largely because of these pyrophoric properties that EPA is
considering a separate proposal to conditionally exempt these catalysts
from hazardous waste regulation. This future proposal will allow the
agency to consider and seek comment on specific conditions to address
the pyrophoric properties of these hazardous secondary materials,
particularly during transportation and storage prior to reclamation, in
order for the Agency to determine that they are not being discarded. As
a result of this separate effort, these spent catalysts will not be
eligible for today's exclusions. Once EPA has proposed a conditional
exclusion specifically for these spent catalysts, and after
consideration of public comments, EPA will either finalize a conditional
exclusion specific to these spent catalysts or may decide that the
conditions being promulgated in today's final rule are fully adequate
for the management of these spent catalysts when recycled, and therefore
would remove the restriction preventing these spent catalysts from being
eligible for today's exclusions.

Spent Lead-Acid Battery Recycling 

EPA also agrees that spent lead-acid battery recycling should continue
to be regulated under 40 CFR 266.80 or 40 CFR part 273. This is because
these regulations are actually hazardous waste regulations and are not
solid waste exclusions. Continuing the regulation of spent lead-acid
battery (SLAB) recycling as hazardous waste is necessary due to the
unique nature of these batteries. Also, as noted by the commenters, the
current battery recycling regulations are working well. More than 95% of
SLABs are currently recycled and generators of SLABs are exempt from
Superfund liability under the Superfund Recycling Equity Act (SREA),
provided that they meet the requirements of the exemption, including the
requirement to take "reasonable care" to determine that the accepting
facility is in compliance with the substantive environmental
regulations. 

Because SREA was based on the current SLAB hazardous waste regulations
under RCRA, changing the regulation of SLABs could have unintended
consequences. For example, the current regulations prohibit
battery-breaking without a permit because such battery-breaking
operations have been high-risk activities. In addition, as noted in our
recycling study, 12% of our damage cases were from battery-breaking
operations. Moreover, the high value of the lead plates and low entry
cost for a battery-breaking facility provides a strong market incentive
for facilities to recycle without investing in adequate management
systems for the discarded battery acid and casings. 

In addition, because the RCRA-regulated "generator" of a SLAB is often
the garage or junkyard that removed the battery from the automobile
(rather than the original owner who discarded the battery), the
generator-controlled exclusion could be read to apply to these
operations. Therefore, the reasonable efforts and financial assurance
conditions that are a part of the transfer-based exclusion would not
apply, despite the fact that their activities would resemble waste
management rather than production. Because, in these cases, the SLABs
have effectively already been discarded by the original owners before
they enter the RCRA hazardous waste regulatory system, EPA will continue
to regulate SLABs as solid and hazardous waste under 40 CFR 266.80 or 40
CFR part 273.

Precious Metals Reclamation

EPA also agrees with comments that the exclusions should have no impact
on 40 CFR 266.70 (precious metals exclusion) and 40 CFR 266.100(d) and
(g) (conditional exclusions from the boiler and industrial furnace (BIF)
regulations for "smelting, melting, and refining furnaces" and precious
metals recovery furnaces). Because these exclusions are exclusions from
certain hazardous waste regulations, not solid waste exclusions, as a
general matter, EPA believes that facilities should have a choice of
whether they manage their materials as hazardous waste under these
exclusions or seek an exclusion from the definition of solid waste
through today's final rule.

However, part of what 40 CFR 266.100(d) accomplishes is to define when
an operation involving burning is solely a metals recovery operation
rather than a burning for energy recovery or destruction operation,
neither of which is eligible for today's exclusions. This distinction is
an important one to make, and EPA did not intend to revise how such
material recovery operations were identified, nor did EPA ask for
comment on such a revision. 

Thus, for the purpose of defining the type of burning for metals
recovery to be allowed under these exclusions, EPA will reference the
requirements in 40 CFR part 266, subpart H that defines when a
"smelting, melting, and refining" furnace is solely engaged in metals
recovery, but will not require the other conditions that are not related
to distinguishing legitimate materials recovery from burning. Therefore,
under today's final rule, hazardous secondary materials burned for
metals recovery would still be required to meet the minimum metals and
maximum toxic organic metals content specified in 40 CFR part 266 (as
part of the definition of this activity), and would continue to be
exempt from BIF permits, but they would not be subject to hazardous
waste manifests and storage permits, as long as the conditions of the
exclusions promulgated in today's rule are met.

Other Recycling Provisions 

For other hazardous secondary materials currently eligible for
management under other exclusions or alternative regulatory structures
that do not include an exclusion from the definition of solid waste
(such as the universal waste regulations in 40 CFR part 273 or the
"recyclable materials" provisions of 40 CFR 261.6), the facility would
have the choice of either continuing to manage the hazardous secondary
material as a hazardous waste under the existing regulations or under
today's exclusions from the definition of solid waste.

10.2 - Effects on RCRA permitted or interim status facilities

10.2 - Summary

EPA received three comments on the discussion of changes to a facility's
permit once it begins operating under the exclusions.  The existence of
the new exclusions will mean that some units that had been storing
hazardous wastes at a facility with a RCRA Part B permit no longer will
have to be covered by the permit because, with the exclusion in place,
the unit no longer will be used to manage hazardous waste.  And, if all
hazardous wastes at the facility qualify for the exclusions, the
facility itself no longer will need a RCRA Part B permit, except perhaps
to address any lingering corrective action obligations (see 72 FR
14205-06).  In both cases, EPA proposed that changes to the Part B
permits (either to remove the unit that now manages only excluded
wastes, or to terminate the permit altogether by modifying its term when
all secondary materials at the facility qualify for exclusion) should be
effected through the Class 1 permit modification procedure of 40 C.F.R.
270.42(a) with prior agency approval.

One commenter agreed that the Class 1 permit modification procedure of
40 C.F.R. 270.42(a) is appropriate for these changes, but questioned the
need for prior agency approval before the modification becomes
effective.  The commenter viewed requiring prior approval in these
circumstances as regulatory overkill-since the exclusions are
self-implementing and the material being managed no longer is hazardous
waste. Even without a prior approval requirement, the agency would have
the authority, under 40 C.F.R. 270.42(a)(1)(iii), to review and reject
the permit modification at the request of any person-in which case, the
permit holder would have to comply with the original permit conditions. 
The commenter believed that authority should be sufficient, but if a
RCRA-authorized state wishes to impose a prior approval requirement in
these circumstances, it would be free to do so.  [0452-26]

Another commenter believes that according to the regulations, that this
would be a Class 2 permit modification based on a regulation change, and
that the public should have the opportunity to comment on this change
during a public notice period. The commenter also believes the permit
would have to remain in effect until an enforcement agreement was in
place to require the owner/operator to complete any corrective action.

[0489-29]

A third commenter objected to terminating the permit at all.  The
commenter noted that the permits were issued after a specific finding in
the permit proceeding or the underlying rules that the risk of waste
management justified the controls specified in the permits. The
commenter stated that EPA cannot now decide in a general rule that these
specific findings were erroneous. EPA or a delegated state agency must
review each case and determine on a rational basis that it is now
acceptable from a public health and environmental risk standpoint to
remove these protections. 

[0144-3]

10.2 - Response

After considering the comments, EPA continues to believe that changes to
the Part B permits (either to remove the unit that now manages only
excluded wastes, or to terminate the permit altogether by modifying its
term when all secondary materials at the facility qualify for exclusion)
should be effected through the Class 1 permit modification procedure of
40 C.F.R. 270.42(a) with prior agency approval.

Under the Class 1 with prior Agency approval approach, the owner or
operator must submit notification of the permit modification to the
implementing agency, along with documentation demonstrating that the
operations at the unit meet the conditions of the exclusion and that the
unit is used solely to manage excluded hazardous secondary materials. In
addition, the owner or operator must comply with the requirements of 40
CFR 270.42(a)(ii) for public notification. Under §270.42(a)(ii), the
permit modification will not become effective until the owner or
operator receives written approval by the implementing agency. The
implementing agency will approve the permit modification so long as the
owner or operator has complied with the procedural requirements of
§270.42(a) and has demonstrated that the operations meet the conditions
of the exclusion, and that the unit does not manage non-excluded
hazardous wastes. 

The Agency disagrees with the comment that prior Agency approval would
be "overkill" for these types of permit modifications.  As discussed in
Section XII of the preamble to the final rule, units managing excluded
hazardous secondary materials would not have to undergo RCRA Subtitle C
closure (as long as the conditions of the exclusion are met).  Although
one of the purposes of the RCRA Subtitle C closure requirements is to
identify and remediate any releases originating from the units, EPA
believes that the specific Subtitle C closure requirements may not be
the most appropriate means of addressing cleanup of releases from these
units, if any have occurred. Rather, the Agency believes that a better
approach to address historical releases from these units, as well as any
future releases, would be as part of corrective action for all releases
at the facility an approach that the Agency believed would achieve the
same environmental results and would provide the owner or operator the
option of integrating the cleanup more closely into the broader facility
response.   Because of this, EPA encourages regulators to work with
owners and operators that seek to modify their permits to remove
conditions applicable to these units that will operate under the
exclusions to verify that there are no unaddressed releases from the
unit. In situations where corrective action is necessary at the unit,
the Agency encourages regulators to work with owners and operators to
assure that the releases from the unit are addressed promptly. 
Requiring prior approval gives the regulatory authority a mechanism to
carry out this verification.

The Agency also disagrees with the comment that the Class 2 permit
modification procedures are  necessary to provide the public an
opportunity to comment on the removal of the unit from the permit. The
regulations that govern permit modification classify modifications to
the permit term, to allow for earlier permit termination, as Class 1
with prior Agency approval. The Agency believes that removing permit
conditions for units that are no longer regulated is, in effect,
allowing earlier permit termination at those units. Thus, the Agency
believes that Class 1 with prior Agency approval is the appropriate
designation for these permit modifications.

The Agency agrees that in some cases, a RCRA permit will need to be
maintained even after all units are excluded in order to address
corrective action responsibilities.  As was explained in the October 28,
2003, proposal (see 68 FR 61580) and again in the March 26, 2007,
supplemental proposal (72 FR 14206), the obligation of 40 CFR 264.101 to
address facility-wide corrective action at permitted facilities, which
attaches at permit issuance, is not affected by this final rule, and
remains in effect until corrective action at the facility is completed. 
 

Therefore, an owner or operator of a facility that manages only
hazardous secondary materials excluded under this final rule, who seeks
to terminate the facility's permit by modifying the permit term, must
demonstrate as part of the permit modification request that the
corrective action obligations at the facility have been addressed. The
Agency's corrective action authority at such facilities is not affected
by this rulemaking and the Agency thus retains its authority to address
corrective action at such facilities using all authorities applicable
prior to this rulemaking.

At some facilities, corrective action obligations will likely continue
to be addressed through the corrective action provisions of the permit. 
In these cases, maintenance of the permit would ensure that
facility-wide corrective action will be addressed.  Thus, in these
cases, the permit would not be terminated by modifying the permit term,
but would be modified to remove the provisions that applied to the
now-excluded hazardous secondary material.  The facility's permit would,
thereafter, only address corrective action.   

In other cases, however, EPA or an authorized state may have available
an alternative federal or state enforcement mechanism, or other federal
or state cleanup authority, through which it could choose to address the
facility's cleanup obligations, rather than continue to pursue
corrective action under a permit.  In these cases, where the alternate
authority would ensure that facility-wide corrective action will be
addressed, maintenance of the permit would not be necessary.   

10.2.1 - Should EPA allow a facility to either (1) "close" a unit
without physically removing the now-excluded recyclable materials or (2)
defer closure until the end of the unit's operating life?

10.2.1 - Summary

EPA received many comments on both the 2003 and 2007 proposals regarding
EPA's discussion of the applicability of closure to newly-excluded
units.

Many commenters disagreed with EPA's proposal that "closure of storage
units would not be required when such units cease storing hazardous
wastes and are subsequently used to store the same materials that would
no longer be regulated as wastes" under the proposed exclusion.  68 FR
61581. Commenters argue that the hazardous constituents present in the
waste pose a risk of environmental harm that should be prevented,
regardless of the subsequent status of the waste as excluded material. 
Commenters noted that the purpose of the closure requirements is to
assess and clean up contamination at the time that hazardous wastes are
no longer stored in the unit.  If the unit has been used for hazardous
waste storage, an appropriate cleanup should be conducted before
continued use for excluded materials is allowed.  Otherwise, the unit
will exit the RCRA regulatory system and proper cleanup may never be
conducted.  Since RCRA controls would no longer be applicable, the
generator could cease to maintain the area in accordance with the leak
detection, secondary containment, and tank integrity standards.  Any
prior contamination of hazardous constituents would have a pathway for
release to the environment. If closure requirements were applied when
the exclusion becomes effective, at least some interim decontamination
of accumulated hazardous constituents would be addressed.  The cost of
closure would be proportional to the level of hazardous constituents
accumulated over time.  Decreased closure requirements may result in
states bearing the responsibility for cleanup.

Commenters also noted that there is also the potential that the waste
may be rejected by a receiving party for reuse, for a variety of
reasons.  The receiving party is not always obligated to accept the
excluded waste, and may find some other non-hazardous byproduct more
suitable for the process. In such a case the exclusion would cease to
apply and the same material in the storage unit would suddenly be
hazardous again.  If closure and financial assurances were waived, there
would be no mechanism to address the contamination left to the state, if
the unit were subsequently abandoned by the operator.  Since the
continued use of the excluded waste by a receiving party is not
guaranteed, then the commenters believe that full financial assurance
and closure requirements must be maintained.  

Two commenters asked that EPA consider a provision that would defer the
required RCRA closure until the unit ceased being used for the
management of excluded materials.  Without this formal closure, units
used to manage excluded HSM may be abandoned at the end of their service
lives, possibly with HSM residues that may then be released to soil,
groundwater or surface water, or worse yet, come in direct contact with
unwitting individuals. While the supplemental proposal, through
incorporation of Subpart H, implies that the unit must be closed at the
end of its service life, the closure requirement is not explicitly
stated. Consequently, the commenter recommends that the final rule
incorporate the sections below to unambiguously require that units
managing excluded HSM are properly closed, ensuring that there are no
releases of hazardous constituents after its service life.

[0067-16, 0068-17, 0077-8, 0095-17, 0098-28, 0104-26, 0119-46, 0231-55,
0489-31, 0538-9]

Other commenters agreed with EPA's conclusion, expressed in the
preamble, that permitted or interim status hazardous waste storage units
managing material subsequently excluded by this proposal would not need
to undergo regulatory "closure" once they ceased storing "hazardous
wastes" due to this exclusion, unless they were previously used to store
other non-excluded hazardous wastes. (68 Fed. Reg. p. 61580-61581)  One
commenter believed that the rule should not penalize TSDFs, and should
allow the discontinuance of the permit without economic penalty or
closure requirement.

One commenter noted that, regarding the primary metals industry, most of
the potential examples of this kind have been maintained to be exempt by
existing law. To sort out and contest all such situations would be a
resource consuming issue without environmental good. The agency and the
states have already been aggressive in declaring releases as CERCLA
releases and would continue to do so, it is assumed, as they saw
appropriate.

However, in order to ensure regulatory certainty, some commenters
recommended that EPA should amend the language in 40 CFR 264.113 and
265.113 to clearly state the concept described in the preamble.  One
option suggested was to add a new paragraph (f) to each of those
sections that reads:  “(f) The exclusion from the definition of solid
waste or hazardous waste under §§ 260.30, 261.2, 261.3, or 261.4 of a
material previously classified as a solid and hazardous waste does not
operate to trigger the closure requirements of paragraphs (a) and (b) of
this section, except where the unit has previously managed other
non-excluded hazardous wastes and does not continue to manage other
hazardous wastes."

Other commenters agreed with EPA's proposal on closure, but also thought
that some preliminary investigation to confirm that contamination is not
present outside of the containment system should be required. The
investigation could include an independent inspection of the containment
system's integrity and a visual inspection of the areas immediately
surrounding the unit. The need for follow-up soil sampling would be
determined based upon the results of this preliminary investigation.

[0093-37, 0143-2, 0178-23, 0179-20, 0203-15, 0452-27, 0473-12, 0473-13,
0484-31, 0492-55, 0492-56, 0509-24] 

 

10.2.1 - Response

EPA agrees with comments supporting the proposed approach of not
requiring closure when a permitted unit is converted to manage solely
excluded hazardous secondary materials, since, typically, it will be
managing the same material, with the only difference being that the
material is now excluded from regulation as a hazardous waste. 

However, as the Agency noted in the March 26, 2007 supplemental
proposal, releases from these units are discarded solid and, therefore,
potentially hazardous wastes, and the Agency agrees with commenters'
concerns that such releases should be addressed. Agency believes that a
better approach to address historical releases from these units, as well
as any future releases, would be as part of corrective action for all
releases at the facility; an approach that would achieve the same
environmental results and would provide the owner or operator the option
of integrating the cleanup more closely into the broader facility
response.

EPA also notes that permits that have been issued to these facilities
remain in effect until they are terminated.  The Agency encourages
regulators to work with owners and operators that seek to modify their
permits to remove conditions applicable to these units that will operate
under the exclusions to verify that there are no unaddressed releases
from the unit. In situations where corrective action is necessary at the
unit, the Agency encourages regulators to work with owners and operators
to assure that the releases from the unit are addressed promptly.

However, EPA expects that any funds in closure or post-closure financial
assurance mechanisms will be converted to provide financial assurance
under today's exclusion, assuming the facility is operating under the
transfer-based exclusion. In addition, as described in sections VII.D.
and VIII.D of this preamble, at the end of the operating life of these
units, all owners and operators (i.e., of units operating under either
exclusion promulgated in this final rule) must manage any hazardous
secondary materials that are not recycled, and remove or decontaminate
all hazardous residues and contaminated containment system components,
equipment structures, and soils.

EPA notes that, although units managing excluded hazardous secondary
materials are not subject to the closure regulations, all owners and
operators must still at the end of the unit life manage any remaining
hazardous secondary materials that are not reclaimed and remove or
decontaminate all hazardous residues and contaminated containment system
components, equipment structures, and soils. These hazardous secondary
materials and residues, if no longer intended for reclamation, would
also no longer be eligible for the exclusion (which only applies to
materials that will be reclaimed). Failure to remove these materials
within a reasonable time frame after operations cease could cause the
facility to become subject to full Subtitle C requirements if the Agency
determines that recycling is no longer feasible. 

10.2.1.1 - Should EPA allow financial assurances obtained for closure to
be redirected to address corrective action?

10.2.1.1 - Summary

A few commenters addressed EPA’s request for comment on modifying the
regulations to allow financial assurances obtained for closure and/or
post-closure to be redirected to address the corrective action needs at
units that manage only wastes that would be excluded by this proposal. 
One commenter supported this approach, arguing that financial assurance
for facility closure should be used to the advantage of the facility. 
Another commenter believes EPA should save any such financial assurance
revisions for a future (and much needed), comprehensive rulemaking on
the subject of financial assurance for corrective action. A third
commenter noted that financial assurance can be redirected only if the
instruments are written in a way that allows it, in agreement with the
instrument underwriters.  Accordingly, EPA would have to modify its
generic language for the various financial instruments.  Since closure
cost estimates can be estimated fairly accurately but corrective action
costs cannot (difficult ahead of time to know exactly what and how much
corrective action work needs to be done), it might be advisable to
require facilities to obtain a multiple of estimated closure and/or
corrective action costs as financial assurance to cover unexpected
corrective action contingencies.

[0479-47, 0492-57, 0495-19]

10.2.1.1 - Response

The Agency agrees with comments that support EPA's proposal that funds
obtained for closure at units excluded under §261.2(a)(2)(ii) and
§261.4(a)(23) (under the control of the generator) should be directed
to address releases from the unit.   The Agency encourages regulators to
work with owners and operators that seek to modify their permits to
remove conditions applicable to these units that will operate under the
exclusion of §261.2(a)(2)(ii) and §261.4(a)(23), to verify that there
are no unaddressed releases from the unit. In situations where
corrective action is necessary at the unit, the Agency encourages
regulators to work with owners and operators to assure that the releases
from the unit are addressed promptly. 

10.2.2 - Corrective action under the exclusion 

10.2.2 - Summary

EPA’s authority to require facility-wide corrective action at
facilities managing only hazardous wastes excluded by the final rule

Two commenters objected to EPA's statement that corrective action
requirements would continue to apply to a facility currently managing
hazardous wastes that become excluded under the final rule. 68 Fed. Reg.
61580.  Commenters believed that while this is surely true where the
facility is managing (or has managed) other hazardous wastes, it would
not be true where the facility is not managing (and has not managed)
other hazardous wastes. Commenters believed that the definition of solid
waste is jurisdictional, and if the materials excluded under EPA's
proposal are not discarded, EPA has no jurisdiction over them under
RCRA, and never has had such jurisdiction. Thus, the commenters believed
that any corrective action requirements that were triggered only by the
erroneous assumption that a given recyclable material was discarded
would not continue to apply.

EPA’s authority to require corrective action for releases from
excluded units 

Three commenters provided comments on whether the unit storing excluded
hazardous secondary material would still be considered a solid waste
management unit (SWMU) for the purposes of corrective action.  One
commenter believed that such units should be considered SWMUs and two
did not.  Those who opposed considering such units SWMUs requested that
EPA state that such units would be excluded from regulation where an
owner or operator is performing corrective action under an order from
EPA or its state agency counterpart, as opposed to a permit.  Moreover,
the commenter requested that such units also should be expressly
excluded from further regulation under RCRA's corrective action program.
 Commenters stated that, given the history of the corrective action
program, clear guidance from EPA on this issue is critical to companies
operating under corrective action permits and orders. To avoid
unnecessary confusion, and the inevitable litigation expenses and delays
that would result, EPA should clarify the proposal to make clear that
units used solely to manage secondary materials that no longer will be
regulated as hazardous materials will no longer be considered SWMUs for
purposes of corrective action obligations. 

Retroactive application of the exclusion

Commenters also requested that EPA state that the exclusion would apply
retroactively to existing corrective action permits and orders. 
According to one commenter, if a material no longer is considered
"discarded" because it is being legitimately reclaimed or recycled, then
a company that initiates its reclamation efforts after the new rule
takes effect certainly would operate under the exclusion. The commenter
also urged EPA to recognize that a company that currently is subject to
corrective action obligations should be entitled to the same relief for
units that no longer are regulated as SWMUs. Thus, even if an owner or
operator currently is subject to a corrective action obligation based on
a release of a material that EPA formerly deemed a solid waste at such a
unit, the fact that the unit is no longer a SWMU should permit the owner
or operator to seek a revision of its corrective action permit or order.

Continuation of the permit to address corrective action

Two commenters supported EPA's statement that "[t]he owner or operator
would have to demonstrate that corrective action obligations at the
facility have been addressed, or, where corrective action obligations
remain, that continuation of the permit is not necessary to assure that
they will be addressed (e.g., where the facilities cleanup obligations
will be addressed under an alternative federal or state enforcement
mechanism, or other federal or state cleanup authority) 72 Fed.
Reg.14205-06.  Commenters stated that these facilities should maintain a
permit until corrective action obligations are satisfied. 

Facilities requiring corrective action should not qualify for the
exclusion

One commenter said that facilities with corrective action obligations
should not be exempt, because the need for corrective action may also be
an indicator that they may not operate in a manner protective of the
environment once the controls established by permit conditions are
removed.

Not requiring corrective action at facilities that begin managing
excluded materials after the effective date of this final rule

One commenter requested that the Agency confirm that, where a facility
begins managing excluded materials after the effective date of EPA's
final rule, that activity would not trigger any EPA permitting
requirements (including corrective action requirements).  Only if the
facility then also managed non-excluded-hazardous wastes would RCRA
permitting apply to the facility.

Another commenter, on the other hand, believed that the Agency creates
an arbitrary distinction by committing to enforce corrective action
requirements at facilities with already-issued permits, but then failing
to enforce similar restrictions at facilities that handle the same
materials in the future, and that this artificial distinction fails to
protect human health and the environment.   

10.2.2 – Response

EPA’s authority to require facility-wide corrective action at
facilities managing only hazardous wastes excluded by the final rule

The Agency disagrees with commenters that would deny EPA’s authority
to address facility-wide corrective action at facilities currently
managing hazardous wastes that become excluded by the final rule.  EPA
believes that corrective action requirements continue to apply at
excluded facilities that no longer manage hazardous waste, as well as at
those facilities that continue to manage hazardous wastes at other units
at the facility.  The solid waste exclusions in the final rule are not
retroactive; prior to the facilities claiming the exclusion, these
hazardous secondary materials were regulated hazardous wastes and the
facility permitted to manage them was a Treatment, Storage and Disposal
Facility (TSDF), subject to all applicable requirements, including the
corrective action provisions of 3004(u).  Thus, the corrective action
requirements were not triggered by an “erroneous assumption,” as
commenter suggests, but by the facility’s regulatory status as a TSDF.
 The Agency has not taken steps in this final rule to remove those
corrective action requirements; thus, they remain applicable.  

It should be noted that, since the advent of the HSWA corrective action
program, the Agency has taken the position that corrective action
requirements continue to apply at facilities that no longer manage
hazardous wastes.  For example, in the preamble of the Subpart S
proposed rule, the Agency stated that “”[c]orrective action may be
required under section 3008(h) whether the facility is operating (prior
to receiving a permit) under interim status, is closing or is closed
under interim status…” (see 55 FR 50798 @ 50855).  (Note that
“closed” includes “clean closed.”  In this situation, corrective
action obligations might remain even though the facility is engaged in
no hazardous waste activities, and RCRA regulated hazardous waste has
been removed from the site.)  Similarly, in a July 24, 2002 final rule
establishing conditions for excluding hazardous secondary materials that
are used to make zinc fertilizers from the regulatory definition of
solid waste, the Agency stated that “[t]he conditional exclusion also
will not affect a facility owner/operator’s corrective action
obligations under RCRA section 3004(u) or 3008(h)” (see 67 FR 48393 @
48400).  

To assure that facilities taking advantage of the exclusion for recycled
hazardous secondary materials in this final rule understand their
continuing obligations, the Agency reiterated its longstanding position
on corrective action authority at such facilities in the preamble of the
proposed rule, and again in the preamble of the final rule.  However,
this final rule did not in any way alter the Agency’s position on this
issue. 

As is explained below, however, EPA agrees that RCRA corrective action
requirements of sections 3004(u) and 3008(h) do not apply to non-TSD
facilities that begin operation under the exclusion after it becomes
effective, so long as they meet the conditions and restrictions of the
exclusion (facilities that fail to do so may be considered TSDs, and
therefore potentially subject to facility-wide corrective action).

EPA’s authority to require corrective action for releases from
excluded units 

It is important to first note that a unit would not meet the conditions
of the exclusion if it was releasing hazardous constituents to the
extent that corrective action would be required.  Further, as was
discussed above, the Agency has taken the position, since the advent of
the corrective action program, that corrective action requirements
continue to apply at facilities that no longer manage hazardous wastes. 
This position was not limited to permitted facilities.  For example, in
the preamble of the proposed Subpart S rule, the Agency stated
“corrective action may be required under section 3008(h) whether the
facility is operating (prior to receiving a permit) under interim
status, is closing or is closed under interim status, has lost interim
status, or failed to properly obtain interim status” (see 55 FR 30798,
at 30855, July 27, 1990).   The Agency explained its longstanding
position on this issue in the preamble of the proposed DSW rule, and
again in the preamble of the final rule.  This final rule did not in any
way alter the Agency’s position on this issue.   

EPA also disagrees that releases from units storing or reclaiming
hazardous secondary materials are not subject to RCRA corrective action
obligations, if the units are at facilities that are (or were) TSDs. 
EPA does agree that the unit managing the excluded hazardous material is
not regulated as a SWMU, so long as the unit complies with the
conditions and restrictions of the exclusion (as is discussed below,
facilities that fail to comply with the conditions and restrictions of
the exclusion may be considered TSDs, and therefore potentially subject
to facility-wide corrective action).  This fact, however, does not
exempt releases from the unit from RCRA corrective action requirements,
if the unit is located at a facility with corrective action obligations.
In the May 1, 1996, Advance Notice of Proposed rulemaking (see 61 FR
19442-3), the Agency discussed the issue of its corrective action
authority to address releases at RCRA treatment, storage, or disposal
facilities, regardless of whether a SWMU is present. There, the Agency
stated, "[g]iven the legislative history of RCRA section 3004(u), which
emphasizes that RCRA facilities should be adequately cleaned up, in
part, to prevent the creation of new Superfund sites, EPA believes that
corrective action authorities can be used to address all unacceptable
risks to human health and the environment from RCRA facilities.  In the
permitting context, remediation of non-SWMU related releases may be
required under the "omnibus" authority.  In other contexts, orders under
RCRA sections 3008(h) or 7003 may require remedial action to address
releases regardless of whether a SWMU is present."  (Note also that, in
many cases, the unit in question will have been a SWMU in the past.)

EPA also notes that an excluded unit could become a TSD unit, making the
facility subject to all applicable requirements.  This situation might
arise where an owner or operator fails to comply with the applicable
conditions and restrictions of the exclusion, and the unit consequently
loses its exclusion. In these situations, the unit itself will once
again become a hazardous waste management unit, and the unit, as well as
materials in the unit, will become subject to all requirements that were
applicable prior to this final rule. Not only will corrective action
authority be available at such a unit, but the closure requirements of
40 CFR part 264 or 265 will once again apply at the unit as well, and
releases from that unit may be addressed through either the corrective
action or the closure process.

There may also be situations where releases occur at an excluded unit
but, based on the site-specific factors, the Agency does not consider
the release to be significant and, therefore, the release does not cause
the unit to lose its exclusion. Failure on the part of the owner or
operator to respond to such releases could be considered an act of
illegal disposal. The Agency generally would address these situations by
taking an enforcement action under RCRA section 3008(a), or other
applicable authorities, to compel cleanup actions and/or impose
penalties. It should be noted that this approach is consistent with the
approach taken by the Agency in a 2002 final rule, in which the Agency
excluded hazardous secondary materials used to make zinc fertilizers
from the definition of solid waste (see "Zinc Fertilizers Made from
Recycled Hazardous Secondary Materials," 67 FR 48400, July 24, 2002). 

Finally, there may be situations where releases from the unit, of either
the now excluded hazardous secondary material and/or other hazardous or
solid wastes previously managed in the unit, were not addressed prior to
the unit obtaining its exclusion. As was discussed above, at permitted
and interim status facilities, the status of those releases is
unaffected by this rulemaking, and the Agency retains its authority to
address them under all authorities applicable to them prior to this
final rule, including sections 3004(u) and (v), and section 3008(h).

The Agency also disagrees with the commenter who suggested that units
subject to orders requiring corrective action would no longer be subject
to the requirements of those orders as a result of this rule.   As is
discussed in the following section, the orders issued to those
facilities, once they went into effect, became legally binding
documents, which continue until and unless the regulatory agency takes
steps to modify or revoke them.  This rule has no effect on orders
requiring corrective action.  

Retroactive application of the exclusion

EPA disagrees with the commenter stating that the exclusion would apply
retroactively to existing corrective action permits and orders at
facilities or units no longer subject to RCRA permitting or interim
status, when they begin to operate under the exclusion.  Prior to the
facilities claiming the exclusion, these hazardous secondary materials
were regulated hazardous wastes and the facility permitted to manage
them was a Treatment, Storage and Disposal Facility (TSDF), subject to
all applicable requirements, including the corrective action provisions
of 3004(u) -- the solid waste exclusions in the final rule are not
retroactive.  The fact that the unit or facility might now be eligible
for an exclusion does not change that situation.

Permits and orders requiring corrective action are legally binding
documents and are not affected by this final rule.  In addition, the
Agency has long taken the position that corrective action requirements
continue to apply at facilities that no longer manage hazardous wastes. 
The Agency explained its longstanding position on this issue in the
preamble of the proposed rule, and again in the preamble of the final
rule.  This final rule did not in any way alter the Agency’s position
on this issue.  

Continuation of the permit to address corrective action

The Agency agrees that, at some facilities, corrective action
obligations will likely continue to be addressed through the corrective
action provisions of the permit.   However, the Agency disagrees that
all facilities should maintain a permit until corrective action
obligations are satisfied.  The Agency believes that, in some cases, EPA
or the authorized State may have available an alternative federal or
state enforcement mechanism, or other federal or state cleanup
authority, through which it could choose to address the facility’s
cleanup obligation.  In these cases, where the alternate authority would
ensure that facility-wide corrective action will be addressed,
maintenance of the permit would not be necessary. The Agency’s
corrective action authority at such facilities is not affected by this
rulemaking and the Agency thus retains its authority to address
corrective action at such facilities using all authorities applicable
prior to this rulemaking.

Facilities requiring corrective action should not qualify for the
exclusion

While the Agency agrees with the commenter that excluded units must be
operated in a manner that is protective of the environment, the Agency
disagrees that facilities with corrective action obligations should be
ineligible for the exclusion.  Corrective action responsibilities at a
facility are not necessarily the result of mismanagement of the
recycling unit by the current owner and operator.  For example,
contamination at a facility may be the result of past practices (in some
cases, past practices by a previous owner), and may be the result of
releases from units other than the recycling unit excluded under this
final rule.  In those cases, the contamination would be unrelated to the
manner of operation of the recycling unit by the current owner or
operator, and not an indication that the unit is operated in a manner
that is not protective of human health and the environment.  The Agency
believes that the conditions of the exclusion, including the condition
to contain wastes within the recycling unit, will assure that these
units are operated in a manner that is protective of human health and
the environment, and that those conditions should, therefore, address
the commenter’s concern.  (EPA agrees, however, that units that have
routinely released hazardous constituents in the past will be unlikely
candidates for the exclusion, unless they are significantly upgraded or
operating practices significantly improved.) 

Not requiring corrective action at facilities that begin managing
excluded materials after the effective date of this final rule

The Agency agrees with the commenter requesting confirmation that a
facility that never was subject to RCRA permit requirements, and
doesn’t manage excluded materials until after the effective date of
this final rule, does not become subject to RCRA permitting requirements
by managing those excluded materials, so long as the conditions and
restrictions of the exclusion are met.  Therefore, a facility in this
situation is not subject to the RCRA corrective action requirements of
sections 3004(u) or 3008(h).

The Agency disagrees with the second commenter, who argues that EPA
should require facility-wide corrective action at facilities that handle
excluded materials in the future in compliance with the conditions and
restrictions of the exclusion, and that are not former TSDFs with
unfulfilled corrective action obligations.  The corrective action
responsibilities applicable to treatment, storage, and disposal
facilities are not affected by this final rule.  Thus, the Agency
believes that the proposed approach – to continue to require
corrective action at former TSD facilities subject to corrective action
requirements prior to this final rule, but not to impose corrective
action requirements on facilities not currently subject – is
appropriate.  Of course, non-TSD facilities that take advantage of the
exclusion in this final rule that then fail to comply with the
conditions and restrictions of the exclusion and, as a result, become
TSD facilities, would then become subject to all requirements applicable
to TSD facilities, including corrective action requirements.  

10.3 - CERCLA/Superfund

10.3 - Summary

Many commenters were concerned that EPA's supplemental proposal may
eliminate CERCLA liability for generators and facilities using the
proposed exclusion.   Commenters were concerned that generators and
facilities whose hazardous wastes are considered hazardous secondary
materials under the proposed exclusion may be exempt from liability as
"arrangers for disposal or treatment" under Section 107 of CERCLA,
because they believe that the courts have held that Section 107 does not
apply to materials that EPA has excluded from the definition of solid
waste. Establishing that the material in question is a "waste" is
important in determining liability under this aspect of the generator or
arranger provision. (Pneumo Abex Corp. v. High Point, Thomasville and
Demon Railroad Co., 142 F.3d 769(4th Cir. 1998); Florida Power & Light
Co. v Allis Chalmers Corp., 893 F. 2d 1313 (11th Cir. 2003))

In addition, commenters said that because CERCLA incorporates the
definitions of "disposal" and "treatment" used in RCRA, some courts have
held that arranger liability necessarily requires a finding that the
material disposed of or treated constituted a "waste." See, e.g.,
Catellus Development Corp. v. United States, 34 F.3d 748, 751 (9th Cir.
1994) (definition of disposal and treatment in RCRA "necessarily
includes the concept of waste"). Thus, the court held that if under
RCRA's implementing regulations a material that is intended for
recycling is exempt from RCRA's definition of solid waste, it would fall
outside the scope of § 107(a)(3) liability. Id. at 751.

Commenters stated that other courts have also held that reclamation of
materials that are not classified as a discarded waste in RCRA
regulations will not subject a party that arranged for their reclamation
to CERCLA liability. Poly-Carb, Inc., 951 F. Supp. at 1527; see also
United States v. Montana Refining Co., 1994 U.S. App. LEXIS 22633, at *2
(9th Cir. Aug. 17, 1994). For example, in Montana Refining Co., the
Ninth Circuit held that the proper approach to analyzing whether a party
arranged for the treatment or disposal of hazardous substances was to
determine whether the substance at issue was a discarded waste under
RCRA.  1994 U.S. App. LEXIS 22633, at *2. The court, citing its then
recent decision in Catellus, explained that a close examination of the
RCRA regulations defining waste in the context of recycling was
necessary to "determine when recycling constitutes an arrangement for
disposal or treatment of a discarded waste." Id. On remand from the
Ninth Circuit, the defendant argued that it did not arrange for
"treatment or disposal" under CERCLA because the phenolic caustic it
sold to an operator for reclamation was not a "waste" under RCRA.
Poly-Carb, Inc., 951 F. Supp. at 1524. The court agreed that the
phenolic caustics would be excluded from the definition of solid wastes
and would not form the basis for CERCLA liability, if the defendant
could show that the reclaimed caustics were excluded from the definition
of solid wastes under EPA's regulations. Id. at 1524, 1527.

Thus, commenters are concerned that facilities may not only be exempted
from RCRA's storage requirements; they also may avoid liability for
environmental damage discovered after the facilities have closed. 
Without CERCLA liability, state and federal taxpayers will pay the
financial costs to clean up these facilities, while people in
communities across the nation pay the human health and environmental
cost associated with the contamination. In the preamble, EPA
specifically explains the ability of the generator to shield itself from
liability resulting from the mismanagement of waste by the reclaimer:
"the failure of the reclaimer to meet conditions or restrictions does
not mean the material was considered waste when handled by the
generator, as long as the generator can adequately demonstrate that he
has met his obligations, including the obligation under proposed 40 CFR
§261.4(a)(24)(iv)(A) to make reasonable efforts to ensure that the
material will be recycled legitimately and otherwise managed in a manner
that is protective of human health and the environment.  A generator who
met his reasonable efforts obligations could in good faith ship his
excluded materials to a reclamation facility where, due to circumstances
beyond his control, they were released and caused environmental problems
at that facility. In such situations, and where the generator's decision
to ship to that reclaimer is based on an objectively reasonable belief
that the hazardous secondary materials would be recycled legitimately
and otherwise managed in a manner consistent with this regulation, the
generator would not have violated the terms of the exclusion." (72 FR
14197)

Commenters state that, at the very least, EPA must expect that arranger
liability under Superfund will be vigorously contested and litigated
under the proposed rule.  The incentive under Superfund for companies to
carefully manage their secondary materials that EPA has relied on as a
fundamental assumption of the proposed rule is at least arguably
weakened or eliminated.  Without strong and undisputed Superfund
liability, the overbroad exclusion of secondary materials from the
definition of solid waste in the proposed rule will severely undermine
the ability of EPA and states to prevent marginal recycling facilities
from becoming insolvent contamination sites, which the states will have
to clean up without the benefit of contributions from those entities
whose wastes have created the environmental damage in the first place.

Comments said that because the proposal could significantly reduce or
even altogether eliminate facility and particularly generator liability
at some Superfund sites, thereby requiring taxpayers, through EPA, to
pay for cleanups. EPA should conduct a thorough examination of the
potential impact of such a major release of liability.  The
Environmental Assessment completed for the proposed rulemaking does not
provide the data necessary to evaluate the broad impacts on CERCLA of
EPA's proposal.  EPA admits that their assessment is particularly
incomplete regarding cleanup costs at the 208 sites. 72 Fed. Reg. at
14196. EPA must gather the data necessary to estimate the total amount
of federal funding that EPA may be required to spend to  conduct current
and future remedial and removal actions at sites related to recycling
activities where liability is likely to be affected by the proposed
rulemaking.

[0119-59, 0119-60, 0119, 80, 0191-4, 0231-6, 0343-5, 0343-7, 0559-40,
0559-91, 0564-10]

One commenter noted that the proposal appears to provide significantly
broader liability relief than that provided by Congress under the
Superfund Recycling Equity Act of 1999.  Many in the Congress supported
this Act because it promoted the reuse and recycling of scrap material
with positive economic value, and included specific safeguards to ensure
that handling, processing, reclamation and other management activities
were conducted with reasonable care.  The commenter was concerned that,
in contrast, this proposal would effectively exempt by administrative
fiat a much broader universe of hazardous waste from Superfund
liability, without subjecting the material to any tracking or management
safeguards, and requested that EPA evaluated whether the proposal is
consistent with and satisfies the criteria established for legitimate
recycling under SREA.

[0073-11, 0343-7, 0343-8]

One commenter said that another commenter's concerns about possible new
Superfund sites had no basis in fact because of the continuing impact of
CERCLA liability.

[0091-36]

One commenter recommended that EPA clarify that the change also does not
affect reporting obligations for releases of hazardous substances under
CERCLA section 103.

[0067-18] 

10.3 - Response

EPA disagrees with comments that assert the final rule would negatively
impact CERCLA arranger liability.  Today's final rule only changes the
definition of solid waste for purposes of RCRA Subtitle C requirements. 
Under the final rule, hazardous secondary materials released to the
environment would constitute disposal under both RCRA and CERCLA. The
final 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 or change the
universe of recycling activities that could be exempted from CERCLA
liability per the Superfund Recycling Equity Act (SREA).   EPA agrees
with comments that that the final rule does not affect reporting
obligations for releases of hazardous substances under CERCLA section
103.  Finally, EPA does not expect Superfund sites to be created if a
person complies with this regulation and responsibly ships for recycling
a secondary material that is a commodity to a legitimate recycler.  

There are numerous CERCLA cases in which persons have sent material for
recycling and have been held to be arrangers for disposal because the
recyclers have handled material improperly resulting in a Superfund site
being created.  Courts generally evaluate whether the shipper either had
control over the process or knowledge of potential disposal, or whether
the shipper was actually sending a commodity to be recycled.  See,
Morton International, Inc. v. A.E. Staley Manufacturing Co., 343 F.3d
669 (3rd Cir. 2003) (CERCLA liability for a company that sent material
for mercury processing that became a Superfund site; liability did not
depend on ownership or possession alone); Cadillac Fairview/California,
Inc. v. United States, 41 F.3d 562 (9th Cir. 1994) (liability for
recycling of sulfur tar bottoms); Catellus Development Corp. v. United
States, 34 F.3d 748 (9th Cir. 1994) (liability for recycling of
automotive batteries); United States v. Montana Refining Co., 1994 U.S.
App. LEXIS 22633, (9th Cir. Aug. 17, 1994) (confirming Catellus,
remanding PolyCarb); United States v. PolyCarb, Inc., 951 F. Supp. 1518
(D. Nev. 1996) (liability for sending caustic for reclamation); Chatham
Steel Corp. v. Brown, 858 F. Supp. 1130 (N.D. Fla. 1994) (liability for
sale for recycling of spent batteries); California v. Summer Del Caribe,
Inc., 821 F. Supp. 574 (N.D. Cal. 1993) (liability for recycling of
solder dross produced as a by product of manufacturing process);
Chesapeake & Potomac Tel. v. Peck Iron & Metal, 814 F. Supp. 1269 (E.D.
Va. 1992) (liability for recovery of lead from used batteries);  United
States v. Pesses, 794 F. Supp. 151 (W.D. Pa. 1992) (sellers of scrap
metal to a reprocessor); United States v. A & F Materials, 582 F. Supp.
842 (S.D.Ill. 1984) (liability for caustic solution produced in the
course of the manufacture of jet aircraft to a company which used it to
neutralize acidic oil); but see Pneumo Abex Corp. v. High Point,
Thomasville and Denton R.R. Co., 142 F.3d 769 (4th Cir. 1998) (used rail
car bearings were commodities and recyclers paid a competitive price).  

The CERCLA cases show that arrangers cannot turn a blind eye to the
activities of the reclaimer, and through the reasonable efforts
condition, today's rule echoes that same principle.  See, Catellus
Development Corp. v. United States, 34 F.3d 748, 752 (9th Cir. 1994)
(rejecting the argument of a company that it could not be liable as an
arranger under CERCLA because it sent materials released to the
environment to be recycled because such a formulation "would allow
defendants to simply 'close their eyes' to the method of disposal of
their hazardous substances, a result contrary to the policies underlying
CERCLA"); accord United States v. Aceto Agr. Chemicals Corp., 872 F.2d
1373, 1382 (8th Cir. 1989).   There is no CERCLA case, nor would we
expect one in the future, where courts simply said that a material sent
for recycling is not a RCRA solid waste without examining the conditions
under which the material was sent. The fact is that a person who sends
material for recycling will, in fact, become an arranger for disposal if
that person does not comply with the regulations established today and
does not make reasonable efforts to ensure that material will be
responsibly recycled. 

11 - Applicability of rules in authorized states

11 - Summary

Many commenters said that EPA should strongly encourage authorized
states to adopt this final rule, in the interest of national uniformity
of regulatory requirements, reducing burdens on industry, or to
encourage recycling (0152-34, 0199-30, 0222-11, 0438-5, 0463-19,
0468-20, 0468-27, 0471.2-66, 0476-1, 0476-22, 0478-23, 0501-4, 0519-4).
Some commenters urged EPA to weigh state comments on the proposal
carefully, since states will be the ultimate implementers of the rule
(0219-1, 0531-6).  One commenter noted that state reaction to the
proposal was mixed, with the largest number of states who responded to a
survey indicating that they would adopt the rule if changes were made
from the proposal (0543-43). 

However, another commenter said that EPA should not encourage states to
adopt the rule, since this commenter preferred states to impose more
stringent requirements, or regulate hazardous secondary materials under
full Subtitle C controls. This commenter believed that the Agency should
eschew its proposal and maintain or strengthen regulatory provisions
governing hazardous secondary materials (0231-57). 

One commenter urged EPA to establish a process whereby incorrect
interpretations (particularly of variance provisions) by authorized
states that result in competitive imbalances are corrected promptly.
This commenter also said that states should be required to follow
federal standards more closely in general (0450-1).  Another commenter
said that the Agency should consider an "automatic" authorization
process as an incentive for states to expedite the transition (0044-13).
Another commenter said that EPA should administer the rule using HSWA
authorities to enable immediate applicability nationwide; if this
approach were not possible, the commenter said that EPA should provide
incentives and encouragement to states to adopt the rule (0518-14). 
Still another commenter said that the Agency should establish a
clearinghouse to provide information about the current regulatory status
of the rule in each state (0044-14).  

One commenter disagreed with the Agency's statement that the proposed
rule was less stringent than current regulations; this commenter said
that the proposal was in fact a clarification that made the federal
regulations narrower in scope.  This commenter suggested that EPA should
explicitly state in the final rule that it cannot and will not enforce
state rules that are broader in scope than the federal rules because the
state has not adopted these revisions to the definition of solid waste
(0152-34). Another commenter said that the Agency should explicitly
recognize in the rule that States with authorized RCRA programs are free
to adopt written policies regarding the management of recycled materials
that are consistent with the ABR decision, without fear of EPA
intervention (0126-1).

Some commenters said that if many states did not adopt this rule, the
complexity of interstate transportation would be greater, thus
increasing transportation costs on companies (0073-12, 0117-9, 0468-21,
0199-31). Other commenters said that such increased complexity would be
undesirable because it could lead to an increased likelihood of releases
and ensuing environmental harm (0095-18, 0098-42, 0109-10, 0130-11,
0231-57, 0462-16, 0462-39, 0541-5, 0548-4, 0562-4, 0559-96, 0559-97).
One commenter stated that hazardous secondary materials could be
abandoned at a state border because the next state regulates them as
hazardous wastes (0119-61). Some commenters suggested that some states
might adopt the rule to attract recycling businesses (0073-13), or that
generators might seek out reclaimers located in states that had adopted
the rule (0551-3). Another commenter said that generators and reclaimers
of hazardous secondary materials could face jeopardy of enforcement if
they are located in different states, with one state adopting the rule
and the other state not adopting it (0543-65).

Some commenters urged retention of the hazardous waste manifest, saying
that facilities are familiar with these documents and they would
therefore not impose a burden. One commenter (0462) said that the
manifest helped states to calculate various fees used to pay for state
programs. Other commenters said that the return copy provides assurance
to generators that their waste has been accepted (0462-16, 0462-21,
0130-11). One commenter said that our rule violated states' rights to
require the use of a manifest, since some states require their
environmental agencies to adopt by reference rules promulgated by EPA. 
Therefore, this commenter said, our rule was a violation of 42 USC 6929
(Retention of State Authority), which says that states may require
copies of manifests for hazardous waste generated within that state or
transported to a TSDF within the state (0561-6).

Some commenters objected to the use of a manifest when a hazardous
secondary material was in transit in a "pass-through" state between two
states that had adopted the rule (0070-16, 0083-18, 0153-30, 0162-7,
0194-9). One commenter also suggested that under this rule some state
transportation requirements may be preempted under the Hazardous
Materials Transportation Act and urged EPA to consult with the
Department of Transportation and clarify the issue (0152-35, 0481-114).
One commenter suggested placing EPA's preamble discussion of interstate
transport requirements in the regulatory language of the final rule
(0536-14).

Some commenters stated that if hazardous secondary materials met the
definition of a DOT hazardous material, they should be transported in
accordance with DOT requirements even if they are excluded under RCRA
(0457-20, 0523-6, 0558-19). One commenter said that EPA's rule could
result in DOT enforcement issues because DOT rules prohibit the use of
"waste" or "hazardous waste" in the shipping name for state-only
hazardous waste (0083-20).

One commenter suggested using a "Recycle Material" manifest for tracking
and recordkeeping (0176-5). Another commenter suggested developing a
shipping paper that would be signed and retained by generators,
transporters, and reclaimers, and which state agencies could use to
track materials and ensure compliance (0495-7).  One commenter urged EPA
to adopt minimum operational standards for recycling units, thus
ensuring that the rule is not deregulatory in nature and would have to
be adopted nationally (0551-3, 0551-4).

Two commenters objected to the use of the land disposal restrictions
notification form (0083-19, 0462-16, 0462-21). 

Some commenters feared that states would not have enough resources to
effectively enforce the requirements of this final rule (0213-2,
0541-5). One commenter said that EPA must back its standards with
resources and resolve sufficient to enforce the standards (0450-2). 

11 - Response

EPA strongly agrees with those commenters who said that we should
encourage states to adopt this final rule, and we also agree that
uniform adoption of this rule would confer many benefits.  We plan to
urge states to pick up the rule as soon as possible, and we will conduct
vigorous  outreach to accomplish that purpose. In response to the
commenter who suggested careful evaluation of state views, we note that
we have carefully considered state comments on both the 2003 and 2007
proposals, and we have incorporated many suggestions from states in
developing this final rule. 

We do not agree with the commenter who said that states should not adopt
the rule because full Subtitle C requirements are necessary. For the
reasons stated at numerous places in the preamble to this rule, we
believe that the requirements of this rule are appropriate to
demonstrate lack of discard, and that the conditions or restrictions are
sufficient to protect human health and the environment.  

We also do not agree with those commenters who believed that special
procedures are needed for states to adopt this rule. States and EPA
Regions are very familiar with the existing process and implement it
successfully.  In response to the commenter who was concerned about
incorrect state interpretations, we note  that where there exists a
concern about such interpretations, the Agency's practice is to work
with the individual state to resolve the issue in light of the
particular circumstances.  We do not believe a generic procedure would
be appropriate for highly variable situations.  Nor do we believe that
an "automatic" authorization process is necessary to expedite state
adoptions of this rule; we have no reason to believe that state
authorizations will be delayed. In response to the comment about HSWA
authority, the statutory authority upon which this rule is being
promulgated is not part of the Hazardous and Solid Waste Amendments of
1984 (HSWA). Therefore, the Agency cannot use HSWA authorities to
administer this rule.  However, as noted above, we intend to work with
states and encourage them to adopt this final rule as soon as possible. 
In response to the commenter who suggested a clearinghouse to provide
information about the status of the rule in different states, the Agency
notes that we will be tracking state adoptions of the rule, and will
make that information available on EPA’s website. Interested parties
may also contact the relevant state agency or EPA Regional office. 

In response to the commenter who mentioned state rules that are broader
in scope than this rule, we note that the Agency makes such
determinations on a case-by-case basis depending on the relevant facts
of the state and federal rules.  We therefore do not believe it is
appropriate to address this issue as a general matter in this final
rule. In response to the commenter who mentioned state policies that are
consistent with the ABR decision, we are unclear about the  commenter's
point. We believe that this final rule is consistent with all relevant
court decisions.  We do not agree that states are free to institute less
stringent RCRA rules on the grounds that the Agency has misinterpreted
those decisions.  

We agree with those commenters who noted that uniformity in interstate
transportation may be desirable from a policy perspective, and, partly
for this reason, we are urging all states with authorized programs to
adopt this rule.  However, we are skeptical about the comments saying
that lack of uniformity is very likely to lead to environmental harm, or
to enforcement problems. We have no evidence that hazardous secondary
materials would be abandoned at a state border because they are more
strictly regulated in a contiguous state. Similarly, we have no reason
to think that differential state regulation of recycling is a major
factor in business decisions of generators and reclaimers, although it
may sometimes be one of many circumstances that are considered. In
response to the commenter who raised the possibility of enforcement
jeopardy if generators and reclaimers are located in states with
different approaches to this rule, we believe that generators will be
able to obtain the necessary information about states’ programs to
comply. As part of our outreach efforts, EPA will assist with providing
this information in an easily accessible way. 

We do not agree with those commenters who said that we should continue
to require use of the hazardous waste manifest for hazardous secondary
materials being transported.  We do not believe that this manifest is
necessary for materials that are not discarded. The use of the manifest
to calculate state fees cannot enter into the Agency's decision about
whether use of the manifest is needed to demonstrate lack of discard. In
response to the commenter who suggested the convenience of return
copies, we note that this rule requires intermediate facilities and
reclaimers to send confirmations of receipt to generators. In response
to the commenter who said that this rule violates states' rights to
require a manifest, we note that if a state has enacted a legislative
requirement to adopt by reference rules promulgated by EPA, that state
has in effect voluntarily chosen to refrain from instituting more
stringent requirements.  

In response to those commenters who objected to the use of a hazardous
waste manifest for hazardous secondary materials in states that do not
adopt this rule, we note that the Agency did not propose to change this
long-standing policy, in either the 2003 or the 2007 proposal.  Measures
to amend the policy are therefore outside the scope of this rulemaking. 


We agree with those commenters who said that hazardous secondary
materials meeting the definition of a DOT hazardous material must be
transported in accordance with DOT requirements. We do not agree that
DOT rules prohibit the use of "state-only" hazardous waste in shipping
names. Such labels are allowed as long as they specify that it is a
state waste. 

We do not agree with those commenters who suggested special manifests or
shipping papers for hazardous secondary materials being transported. We
believe the confirmations of receipt and recordkeeping for off-site
shipments sent and received that are required under this rule are
sufficient to assure that hazardous secondary materials were received by
the intermediate facility or the reclamation facility and not discarded.
 In response to the commenter who suggested operational standards for
recycling units, we note that such standards were not proposed either in
2003 or 2007, and thus are outside the scope of this rulemaking.  In any
event, we do not believe that operating standards for recyclers are
related to discard. 

In response to the commenters who mentioned the land disposal
restrictions notice, we note that 40 CFR 268.7(a)(7) requires such
notices only when wastes are excluded "subsequent to the point of
generation.” Because the materials excluded under today's rule are
excluded from (what used to be) the point of generation, they are not
covered by these notices. 

In response to the commenters who expressed concern about state
resources and enforcement of the requirements in this rule, the Agency
has full confidence in the willingness and ability of states to enforce
these requirements. In addition, assistance from EPA is available in
many circumstances.  

 

12 - Administrative Rulemaking requirements

12.1 - EO 12866: Reg planning and review

12.1 - Summary

Potential Adverse Impacts

EPA received many comments on the need to assess potential adverse
impacts of the rule. Executive Order 12866 entitled Regulatory Planning
and Review (58 FR 51735, October 4, 1993), requires EPA to assess the
costs of significant regulatory actions both to health, safety, and the
environment and to government programs responsible for administering the
regulatory program. (The Executive Order does not differentiate between
"regulatory" and "de-regulatory" actions.) EPA has determined that the
proposed revisions to the definition of solid waste constitute a
significant regulatory action in that they are expected to have an
annual effect on the economy of $100 million or more. EPA is therefore
required to conduct a cost analysis, not only by the Executive Order but
also by the well-established principles of sound regulatory policy. The
commenters recommended that EPA consider and quantify to the extent
possible the following potential costs:

- increases in spills and other releases to the environment

- increases in human exposure to hazardous materials

- increases in misdirected, abandoned, and lost shipments

- the costs of ensuring compliance with and enforcing the exclusion

- the costs of investigating and stabilizing abandoned sites

- the costs of assessing and remediating contaminated sites

- the impacts to cost recovery under CERCLA section 107 and to the
Superfund   Recycling Equity Act of 1999

- the impacts to the corrective action program and 7003 enforcement
authorities

- impacts on other environmental programs

- impacts on the mixture and derived from rules

- impacts on traffic accidents

One commenter stated that several of the largest cost-savings cited in
the Economic Assessment of the 2003 Proposed Rule are for training,
testing and disposal costs. The reduced testing and hazardous waste
disposal costs suggests there will be less assurance that residual
secondary materials will be adequately tested to determine if they are
hazardous.  The commenter believed that wastes formerly sent to secure
landfills may now be disposed of at other facilities where there is less
monitoring to ensure there is no impact to the surrounding communities
and groundwater. Reduced training of workers represents increased risk
during handling and transport of exempted hazardous materials, because
untrained workers are often involved in accidental or deliberate
releases to the environment, without knowing the activity was improper. 
A large percentage of the hazardous waste transported through the state
would move to exempt status and reduced oversight, with the increased
risk of taxpayer liability for future environmental cleanups.  One
commenter provided specific examples of environmental damages from
recycling.

[0067-13, 0095-1, 0095-19, 0095-22, 0095-22, 0098-46, 0119-62, 0119-63,
0119-77, 0130-1, 0172-22, 0193-1, 0193-2, 0231-58, 0231-59, 0231-61,
0231-62, 0231-63, 0231-64, 0343-6, 0343-7, 0548-25, 0548-27, 0558-51,
0558-520559-2, 0559-16, 0559-99, 0561-4]

Impact of Codifying Legitimacy

One commenter asserted that the ambiguous wording and the absolute
nature of EPA criteria numbers 1 and 4 could discourage long-standing
legitimate recycling that takes place in the precious metals industry. 
This would result in the loss of enormous revenues derived by precious
metals producers from the recovery of gold and other metals from their
secondary materials and lead to the incurrence of enormous costs to
dispose of these valuable secondary materials.  EPA has not in its
October 28 Proposal sought to analyze these costs and lost benefits.
they submit, however, that such an analysis was done in connection with
EPA's promulgation of the Phase IV LDR rule in 1998 (including the
promulgation of 40 C.F.R. § 261.4(a)(17)), and EPA there concluded that
recycling of these metal-bearing secondary materials was entirely
legitimate and appropriate.

[0089-4]

Onsite Recycling Overestimated

Several comments to the 2003 proposal disagreed with EPA's analysis of
potential increases in intra-industry recycling.  One commenter
disagreed with EPA's assumption that the generating industry is the best
equipped to handle and reclaim secondary materials that it produces. The
commenter believes that facilities within an industry are likely to
produce very similar secondary materials and if they cannot recycle them
in an already permissible, closed-loop method, they are unlikely to be
able to recycle them at all.  It is much more likely that a different
industrial operation, with needs for input material different from that
of the generating industry, will find a use for the output of the
generator.  For example, pharmaceutical manufacturers (NAICS code 3254)
submit that the Agency assumptions used in the Economic Assessment
regarding their industry sector are not correct.  Because of the US Food
and Drug Administration's (FDA) regulatory food/drug purity
requirements, all of the potential secondary materials identified by the
Economic Assessment for reclamation within the industry are prohibited
from being recycled for pharmaceutical use unless extensive testing and
FDA approval is granted. The Economic Assessment did not include this
cost, which would easily diminish the estimated $ 57,330 per affected
facility (124), or $7,108,920 savings (see Table 6-27 in the Economic
Assessment) attributed to this industry sector. These costs would not be
incurred if these materials could be moved to other industries (outside
pharmaceutical manufacturing) for recycling.

The commenter also disagreed with the assumption that generator
facilities will create industrial operations, not linked to their
existing operations, to process and reclaim secondary materials in a
continuous process.  In actuality, like all industrial processes,
reclamation is cost effective only with certain economies of scale. 
Thus it is more likely that a company in another industry will have the
expertise and industrial infrastructure to reclaim significant secondary
materials from a different generating industry.  For example, chemical
operations generate secondary metals in catalyst production, but no
chemical plant is likely to build a metal processing, beneficiation or
smelting operation to address its material flows.  It is more likely to
seek out a company in the metal processing industry that also accepts
and reclaims the secondary materials that others in its generating
industry generate.

Another example might involve a large company generating many different
spent solvent streams at many U.S. sites.  While at some sites the
volume and quality of spent solvents justifies the expense of installing
on-site reclamation facilities, at most sites, the volumes would be too
small to justify the capital investment required to reclaim these
materials.  It is more likely that the materials would be sent off-site
for commercial reclamation.  Removal of the RCRA regulatory barriers
from these streams will not change the economics such that reclamation
facilities will be built on site.  However, it may make the economics
more favorable for commercial reclamation instead of disposal by
lowering the transportation and management costs now associated with
handling the material as a hazardous waste.

[0093-24, 0093-25, 0112-10, 0203-8]

Conversion of LQGs to SQGs Unlikely

Some commenters asserted that EPA's analysis is based on a false
assumption that most large quantity hazardous waste generators will
become small quantity generators because of the regulatory changes and
thus experience significant relief. The commenters do not expect this to
happen in their operations.  This is because the regulatory proposal is
too narrowly scoped to accommodate a significant increase in reclamation
of secondary materials, and because the volumes of secondary materials
produced are such that the small quantity generator status will not be
attainable at most facilities. [0093-26, 0119-70, 0203-8]

Impact on State Fees

Some commenters noted that the proposed rule could have an indirect
impact on state fees. For many states like Maine that collect fees on
hazardous waste, the result of the proposal will be a reduction of
revenue needed to perform these cleanups.  The problem will be
exacerbated by a framework of reduced oversight and tracking, which will
make it very difficult to discover problems until impacts have occurred.
Prior experience has demonstrated that the expenditures required for
prevention of releases are less than those required for remediation. 
The commenters believe that the offsite recycling options should not be
proposed without a thorough evaluation of the environmental and
financial costs of this proposal.   For example, typical wastes that may
be recovered in Maine include F-listed solvents, liquid acid wastes, and
F006 metal waste. Based on 1999 manifest records these wastes represent
8.1, 3.1 and 3.5 % respectively, for a total of 14.7% (by weight) of the
total waste shipped and of the shipping fees collected. The percentage
increases to a total of 28.7% (by weight) of total waste for solvents
and spent acids when the 1999 Biannual Hazardous Waste Report figures
are used.  Exempting these sectors alone could represent a significant
reduction in funding for Maine's program and curb our ability to oversee
compliance and provide technical assistance.  

Once commenter noted that the January 22, 2007 Economics Background
Document, Regulatory Impact Analysis, in Chapter 9, page 173, comments
on state programs.    It noted, "At the same time, certain state
government hazardous waste programs may have reductions in program
revenues from collected taxes and fees.  Transfer payments are not
treated as social costs when estimating the total cost and benefits of
the proposed rule because they reflect redistribution of income/wealth
and not the social value of a good or service (i.e., resource)."  The
commenter thanked EPA for considering the impact on the state programs.

[0095-1, 0095-22, 0488-8]

Impacts on Printed Circuit Board Industry

One commenter states that EPA has overestimated the benefits of the
proposed rule on the printed circuit board industry.  The commenter
believes that significant errors in the underlying assumptions render
the results extremely questionable. In evaluating recycling and recovery
costs for metals containing liquid wastes generated by the printed
circuit board industry, EPA incorrectly assumed that copper is the
primary metal recovered. A thorough examination of metal containing
liquids shipped off-site for recycling and reclamation from the printed
circuit industry would reveal that a significant portion is comprised of
nickel and tin-bearing liquids. Casual examination of the receivers and
secondary receivers reveals that a significant portion of the identified
streams are sent to tin, lead, and nickel recovery operations such as
ECS Refining Texas LLC and Envirite Inc. Most on-site precipitation
recovery systems are equipped to handle copper based solutions, but have
difficulty with concentrated nickel and tin solutions, particularly when
combined with chelating agents or fluorides. Facilities desiring to
undertake on-site recovery of chelated nickel and tin solutions would
face technical challenges in addition to the effort needed to separately
package, label, store, and ship these additional metals.  The 2003
economic assessment's analysis of facility impacts for major industry
groups also appears to have mathematical errors. The printed circuit
board industry (NAICS 334412) is identified again on page 6-1 as a major
beneficiary of the proposed rule. Table 6-27 lists NAICS Code 3344 as
having 464 facilities affected with annual average savings of $24,860
per facility. Yet clearly this aggregate industry benefit of $11.5
million far exceeds the benefits ascribed to this industry sector
(identified both by NAICS 3344 and SIC 3672) in Tables 5-20, 5-21, and
5- 22 ($527,843, $2,884,000, and $254,000, respectively). It is unclear
as to the source of the additional benefits.

[0112-11]

Impacts on Recycling Infrastructure

Some commenters stated that the proposed rule may have a negative effect
by undercutting the existing recycling infrastructure. While EPA's
economic assessment identified potential economic and environmental
benefits through increased onsite recycling of secondary materials that
are currently managed offsite, the commenters asserted that the analysis
failed to consider the potential adverse economic impacts on existing
recycling and reclamation facilities. As current recycling and
reclamation facilities lose access to significant streams of valuable
secondary materials and feedstocks, many recycling operations will no
longer prove economically viable. For many recycling operations, the
result of this economic pressure will be to either raise prices for
handling materials or close their doors. This is unfortunate, as
recycling businesses, which have recycling operations as their core
business activity, may be the most qualified to efficiently and safely
recycle many secondary materials. Furthermore, as recyclers exit the
business, the lack of competition and geographic availability will
result in increased costs for generators. Consequently, fewer materials
will be recycled and more materials will be permanently disposed of in
landfills.  

Although economic assessments do not generally evaluate the impact of
deregulatory proposals on those companies that provided the no-longer
required services, they believe the Economic Assessment should do so in
this case. There is a point, well above zero, where the volume of
remaining hazardous waste does not justify the infrastructure and
operating costs that private enterprise expends to meet the Subtitle C
requirements. This impact should be part of this economic assessment. 
When this impact is evaluated, EPA will see that the lost capacity and
jobs will far exceed the savings predicted from this rule.

[0112-12, 0117-76, 0146-12, 0548-5]

Analyze Impact of Excluding All Legitimately Recycled Materials

One commenter suggested that EPA should conduct an analysis to quantify
the potential economic and environmental benefits of a rule that
excluded from RCRA all legitimately recycled materials. [0112-15]

Additional New Recycling is Likely to be Small

Some commenters noted that that the amount of new recycling induced by
the rule is estimated to be small.  Although EPA implies that current
regulations discourage recycling and that the proposed rule is needed to
"encourage safe, beneficial recycling of hazardous waste," the Agency's
own Economic Assessment that was conducted to support the proposed
rulemaking indicates that 597,000 tons of metal bearing waste and
268,000 tons of solvent waste are already being recycled by industry. 
According to the assessment document, the proposed rule will only
"encourage" the recovery of an additional 3,000 tons of metal bearing
waste and 12,000 tons of solvent waste. This represents an additional
0.5% and 4.5% of metal-bearing and solvent waste, respectively, that
will be recycled.  The commenter states that the quantity of additional
recycling that may occur is insignificant when compared to the potential
impact on the environment that the removal of protective controls will
have.

[0117-4, 0119-68]

Volume Error in 2003 Regulatory Impact Analysis

Some commenters stated that the 2003 economic assessment is flawed in
that the base assumptions on which it is constructed are entirely
erroneous, arbitrary and biased. The fundamental assumption made by EPA
is that the differential in waste volumes recovered in 1997 versus 1999
is a measure in some way of the wastes that can potentially be exempted
under this proposed rule.  EPA makes the following statement at the
outset of the Economic Assessment: A total of 1,749 plants recovering
approximately 1,570,000 tons either on site or within the same Industry
Group may benefit from the exclusion from RCRA jurisdiction.  Yet there
is no logical or factual basis given to support this volume, which is
based entirely on a delta between 1997 and 1999 reclaimed volumes,
followed by unsubstantiated assumptions that wastes currently landfilled
and/or treated will be recovered as a result of this rule.  In addition,
905,000 tons of the cited 1,570,000 tons (58%) is already being recycled
on-site and off-site, yet the economic analysis treats this as if it
were a new volume of waste gaining the economic advantages of being
recycled. In addition, a large amount of waste volumes are eliminated
from the 1999 data set, but not from the 1997 data set, arbitrarily
inflating the 1997 to 1999 delta on which the analysis is based. 
[0119-63, 0119-64, 0119-66, 0231-20, 0231-65]

Statistical Treatment of Outliers in 2003 Analysis

One commenter objected to how EPA's 2003 economic analysis dealt with
outliers.   The commenter believes that the methodology was stacked in
favor of biasing the 1999 volumes recycled to a lowest value.  A
statistical outlier analysis was done on the 1999 data simply based on a
criterion of two standard deviations.  This is not a valid statistical
outlier test, as can be seen from any statistical text. A valid test
would have been based on a Student "t" test or another test like
Rosner's Test or the Shapiro-Wilk Test.  Several other tests can be
found in the reference: "Outliers in Statistical Data," by Barnett and
Lewis (1984, Wiley, New York).  By using an arbitrary criterion of 2
standard deviations, a method that is not even considered a valid
outlier test, EPA eliminates over 60% of the volumes from the 1999 data.
Keep in mind that the economic analysis is predicated on showing a lower
volume of recovery in 1999 versus 1997, so a biased approach would
attempt to deflate 1999 volumes in any way possible.  Eliminating 60% of
the volumes for 1999 would certainly work in favor of biasing the data. 
If EPA did the same outlier analysis with the 1997 data, this would help
keep some level of credibility in the analysis.  However, for no clear
reason, they did not.  No statistical outlier approach or any outlier
adjustment was assigned to the 1997 data.  Instead, EPA states on page
3-6 "a more abbreviated QA/QC was conducted" on the 1997 data. This
QA/QC consisted of merely looking at records with incremental cost
savings above $500,000: a completely different QA/QC criterion than was
applied to the 1999 data. What is the significance of $500,000?  Why not
$100,000 or $50,000? EPA just picks a number.  The result is that only
15 records were eliminated for QA/QC for the 1997 data, versus 111 for
the 1999 data treated in a totally different fashion. [0119-65, 0119-66,
0119-67, 0231-65]

 

Other Technical Comments on 2003 Analysis

Commenters provided additional detailed technical comments on the 2003
economic analysis.   For example, a savings of $1.49 million is assigned
to "one-time contingency plan."  The commenter had two issues with this.
 First, if the generators are currently regulated, this "one-time" plan
is already done.  Secondly, generators have other similar requirements
to complete emergency response plans under EPCRA and other local laws. 
No savings should have been assigned for this item.  Likewise, EPA
assigns a savings of $42.3 million to waste characterization testing. 
Yet few generators use laboratory analysis to characterize their waste,
relying instead on "process knowledge" which is allowable under RCRA. 
In addition, any testing that is done is usually performed once until
such time that a process changes.  Finally, this savings assumes that
the generator will no longer need to characterize their waste. This
hopefully is wrong, as any off-site or on-site reclamation operator will
need to know the waste characteristics in order to properly manage the
secondary material.  In fact, it is more probable that waste
characterization testing will need to be increased in order to ensure
that the feed materials to a recovery process are compatible with the
process and to confirm the presence of recoverable constituents at
proper yields.  Therefore, no savings should be assignable to waste
analysis.

Another cost factor the commenter believes was inappropriate to assume
is hazardous materials and manifest training. The EPA analysis assumes
$5.7 million savings for hazardous materials and manifest training. This
is wrong for two reasons. First, it is predicated on the assumption that
the generator’s plant has no other hazardous materials or hazardous
waste that will need to be manifested. In reality, there will likely be
other wastes and hazardous materials, and the incremental cost savings
for the exempted waste are insignificant once the training for
non-exempted hazardous materials and waste is done.  (In addition,
manifests will be required for any shipment entering a state which has
not adopted the features of this rule, undermining still further the
alleged cost savings caused by the rule.) Secondly, the costs are highly
inflated and insufficient information is provided to justify where such
a number came from.  No savings should be assignable to these two items.

        

The commenter also asserted there are additional flaws to the 2003
analysis, including (1) underestimating of cost of residuals management,
(2) the on-site recycling technologies assumed are capital intensive and
have high operating costs, and (3) no costs are assumed related to other
air permitting issues associated with technologies like smelting,
fractional distillation, carbon regeneration, acid regeneration and
fluoride recovery.  These technologies are significant sources of air
emissions, and air permitting operating controls, testing and other air
permit compliance has not been accounted for. 

The commenter also notes that the technologies, which EPA assumes will
be applied to the exempted waste, consist of HTMR, the HIsmelt process,
secondary smelting, fractionation/distillation, acid regeneration,
carbon regeneration, and ion exchange for aqueous wastes. In addition,
fluoride recovery using the Vortec Technology is assumed for spent
aluminum potliners. The capital costs of design and construction of
these units on-site are estimated in the EPA analysis, but the estimates
appear low.  Most importantly, the commenter had trouble seeing where
the capital costs are included in the analysis.  For a company to build
a reclamation or recycling system as EPA predicts, the biggest question
is whether the up-front capital expenditure will be invested.

The commenter believes that information on which technologies would be
used for recycling and the break-even points that EPA estimates appear
questionable and provided several specific examples.  The commenter also
asserted that there is no analysis of the cost or environmental impact
of residues of these processes. Using EPA's estimate of 15% zinc
(average), this would mean that the remaining 85% of residues would have
to be dealt with somehow.  

The commenter also asserted that the salvage values for secondary sale
of recovered materials on page 5-30 appear to be high, and the 90%
purity factor applied by EPA is also high.  These salvage values were
mostly extracted from a reference document called the London Metals
Exchange published in the UK.  The commenter said EPA should instead
survey actual U.S. data from cases where recovered solvents and metals
are sold, and survey actual purities and provide specific examples.

[0119-69, 0119-70, 0119-71, 0119-72, 0119-73, 0119-74, 0119-75, 0193-3]

Physical/Chemical Properties of Wastes 

One commenter stated that there was no engineering judgment or waste
characteristic considerations applied to the EPA analysis and that EPA
did a "desk top" analysis looking at BRS numbers and made assumptions of
industry sectors that if X% was recovered in one year from a given NAICS
code, than maybe another X+N % would be recoverable under this rule. 
There was no engineering judgment or waste characteristic consideration
applied to the EPA analysis.    The commenter asserted that of the
596,000 tons that is traceable and not being recovered currently
according to the 2003 analysis, 183,000 tons is being managed by energy
recovery.  In addition, 266,000 tons is being managed in aqueous
treatment systems.  There is no reason to believe that generators will
be encouraged to shift the management practices for these types of
wastes.  The aqueous inorganic treatment already realizes RCRA
exemptions associated with the wastewater treatment exemptions.  In
addition, wastewater streams are often dilute and do not contain
significant quantities of recoverable constituents.  It is therefore
doubtful that any of this volume will go to recovery.  Likewise, the
volumes currently managed by energy recovery are being done so at a
savings and also as a recycling practice.  Many states and TRI view
energy recovery as recycling.  There will be little incentive for
generators to switch their management practices and invest capital in
alternate recovery processes for these streams.

In addition, other than the BTU value, these wastes contain few
components that have recovery value, which is why they are managed by
energy recovery or fuel blending currently, as opposed to solvent
recovery.  The average solids content of fuel-blended waste is about
30%, and many cement kilns are feeding other higher-solids content waste
through pails or coal injection systems.  In addition, many fuel-blended
streams have substantial water content and other organic liquid
components that form azeotropes and are not amenable to solvent
recovery.   At most, 50,000 tons of this volume might be routed to other
recovery, but even this is doubtful. Therefore the aqueous 266,000 tons
and 133,000 tons of the energy recovery wastes should not be included in
the 596,000 tons, making the total adjusted EPA assumed potential
recovery portion 197,000 tons.

Of this remaining 197,000 tons, 48,600 are currently incinerated.  Such
wastes tends to be high in solids content and to have no recoverable
constituents.  Very little of this volume should be assumed to be
amenable to recovery.  This leaves about 100,000 tons that is stabilized
and landfilled.  Likewise, EPA has assumed too high a percentage (60%)
as being amenable to some form of recovery.  Wastes such as F006
hydroxide sludges have mixture of metals and it is not economical to
recover them.  At most potential 50,000 tons of landfill waste and
50,000 tons from the above energy recovery sector may be amenable to
recovery under this proposed rule.  This makes the net impact 100,000 to
150,000 tons, not 1,570,000 tons as assumed by EPA.  The approximate
number of facilities impacted is potentially 100 to 150, adjusting for
the proportional volume.

Another commenter provided detailed information on potential recycling
of materials used in electronics manufacturing, including electroplating
sludge sent to etchant suppliers, spent cupric chloride etchant used in
the manufacture of copper hydroxide fungicides, copper sulfate and
tribasic copper chloride for use as mineral supplements in the hog and
chicken feedstock industries, and copper oxide for the pigment market as
well as for the treated wood industry.  In addition, The ammonium
chloride portion of spent ammoniacal etchant (also used to remove copper
from printed circuit boards) can be recycled by chemical
suppliers/manufacturers into new etch solution and returned to the
electronics industry.  The copper constituent is incorporated into
copper sulfate, copper oxide, and a variety of other specialty
formulations as discussed above.

Other spent plating baths, such as electroless copper, electroless
nickel, and gold can be reclaimed by suppliers or other chemical
processors.  Spent cyanide baths, which contain gold, are a listed RCRA
waste (F007), thereby requiring shipments of mainly gold baths on
hazardous waste manifests. Any precious metals are typically recovered
by chemical suppliers/ manufacturers and returned to the market.  High
chloride micro-etches can be sent to a mine as a feedstock to the mining
process.  Solder dross, a byproduct of the soldering process, is sent
back to the solder manufacturers and returned to electronics facilities
and other solder users.  Sludge from the stencil wash evaporator process
can also be sent to the solder manufacturer for reclamation and would be
done more frequently under less burdensome regulatory schemes.  Copper
containing drill dust (approximately 10 percent copper) and edger dust
(20-25 percent copper) generated during the manufacture of PCBs is
generally not recycled because of the high cost of shipment as compared
to landfill disposal. Under the Supplemental Proposal, this secondary
material could be easily combined with copper containing sludge for more
efficient shipment and recycling.

Another commenter provided an example of an inter-industry manufacturing
chain that has been significantly hindered by the current regulatory
system. The primary manufacturing process for vanadium production in the
U.S. is to adsorb raw vanadium from oil, extract the vanadium from the
adsorbent, and produce vanadium products. This sequence of processes
occurs at multiple industry sites as do many manufacturing chains today.
However, since the adsorbent was also considered to be "spent" in its
function as a petroleum catalyst, it was listed as a hazardous waste
whether or not it was disposed or processed in the vanadium
manufacturing chain. The result of the listing has been that the
manufacturing chain became uneconomical for many vanadium sources and
the adsorbent containing raw vanadium has been increasingly disposed of
as hazardous spent catalyst (K172). Under EPA's proposal, the commenter
believes the adsorbent containing vanadium would not be considered a
waste when processed in the vanadium production chain. Thus, EPA will
reverse the negative consequences of the listing with its proposal to
clarify when a material is not a waste. Over time they anticipate more
material containing vanadium will leave the disposal stream and enter
the manufacturing chain. The commenter believes this is but one example
demonstrating the value of this proposal.

 [0119-67, 0458-8, 0458-9, 0464-3]

Cost Saving Underestimated

Some commenters believe that the EPA has greatly underestimated the
potential benefits, both environmental and economic.  While it may not
be possible to quantitatively measure expected benefits from a complete
change in the landscape of materials use, it is important to recognize
that the potential and likely benefits of the Supplemental Proposal far
exceed those identified in the Regulatory Impact Analysis (RIA). 
Because the RIA focused only on the impacts that could be predicted from
existing RCRA biannual reporting, it underestimated the full potential
of the Supplemental Proposal.  The RIA failed to include both the wastes
generated by Conditionally Exempt Small Quantity Generators (CESQGs),
which are exempt from reporting, as well as many waste streams that are
not currently recycled but could be under a broader, more competitive
recycling marketplace made possible by the Supplemental Proposal. 

Another commenter stated that the economic benefits to the specialty
batch chemical manufacturing industry will exceed the projections in the
background documents for the Proposed Rule.  Furthermore, assessing the
aggregate economic impact does not necessarily measure the incremental
benefit that the Proposed Rule will have on smaller businesses.  Even
small cost savings on individual production runs can be very
significant, given the relatively smaller profit margins in the
specialty batch chemical manufacturing sector and the significant
foreign competition that U.S. industry faces in this essential
manufacturing sector.

Another commenter provided specific examples of why the rule would be
likely to increase recycling of K061 more than estimated.  

[0458-7, 0471.2-4, 0471.2-25, 0529-32]

Include Incineration in Baseline Costs

One commenter requested that EPA consider the cost of incineration in
the baseline.   Both due to general bans on liquid in landfills and due
to the need to consider actual industry practices in order to have an
effective impact analysis, it is important to note that the relevant
industry disposal cost and disposal practice is incineration. The
current costs of incineration of waste solvents can be particularly
significant for small businesses and small sites.  Smaller businesses
have little leverage with or access to the larger reclamation
facilities.  In addition, absent use of a closed-loop system, this type
of reclamation cannot currently be conducted in-house absent a RCRA
permit.  In addition, smaller facilities often bear comparatively higher
transportation costs because transporters are less willing to manage
small volumes of hazardous wastes.

Overall, the cleaner a waste solvent is the more value it has either for
subsequent use and application as a solvent or for energy recovery. 
Thus, the ability of a toll contractor to use existing equipment to
reclaim even smaller volumes of solvents from toll manufacturing
operations is economically a meaningful option to pursue.  Relatively
cleaner solvents also typically have a higher BTU value and hence can
have greater value for energy recovery.  Under the best scenarios, for
relatively cleaner solvents, sites may pay $0.25/gallon for local
incineration and up to 0.50 dollar/gallon if the material has to be
transported 1,000 miles.  This converts to about 0.24 dollar/lb and 0.48
dollars/lb respectively.  The incineration prices increase from those
levels, based on percent water, halogen or other constituents that may
be present in the solvents.  For example one member has an incinerator
cost of $1.80 per gallon of waste stream, where transporting a full
tanker truck to an incinerator would cost 2,050.00 dollars.  Other
members have full tank load costs of up 2,640.00 dollars to an
incinerator.  Considering the number of waste streams a specialty batch
chemical manufacturer may produce, and the fact they will have to pay
the cost of a full load to have the waste leave their site within 90
days, an ability to use existing equipment to reclaim these solvents can
make a significant difference in terms of handling costs and options for
the solvents. [0471.2-26]

Consideration of Transport Costs

One commenter stated that concept that increased recycling would spur
the growth of the recycling infrastructure and therefore, contribute to
the reduction of the distance that these hazardous materials must be
transported fails to consider that in some instances over capacity for
certain forms of reclamation exists already, and that generators who are
recycling for reuse likely will continue to ship their materials long
distances because of the preference for the quality of the product they
are accustomed to receiving from the facilities that have been providing
such products for years and have the institutional expertise to work
closely with generators to produce such quality. As with any consumer,
generators purchase not only on price but also on the reclaimer's
ability to meet their specifications.   This commenter believes that the
mishandling that this rule invites, as proposed, associated with poor
quality recycling or poor facility management by potentially
ill-prepared entrants, will eventually be self-correcting resulting in
the best operators ultimately acquiring a larger share of the market,
and the startups that could not meet generator expectations will litter
the landscape as reminders of bad policy, some, however, possibly may
have contributed significant environmental damage during that process to
be discovered now or in the future. [0479-15]

Impacts to the Cement Kiln Recycling Industry and to Energy Recovery

One commenter had extensive comments on their concerns about impacts to
the cement kiln recycling industry and to energy recovery.  The
commenter identified eight areas in which they believe the supporting
analyses for the proposed DSW rule do not fully address its potential
adverse consequences. They believe that EPA, if it were to fully analyze
these consequences, might wish to reconsider the options selected in the
supplemental proposal in order to reduce the impact on energy recovery
at cement kilns and avoid some of the negative consequences.  The eight
areas are: 

1. EPA incorrectly assumes that the revised definition of solid waste
will not affect the volume of hazardous wastes going to cement kilns for
energy recovery. 

2. EPA lays out a "worst case" scenario for cement plants, but
underestimates the potential for this "worst case" to occur as well as
the magnitude of its impact. 

3. EPA does not consider the joint impact with another recently proposed
EPA rule -- the Expansion of the RCRA Comparable Fuel Exclusion -- that
will also reduce energy recovery at kilns. 

4. The cost of the additional coal that cement plants will burn as a
result of the DSW rule is a real resource cost, not a "transfer effect,"
and as such should be counted among the costs of the rule. 

5. There are health and safety impacts associated with the increased use
of coal that should be considered. 

6. EPA should complete an analysis of the lifecycle impacts of diverting
waste solvents from cement kilns to other kinds of recycling. 

7. EPA has not quantified the degree to which the proposed rule may
cause increased mismanagement of waste or sham recycling, and has not
estimated the impacts if this occurs. 

8. EPA has not evaluated the adverse consequences if some states do not
adopt this rule. 

The commenter discussed each of these points in detail.  First, the
commenter outlined the shift in hazardous waste management - away from
energy recovery in cement kilns and toward other forms of recycling -
that they expect would occur if the proposed rule were promulgated. 

Fourteen cement plants currently burn for energy recovery some 1 - 1.2
million metric tons per year of hazardous waste-derived fuels (HWDF). 
This beneficial waste management practice is highly regulated.  The
cement plants procure this HWDF in a variety of ways, from a variety of
sources.  Some plants contract with independent fuel blenders who
acquire wastes from generators and blend it to the plants'
specifications; other plants perform the fuels management function
themselves and acquire the wastes directly from generators as well as
from independent fuel blenders.  The typical Btu content of the HWDF as
fired in the kilns is between 10,000 and 12,500 Btu/lb, with regulated
metals content of less than 2 percent, halogens at less than 3 percent,
and moisture content of less than 25 percent.  The composition of
individual waste streams that comprise the eventual HWDF burned in
kilns, however, can diverge substantially from this overall as-fired
average.  Individual waste streams that eventually become a part of the
HWDF may have lower Btu content and higher metals, halogen or moisture
content.  In general, waste streams that are not directly usable as fuel
in cement kilns (i.e., because they have lower Btu content, higher
metals, halogen or moisture content, or do not have the necessary
physical characteristics) may be accommodated as part of the HWDF if
they are blended with a sufficient quantity of waste streams that have
higher Btu content, lower levels of impurities, and appropriate physical
properties, resulting in an acceptable average quality for the HWDF
as-fired. Kiln operators and/or their fuels managers charge fees for
acceptance of different waste streams that reflect their relative
utility as components of HWDF - lower prices, for example, are charged
for high Btu, relatively "clean" waste solvents, and higher prices are
charged for lower Btu wastes with higher levels of impurities or that
have difficult physical properties (e.g., higher solids content, higher
viscosity, or are non-pumpable).  Kiln operators manage their tipping
fees ("price sheets") and fuel acquisition efforts to obtain a mix of
wastes that enables them to meet their overall HWDF quality and quantity
requirements. 

Because EPA has not chosen to apply the deregulatory provisions of the
proposed DSW rule to wastes that are burned for energy recovery, the
commenter expects that the proposed regulation will encourage competing
forms of recycling and draw away from kilns the particular sorts of
waste streams that are most valued by the kilns as components of their
HWDF.  EPA provides estimates in the RIA suggesting that organic liquids
(primarily spent solvents) is the waste type that will most extensively
be shifted by the proposed rule from disposal to recycling.  Spent
solvents, particularly those that have high Btu content and that are
minimally contaminated with metals, suspended solids and water, are
especially desirable as blending stock for the production of HWDF for
cement kilns.  Most of the characteristics of these wastes that make
them desirable for use in kilns also make them prime candidates for
other forms of recycling such as solvent recovery and reclamation.  A
regulation that materially reduces the cost of solvent recycling will
shift the terms of this competition, drawing spent solvents away from
kilns. 

Because kilns need to maintain a certain quality in their as-fired HWDF,
a loss to kilns of high Btu, relatively "clean" solvent wastes will mean
that kilns can no longer accept some amount of other, lower Btu, less
"clean" wastes.  These lower Btu wastes still have recoverable energy,
but the opportunity to recover this energy will be lost if the high Btu
waste streams are diverted from cement kilns to other types of
reclamation processes.  Loss of higher quality solvent wastes from kilns
to other recyclers thus has a leveraged effect - the commenter estimates
that one ton less of solvent waste available to kilns for HWDF likely
means that kilns will burn roughly two fewer tons of total wastes; they
will no longer burn both the ton of solvent waste and the ton or so of
other, less desirable wastes that would have been burned had the solvent
waste been available. 

Cement kilns realize two major benefits from burning HWDF.  They are
typically paid a tipping fee for accepting the waste, and the energy
content of the waste when burned in the kiln reduces the amount of
fossil fuel energy (nearly always from coal) needed in their production
process. Various costs partly offset these benefits: the kiln operator
will incur costs to acquire the waste (e.g., sharing the tipping fee
with a HWDF fuel blender/manager), costs to manage hazardous wastes as a
RCRA-regulated facility, and some costs in terms of reduced production
efficiency (e.g., a "clinker penalty").  In terms of environmental
impacts, burning HWDF will typically substantially reduce a kiln's
emissions of NOx and SO2 compared to kilns that do not utilize HWDF, and
will leave emissions of other air pollutants and generation of solid
waste relatively unchanged.

The commenter is concerned about both the negative financial and
environmental impacts that the proposed DSW regulation will cause as
some of the most desirable wastes are shifted away from energy recovery
at kilns.  Recovering the energy content of hazardous wastes in cement
kilns has substantial environmental advantages relative to other means
of managing the wastes and relative to other means of meeting cement
kilns' energy needs. The commenter estimates that the cement kiln
recycling industry has invested hundreds of millions of dollars in
meeting regulatory requirements as permitted RCRA storage facilities
that also comply with the Maximum Available Control Technology (MACT)
standards under the Clean Air Act.  If they are to remain in this
business and provide the associated environmental and energy advantages,
the cement companies that burn HWDF must acquire and use a sufficient
amount of suitable wastes to cover the continuing costs of meeting these
regulatory requirements.  The leveraged impact of the proposed
regulation - shifting some of the highest quality hazardous wastes away
from energy recovery and thus also reducing the quantity of other
hazardous wastes that kilns will burn - may jeopardize some kilns'
continuing participation in this activity.  EPA should thoroughly
analyze the degree to which the proposed rule will shift wastes away
from energy recovery in cement kilns, and the economic, environmental
and health impacts that will result.  

The commenter discussed in detail each of the eight concerns about
impacts on the cement kiln recycling industry identified earlier in the
comment.

1. EPA incorrectly assumes that the revised definition of solid waste
will not affect the volume of hazardous wastes going to cement kilns for
energy recovery.

If this important effect were properly evaluated in the RIA, it could
significantly affect the Agency's choice among regulatory options. The
RIA assumes that energy recovery at cement kilns will be unaffected by
the DSW rule.  EPA's basis for making this assumption is incorrect, and
EPA's analysis in the RIA appears to suggest the opposite -- the DSW
rule likely will adversely affect energy recovery at cement kilns.  As a
consequence of this incorrect assumption, the RIA fails to evaluate a
wide range of adverse impacts that will result from reducing energy
recovery at cement kilns.  These unexamined impacts would likely have a
material impact on the relative desirability of the various regulatory
options being considered. 

EPA assumes that the DSW rule will not lead to any shift of hazardous
wastes from energy recovery at cement kilns to other forms of recycling:


"this RIA excludes from the baseline…waste quantities currently
managed by energy recovery…and fuel blending….assuming that wastes
currently (pre-rule) managed by these two methods will continue post
rule," (USEPA OSW, "Regulatory Impact Analysis for USEPA's 2007
Supplemental Proposed Revisions to the Industrial Recycling Exclusions
of the RCRA Definition of Solid Waste." January, 2007. Page 132.).

Because the Agency simply assumes that such a shift will not occur, the
RIA analyzes neither the magnitude of such a potential shift nor the
environmental impacts of such a potential shift.  EPA assumes there will
be no such shift despite the fact that "… the RIA acknowledges that
… there could be economic incentive under the DSW options to induce
switchover from energy recovery and fuel blending to recycling," (USEPA
OSW, DSW RIA.  Page 132.).

Clearly, generators will tend to select the lowest cost option, and a
deregulated reclamation facility has much lower compliance costs than a
highly regulated permitted cement kiln operation.  As is recognized by
EPA, the DSW options will create an economic incentive to shift wastes
from energy recovery to deregulated reclamation.

  

EPA's rationale for assuming that the DSW proposed rule will not cause
wastes to shift from energy recovery to recycling is apparently the high
energy prices in recent years: 

References that EPA cites on page 167 of the RIA ("see item 5A, 5B and
5C in 'Step 5' of Section 2E, and Section 5B") in an explanation for the
expectation that the cement industry would not suffer adverse effects
from the DSW rule are incorrect and not relevant.

"RCRA solvents currently disposed for fuel blending and energy recovery
are not expected to shift to solvent recycling under the DSW rule
(because of US market conditions favorable for waste-to-energy systems
the last couple years …)," (USEPA OSW, DSW RIA.  Page 17.).

However, the high energy prices that increase the attractiveness of fuel
blending and energy recovery also cause solvent recovery to be
increasingly attractive for waste solvents.  The price of solvents is
high when energy prices are high due to the high cost of petrochemical
feedstocks used in making the solvents.  High solvent prices mean high
value for solvents recovered from recycling; high energy prices thus
boost the economic competitiveness of recycling as an alternative to
energy recovery as a means of managing waste solvents  (EPA indicates
that the price of the recovered materials represents a primary driver of
any recycling market.  USEPA OSW, "A Study of Potential Effects of
Market Forces on the Management of Hazardous Secondary Materials
Intended for Recycling." November, 2006).  Or, as EPA states succinctly:


"Demand for recycled solvent … is largely dependent on the petroleum
market: because virgin solvent is made from petroleum products, high
petroleum prices encourage solvent recycling," (USEPA OSW, DSW RIA. Page
99.). 

High energy prices increase the attractiveness of both energy recovery
and recycling as competing means of managing waste solvents.  It is not
clear to us why the RIA concludes that high energy prices would make
energy recovery so economically preferred that a reduction in the cost
of other types of recycling, as will result from the DSW rule, will have
absolutely no impact on this competition. 

Analyses in the RIA strongly suggest that the regulatory options will
reduce the volume of hazardous wastes going to cement kilns for energy
recovery. 

The analysis in the RIA suggests the opposite of what EPA concludes. 
The reduction due to the DSW rule in costs of recycling organic liquids
will have a substantial impact in increasing the competitiveness of
recycling vs. energy recovery.  Exhibits 5M and 5N in the RIA indicate
that Regulatory Options 4 or 7 (both of which were selected for the
proposed regulation) in the "Medium Uncertainty Estimation Range" will
result in an annual cost savings of roughly 20 million dollars for a
little more than 40,000 tons of organic liquids that will shift from
offsite disposal to onsite recycling.  The RIA's estimated cost savings
due to the DSW rule thus amounts to roughly 500 dollars/ton of shifted
organic liquids. Embedded in this estimated cost savings are the RIA's
assumptions regarding the current baseline to the effect that the
average cost of organic liquid waste disposal is 218 dollars/ton and
disposal occurs via incineration. (USEPA OSW, DSW RIA. Page 112. 
"Incineration was assumed as the management method for … the disposal
of organic liquid wastes. … The reported costs were averaged for an
estimated unit cost of 218 dollars per ton (2005 dollars).").  If the
RIA were to extend this cost savings analysis to solvents managed in the
baseline through energy recovery at cement kilns, the rule would be
projected to result in cost savings per ton of 500 dollars - 218
dollars+ 67 dollars or 349 dollars per ton. 

In sum, EPA calculates that the 500 dollars/ton average reduction in the
cost of recycling organic liquids relative to the cost of disposing them
will shift a substantial amount of these wastes away from incineration
and to recycling.  This shift of these wastes is the largest waste shift
from disposal that EPA expects from the rule.  In contrast, EPA assumes
that an estimated 349 dollars/ton average reduction in the cost of
recycling organic liquids relative to the cost of burning them for
energy recovery in kilns will shift none of these wastes away from kilns
and to recycling.  EPA's assumption regarding the potential shift from
kilns is inconsistent with EPA's calculation regarding the shift from
disposal/incineration. The amount of the rule-induced cost incentive to
shift to recycling is nearly as large (70 percent as large: 349
dollars/ton relative to 500 dollars/ton) for waste solvents destined in
the baseline for kilns as it is for waste solvents destined in the
baseline for disposal/incineration.  The waste solvents shipped in the
baseline to kilns are presumably far more amenable to solvent recovery
(i.e., they are less dilute, less contaminated, etc.) than are the waste
solvents shipped in the baseline to incinerators/disposal.  The waste
solvents going to kilns in the baseline would thus be far more likely to
shift to other forms of recycling, given a roughly equal
regulation-induced cost incentive, than those going to
incinerators/disposal in the baseline. Yet the RIA assumes the opposite
- no shift in the waste solvents going to kilns, and a substantial shift
in the waste solvents going to incinerators. 

The RIA should analyze the impact of causing a shift away from energy
recovery. 

This likely shift from energy recovery to alternate recycling/solvent
recovery should be analyzed rather than assumed away because it is an
essential input to many of the other analyses that the RIA did not
perform that could have a material impact on the costs and risks of the
options considered by EPA, as discussed in the points below. 

2. EPA lays out a "worst case" scenario for cement plants, but
underestimates the potential for this "worst case" to occur as well as
the magnitude of its impact. 

The DSW RIA performs what it calls a "worst-case" analysis of the cost
to the Portland cement manufacturing industry for a scenario in which
the DSW rule results in loss to the cement industry of all of the
RCRA-regulated wastes that are currently utilized for energy recovery by
cement kilns.  The RIA assumes these materials will be replaced by coal.
 The RIA estimates the resulting lost revenues and increased costs for
cement plants:  reduced revenues from generators of 50.6 million
dollars/year and increased costs for coal of 45.4 million dollars/year
for a total loss of 96 million dollars/year, representing 6.8 - 9.2
percent of revenues at these plants. Assuming the RIA's analysis is
accurate, the RIA still fails to recognize four critical factors.

a)  The "worst-case" scenario in which cement plants no longer use any
RCRA-regulated wastes for energy recovery may be triggered by a much
smaller initial shift in the volume of these wastes. The types of
RCRA-regulated materials that are most desirable for solvent recycling
are also those that are most desirable to kilns for fuel blending. These
most desirable materials account for perhaps 1/4 to 1/3 of the
RCRA-regulated materials used by kilns for energy recovery. Because of
the leveraging effect discussed earlier, the loss to kilns of this most
desirable 1/3 or so of their wastes would result in another 1/3 or so of
the wastes becoming no longer acceptable because of the need to maintain
the overall quality of the HWDF as fired.  Some kilns might then find
the sharply reduced (by 2/3 or so) quantity of RCRA wastes to be
insufficient to justify the costs of continuing in the business of
managing hazardous wastes.  It is even possible that some kilns losing
the most desirable wastes could ultimately find it necessary to cease
burning all sorts of hazardous wastes, and possibly also some
non-hazardous industrial waste streams that are currently beneficially
used for energy recovery (i.e., both Federally-listed hazardous wastes
and additional sorts of wastes that are listed by states but not the
Federal government as hazardous.).  In short, it's possible that there
could be an even larger reduction in energy recovery by kilns than EPA's
"worst-case"; and that EPA's "worst case" could be triggered by a shift
to recycling of well less than half of the volume of RCRA wastes now
managed in kilns.  The "worst-case" is a more likely scenario than
represented in the RIA. 

Further, as discussed in number 3 below, another proposed EPA rule, the
Expansion of the RCRA Comparable Fuel Exclusion (CFE), will clearly have
the effect of shifting these critical materials away from cement kilns
as EPA concludes in the RIA for the CFE rule (USEPA OSW, "Assessment of
the Potential Costs, Benefits, and Other Impacts of the Expansion of the
RCRA Comparable Fuel Exclusion - Proposed Rule," June, 2007). Even if
the effect of the DSW rule by itself is not sufficient to trigger the
worst-case, EPA should evaluate whether the combined impact of the DSW
and CFE rules might have that effect.  Moreover, even if the combined
impact of the rules is less than the "worst case," the combined impact
might still be sufficient to alter EPA's evaluation of the regulatory
options and, for that reason, should be analyzed. 

b)  The RIA considers the entire loss of revenues to cement plants of 96
million dollars/year to be a "transfer effect," and so it is not
included in the RIA's estimate of the "most likely" net cost savings of
107 million dollars/year associated with the proposed rule (USEPA OSW,
DSW RIA. Page 6).  While the lost revenue to cement plants from
generators of 50.6 million dollars is properly considered a transfer
cost, the RIA's estimate of the additional cost of 45.4 million
dollars/year to the cement plants for replacing the lost energy supplies
with coal is instead a real resource cost to the economy that should be
reflected in EPA's estimate of net cost savings, as discussed in number
4 below.   

c)  Assuming the RIA's estimate of a 6.8 - 9.2 percent reduction in
revenues for the affected cement plants is accurate, the RIA provides no
analysis of the economic impacts that might result.  Would this
reduction in revenues be sufficient to cause these facilities to cease
managing all hazardous wastes, as well as perhaps some non-hazardous
industrial wastes? If so, there would be further revenue losses to
cement producers beyond the 6.8 - 9.2 percent figures.  Would this
reduction in revenues be sufficient to cause these cement plants to
close?  EPA is typically quite concerned about plant closures, job
losses, and other economic impacts when a regulation is projected to
reduce revenues by nearly 10 percent for producers in a competitive,
relatively low profit margin industry such as cement.  EPA should
analyze the extent to which these adverse economic impacts will result. 
This analysis should reflect the combined impact of all of the rules the
Agency is about to issue, including the DSW rule, the CFE rule and
perhaps even the upcoming proposed rule on gasification, as discussed in
number 3 below. 

d)  The RIA correctly assumes that if EPA's rule results in less energy
recovery by cement plants, then these materials would be replaced by
coal.  However, the RIA fails to recognize and analyze as an impact of
the rule the additional health and safety damages that would result from
this increased use of coal - these are discussed further in number 5
below. 

3. EPA does not consider the joint impact with another recently proposed
EPA rule -- the Expansion of the RCRA Comparable Fuel Exclusion -- that
will also reduce energy recovery at kilns. 

The DSW RIA assumes that no RCRA-regulated wastes will be diverted from
cement plants.  This assumption seems ill-founded, and the impact on the
estimated risks and savings from the rule would be large if this
assumption were incorrect.  This assumption should be abandoned and the
impact of the regulation in diverting wastes from energy recovery to
other forms of recycling should be carefully estimated.  Furthermore,
whatever RCRA-regulated wastes are drawn away from energy recovery at
cement kilns to other forms of recycling, there will be a leveraged
effect where additional hazardous wastes and perhaps even additional
non-hazardous wastes will also no longer be burned at kilns.  This also
should be evaluated. When performing these analyses for the DSW rule, it
is important for EPA to consider the joint impact of other Agency rules
that also can affect the RCRA-regulated wastes available to cement
plants for energy recovery.  In particular, the CFE rule is being
proposed in essentially the same time frame as the DSW rule, and its RIA
estimates that the CFE rule will reduce the amount of RCRA-regulated
wastes available to cement plants for energy recovery (USEPA OSW, CFE
RIA June 2007, Pages 6-7 and 36-39). The joint impact of EPA's DSW and
CFE rules might be sufficiently large to affect EPA's choice of
regulatory alternatives.  Both EPA's Guidelines for Preparing Economic
Analyses and Executive Order 12866 state the importance of explicitly
evaluating the combined impact when multiple regulations affect a
particular economic sector or activity.

EPA's Guidelines for Preparing Economic Analyses emphasizes the
importance of taking into account combined impacts in its section on
Multiple Rules or Regulations and Baseline Specification.  The
guidelines state that "there is no theoretically correct order for
conducting a sequential analysis of multiple overlapping policies that
are promulgated simultaneously," and that "an idealized approach would
attempt to analyze all of the policies together when assessing the total
costs and benefits resulting from the package of policies." 

Likewise, Executive Order 12866, Regulatory Planning and Review, states
that regulatory analyses should be prepared "… taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations," (Federal Register, Vol. 58, No. 190, Executive
Order 12866, October 4, 1993, Page 51736).  A combined analysis of the
impact from the DSW and CFE rules on energy recovery by cement plants
appears to be especially appropriate and feasible because: 

a)  The DSW and CFE rules are being considered in the same time frame
and clearly affect many of the same sectors and activities;  

b)  There may be some synergy between the two rules in creating
incentives for generators to manage on-site (recycle or burn for energy
recovery) the cleaner, higher energy content RCRA-regulated wastes that
are essential components of the energy recovery programs at HWDF-burning
cement kilns.  Thus, separate analyses of the two rules may
underestimate the total volume of wastes that is diverted from kilns;
and

c)  The DSW and CFE RIAs share some of the same authors (Industrial
Economics, Inc.) and analytical approaches, and thus can likely be
coordinated relatively smoothly.

At a minimum, EPA's Guidelines state that analyses should "…be clear
as to the baseline for the analysis, and to present a justification for
making this choice.  This can include providing information on the
status of other regulatory actions that may have some effect on the
baseline, and conducting sensitivity analyses that test for the
implications of including or omitting other regulations," (USEPA,
"Guidelines for Preparing Economic Analyses," September 2000, Page 25).

The combined impact analysis should estimate the volume of waste shifted
away from cement kilns, the economic impact to cement plants, the cost
of increased coal use, the impact of the waste shift on the overall cost
or cost savings from the rules, the additional health and safety impacts
associated with increased coal use, and the loss of hazardous waste fees
to states.  The analysis should also address the potential effect on
non-RCRA regulated wastes. 

4. The cost of the additional coal that cement plants will burn as a
result of the DSW rule is a real resource cost, not a "transfer effect,"
and as such should be counted among the costs of the rule. 

The RIA calculates a "worst case" revenue impact of the DSW rule to
cement plants of 96.0 million per year, consisting of 50.6 million
dollars/year in lost revenues from RCRA hazardous wastes that will no
longer be burned in kilns and 45.4 million dollars/year in costs for the
increased coal that will be burned to offset the lost energy content of
the hazardous wastes.  The RIA characterizes this full amount as a
"transfer effect" that is not counted among the overall costs or cost
savings for the rule: 

"From a national economic analysis methodology perspective, this type of
potential impact is a "transfer effect" or "distributional effect"
(i.e., potential loss of secondary materials management activity in one
industry potentially transferring to other industries), not a "real
resource" economic impact reflecting a net loss in business activity in
the overall national economy.  For this reason, the business impacts
estimated in this Chapter [Chapter 8: Potential Business Impacts on the
Commercial Hazardous Waste Management Industry and on the Portland
Cement Manufacturing Industry] are not additive to the net cost savings
impacts estimated [for the rule as a whole]," (USEPA OSW, DSW RIA Jan
2007. Page 163). 

The revenue loss to cement kilns from no longer accepting some quantity
of waste solvents is offset by the savings to generators and fuel
blenders from no longer paying cement kilns for accepting these wastes,
and these amounts can properly be considered to be transfers.  However,
the cost to cement plants for additional coal should not be considered a
transfer cost; it instead is a real resource cost resulting from the DSW
rule.  EPA's "Guidelines for Preparing Economic Analyses" state: 

"An economic analysis of a policy or regulation compares "the world with
the policy or regulation" (the policy scenario) with "the world absent
the policy or regulation" (the baseline scenario).  Impacts of policies
or regulations are measured by the resulting differences between these
two scenarios," (USEPA, "Guidelines for Preparing Economic Analyses."
September 2000. Page 21.).

OMB's Circular A-4 (providing guidance to Federal agencies on the
development of regulatory analysis as required under Executive Order
12866) elaborates: 

"The Difference between Costs (or Benefits) and Transfer Payments: 
Distinguishing between real costs and transfer payments is an important,
but sometimes difficult, problem in cost estimation.  Benefit and cost
estimates should reflect real resource use. Transfer payments are
monetary payments from one group to another that do not affect total
resources available to society. … You should not include transfers in
the estimates of the benefits and costs of a regulation," (U.S. Office
of Management and Budget, Circular A-4,  September 17, 2003, Page 38).

The increased use of coal in cement kilns as HWDF is displaced due to
the DSW rule represents an increased "real resource use" in the "world
with the policy or regulation" compared with "the world absent the
policy or regulation."  It is not a transfer payment; it is a real use
of resources.  More coal is used in the "world with the policy or
regulation" than is used in the "world absent the policy or regulation,"
(Partly offsetting this real resource use as wastes shift away from
energy recovery at kilns due to the regulation would be a "real resource
savings" in the form of an increased volume of solvents that are
recycled and recovered rather than burned.).  The value of these
additional coal resources that are used due to the DSW regulation can be
approximated by the cost of this coal -- 45.4 million dollars per year
in EPA's "worst case" analysis. 

The RIA's error in how to treat the cost of increased coal use by cement
kilns may perhaps be explained by the distinction between the direct and
indirect costs of a regulation.  Direct costs are those incurred by
entities that are directly regulated (e.g., "compliance costs") or that
have a role in implementing and enforcing the regulation.  Direct costs
are nearly always estimated in RIAs.  Indirect costs are those that may
occur elsewhere in the economy as markets adjust to the direct costs;
they occur among entities other than those that are directly regulated. 
Indirect costs are less frequently estimated in RIAs, even though they
represent real resource costs just as direct compliance costs do,
because they are more difficult to trace.  The cost of increased coal
used by kilns is an indirect cost of the DSW rule.  Both EPA's
"Guidelines for Preparing Economic Analyses" and OMB's Circular A-4
suggest that: a) RIAs should aim to estimate all real resource costs,
whether direct or indirect; and  b) indirect costs may be substantially
more difficult to estimate than direct costs. 

For the DSW regulation, EPA should estimate the magnitude of the
indirect cost of the rule as cement kilns increase their use of coal,
and EPA should include this cost in the overall estimate of the real
costs of the rule.  EPA should prepare a "best estimate" of this coal
cost (i.e., an estimate premised on a best estimate of the volume of
wastes that the rule will cause to shift from cement kilns to recycling)
and not only a "worst case" estimate.  This best estimate coal cost will
substantially reduce the overall net cost savings that the Agency
estimates for the rule -- the 45.4 million dollars/year "worst case"
coal cost that the RIA now estimates would offset a substantial portion
of the 107 million dollars/year (most likely estimate) in total
estimated cost savings due to the rule.  Incorporating the cost of
replacing coal will likely have a material impact on the RIA's estimate
of the net cost savings associated with the rule, and they thus think it
is important for EPA to perform this analysis. 

5. There are health and safety impacts associated with the increased use
of coal that will be caused by the DSW rule that should be considered. 

EPA's DSW RIA correctly assumes that if cement plants are forced to
reduce energy recovery they will meet their resulting increased energy
needs with coal (USEPA OSW, DSW RIA Page 167).  However, the RIA does
not address the additional adverse health and safety impacts that will
result from the increased production, transportation and use of this
additional coal.  Reducing the use of hazardous waste derived fuels and
substituting coal would increase fatalities and injuries due to more
coal mining accidents, lung cancer among miners, black lung disease
(described in the commenter's August, 1996 comments on the Hazardous
Waste Combustion MACT Proposed Rule) among miners, coal train accidents,
and coal truck accidents.  Moreover, substitution of coal for HWDF would
also result in material increases in SO2 and NOx emissions, with a wide
range of damages associated with these emissions.  These resulting
additional coal-related damages that might be induced by the DSW rule
are likely significant compared with the other environmental, health and
safety impacts of the rule that are estimated in the RIA (e.g., in the
two life cycle analyses in Appendix D), and they also seem significant
relative to the risks that EPA has sought to address in many of the
Agency's other RCRA regulations.  Even a small increase in the use of
coal at kilns from a reduction in energy recovery could result in
additional damages that may be sufficient to affect EPA's choice of
regulatory options for the DSW rule.  These damages should be evaluated
in the RIA. 

Such an analysis is required by OMB Circular A-4: 

"Ancillary Benefits and Countervailing Risks 

Your analysis should look beyond the direct benefits and direct costs of
your rulemaking and consider any important ancillary benefits and
countervailing risks. An ancillary benefit is a favorable impact of the
rule that is typically unrelated or secondary to the statutory purpose
of the rulemaking, while a countervailing risk is an adverse economic,
health, safety or environmental consequence that occurs due to a rule
and is not already accounted for in the direct cost of the rule. 

You should begin by considering and perhaps listing the possible
ancillary benefits and countervailing risks. However, highly speculative
or minor consequences may not be worth further formal analysis. 
Analytic priority should be given to those ancillary benefits and
countervailing risks that are important enough to potentially change the
rank ordering of the main alternatives in the analysis.  In some cases
the mere consideration of these secondary effects may help in the
generation of a superior regulatory alternative with strong ancillary
benefits and fewer countervailing risks. … 

Like other benefits and costs, an effort should be made to quantify and
monetize ancillary benefits and countervailing risks.  If monetization
is not feasible, quantification should be attempted through use of
informative physical units.  The same standards of information and
analysis quality that apply to direct benefits and costs should be
applied to ancillary benefits and countervailing risks." 

It appears clear that if a regulatory alternative has the potential to
have a significant indirect effect, it should be analyzed and presumably
considered.  As demonstrated below, to the extent that EPA's DSW rule
can cause an increased use of coal by cement plants, this may result in
increased damages that may be material compared to the net social
benefits for the options under consideration for the rule. 

Potential damages resulting from increased use of coal 

The commenter's August, 1996 comments on the Hazardous Waste Combustion
MACT proposed rule estimated the increased health, safety and
environmental damages from coal production, transportation and
combustion that would result from substituting coal for HWDF at cement
kilns.  That analysis was based on the impacts associated with
substituting 890,000 tons of coal annually.  The resulting increased
damages were: 

-- 214 - 581 deaths per 1000 years; 

-- 16,000 - 20,000 injuries per 1,000 years; 

-- more than 26,024 tons per year SO2 emissions; and 

-- more than 11,336 tons per year NOx emissions. 

To provide a more direct indication of the damages that might be
associated with the worst case scenario in the DSW RIA, the commenter's
1996 estimates can be scaled by the amount of coal that the RIA
estimates might be substituted for energy recovery.  The DSW RIA
estimates that the worst case scenario would result in additional use by
cement kilns of 756,000 tons of coal per year, or about 85 percent of
the amount of coal analyzed in the commenter's 1996 comments. 
Accordingly, scaling the commenter's 1996 estimates by 85 percent, the
damages associated with the additional coal use in the DSW RIA's worst
case would be: 

-- 192 - 494 deaths per 1000 years from coal production &
transportation; 

-- 13,600 - 17,000 injuries per 1000 years from coal production &
transportation; 

-- more than 22,120 tons per year SO2 emissions; and 

-- more than 9,636 tons per year NOx emissions. 

Assigning monetary values to these damages, the commenter estimates that
they are equivalent to approximately 108 million dollars in annual
costs. (The values the commenter used in monetizing these damages are as
follows:  1) Death: 6.1 million dollars in 1999 dollars (USEPA,
Guidelines for Preparing Economic Analyses," page 90),  2) Injury:
17,098 dollars in 2004 dollars (Moore, Bauer and Steiner. NIOSH.
Prevalence and Cost of Cumulative Injuries over Two Decades of
Technological Advances: a Look at Underground Coal Mining in the U.S.),
3) Pound of SO2: 2.03 dollars, and 4) pound of NOx: 0.82 dollars in 1990
dollars (Richard Ottinger, Environmental Costs of Electricity. Note that
these various figures are not inflated to more current dollars for
comparison with the cost figures in the RIA.). 

Even if the DSW RIA results in only a fraction of this increase in the
amount of coal needed by cement plants to replace lost HWDF, it appears
that the resulting increase in damages would likely be sufficient to
affect EPA's choice of regulatory options. 

6. EPA should complete an analysis of the lifecycle impacts of diverting
waste solvents from cement kilns to other kinds of recycling.  

The RIA's Case Study Number 1 provides a partial life cycle comparison
of the impacts of recycling vs. incineration for organic liquids. The
results are summarized in Exhibit D15 in which the aggregate life cycle
impacts (change in air emissions by pollutant, change in water releases
by pollutant, change in solid waste generation, and change in fuel
consumption) are shown for each of the seven regulatory options under
consideration. This information is somewhat incomplete, since: a)
several of the impacts are not fully quantified; b) some steps in the
waste solvent lifecycle (e.g., transportation) have not been analyzed;
and c) impacts are expressed in physical terms rather than in terms of
risks.  Nevertheless, the information is very useful, providing a
valuable picture of the environmental impacts expected as a result of
the DSW regulation-induced shift of organic liquids from incineration to
recycling.  EPA could do more to make these impact estimates meaningful
to decision-makers and to the public, for example, by combining many of
the individual impact estimates into more aggregated indices of air and
water pollution and energy impacts.  The impact estimates for individual
air pollutants could be weighted by toxicity and summed, and the same
could be done for the individual water pollutants.  The various changes
in fuel consumption could be aggregated on a Btu basis. 

Case Study Number 1 in the RIA concludes with a discussion (Limitation
number 7 on page 258) to the effect that the lifecycle analysis does not
address the impacts of diverting waste solvents from cement kilns to
other forms of recycling because OSW assumes that the DSW rule will not
induce any wastes to shift in this manner.  As discussed earlier in this
paper, this assumption is not well supported and information presented
in the RIA suggests the opposite. The RIA should estimate both: a) the
volume of organic liquids/waste solvents that the rule will cause to
shift from energy recovery at cement kilns to other forms of recycling;
and b) the lifecycle impacts that will result from this shift. 

The RIA's discussion of limitations for Case Study Number 1 provides a
start toward this second analysis, by beginning an evaluation on a per
ton of solvent burned basis of the lifecycle impacts for energy recovery
at kilns vs. other recycling. This analysis in the RIA is substantially
incomplete.  It should be completed on a per ton basis, taking into
account the additional health and safety and emissions impacts
associated with extracting, transporting and burning coal that will
ensue if waste solvents are recovered rather than sent to cement kilns
for their energy value.  This analysis would demonstrate the
substantially positive environmental, health and safety impacts of
energy recovery in cement kilns. 

7. EPA has not quantified the degree to which the proposed rule may
cause increased mismanagement of waste or sham recycling, and has not
estimated the impacts if this occurs. 

EPA provides an analytic framework for evaluating additional potential
adverse environmental impacts of the proposed DSW rule, focusing on the
potential for increased mismanagement of waste and sham recycling 
(USEPA OSW, "A Study of Potential Effects of Market Forces on the
Management of Hazardous Secondary Materials Intended for Recycling,"
November, 2006).  However, EPA does not apply the framework to actually
quantify this potential negative impact of EPA's deregulatory action. 
Moreover, EPA's RIA estimates that the primary effect of the proposed
rule is to switch materials from offsite to onsite recycling, and that
it does far less to create new recycling (USEPA OSW. DSW RIA. Page
10-11.).  Thus, the proposed deregulation appears to have the potential
to do more to increase mismanagement and sham recycling than it does to
create new recycling.   

Consequently EPA's proposed deregulation might create more negative
health and environmental impacts than it does to add benefits (or to
sufficiently alter the balance, perhaps in combination with the other
missing analyses identified in this  report, to impact EPA's choice of
options), but this is not fully analyzed. 

8. The RIA has not evaluated the adverse consequences if some states do
not adopt this rule. 

States will not be obligated to adopt the revised definition of solid
waste.  It seems likely that some states will not adopt the revised
definition, as several states are on record regarding their concerns
about the proposed rule. To the extent that some states do not adopt the
revised definition, this may lead to inconsistent requirements across
state lines.  It is well understood that consistent requirements across
state lines have promoted the development of a fully integrated national
system to manage hazardous wastes in a manner that is both protective of
human health and the environment and economically efficient. However,
the rule may result in creating a patchwork of inconsistent state solid
and hazardous waste regulations.  Inconsistent state regulations could
undermine the viability of long-established national waste management
networks, such as the nationally integrated recycling programs of the
type operated by cement kiln operators and fuel blenders. The RIA
overstates the benefits of the proposed rule to the extent that it fails
to reflect the likely adverse impact to such national waste management
networks.  At a minimum, the RIA should perform a sensitivity analysis
that estimates the impact if states with relatively high waste
generation volumes do not adopt the rule if promulgated as proposed.

[0548-2, 0548-5, 0548-7, 0548-25, 0548-27, 0548-29]

Proposed Rule is "Significant"

One commenter stated that EPA circumvents Executive Order (EO) 12866 by
defining a significant rule exclusively as one which exceeds a 100
million dollar threshold. In fact, the EO clearly provides an
either-or-situation, i.e., either 100 million dollars or "adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State (emphasis added), local, or tribal governments or
communities" (Sec. 4(f)(1)). Executive Order 12866 also provides that
regulations only be promulgated that are "required by law" - which this
rule is neither required by nor consistent with existing law - and that
a rule becomes "significant" if it raises novel legal policy or is
inconsistent with the EO 12866 ((Sec. 4 (f)(4)).

[0561-4, 0561-5]

Transportation Assumption

One commenter disputed EPA's estimate that hazardous waste recycling
transportation activities involve 400 to 520 miles per movement, stating
that it is in excess of reality because it has been less than or equal
to 80 miles for decades.

[0564-45]

12.1 - Response

Potential Adverse Impacts

In response to comments requesting that EPA assess potential adverse
impacts of the rule, the Agency added an evaluation of potential
countervailing risks to our 2008 RIA for the DSW final rule, which
evaluates potential adverse environmental and other types of potential
countervailing impacts and effects identified by public commenters on
the 2003 RIA and 2007 RIA for this rulemaking.  In part, it is based on
a qualitative screening evaluation of the historical industrial
recycling damage cases identified in our March 2007 supplemental
proposal for the DSW rule ("An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials", 11 January
2007, http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf). 
Our 2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs.

Hazardous wastes which become excluded under the DSW final rule may be
expected, in part, to shift to less-regulated (e.g., non RCRA-permitted)
industrial recycling facilities, and thus potentially be subject to
relatively less frequent annual environmental protection and regulatory
enforcement inspections.  However, OSW designed the
conditions/requirements of the DSW final rule exclusions to minimize any
environmental protection outcome from this type of possible change
(i.e., reduction in relative number of annual site inspections).  These
requirements include legitimate recycling, containment, no speculative
accumulation, management of residuals in environmentally protective
manner, site closure financial assurance, generator due diligence
oversight of recyclers, notification to regulatory authorities, offsite
shipment recordkeeping, and other requirements.  Our 2008 RIA does not
indicate a potential for business closures (bankruptcies) because the
fraction of affected business activity as measured by average annual
company revenues potentially lost (i.e., transferred to other
industries) as a result of the DSW final rule, is relatively small in
all affected industries.  For example, some current Subtitle C permitted
hazardous waste recyclers may continue to manage the DSW-excluded
secondary materials in other units of their same facilities after this
rule is implemented, which would mitigate any potential future business
loss for the commercial hazardous waste treatment industry.

The Agency does not anticipate less assurance that secondary materials
will be adequately tested because the exclusions do not affect the
obligation for the generator to properly identify their wastes and also
require a determination of the legitimacy of a specific recycling
activity, which includes evaluating the legitimacy factor addressing
whether the product of the recycling process contains hazardous
constituents or exhibits a hazardous characteristic.  The RIA assumes
this factor to be current (baseline) practice because the concept of
legitimate recycling is embedded in the existing regulations (see the
"Lowrance Memo" (OSWER directive 9441.1989(19), 26 April 1989) and
referenced Federal Register preamble discussions), which has been
applied by state governments to determine "legitimate" from "sham"
industrial recycling.  In addition wastes sent to Subtitle C landfills
will not be excluded by this final rule unless they shift to legitimate
recycling operations which conform to the eligibility requirements of
the DSW final rule exclusions.  However, in any such case, the affected
material formerly sent to Subtitle C landfills will be recycled and not
disposed elsewhere.  Furthermore, any residuals generated from recycling
the formerly landfilled materials at an DSW-excluded recycling operation
must be managed in environmentally protective manner, and if any
residuals exhibit a hazardous characteristic according to 40 CFR 261
Subpart C, or themselves are RCRA-listed hazardous wastes, they are
hazardous wastes if discarded and must be managed according to the
applicable RCRA Subtitle C hazardous waste regulatory requirements of 40
CFR 260 to 272.  

The Agency also does not anticipate an increase in materials
transportation risk because all employees of truckers, air shippers, and
vessel shippers who directly affect the safe and legal packaging,
shipping, or transportation of hazardous materials must be trained
before performing hazmat duties (and retrained every 3 years and as
rules change) according to US Department of Transportation (DOT) 49 CFR
haz mat training regulations, plus IATA dangerous goods training for air
employees, and IMO dangerous goods training for vessel employees.  This
training consists of hazardous materials classification, proper shipping
name, packaging requirements, preparing DOT shipping papers, hazard
communication container marking/labeling, placards, loading, moving,
unloading, security, handling incidents, emergencies, and recordkeeping.
 These requirements remain applicable to any residuals that are
determined to be RCRA hazardous wastes.

The Federal Register announcements for both the 2007 DSW supplemental
proposal (Vol.72, No.57, 26 March 2007, Section XIII., pp.14205-14207),
and for the DSW final rule, as well as the "Countervailing Risks"
chapter of our 2008 RIA for the DSW final rule, provide a description of
the expected effects of this final rule on other programs, including
potential impacts on: (1) RCRA solid waste exclusions found in 40 CFR
261.4(a), (2) spent lead-acid battery recycling, (3) other RCRA
recycling exclusions, (4) RCRA-permitted TSDFs, (5) RCRA interim status
TSDFs, (6) corrective action for releases from formerly RCRA-regulated
units, (7) financial assurance obtained for closure at non-excluded
RCRA-regulated units, (8) CERCLA & SREA, and (9) hazardous secondary
materials imports and exports.

Impact of Codifying Legitimacy

In general, EPA disagrees with comments asserting that codification of
legitimacy would impose quantifiable costs on the regulated community. 
In the final rule, EPA has decided to codify legitimacy as part of the
exclusions and the non-waste determination provision.  The concept of
legitimacy being codified is substantively the same as the concept of
legitimate recycling which is embedded in the current hazardous waste
recycling regulations and which the Agency has described in earlier
Federal Register preamble discussions and policy statements.  (See the
preamble of the final rule for further discussion.) Because the codified
legitimacy provision is substantively the same as the existing
regulations and policy, our 2008 RIA for this final rule assumes that
this codification of legitimacy may have a small impact which is not
quantified in our RIA 

Onsite Recycling Overestimated

In response to comments regarding impediments to onsite recycling, EPA
revised the economic analysis assumptions related to estimating the
potential future increase in recycling as a result of this rule.  The
2007 and 2008 RIAs for this rule attempted to assess the
economies-of-scale for potential creation of new onsite industrial
recycling operations as a result of the final rule.  This analysis is
titled "micro-economic breakeven test" in the RIA to assess whether
economies-of-scale would be reached on a facility-by-facility basis,
taking into account expected de-regulatory cost savings to affected
industries.  This breakeven test confirms the commenter's comment that
"In actuality, like all industrial processes, reclamation is cost
effective only with certain economies of scale."  We agree with, and
added as an interpretative point to our final rule RIA, the commenters'
observation that, not all generators (e.g., large chemical plants) are
likely to build onsite recycling operations (e.g., a chemical
manufacturing metal catalyst recovery smelting unit) because they lack
of volume economies-of-scale, recycling expertise, and industrial
infrastructure to support a new onsite recycling operation.  Thus we
eliminated from the central analysis of our 2008 RIA for the final rule
any estimation of potential shifts in baseline offsite (commercial)
recycling and baseline disposal, to onsite recycling as a result of the
DSW final rule.  However, we did conduct two sensitivity analyses to
estimate the effects of possible shifts  on the bottom line economic
impact estimates of our RIA (see Exhibit 1D and Sensitivity Analyses 10
and 11 in Chapter 12 of the 2008 RIA). 

Furthermore, the final rule does not constrain the DSW exclusions to
intra-industry (within same 4-digit NAICS codes) as proposed as an
option in 2003, so comments on limited benefits do not apply to the
final rule.

Conversion of LQGs to SQGs Unlikely

Both the 2007 RIA and 2008 RIA for this rule do not assume that all LQGs
will become SQGs; the RIAs estimated the magnitude of this potential
change in RCRA regulatory status by calculations involving estimated
industry cost savings under the DSW exclusions and estimated annual
tonnage of hazardous wastes per-facility which might become excluded
from regulation.  For complex chemical manufacturing companies, we
concur with a comment stating that it is unreasonable to simply assume
that they may change from LQG to SQG status as a result of this rule 
HYPERLINK ""   .  Thus, as described above, the analysis evaluates the
characteristics of facilities impacted to estimate this change. 

Impact on State Fees

Based on the state government distributional effects analysis in both
our 2007 RIA and 2008 RIA, this rule could result in a decrease in
future annual hazardous waste fees paid by industrial facilities to
state governments.  This is a type of transfer effect rather than a real
resource economic cost to this rule and is discussed as such in the
RIAs.  State governments may act to offset this possible revenue loss by
(a) reformulating their fee structure, or (b) not adopting this rule.

Impacts on Printed Circuit Board Industry 

EPA's response to comments regarding the impacts on the printed circuit
board industry consists of three parts. (1) EPA expects that for some
industries, including the printed circuit board manufacturing industry,
the DSW final rule may encourage additional future recycling, not
necessarily by encouraging investment in new onsite reclamation (e.g.,
metals secondary smelting) operations, but by possibly lowering the
relative cost for offsite recycling under the DSW exclusions, compared
to the current (baseline) cost for offsite recycling.  The degree to
which the future offsite commercial reclamation/recycling services
prices may decrease depends upon (a) the extent to which commercial
offsite recyclers claim these exclusions for all types of hazardous
secondary materials for all types of generator industries for all
regions of the USA, (b) the associated extent to which such exclusion
claims decrease offsite commercial reclamation/recycling business
operating costs by reducing annual RCRA regulatory burden, and (c) the
extent to which any such regulatory cost savings are passed on to
generators (customers) in the form of lower prices for offsite
commercial reclamation/recycling services.  (2) We added an
acknowledgement in our 2008 RIA for the final rule that it is based on a
limited amount of detailed cost data.  Typically, OSW RIAs for the RCRA
program are designed to provide semi-detailed estimates rather than
exact engineering cost and benefit estimates for each of the nationwide
100s of different industries consisting of 1,000s of facilities which
are generating and managing 10,000s of individual waste streams which
may be affected by this rule.  Relative to the ANSI Standard Reference
Z94.2-1989 and AACE Recommended Practice No. 18R-97 cost estimation
accuracy classification system
(http://www.aacei.org/technical/rps/18r-97.pdf), the semi-detailed level
of the DSW RIAs corresponds to a "Class 3" estimate with expected cost
estimation accuracy range of -20% to +30%.  We appreciate the level of
detail this commenter provides in the discussion of copper, tin, and
nickel constituents in the printed circuit board industry liquid wastes,
and we added this discussion as an example limitation of the scope of
our final rule RIA.  (3) We revised our impact analysis and the comment
on mathematical errors in our 2003 RIA is no longer relevant.

Impact on Recycling Infrastructure

In response to these comments, we added an analysis ("distributional
effects") of potential adverse business impacts on the commercial
hazardous waste disposal (landfills, incinerators) and recycling
industry to both our 2007 and 2008 DSW RIAs.  However, EPA disagrees
with the commenter's assumption that current recycling and reclamation
facilities may "lose access to significant streams of valuable secondary
materials and feedstocks" and "no longer prove economically viable,"
because current recyclers may experience increased business as a result
of the DSW final rule exclusions for generators who shift current
hazardous wastes from disposal to recycling.  Furthermore, current
hazardous waste recyclers who choose to operate under the DSW final rule
exclusions may realize de-regulatory cost savings which may allow them
to lower their prices thereby increasing competition for generators, and
also helping grow their recycling businesses in the future as a result
of this rule.  

Analyze Benefits of Excluding All Legitimately Recycled Materials

In our 2007 RIA for this rule, EPA attempted to quantify the potential
environmental effects (i.e., potential environmental benefits) of the
DSW rule, by adding two life-cycle analysis (LCA) case studies; one for
reclaiming metals (zinc) from K061 dust, and the other for reclaiming
liquid organics for solvent use.  These two LCA case studies are
available as Appendix D at:
http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/ria.pdf.  We also
added a qualitative screening evaluation of potential countervailing
risks to our 2008 RIA for the DSW final rule, which evaluates potential
adverse environmental and other types of potential countervailing
impacts and effects identified by public commenters on both our 2003 and
2007 RIAs for this rulemaking.  In part, it is based on a qualitative
screening evaluation of the historical industrial recycling damage cases
identified in our March 2007 supplemental proposal for the DSW rule ("An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials", 11 January 2007,
http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf).  Our
2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs.

Additional New Recycling is Likely to be Small

EPA notes that the two primary purposes of this rulemaking, as
identified in the Federal Register announcement for the DSW final rule,
are (1) to respond to a series of seven decisions (1987 to 2000) by the
US Court of Appeals for the DC Circuit which, taken together, have
provided EPA with additional direction regarding the proper formulation
of the RCRA regulatory definition of solid waste for purposes of
Subtitle C, and (2) to clarify the RCRA concept of "legitimate
recycling."  EPA expects that the rule will also encourage and expand
the safe, beneficial recycling of additional hazardous secondary
materials. Our 2008 RIA estimates that 23,000 tons per year of hazardous
wastes currently disposed may switch to recycling under the DSW final
rule, which represents only a 1.1% increase over the 2.045 million tons
2005 hazardous recycling volume (source: total of metals recovery +
solvents recovery + other recovery reported in Exhibit 2.5 subtotal
tonnages for metals recovery + solvent recovery + other recovery in the
2003 RCRA National Biennial Report at:   HYPERLINK
"http://www.epa.gov/epaoswer/hazwaste/data/br05/national05.pdf" 
http://www.epa.gov/epaoswer/hazwaste/data/br05/national05.pdf ).  Two
sensitivity analyses included in the RIA also estimate possible
increases to these estimates (see Exhibit 1D and Sensitivity Analyses 10
and 11 in Chapter 12 of the 2008 RIA). 

It is reasonable to expect that some fraction of the hazardous wastes
which become excluded under the DSW final rule may be expected, in part,
to shift to less-regulated (e.g., non RCRA-permitted) industrial
recycling facilities.  However, OSW designed the conditions/requirements
of the DSW final rule exclusions to minimize environmental protection
risks.  These requirements include legitimate recycling, containerized
materials, no speculative accumulation, management of residuals in
environmentally protective manner, site closure financial assurance,
generator due diligence oversight of recyclers, notifications to
regulatory authorities, offsite shipment recordkeeping, and other
requirements.

Volume Error in 2003 Regulatory Impact Analysis

In response to this comment, EPA eliminated and revised this "delta 1997
and 1999" methodology for estimating the potential increased recycling
of the DSW rule, in both the 2007 RIA for the 2007 DSW supplemental
re-proposal, and in our 2008 RIA for the DSW final rule.  Our new
methodology is explained in our 2008 RIA for the final rule.

Statistical Treatment of Outliers

In response to this comment, EPA modified our statistical treatment of
hazardous waste tonnage data outliers to remove this bias, by (a) using
more recent RCRA biennial report data years, and (b) basing the impact
analysis on all relevant tonnage data from the RCRA Biennial Report, as
well as providing alternative impact estimates based on alternative
statistical levels and sensitivity analyses.

Other Technical Comments on 2003 Analysis

EPA concurs with the distinctions (e.g., one-time versus annually
recurring) made by the commenter on the various RCRA regulatory cost
factors applied in our 2003 DSW RIA.  We attempted to update these unit
costs and associated assumptions in both our 2007 and 2008 RIAs for this
rulemaking.  However, we formulated many of these regulatory costs based
on unit cost estimates contained in prior OMB-approved information
collection request (ICR) supporting statements for the RCRA program. 
ICR-based cost estimates are typically presented on an average
annualized basis, and we attempted to harmonize the DSW RIAs with OSW's
existing RCRA ICRs (which are inventoried by OMB at
http://www.reginfo.gov/public/do/PRAMain).  

In both our 2007 and 2008 RIAs for this rulemaking, we attempted to
enhance our statistical treatment of hazardous waste tonnage data and
impact estimates by (a) using more recent RCRA biennial report data
years, (b) providing alternative impact estimates based on alternative
statistical levels and sensitivity analyses, and (c) applying new
sources of data (e.g., disposed waste constituent data from OSW's 1996
"National Hazardous Waste Constituent Survey"; NHWCS; see item 4 at:
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm).  EPA
appreciates the information from commenters about the assorted secondary
materials recovery processes (Vortec process, HTMR smelting, Mismelt
process, etc.).  We attempted to update our capital and O&M costs for
these processes in both the 2007 and 2008 RIAs for this rule.  

In our 2008 RIA for the final rule we also added an acknowledgement that
the analysis is based on a limited amount of detailed cost data. 
Typically, OSW RIAs for the RCRA program are designed to provide
semi-detailed estimates rather than exact engineering cost and benefit
estimates for each of the nationwide 100s of different industries
consisting of 1,000s of facilities which are generating and managing
10,000s of individual waste streams which may be affected by this rule. 
Relative to the ANSI Standard Reference Z94.2-1989 and AACE Recommended
Practice No. 18R-97 cost estimation accuracy classification system
(http://www.aacei.org/technical/rps/18r-97.pdf), the semi-detailed level
of the DSW RIAs corresponds to a "Class 3" estimate with expected cost
estimation accuracy range of -20% to +30%.

Physical/Chemical Properties of Wastes 

EPA concurs that the 2003 DSW RIA was a "desk top analysis," as are both
the 2007 and 2008 RIAs for this rulemaking.  However, we must observe
the 1995 Paperwork Reduction Act (PRA) and OMB information collection
restrictions on the amount of data and information we may collect for
any given year and program activity (e.g., RCRA rulemakings).  You may
read more about Federal agency PRA compliance requirements at OMB's PRA
webpage http://www.whitehouse.gov/omb/inforeg/infocoll.html#PRA.  We
appreciate the information from commenters about materials that could be
more economically and frequently recycled under a less burdensome RCRA
regulatory scheme.  We enhanced the quality of our 2008 DSW RIA by
integrating into the RIA empirical data on hazardous waste
characteristics from OSW's 1996 "National Hazardous Waste Constituent
Survey" (NHWCS; see item 4 at:
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm), to
replace the prior "desk top" judgment concerning waste constituents
potentially recoverable in disposed hazardous wastes.  We agree, as is
pointed out in the sensitivity analysis sections of both the 2007 and
2008 DSW RIAs, that other OSW RCRA rulemakings may potentially increase
or decrease the future annual impact of the DSW final rule, for example,
for the reasons mentioned in this comment. EPA appreciates the
information about the physical/chemical characteristics of wastes
disposed by incineration and energy recovery.  We added this information
in a new interpretive caveat to our 2008 RIA for the final rule.  

Cost Saving Underestimated

EPA agrees that our RIAs may under-estimate the potential environmental
and economic benefits of this rule.  Typically, benefits are more
difficult to estimate compared to costs in benefit-cost analyses such as
Federal regulatory agency RIAs, particularly RIAs involving
environmental benefits with non-market values.  Furthermore, we do not
have hazardous waste data on CESQGs because they (as well as SQGs) are
not required to file RCRA Biennial Reports.  In order to communicate the
numerical uncertainty surrounding our impact estimates, we added a
"Sensitivity Analysis" section to both the 2007 RIA and 2008 RIA for
this rulemaking.  For example, one of the uncertainty factors identified
in the sensitivity analysis section of our 2008 RIA for the DSW final
rule indicates that our RIA is based on a limited amount of detailed
cost data.

EPA also notes that our 2007 and 2008 RIAs for this rulemaking do not
directly estimate baseline tolling arrangements for hazardous waste
recycling, nor do they estimate future new tolling arrangements which
may be induced by the DSW final rule.  This is probably not a relatively
large source of de-regulatory cost savings estimation in this RIA,
because baseline offsite recycling (with or without tolling
arrangements) is included in the impact estimation methodology of this
RIA for Exclusion 2.  However, both RIAs indirectly include estimation
of potential impacts on offsite recycling under tolling arrangements, by
using NAICS industry code 32519 "Other Organic Chemical Manufacturing"
as a proxy indicator for recycling tolling arrangements.  This NAICS
code most closely (narrowly) represents the specialty batch chemical
manufacturing industry.  The 2005 BR database indicates that a
relatively small fraction of 2,125 tons/year (i.e., 0.06%) of the 3.82
million tons/year reported for 187 waste streams generated by the NAICS
32519 industry, was managed by offsite recycling (i.e., by management
codes H010, H020, or H039).  

We concur that the cost savings impact (i.e., reduced waste disposal
costs and reduced materials purchasing costs) to small businesses from
this rule may be under-estimated in our RIAs for this rule.  In order to
communicate the numerical uncertainty surrounding our impact estimates,
we added a "Sensitivity Analysis" section to both our 2007 and 2008 RIAs
for this rulemaking.  For example, one of the uncertainty factors
identified in the sensitivity analysis section of our 2008 RIA for the
DSW final rule indicates that our RIA is based on a limited amount of
detailed cost data.  Typically, OSW RIAs for the RCRA program are
designed to provide semi-detailed estimates rather than exact
engineering cost and benefit estimates for each of the nationwide 100s
of different industries consisting of 1,000s of facilities which are
generating and managing 10,000s of individual waste streams which may be
affected by this rule.  Relative to the ANSI Standard Reference
Z94.2-1989 and AACE Recommended Practice No. 18R-97 cost estimation
accuracy classification system
(http://www.aacei.org/technical/rps/18r-97.pdf), the semi-detailed level
of the DSW RIAs corresponds to a "Class 3" estimate with expected cost
estimation accuracy range of -20% to +30%.

In our 2008 RIA for the DSW final rule EPA did revise the methodology
for estimating potential baseline disposal switchover to future
recycling to help correct for the alleged under-estimation bias of the
methodology in our 2007 RIA.  This revision consisted of expanding the
scope of our estimation methodology in our 2008 RIA by (a) dropping
NAICS code restrictions to baseline disposal data evaluated for
potential switchover (5 of the 12 waste types evaluated in the 2007 RIA
were restricted to only five NAICS codes 32411, 331111, 332813, 33412,
334412), (b) increasing from a count of 56 in our 2007 RIA, to a count
of 85 in our 2008 RIA, the total count of RCRA Biennial Report database
codes applied for identifying baseline disposed wastes for recycling
evaluation, and (c) broadening our waste types according to three
commodity groups (i.e., metals, solvents, other (acids, carbon,
catalysts, etc.)) and determining potentially valuable materials for
recovery within each group using an empirical basis rather than
engineering judgment or secondary literature sources (the empirical
basis is OSW's "National Hazardous Waste Constituent Survey"; see item 4
at: http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm). 
This third element of our methodology revision resulted in an increase
from 11 (2007 RIA) to 15 (2008 RIA) in the count of disposed waste
constituents (i.e., specific types of chemicals and materials such as
chromium, copper, lead, nickel, zinc, sulfuric acid, etc.) that we
evaluated for potential switchover to recycling in our 2008 RIA, as
compared to our 2007 RIA.

Include Incineration in Baseline Costs

EPA agrees with the points made by the commenter on the various RCRA
regulatory cost factors applied in the 2003 DSW RIA (e.g., landfill
costs and incineration baseline).  We attempted to update these costs
and include other disposal methods and associated assumptions in both
our 2007 and 2008 RIAs for this rulemaking to reflect these points.  We
also appreciate the additional information from this commenter about
small businesses and toll contractor waste solvents, which we added as
examples to our 2008 RIA for the DSW final rule.

Consideration of Transport Costs

EPA agrees that materials quality and specifications are an important
consideration in addition to price and could influence the distances
materials are transported.  This is one stated limitation in our RIAs
for this rule which are based on price (cost) and other quantifiable
factors.  To account for possible perceived or real lower quality in
recovered materials compared to virgin materials, we assume in our 2008
RIA for the final rule that the potential future market value of
material constituents (e.g., metals, solvents, carbon, acids) that might
be recovered from currently disposed hazardous wastes under this rule is
90% of the market price.  

Impacts to the Cement Kiln Recycling Industry and to Energy Recovery

EPA's response contains eight parts corresponding to the eight areas of
potential adverse consequences to the cement kiln recycling industry
identified in this comment.  

(1) In our 2008 RIA for this rule we revised our methodology for
estimating potential adverse impacts on the future availability of
hazardous wastes for energy recovery by the US cement manufacturing
industry (NAICS 32731) and eliminated our prior assumption as stated in
our 2007 RIA (page 167) that "OSW does not expect adverse effects on the
cement industry from the DSW rule...."  

(2) We replaced the "worst case" impact scenario calculations presented
in our 2007 RIA (pages 167-168), with an impact estimate grounded in the
RCRA Biennial Report database according to actual reported annual
tonnages and associated industrial generation sources (Gxxx codes) and
physical/chemical forms (Wxxx codes) and RCRA regulatory codes (Dxxx,
Fxxx, Kxxx) of hazardous waste which are reported as being managed for
energy recovery by the cement manufacturing industry.  

(3) The "Sensitivity Analysis #2" of our 2007 RIA (pages 133-134)
identified future changes to the RCRA regulatory program as a factor
that may influence the dollar value of future annual cost savings to
industry from the DSW final rule.  We revised "Sensitivity Analysis #2"
of our 2008 RIA for the DSW final rule to explicitly identify the 15
RCRA-related regulatory changes listed in EPA's Fall 2007 "Regulatory
Plan and Semiannual Regulatory Agenda," which includes the proposed
comparable fuel exclusion.  Nevertheless, single agency "regulatory
actions" rather than bundles of multiple regulatory actions or entire
regulatory programs are the unit-of-analysis addressed by OMB's
September 2003 "Circular A-4" best practices guidance to Federal
regulatory agencies for implementing the regulatory analysis
requirements of the 1993 Executive Order 12866.  

(4)  In our 2008 RIA for the final rule, we expanded the scope of the
prior "Potential Business Impacts" Chapter 8 of our 2007 RIA, by
including a "Distributional Effects" chapter which includes additional
potentially indirectly-affected industries.  One such added indirectly
impacted industry is NAICS 2121 "Coal Mining." The analysis provides an
estimate of potential increased cost for additional coal purchase as a
result of this rule.  The expanded scope also includes addition of three
other indirectly impacted industries: NAICS 325188 - all other basic
inorganic chemical mfg, NAICS 331419 - other nonferrous metal primary
smelting & refining, and NAICS 325199 - All Other Basic Organic Chemical
Mfg, for estimation of the potential reduction in costs for purchase of
virgin metals, virgin solvents, and virgin acids as a result of the DSW
rule.  This cost reduction also represents an indicator of resource
conservation.  

(5) We added a qualitative screening evaluation of potential
countervailing risks to our 2008 RIA for the DSW final rule, which
evaluates potential adverse environmental and other types of potential
countervailing impacts and effects identified by public commenters on
both our 2003 and 2007 RIAs for this rulemaking.  In part, it is based
on a qualitative screening evaluation of the historical industrial
recycling damage cases identified in our March 2007 supplemental
proposal for the DSW rule ("An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials", 11 January
2007, http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf). 
Our 2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs,  (6) Our 2007 RIA
(Appendix D "Case #1" pages 239 to 261) contains a lifecycle analysis
(LCA) which compares the relative unitized energy (per ton) and
environmental pollution for solvent recovery compared to solvent
incineration as well as compared to burning solvents in a cement kiln
for energy recovery (see pages 258 to 261 of the 2007 RIA). 
Unfortunately, sufficient and comprehensive LCA data and
sufficiently-detailed models for estimating these comparative impacts
are not available for all solvent-related scenarios.  

(7) We added an evaluation of potential countervailing risks to our 2008
RIA for the DSW final rule, which evaluates potential adverse
environmental and other types of potential countervailing impacts and
effects identified by public commenters on both our 2003 and 2007 RIAs
for this rulemaking.  In part, it is based on a qualitative screening
evaluation of the historical industrial recycling damage cases
identified in our March 2007 supplemental proposal for the DSW rule ("An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials", 11 January 2007,
http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf).  Our
2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs.  

(8) We included in both our 2007 RIA ("Sensitivity Analysis #1, Exhibit
6F, page 145) and 2008 RIA for this rulemaking an estimate of the number
of state governments which may not elect to adopt this final rule based
on state government comments on the 2003 and 2007 DSW proposals.  We
alaso included an associated estimate of how such hypothetical
non-adoption may decrease the future annual economic impact potential of
this rule, relative to our state government full-adoption impact
estimate.

Proposed Rule is "Significant"

EPA agrees that this action is a "significant" action according to
Executive Order 12866 Section 3(f)(4) because it raises novel legal or
policy issues.  In addition, based on the results of our updated and
revised 2008 RIA for the DSW final rule, although our best estimate is
this action is likely to have a $95 million average "annual effect"
(i.e., net cost savings benefit to industry) which is $5 million less
than the $100 million or more "economically significant" threshold of
Section 3(f)(1)) in Executive Order 12866, we also classify this action
as “economically significant" because the upper-bound of the $19
million to $333 million cost savings estimate uncertainty range in the
"Sensitivity Analysis" section of our 2008 RIA, exceeds the $100 million
threshold.

Transportation Assumption

EPA's transportation assumptions were based on recently available data,
including shipments reported in the 1999 Biennial Report.  For more
detailed discussion of the assumptions used to develop transportation
costs, see Appendix D to the 2008 RIA.

12.2 - Paperwork reduction act (ICR)

12.2 - Summary

One commenter discussed EPA's Information Collection Request (ICR)
burden estimate.  The commenter noted that the ICR burden estimates are
based on the minimal notice and record-keeping provisions in the
supplemental proposed rule.  These estimates do not take into account
EPA's repeated requests for public comment on more detailed notice and
record-keeping provisions. See 72 Fed. Reg. at 14,189.  There is a
distinct possibility, therefore, that the final rule could differ
markedly from the supplemental proposed rule by including more onerous
recordkeeping and notice requirements.   

The commenter believes that at this juncture in the rulemaking process,
the ICR's burden estimates are highly speculative and could well have
little or no relation to actual burdens imposed by the final rule.  If
additional recordkeeping and notice requirements are included in the
final rule, the commenter encourages - and in fact expects - EPA to file
an amended ICR that examines the likely burdens associated with the
finalized requirements.  Without an amended ICR, OMB and the public will
not have an accurate assessment of the hour and cost burden of these
requirements.

The commenter also noted that the ICR's Supporting Statement declares
that the agency consulted with three companies - all resource recovery
operations using hazardous waste as their feedstocks.  See Supporting
Statement for EPA Information Collection Request Number 1189.19:
Revisions to the Definition of Solid Waste (Proposed Rule), at 10 (Oct.
2, 2006).  Apparently, EPA did not consult with any of the other
thousands of companies in the score (or more) of industries affected by
the supplemental proposed rule.  See Supporting Statement at 12
(providing a list of affected industries by NAICS codes); see also 72
Fed. Reg. at 14,172 (describing the number of regulated entities). 

EPA estimates in the proposed rule itself that about 4,600 facilities in
530 industries in 17 economic sectors could be affected by the
supplemental proposed rule.  72 Fed. Reg. at 14,172.  Yet the agency
consulted with only three companies from a single industry. By no means
should such consultation be considered adequate to support a rulemaking
of this scope.  EPA's minimal level of "consultation" is inadequate
given the agency's estimations of the number of parties annually that
will make use of the rule's various provisions on exclusions, non-waste
determination, export notifications, etc.  See Supporting Statement at
28-29.

The commenter also said that the ICR makes no mention of the potentially
wide variation in how states might adopt this rule, and indeed which of
the rule's provisions states might or might not adopt.  EPA views this
rule as "de-regulatory" in nature.  To the extent that the final rule is
less stringent than current RCRA regulations, states authorized to
implement their own RCRA programs will not be bound to adopt the final
federal rule. Thus it is conceivable that great variation may result
among the states in whether and how much of the final rule they adopt. 
While this is a major policy issue ranging far beyond "information
collection requirements," the notice and record-keeping requirements
(and thus the burden on affected industries) will be significantly
affected by states' decisions to adopt or not to adopt the final rule.

[0438-1, 0438-4, 0438-5]

12.2 - Response

In response to comments on EPA's estimated Information Collection
Request (ICR) burden estimates, the Agency agrees that our draft ICR
burden estimates for the DSW proposed rule must be revised to reflect
the actual burdens imposed by the final rule.  In 2008 we modified our
draft ICR burden estimate to reflect the exact paperwork burden
requirements of the exclusions included in the final rule.  This ICR
estimates the burden associated with all of the final rule's
recordkeeping and reporting requirements.  Refer to Section 6 of the
final rule ICR supporting statement for the burden estimates.
Furthermore, post-promulgation performance measures should allow us to
measure the actual paperwork burden and other effects of this rule, so
that we may modify our initial ICR estimates when the ICR comes up for
mandatory 3-year OMB clearance renewal in year 2011 or 2012.

EPA also agrees that our draft ICR burden estimates were based on a very
small sample size in relation to the potential 100s of different
nationwide industries consisting of 1,000s of facilities which may be
affected by this final rule and that further consultations were
warranted.    In preparing the ICR for the supplemental proposal, EPA
was mindful that it could not contact more than nine organizations to
collect burden estimates for the ICR.  The 1995 Paperwork Reduction Act
prevents a Federal agency from collecting information from more than
nine organizations, unless clearance is obtained from the U.S. Office of
Management and Budget.  Obtaining clearance for purposes of preparing
this ICR is not practicable.  Given this constraint on the number of
organizations that could be contacted, the Agency consulted three large,
multi-state reclamation facilities and one trade association in
preparing the ICR for the supplemental proposal.  EPA recognized that
these organizations have a broad knowledge of the reclamation industry
because they work with both small and large generators in many
industries.  For example, reclaimers routinely perform technical and
paperwork activities on behalf of their generator customers, such as
packaging their wastes and materials for shipment, preparing manifests
and notices, and supporting customers in making reasonable efforts to
audit the reclamation process.  As a result, they were able to speak
about their own activities and burdens, as well as those of their
generator customers.  Notwithstanding this, EPA was persuaded by the
commenter that additional consultations were warranted and contacted
four additional organizations in preparing this ICR for the final rule. 
These organizations are hazardous secondary materials generators in the
following industries:  automobile manufacturing, information technology,
agricultural products, and metals production.  EPA believes these
additional consultations address the commenter's request to contact
other industries affected by the rule.  Refer to the table in Section
3(c) of the final rule ICR for the list of all organizations contacted. 


EPA also agrees that State adoption rates will affect burden impacts
under the rule.  Essentially, the commenter raises two points that need
an Agency response: (i) should EPA estimate burden impacts based on an
assumption of full State adoption and (ii) should this assumption be
made more clear in this supporting statement?  

On the first point, it has been EPA's belief that ICRs for rulemakings
should be based on full State adoption.  Normally, EPA cannot reliably
identify States that will not adopt a final rule.  Although a State may
express concerns or opposition to a proposed rule (or portions of it)
such as during the public comment period, modifications made in response
to the public's comments may make the State more inclined to adopt the
final version.  In addition, a State's decision to adopt the final rule
(as well as the timing of the adoption) may be based on factors that are
not known at the time of the ICR's preparation (e.g., the State's
regulatory needs and priorities).  Therefore, EPA continues to believe
that the burden impacts estimated in the ICR should be based on an
assumption of full State adoption.  When the ICR is renewed three years
from now, EPA will be in a better position to reflect variations in
States' adoption of the final rule.

On the second point, EPA agrees that additional clarification is needed
in this supporting statement of the Agency's assumptions regarding full
State adoption of the final rule.  This clarification has been included
in Section 6(e) of the final rule ICR supporting statement.

12.3 - Unfunded mandates reform act

12.3 - Summary

One commenter questioned EPA's statement that: "EPA has determined that
this rule does not include a Federal mandate that may result in
expenditures of 100 million dollars or more for State, local, or tribal
governments, in the aggregate, or the private sector in any one year.
This is because this supplemental proposal imposes no enforceable duty
on any State, local, or tribal governments. EPA also has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments."   For States currently authorized
to enforce RCRA through RCRA Grants or Performance Partnership Grants
received from the Federal Government, there is uncertainty that this
supplemental proposal if made law does, in fact, impose no enforceable
duty on any State, and that that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. While States are granted certain latitude in enforcing the
RCRA program, there is understandably, a certain push for conformity.
For States, like New Jersey, that have modeled their RCRA Programs on
USEPA and incorporate the Code of Federal Reguations (CFR) by reference,
it would make no sense not to adopt these requirements should this
proposal become law. However, if this occurs we would anticipate that
EPA would look to modify our Performance Partnership Agreement currently
in place, seeking assistance in activities related to this proposal,
including but not limited to legitimacy determinations and measurement
of performance outcomes. Failure of the States to assist in these
endeavors or meet its Performance Partnership Agreement commitments
regarding these activities could possibly endanger grant funding status.
Thus the commenter believes there could be a significant or unique
effect on State governments. [0563-18]

One commenter on the 2003 proposal stated that, without financial
assurance, the cost of cleanup at excluded sites will initially fall on
the states. Under the Unfunded Mandates Reform Act of 1995, Public Law
104-4, EPA is required to estimate those costs for states that have not
been delegated the RCRA program.  [0119-79]

12.3 - Response

EPA disagrees with comments stating that the proposed revisions to the
definition of solid waste include "Federal mandates" that may result in
expenditures to state, local, and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.  This
rule imposes no enforceable duty on any state, local, or tribal
governments. Although one public commenter noted that many states choose
to incorporate EPA's regulations by reference, EPA does not require them
to do so. EPA has also determined that the conditions and restrictions
in the final rule, including financial assurance, address concerns about
the cost of cleanups falling to state governments.   A discussion of
EPA's analysis of countervailing risk and how the final rule addresses
those risks can be found in Chapter 11 of the Regulatory Impact
Analysis. Therefore, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. In addition, the private sector is not expected to
incur costs exceeding $100 million. Therefore, today's rule is not
subject to the requirements of sections 202 and 205 of UMRA.

12.4 - EO 13132: Federalism

12.4 - Summary

Three commenters stated that they believed that EPA failed to comply
with Executive Order 13132 (Federalism). One commenter noted that while
States are granted certain latitude in enforcing the RCRA program, there
is understandably, a certain push for conformity. For States, like New
Jersey, that have modeled their RCRA Programs on USEPA and incorporate
CFR by reference, it would make no sense to not adopt these requirements
should this proposal become law. However, if this occurs we would
anticipate that EPA would look to modify our Performance Partnership
Agreement currently in place, seeking assistance in activities related
to this proposal, including but not limited to legitimacy determinations
and measurement of performance outcomes. Legitimacy determinations can
be time consuming activities often involving multiple site inspections
and reviews of copious data. Measurement of performance outcomes may
involve some reprogramming of existing State data systems and creation
of new fields for data capture and analysis as well as modification of
current State data systems to address any changes to RCRAINFO, BRS or
TRI data systems to maintain established data transfer flows. Thus by
implementing these requirements, States may incur direct compliance
costs by this rulemaking unless current Performance Partnership
Agreement commitments are reduced to accommodate these new activities or
Grant funding is increased to address these new requirements should the
existing requirements not be reduced. [0563-19]

One commenter said the final rule will have Federalism impacts on
States, such as Maine, Pennsylvania, Massachusetts and others that have
opted to impose stringent recycling standards as mandated by the RCRA
and ensuing HSWA. While states with more stringent recycling laws will
retain their control over wastes generated within their border, the
intent of their laws which is to protect human health and the
environment will be jeopardized as these materials are recycled into
consumer products and sold within the state.  [0561-4]

One commenter stated that removing approximately 1,570,000 tons (p.
61591) of wastes from the hazardous waste universe will reduce fees
collected by states that have such programs, which could significantly
impact certain state regulatory agencies' ability to protect human
health and the environment. Because many states derive significant
funding for their RCRA regulatory programs from hazardous waste fees and
it clearly would be EPA's intent to "encourage" the states to adopt the
revised DSW once it is finalized, it is false to claim that this rule
will not have "substantial...effects on the states." Also, with respect
to state implementation of this rule, if the new rules are adopted or
applied in an inconsistent manner, which is typical, then more costs
will be incurred to track and figure out all the disjointed regulatory
requirements and issues. This result flies in the face of the Agency's
claims that one benefit of this rule will be burden and cost reduction
resulting from reduced recordkeeping. [0172-24]

12.4 - Response

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 are 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 final 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. There are no state and local
government bodies that incur direct compliance costs by this rulemaking.
State and local government implementation expenditures are expected to
be less than $500,000 in any one year. Thus, the requirements of Section
6 of the Executive Order do not apply to this final rule. Although one
public commenter noted that many states choose to incorporate EPA's
regulations by reference, EPA does not require them to do so.   Also,
EPA disagrees with the comment stating that the hazardous secondary
materials reclaimed under the exclusion would result in unsafe consumer
products in sold in states that do not adopt the exclusion.  Although
generally not regulated under RCRA, the products of hazardous secondary
materials recycling are addressed in evaluations of the legitimacy of
recycling activities.  As is discussed in the preamble to the final
rule, the final provisions addressing legitimacy are not significantly
different than current regulations and policies and thus this rule does
not significantly change these evaluations.  While EPA agrees that
States who choose to adopt the rule and who currently collect hazardous
waste generator fees could lose those fees, and has documented that
potential effect in the Regulatory Impact Analysis, this is not a direct
impact and States can compensate by changing their fee structure.

12.5 - EO 13045:  Children's Health

12.5 - Summary

One commenter stated that the proposed rule violates the requirement
under Executive Order 13045 "Protection of Children from Environmental
Health Risks and Safety Risks" to consider the unique vulnerabilities of
the proposed rule on children.  In this rule, as in many others, the EPA
claims that because the rule is not significant (by their interpretation
of EO 12866) the agency is not required to consider the impacts of their
actions on children's health.  This statement is patently not true.  The
rule clearly provides an either or situation, i.e., either 100 million
dollars or "adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State (emphasis added), local, or tribal
governments or communities" [Sec. 4(f)(1)]. Executive Order 12866 also
provides that regulations only be promulgated that are "required by law"
- which this rule is neither required nor consistent with existing law -
and that a rule becomes "significant" if it raises novel legal policy or
is inconsistent with the EO 12866 [(Sec. 4 (f)(4)].  The Revision to
Solid Waste is therefore by definition significant. 

[0561-4, 0561-5]

12.5 - Response

EPA disagrees that the proposed rule violates Executive Order 13045
"Protection of Children From Environmental Health Risks and Safety
Risks."  This action is not subject to EO 13045 (62 F.R. 19885, April
23, 1997) because the Agency does not believe the environmental health
risks or safety risks addressed by this action present a
disproportionate risk to children. An assessment of countervailing risk
and a discussion of how today's rule addresses those risks can be found
in Chapter 11 of the Regulatory Impact Analysis, found in the docket for
the rulemaking.

12.6 - EO 12898:  Environmental justice

12.6 - Summary

One commenter stated that EPA failed to comply with Executive Order
12898 entitled “Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations” (59 FR 7629, February
16, 1994).  Under Executive Order 12898, each Federal agency must make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. Executive Order
12898 requires EPA to take into account the environmental justice
consequences of their actions. Id. EPA states that its goals are "to
ensure that no segment of the population, regardless of race, color,
national origin, income, or net worth bears disproportionately high and
adverse human health and environmental impacts as a result of EPA's
policies, programs and activities."  72 Fed. Reg. at 14214. 

EPA claims, without supporting evidence or rational basis, that
"overall, no disproportionate impacts to minorities or low income
communities are expected" as a result of their supplemental proposal. 
Id. EPA, however, violates Executive Order 12898 by failing to provide
any analysis to support this statement.  The evidence in the record, in
fact, points definitively to an opposite conclusion.  EPA's
Environmental Assessment indicates that environmental damage at
facilities recycling hazardous secondary materials are likely to
increase as a result of the rulemaking.  The Environmental Assessment
identified over 100 CERCLA sites, 47 of which were listed on the
National Priorities List.  Id. Because these industrial facilities and
Superfund sites are located disproportionately in low-income and
minority neighborhoods, it is inevitable that this deregulation will
have an adverse impact on such communities.  It is incumbent upon EPA to
determine the nature of this adverse impact, i.e., to identify and
address the disproportionately high and adverse human health and
environmental impacts.  The commenter believes that because the Agency's
failed to do so, EPA failed to comply with Executive Order 12898. 

The commenter also asserts that EPA failed to follow its own guidance
regarding compliance with Executive Order 12898. EPA's Office of Solid
Waste and Emergency Response in their Integration of Environmental
Justice into OSWER Policy, Guidance, and Regulatory Development states
that "It is OSWER's policy that environmental justice be considered as
an integral part in the development of all OSWER policies, guidances and
regulations." (OSWER Directive 9200.3-18FS, EPA540/F-95/023,
http://www.epa.gov/oswer/ej/htmldoc/ejpolicy.htm.) The OSWER Directive,
in fact, specifically requires that EPA staff take specific steps to
comply with Executive Order 12898.  The Directive mandates that: 

(1) Environmental justice issues should be considered at all stages of
policy, guidance and regulation development, beginning with preliminary
efforts. Staff should first evaluate the subject matter for the
possibility of disproportionately high and adverse impacts on minority
and low-income communities. Offices may wish to develop methods for
determining which are the most important topics requiring consideration
of environmental justice. 

(2) Where environmental justice concerns or the potential for concerns
are identified, staff should conduct an appropriate analysis of the
issue(s). To the extent practicable, staff should evaluate the
ecological, human health (taking into account subsistence patterns and
sensitive populations) and socioeconomic impacts of the proposed
decision document in minority and low-income communities. 

(3) At all critical stages of development, there should be meaningful
input from stakeholders, including members of the environmental justice
community and members of the regulated community. Federal, state or
local government agencies may also be stakeholders and should be
consulted, as appropriate. 

(4) When policies, guidance and regulations are sent forward for [the
signature of the Assistant Administrator for OSWER], that of the Deputy
Assistant Administrators, or that of the Administrator or her Deputy,
the transmittal memorandum or "action memorandum" that accompanies them
should document the actions that have been taken to carry out this
directive. Specifically, these memoranda should describe the issues that
have been identified, the options that have been developed and analyzed,
as well as any consultation that has been conducted. They should
describe comments that have been received and how issues were resolved. 

Id.

Despite the requirements described above, EPA has not documented any
actions  taken to carry out this objective, identified any memoranda
describing the issues, developed or analyzed any options, or held any
meetings with members of the environmental justice community, regulated
community, or Federal, state or local government agencies.  The
commenter believes that pursuant to Executive Order 12898 and the OSWER
Directive, EPA must take these actions immediately. 

The commenter states that there is little doubt that EPA's supplemental
proposal indeed raises significant environmental justice issues.  In
addition to EPA's own findings in its Environmental Assessment, recent
studies concerning the inequitable distribution of environmental hazards
have found that the disparities around hazardous waste facilities are
far greater than what previous studies have shown. We are appending to
these comments the 2007 report entitled "Toxic Wastes and Race at
Twenty, 1987-2007, A Report Prepared for the United Church of Christ
Justice and Witness Ministries" by Robert D. Bullard, Ph.D; Paul Mohai,
Ph.D.; Robin Saha, Ph.D., and Beverly Wright, Ph.D.  This report
examines the locations of hazardous waste treatment, storage and
disposal facilities in the U.S. and assesses the race and socioeconomic
status of the host communities.  The report identified 413 facilities,
which represents all the commercial hazardous waste facilities operating
in the U.S. in 1999. Id. at 51. By using 2000 census data, the report
determined the racial and socioeconomic characteristics of neighborhoods
containing these facilities. Id. 

Although this report did not look specifically at hazardous waste
recycling facilities, its findings and conclusions are highly relevant. 
The report found: 

(1) More than nine million people are estimated to live within 1.8 miles
of the nation's 413 commercial hazardous waste facilities. 

(2) Host neighborhoods are densely populated with more than 2300 persons
per square mile, compared to 77 persons per square mile in non-host
areas. 

(3) Host neighborhoods with commercial hazardous waste facilities are
56% people of color whereas non-host areas are 30% people of color. 
Percentages of people of color as a whole are 1.9 times greater in host
neighborhoods than in non-host areas. 

(4) Poverty rates in the host neighborhoods are 1.5 times greater than
those in non-host areas and mean annual household incomes in host
neighborhoods are 15% lower. 

Id. at 52. 

The report concludes that: 

[S]ignificant racial and socioeconomic disparities persist in the
distribution of the nation's commercial hazardous waste facilities.
People of color and persons of low socioeconomic status are still
disproportionately impacted and are particularly concentrated in
neighborhoods and communities with the greatest number of facilities. 
Indeed a watershed moment has occurred in the last decade. People of
color now comprise a majority in neighborhoods with commercial hazardous
waste facilities, and much larger (over two-thirds) majorities can be
found in neighborhoods with clustered facilities.   

Significant racial and socioeconomic disparities exist today despite the
considerable societal attention to the problem noted in previous
chapters. These findings raise serious questions about the ability of
current policies and institutions to adequately protect people of color
and the poor from toxic threats. 

Id. at 63. 

The commenter states that the failure of EPA to put forth even the
smallest effort to comply with Executive Order 12898 was a violation of
Agency guidance and an unfortunate validation of the report's conclusion
that current institutions and policies are not working to adequately
protect people of color and the poor from toxic threats.  If EPA's
deregulation of hazardous waste has a high potential to create more
superfund sites and toxic releases in areas that are predominantly
neighborhoods of color and people of low income, this circumstance must
be explored and options must be considered that could prevent the
disproportionate impact.  Pursuant to Executive Order 12898, EPA must
complete this analysis and convene shareholder groups, as required, to
discuss solutions that could avoid this outcome. 

The Executive Order and OSWER Directive requires that this analysis
occur prior to publishing a proposed rule. Therefore EPA must withdraw
the rule until completion of the required analysis and outreach.

[0559-86]

12.6 - Response

EPA disagrees with the comment that EPA failed to comply with Executive
Order 12898 entitled “Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations” (59 FR 7629,
February 16, 1994).  The final rule would streamline the requirements
for certain hazardous secondary materials sent for reclamation.
Facilities that would be affected by today's final rule include
manufacturing-type and other facilities generating hazardous secondary
materials, as well as facilities that reclaim such materials. Disposal
and treatment facilities would not be affected by this final rule. In
fact, some quantities of secondary hazardous secondary materials are
expected to be diverted from disposal facilities to other recycling
facilities.  In addition, commenters assert that minorities now comprise
a majority in neighborhoods with commercial hazardous waste facilities,
and much larger (over two-thirds) majorities can be found in
neighborhoods with clustered facilities. However, EPA does not believe
that neighborhoods will be adversely impacted by today's rule. As
explained in Chapter 11 of the Regulatory Impact Analysis found in the
docket to today's rule, EPA has performed an assessment of potential
countervailing risks and has determined that the conditions included in
the rule address those potential risks and no net impact is expected.
Thus, overall, no disproportionate impacts to minorities or low income
communities are expected. 

In addition, EPA disagrees with the comment that EPA failed to follow
its own guidance regarding compliance with Executive Order 12898. As
discussed above, in developing the conditions and restrictions for the
final rule, EPA addressed potential risks to communities, which include
minority and low-income communities. The development of and rationale
for the conditions and restrictions are explained in the preamble to the
final rule and in the evaluation of countervailing risks in Chapter 11
of the  2008 RIA.  The Environmental Justice concerns raised by the
commenter and EPA's response were discussed with EPA management and
documented in the internal "action memorandum" that accompanies them
should document the actions that was sent forward with the final rule to
the Administrator for signature.

13 - Other/Miscellaneous

13 - Summary

On April 24, 2007, EPA extended the comment period on the March 2007
supplemental proposal until June 25, 2007 in response to several
requests.  (72 FR 20304).  After that comment period extension, EPA
received one comment requesting that the comment period be further
extended.  [0480-1]

13 - Response

EPA decided against a second extension of the comment period,
determining that further delay in addressing the longstanding issue of
when recycling does and does not involve solid waste management was
unwarranted.  

13.1 - Other suggested revisions

13.1.1 - Alternatives to proposed exclusions

13.1.1 - Summary

EPA received several comments on alternatives to the proposed
exclusions.   

Alternative Hazardous Waste Standards

Many commenters suggested that, EPA should consider an approach that
maintains core waste management standards, while falling short of
complete deregulation (e.g., an approach similar to that of the
Universal Waste Rule).  In particular, standards could be established
for recyclable hazardous wastes that would include basic safeguards for
the physical management of such wastes, while minimizing or eliminating
some of the purely administrative requirements that may constitute a
barrier to recycling. Commenters also suggested EPA consider streamlined
recycling regulations, or a National Recycling Certification Program
similar to those enacted by certain states, rather than the broad
exemption from the definition of solid waste.  For example, since 1982,
Missouri has regulated certain recyclers that reclaim or reuse hazardous
wastes or transform hazardous wastes into new products that are not
hazardous wastes. Missouri recyclers operate under a Resource Recovery
Certification issued by the state following review and approval of the
facility's application and operation plans. The stringency of the
regulations varies by whether one is an on-site or off-site recycler and
the amount of waste recycled, and the regulations include financial
assurance requirements for closure to protect taxpayer interests if the
facility goes bankrupt or attempts to abandon hazardous waste.  One
commenter suggested specific regulatory language which would add a new
subpart to CFR Part 270 that would specify reduced permit requirements
for reclamation facilities.  One commenter noted that such an approach
would avoid potential impacts of this rule change on the term "discarded
material," noting that while the regulatory status of the material may
change, its basic waste-like characteristics have not changed. The
definition of "discarded material" is one of the key definitions in the
United States' hazardous waste regulatory program, and any action that
impacts that definition has the potential to have a significant impact. 
One commenter suggested EPA use the concentration-based standard
proposed for the Hazardous Waste Identification Rule.  64 FR 63382

[0098, 0110, 0124, 0171, 0172, 0450, 0462, 0470, 0479, 0488, 0536, 0541,
0561]

Broader Re-Definition of Solid Waste

Other commenters urged EPA to look more broadly at the definition of
solid waste, rather than just focus on developing exclusions for
hazardous secondary materials being reclaimed.  The commenters suggested
that such exemptions have grown into a long and confusing list. 
Commenters suggested that rather than attempting to define situations
and circumstances that are exempt from consideration and control under
RCRA, EPA should instead concentrate on defining the instances to which
RCRA does apply and over which the Agency has been given clear statutory
jurisdiction.  One commenter offered detailed regulatory language
revising 40 CFR 261.2, removing "recycled" from the definition of
discarded material and replacing it with specific instances where the
commenter believed EPA has clear authority to regulate.  Another
commenter requested that EPA create an "even-handed national recycling
regulatory framework" rather than the current hodgepodge of regulations
that govern characteristically similar materials depending on their
origin or how they are managed.

[0082, 0101, 0129, 0179, 0484, 0488, 0500, 0537]

Focus on Specific Waste streams or Facilities.

Other commenters suggested approaches that would focus on specific waste
streams.  One commenter suggested that EPA adopt simple "safe harbor"
exclusions to simplify the evaluation of common recycling scenarios. For
example, the commenter believes EPA should adopt a simple exclusion for
the bona fide sale of material with substantial positive economic value.
 The commenter suggested that the proposed exclusion for on-site
reclamation, without restrictions on material management and the burdens
of the new "legitimacy" rule, would be another good candidate.  Another
commenter requested EPA focus only on a "benign class of commodity-like
recyclable materials that are reasonably incapable of causing
significant environmental damage, even if mishandled" which would
include "hazardous secondary materials that are not characteristically
ignitable, self-heating, spontaneously combustible, reactive, highly
corrosive or capable of releasing noxious, or toxic fumes prior to being
recycled, if inhaled, or otherwise mismanaged." Another commenter
requested different standards for spent solvents than from metal-bearing
secondary materials since the two have different physical and chemical
properties. One commenter suggested EPA propose recycling exclusions
specific for Performance Track Facilities.  

[0199, 0479, 0537, 0536]

Re-Name Hazardous Waste Sent to Reclamation

Other commenters suggested EPA address the "stigma" issue by designating
materials sent to recycling as recyclable materials or hazardous
secondary materials.

[0176, 0488, 0564]

Revise Land Disposal Restrictions or Use Other Statutes to Encourage
Recycling

Other commenters suggested that EPA encourage recycling via revisions to
the land disposal restrictions, noting that a facility’s decision to
recycle rather than land dispose is not governed by whether the waste
contains toxic constituents or whether there is enough oil for
recycling, but rather whether the secondary material is classified as
hazardous waste under RCRA regulations and therefore subject to land
disposal restriction requirements.  Commenters believe that exemptions
and exclusions do not drive recycling to the extent that land disposal
restrictions do.  Commenters also noted that EPA has often mandated
recycling as the required treatment technology.  Commenters also stated
that EPA could exercise its powers under other statutes to fully
regulated resource extraction activities, thereby making recycling more
economically attractive.

[0231, 0484]

13.1.1 - Response

EPA appreciates the commenter's suggested alternatives to the proposed
rule, but, for the reasons explained in the preamble, has decided to
finalize the basic approach described in the March 2007 supplemental
proposal.  

Alternative Hazardous Waste Standards 

EPA decided not to pursue an alternative hazardous waste regulatory
scheme similar to Universal Waste or state certification programs or a
concentration-based hazardous waste exemption because such an approach
would not address the key issue of determining when hazardous secondary
materials intended for reclamation are discarded and therefore solid
wastes.  EPA agrees that the definition of discarded material is
fundamental to the RCRA program, and believes that this rulemaking is
the appropriate vehicle to resolve this long-standing issue.

Broader Re-Definition of Solid Waste

EPA also decided not to pursue a more comprehensive approach that would
go beyond looking at reclamation, because such an approach would involve
issues outside the scope of the rulemaking.   The exclusions in the
supplemental proposal focused on reclamation activities, and to go
beyond that could have unintended consequences and require additional
public notice.  

Focus on Specific Waste streams or Facilities.

Similarly, EPA decided against a focus on specific waste streams or
facilities.  The final rule sets conditions and restrictions that
appropriately define when a hazardous secondary material intended for
reclamation is being discarded and are appropriate for a wide range of
reclamation processes.

Re-Name Hazardous Waste Sent to Reclamation

EPA has decided to use the term "hazardous secondary materials" for the
purpose of final rule exclusions, but the final rule goes beyond a name
change and identifies the circumstances in which such materials are not
discarded and therefore not solid waste.

Revise Land Disposal Restrictions or Use other Statutes to Encourage
Recycling

EPA appreciates the suggestion to re-visit land disposal restrictions or
use other statutes to regulate resource extraction in order to encourage
recycling, but such an approach is outside the scope of the rulemaking.

13.1.2 - Other suggested changes to regulations

13.1.2 - Summary

EPA received many suggestions on revising the existing RCRA regulations
or otherwise improving the RCRA program.  These suggested improvements
include:

-Clarifying the regulatory status of off-specification and expired shelf
life hazardous materials under existing regulations.

- Making several targeted improvements to the Petrochemical Recovered
Oil Exclusion to remove constraints to legitimate recycling
opportunities, including transitioning from SIC Codes to NAICS Codes;
changing the language that the petroleum refinery "provides hydrocarbon
feedstocks to the organic chemical manufacturing facility;" and
broadening the exclusion to include materials other than D001 and D018
since other quality controls are in place;

- Providing guidance on the distinction between a by-product and a
commercial chemical product (including an off-specification variant);

- Adopting either a conditional exemption or a conditional listing for
spent catalyst sent for recycling;

- Modifying precious metals recovery regulations at 40 CFR 266 subpart F
to exempt such materials from the definition of solid waste.

- Examining whether the terms "solid waste" and "discarded material,"
which appear in several different places within RCRA, truly merit
different definitions and usages in those places.

- Exempting non-hazardous waste, such as paper and scrap tires, from the
definition of solid waste.

- Providing a specific exclusion for thermal reclamation of foundry
sands within the sand loop.

- Clarifying the parenthetical phrase found at 40 CFR 261.6(c)(1), which
exempts recycling processes themselves from RCRA regulation, by
recodifying it at 40 CFR parts 264, 265 and 270 and expanding it to
clarify exactly which types of recycling treatment processes are
intended to be exempted from RCRA permitting and other requirements.

- Expanding the proposed notification requirement to apply to generators
of secondary materials that are reclaimed and that are excluded from
regulation as a solid waste under existing provisions of the hazardous
waste regulations, e.g. characteristic sludges, by-products, and
commercial chemical products excluded per 40 CFR 261.2(e)(3).

- Revising the current provisions of the definition of solid waste
concerning "use constituting disposal" (including use as fertilizer) to
focus only on those uses on the land that constitute discard.

- Recognizing that burning for energy recovery, even if it has "elements
of discard," is not primarily a method of waste disposal, but rather is
a legitimate form of recycling, and for TRI reporting purposes energy
recovery should not be classified as waste management. 

- More consistently interpreting "reclamation" so that minor processing
of a material prior to use would not be considered reclamation.

- Modifying 40 CFR 261.2(b)(2) and (c)(3) to address metal bearing
wastes containing significant concentrations of non-metallic inorganic
hazardous constituents.

- Revisiting the scope of "materials that are inherently waste-like" at
40 CFR 261.2(d), if such materials are not to receive the reclamation
exclusion, because materials that are considered "waste-like" to one
industry or one facility may be considered a valuable resource to
another.

- Adding unprocessed obsolete scrap metal to the definition of "excluded
scrap metal" at 40 CFR §261.1(c)(9) to provide for its exclusion as
"excluded scrap metal being recycled" from the definition of "solid
waste" at 40 CFR §261.4(a)(13).  

- Providing funding to the states to assist the regulated community in
using computers for training and record keeping to provide relief to
those who wish to recycle, rather than propose deregulation for the
management and treatment of wastes that have some value after treatment.

- Revising the closed loop exclusion to clarify that it is intended to
include the production of products (such as pesticides) that are
ultimately applied to the land if that is their intended purpose.

- Modifying 40 CFR 261.2(c)(l)(ii) to clarify the definition of
commercial chemical products to include all commercial chemical products
in addition to those listed at 231.33.

- Streamlining and shorten the permitting and permit modification
processes. 

- Clarifying that reclamation does not encompass the separation of
foreign objects, dirt and grit from materials that can otherwise be used
directly.

- Ending the imposition of site-specific risk assessments on hazardous
waste recycling cement kilns and specifically and publicly recognizing
the benefits of energy recovery in cement kilns. 

- Exempting hazardous secondary materials generated at terminal
operations.

- Applying financial assurance to all currently exempted hazardous waste
recyclers.

[0048, 0053, 0064, 0082, 0083, 0093, 0097, 0111, 0122, 0124, 0138, 0140,
0141, 0144, 0172, 0186, 0197, 0203, 0204, 0475, 0492, 0492.1, 0505,
0518, 0530, 0540, 0547, 0559, 0563]

13.1.2 - Response

EPA appreciates the many comments suggesting additional improvements to
the RCRA regulations and the RCRA program.  However, these additional
improvements are outside the scope of today's final definition of solid
waste rule.  Once the final rule is implemented, EPA will consider if
additional changes are still needed to the RCRA program. (In some cases,
such as developing a proposed conditional exclusion for spent petroleum
catalysts, EPA has already begun such changes.)

13.1.3 - Regulatory interpretations for specific hazardous secondary
materials

13.1.3 - Summary

Many commenters requested that EPA clarify that their specific hazardous
secondary materials or reclamation processes are not considered solid
wastes under the rule, and that the final rule does not supersede any
prior determinations or variances.  

Many commenters, particularly in the mining and mineral processing
industries, were concerned that the conditions and restrictions in the
exclusions in the final rule would impact past determinations. Because
the mining industry utilizes land-based production units as critical
elements of their production processes, commenters were concerned over
the intended application of the proposed "generator control" and
"transfer-based" exclusions, in particular the provisions on "land-based
units," to the mining and mineral processing industry's land-based
production units, as well as the use of secondary materials in the
production process to recover target metals and minerals from natural
ores.  In particular, commenters were concerned that the
generator-controlled exclusion restriction that a hazardous secondary
material must be "contained" in a unit contradicts EPA's conclusion in
the Phase IV Land Disposal Restriction (LDR) Rule:

"EPA also disagrees that it is compelled to assert control over
land-based units that are actual production units, i.e. that actually
recover product. The Agency is aware of only two land-based units which
recover metals; gold heap leach piles and copper dump leach piles. . . .
The Agency believes that regulating such units could pose the
possibility of interdicting actual production steps which was the
particular focus of the AMC I court."

63 Fed. Reg. 28,556, 582 (May 26, 1998).

Commenters also believe that EPA failed to respect the jurisdictional
bounds of its authority as set forth in RCRA and endorsed by the D.C.
Circuit. See ABR, 203 F.3d at 1051. Commenters believe that when the
mining and mineral processing industry uses secondary acid streams, or
other secondary materials, in land-based production units, they are not
discarded.  Because both the "generator control" exclusion and the
"transfer-based" exclusion provide that if a secondary material "is
managed in a land-based unit as defined in § 260.10, the material must
be contained."  72 Fed. Reg. at 14,216-14,217 (proposed 40 C.F.R. §
261.4(a)(23)(i) & 261.4(a)(24)(iv)(C)).  Commenters are concerned that
EPA's use of the phrase "managed" in this context could cause confusion
in the minds of regulators and others as to whether land-based
production units in the mining and mineral processing industry could be
subject to RCRA Subtitle C regulation.

Specific materials of concern to commenters include (1) reverts, both
"large" and "fine;" (2) used furnace brick; (3) vanadium pentoxide
catalysts and quartz rock, (4) leach operations wherein acid solutions
are reused for acid, water, and metals values, (5) acid plant blowdown
used both in the smelter or mercury retort process and in copper
leaching operations, (6) spent solvent sold to a manufacturer who
reclaims and then uses it as an azeotropic distillation agent in a
manufacturing process, (7) foundry sand recycled via a thermal sand
reclamation system within the sand loop, (8) purge solvent from paint
booths, (9) material generated and reused at a phosphate fertilizer
production facility as a raw material substitute with acid, sulfur or
phosphate values, (9) spent potliner recycled in cement kilns, (10) ion
exchange canisters sent for regeneration, (11) electroplating wastewater
treatment sludges, (12) beneficially recycled water, (13) clarified
slurry oil sludge, (14) reusable shop towels, (15) recycling of solvents
similar to manufacture of a product, (16) reconditioning of "RCRA-empty"
reusable industrial containers, (17) acid plant liquids/solids/sludges,
(18) facility runoff/washdown water, (19) air pollution
sludges/residuals, (20) wet scrubber sludges, and (21) flue dust. 
Commenters provided detailed information on each of these materials and
explanations of why they believe they are not (or in some cases should
not be) solid wastes.  Some commenters also noted EPA inspections and
enforcement cases that they believe are erroneously impacting materials
that are not solid wastes.  Commenters believe that EPA should clearly
state in the preamble to the final redefinition of solid waste rule that
these specific materials are not "wastes" and, as such, the reuse of
these materials is not subject to RCRA regulation.

Other commenters simply asked clarifying questions on whether specific
materials or processes are regulated, including  (1) is a plasma arc
(with or without an afterburner) an industrial furnace if materials are
recovered? (2) how does air bag deactivation prior to recycling fit
within the definition of legitimacy? (3) would solvent-contaminated
wipes be eligible for the solid waste exclusions?

[0086, 0087, 0121, 0123, 0136, 0144, 0169, 0186, 0197, 0454, 0478, 0481,
0491, 0492, 0493, 0500, 0507, 0513, 0524, 0525, 0526, 0528, 0552. 0560]

13.1.3 - Response

The definition of solid waste exclusions in the final rule will not
supersede any prior solid waste determinations or variances, including
determinations made in letters of interpretation and inspection reports.
  If a hazardous secondary material has been determined not to be a
solid waste, for whatever reason, such a determination will remain in
effect.  However, the final rule also does not limit the regulatory
agency's authority to revisit regulatory determinations for other
reasons.

In regards to commenters concern about the effect of the restriction
that hazardous secondary materials must be "contained" in order to be
excluded under the final rule, EPA notes that the comments do not
address the self-evident fact that hazardous secondary materials
released to the environment (e.g., causing soil and groundwater
contamination) are not "destined for recycling" or "recycled in a
continuous process" or even being used in a production process; they are
part of the waste management problem. [Footnote:  In a meeting with EPA
officials, representatives of the commenters stated that "the fact
pattern they were describing did not involve any release into the
environment.  Instead, materials may move from one unit into another
unit."  In such a case, the issue of "contained" would presumably be
moot.  (See Memorandum to the Record, Meeting with the National Mining
Association, from Susan Parker Bodine, June 4, 2008.)]

In regards to comments on specific materials and recycling process, such
individual determinations are beyond the scope of today's rulemaking,
which is focused on defining the definition of solid waste regardless of
the specific hazardous secondary material or generating industry
affected.  EPA also notes, as it has in other places in the preamble to
the final rule and in the response to comments document, that the
general thrust of AMC I and ABR is only to point out that EPA
regulations are too broad and cover materials reclaimed in a continuous
process within an industry.  Neither of those cases make any
determination as to any specific recycled material and neither case has
any res judicata effect in that respect.  Any particular processes still
need to be evaluated with respect to whether the secondary materials are
wastes or not, using the general regulation provisions in the final
rule.  

EPA notes that the exclusions being promulgated in today's final rule
apply to all hazardous secondary materials sent to reclamation (provided
that the conditions and restrictions of the exclusions are met), with
the exception of K171, K172, spent lead acid batteries, and hazardous
secondary materials subject to specific management standards under 40
CFR 261.4(a) when recycled.

13.2 - Burning for energy recovery and use constituting disposal are
outside the scope of the proposed regulations

13.2 - Summary

Requests to Expand the Scope to Include Burning for Energy Recovery and
Use Constituting Disposal

Comments on both the October 2003 proposal and the March 2007
supplemental proposal requested that the scope of the proposed rules be
expanded to include hazardous secondary materials used in a manner
constituting disposal and hazardous secondary materials burned for
energy recovery. Commenters presented detailed arguments that these
operations do not involve discard, and that they can have many
environmental benefits, including resource conservation and reduction in
greenhouse gas emissions.   

One sent of commenters on the 2003 proposal stated that EPA must provide
a legitimate and substantive technical and environmental basis for the
divergence between its regulatory conclusions for cement kilns that
perform energy recovery recycling in a bona fide manufacturing process
vs. the recycling activities proposed to be exempt from RCRA in this
proposal.  Commenters argued that energy recovery by units that are
"integral components" of a manufacturing process (such as cement kilns)
should be eligible for the exclusions. They believe dismissing energy
recovery as "akin to discard" is technically wrong and
counterproductive.  Commenters also believe that this assumption was at
least implicitly rejected as long ago as the D.C. Circuit 1987 decision
in AMC I.  If in fact there is valid energy recovery from burning an
industrial byproduct in another industry's manufacturing process, how
can it be said that "discard" is happening in that case any more than
when a manufacturing facility burns a fuel that does not happen to be an
industrial byproduct? In both cases, a manufacturing facility is burning
a material as a legitimate fuel to make a product. If it is not
discarding coal to burn it as a valid source of energy in a
manufacturing process, how can it be discarding an industrial byproduct
to burn it as a source of energy in the same process? In the cement
manufacturing process, energy-bearing industrial byproducts are burned
for the purpose of creating the high temperature necessary to produce
portland cement, a valuable commodity. How does that essentially differ
from other industrial processes that use other types of byproducts as
sources of necessary process inputs to produce other legitimate products
or commodities? Commenters believe EPA has failed to engage in reasoned
decision-making and provides no rationale for the conclusion that energy
recovery is "akin to discard." If EPA truly believes it has a rational
basis for concluding that energy recovery is more closely "akin to
discard" than other forms of recycling that it is proposing to exempt,
commenters believe that EPA is legally obliged to publish a supplemental
notice of proposed rulemaking articulating the facts behind such a
conclusion so that we and others might have a meaningful opportunity to
comment on EPA's asserted basis. Commenters also believe the Agency
provided no scientific rationale for not including energy recovery and
note that EPA specifically concluded that cement kilns are "ideally
suited" for the safe destruction of hazardous organics wastes and are
fully protective of human health and the environment.

Other commenters argued that hazardous waste that is indistinguishable
from a commercial fuel or that is generated within the petroleum
industry and inserted into the refining process should not be a solid
waste.  Commenters included specific information on why their materials
should be considered equivalent to commercial fuel.   One commenter
requested that used oils managed in on-site space heaters be eligible
for the exclusion.  Another commenter requested that recycling of
corrosive secondary materials in a process that neutralizes the
corrosivity (i.e. fertilizer manufacture) should not be considered use
constituting disposal.  Another requested that electroplating sludge
used as feedstock for cement be considered legitimate recycling. 
Another supported a national recycling framework that limits, but does
not universally prohibit the land application of Universal Treatment
Standard constituents.  Another comment would like products where the
toxic contaminants are permanently bound up in the finished article to
be allowed to be applied to the land.

Commenters acknowledged that EPA has already excluded many oil-bearing
materials used in fuel production within the petroleum industry. See 40
C.F.R § 261.4(a)(12).  Specifically, EPA has excluded oil-bearing
hazardous secondary materials generated at a petroleum refinery and
inserted into the refining process at the same or another refinery.  40
C.F.R. § 261.4(a)(12)(i). Also, EPA has excluded recovered oil from
throughout most of the industry that is inserted into a petroleum
refining process.  40 C.F.R. § 261.4(a)(12)(ii). Additionally, EPA has
stated that off-specification fuels used to produce fuels do not require
an exclusion, because they are not otherwise considered solid wastes
under 40 C.F.R. § 261.2(c)(2) and Table 1.  However, there remain some
oil-bearing materials that could be returned to refineries that
currently are not typically so managed, because they most likely are
classified as "oil-bearing hazardous secondary materials."

Commenters also acknowledge that EPA finalized a comparable fuel
exclusion in 1997, but believe that the result has been that many
perfectly acceptable fuels are not included in the narrow definition of
a "261.38 Comparable Fuel."  Commenters also believe that the recently
proposed expansion of the comparable fuel rule (June 15, 2007) includes
a number of management conditions and burning restrictions that stifle
innovation and competitiveness.

Commenters also noted that the leading authority mandating that EPA not
adopt a hard and fast rule prohibiting the exclusion for recycled
materials applied to the land is Safe Food. There, the D.C. Circuit
upheld the Agency's determination that RCRA Subtitle C does not apply to
recycled materials used to make zinc fertilizers, or the fertilizers
themselves, provided they meet certain management and reporting
conditions, and that concentrations of specified substances are below
certain limits. Central to the court's reasoning was the notion that
materials destined for recycling by another industry may be discarded if
they can reasonably be considered part of the waste disposal problem
[(Safe Food and Fertilizer, 350 F.3d at 1268, citing Am. Petroleum Inst.
v. EPA, 906 F.2d 729, 740-41 (D.C. Cir. 1990); Am. Mining Congo V. EPA,
907 F.2d 1179, 1186-87 (D.C. Cir. 1990)]. However, the court explicitly
noted that RCRA does not compel "the conclusion that material destined
for recycling in another industry is necessarily 'discarded."  The court
held that consideration of the identity principle, market valuation, and
management practices, combined with EPA imposed conditions, could be
sufficient to find that zinc fertilizers, which contain secondary
materials and are applied to the land, and those secondary materials
themselves, are not "discarded" and therefore, cannot be regulated as
"solid waste" under RCRA Subtitle C. 

Therefore, the commenters believe it is not appropriate, or legal, for
EPA to state in this supplemental proposal that recycled secondary
materials applied to the land can never be excluded from regulation as
solid waste. 

[0052, 0064, 0082, 0112, 0125, 0131, 0172, 0204, 0208, 0216, 0436, 0448,
0458, 0464, 0472, 0473, 0476, 0478, 0484, 0485, 0486, 0492, 0510, 0523,
0529, 0534, 0546, 0548, 0550]

Support for not including Burning for Energy Recovery and Use
Constituting Disposal in the scope of the exclusions

 

Other commenters supported keeping the exclusion focused on reclamation
and not including use constituting disposal and burning for energy
recovery. Commenters noted that these types of activities, in some
cases, are akin to discard, that precedents exist for regulation of
these hazardous secondary materials, and that recycling and reclamation
are higher on the waste management hierarchy and more likely to conserve
resources than burning for energy recovery.

[0048, 0072, 0091, 0092, 0101, 0457, 0527, 0553, 0555]

Request for clarification

Some commenters requested clarification of how to determine if a
material is being used in a manner constituting disposal or burned for
energy recovery or used to make a fuel.  Other commenters asked if a
residual from reclamation is burned for energy recovery (e.g., still
bottoms) would that mean the hazardous secondary material is used to
make a fuel.  Other commenters asked EPA to clarify that burning in a
thermal treatment device other than a boiler or industrial furnace even
if energy or materials are recovered is not legitimate recycling.  One
commenter asked EPA to clarify whether the exclusion would be applicable
a hazardous secondary material reclaimed to produce a product not
applied to the land, even though a land-applied co-product also is
generated.  One commenter asked that EPA clarify that the exclusions
would not preclude the use of the transfer-based exclusion for recycled
wood preservative solutions to produce treated wood products, such as
fence posts, that could involve contact with the ground, noting that
such an outcome would contravene EPA's long-standing position that
"regulating reclaimed spent preservative and products made with
reclaimed spent preservative was not and is not EPA's intent." (55 FR
50460, December 6, 1990).  Failing to do so would lead to the illogical
result that preserved wood products, such as fence posts, that are
treated with wood preserving solutions recycled on site in accordance
with 261.(4)(a)(9) can be placed on the land. Whereas posts treated with
the same recycled solution, except that it is obtained through the
proposed transfer-based exclusion would be prohibited from use.

[0104, 0116, 0118, 0160, 0178, 0449] 

13.2 - Response

EPA notes that comments on use constituting disposal and burning for
energy are outside the scope of the solid waste exclusions in today's
final rule, which are focused on reclamation. EPA agrees that hazardous
secondary materials that are comparable to commercial fuels should not
be solid wastes, and the Agency has already promulgated an exclusion for
certain of these materials (40 CFR 261.4(a)(16)). However, such
materials are outside the scope of today's final exclusions and are best
addressed under separate rulemaking efforts.

In response to comments on the language in the 2003 proposal that stated
that recycling of materials that are ''inherently waste-like'' (see 40
CFR 261.2(d)), materials used in ''a manner constituting disposal'' (see
40 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))  "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" (68 FR 61565), EPA
was simply providing historical context for these regulatory provisions
while at the same time identifying them to be outside the scope of the
proposal.   As noted by the commenters, EPA has already identified many
types of burning as not involving solid waste (e.g., 40 CFR
261.2(c)(2)(ii), 40 CFR 261.4(a)(12), 40 CFR 261.4(a)(16)), and is in
the process of developing a separate final rule to expand the comparable
fuels exclusion in 261.4(a)(16).

EPA disagrees with the comment characterizing the rulemaking as stating
that "secondary materials applied to the land can never be excluded from
regulation as solid waste."  EPA has said no such thing; as the
commenter recognized, EPA has already promulgated an exclusion for zinc
fertilizers.  EPA has simply stated that use constituting disposal is
outside the scope of these final rule exclusions from the definition of
solid waste, which are focused on reclamation. 

In response to comments requesting clarification on the implementation
of use constituting disposal and burning for energy determinations, the
final rule does not affect the implementation of 40 CFR 261.2(c)(1) and
(2) and all existing guidance remains in effect.  As always, specific
question about how those provisions apply to a particular activity
should be addressed to the appropriate regulatory agency.  In the case
of wood preserving solutions excluded under the transfer-based
exclusion, such solutions would be evaluated in the same manner as those
excluded under 40 CFR 261.(4)(a)(9).

Index of Commenters to the October 2003 Proposed

Rule and the March 2007 Supplemental Proposal

Note: Use this index to find your comments in the document above.
Comments are organized by the comment number in the docket to this
rulemaking, EPA-HQ-RCRA-2002-0031. Comment numbers are determined by the
order in which comments were submitted to the docket by commenters.
Comment numbers 0028–0349 were submitted in response to the October
2003 Proposed Rule (68 FR 61558, October 28, 2003). Comments 0430–0564
were submitted in response to the March 2007 Supplemental Proposal (72
FR 14172, March 26, 2007). Organizations or individuals that submitted
comments on both the Proposed Rule and the Supplemental Proposal will
find their comments in both places. 

To locate your comments in the document above, find your comment number
and note which section numbers address are connected to it. The Response
to Comment Document is organized by section number. 

Comment Number	Commenter Name	Section Number

2002-0031-0028	None	4

2002-0031-0029	Sashaw, B	6.4

2002-0031-0031	None	 

2002-0031-0033	Eastman Kodak Company	 

2002-0031-0034	None	4.1

2002-0031-0035	SQG Specialists Inc.	7.1.1.1 

2002-0031-0039	Hutchins, Rosemary	4

2002-0031-0040	None	7.5.2

2002-0031-0041	Academy of Certified Hazardous Materials Managers	4, 4.1,
8.1

2002-0031-0043	Wyoming Department of Environmental Quality	4, 4.1, 6.1,
6.2, 5.2, 5.1, 5.2.1, 7.6.1, 8.1, 9.1.4.1, 9.3, 9.2.1.2.3, 9.2.2.2.3,
7.1.1, 7.6 

2002-0031-0044	Wesco Parts Cleaners	4, 4.1, 6.1.1, 6.2, 5.1, 8.2.1,
9.1.4.1, 9.3.1, 9.6, 11

2002-0031-0046	United States Department of Defense	 

2002-0031-0047	United States Department of Defense	 

2002-0031-0048	United Stated Department of Defense	4, 4.1, 6.1, 5.2,
6.5, 7.8, 9.2.2.2.2, 9.2.2.2.8, 9.2.2.2.9, 7.1.1, 13.2, 2.1.1.1,
2.1.1.1, 2.1.1.2, 2.1.1.3, 13.1.2

2002-0031-0049	B & B Concrete Co., Inc.	4

2002-0031-0050	State of Colorado, Department of Public Health and
Environment	 

2002-0031-0051	US Marine	7.5.2.2

2002-0031-0052	Aaron Oil Company, Inc.	4.1, 9.1.4.1, 9.2.2.2.8, 7.1.1,
13.2

2002-0031-0053	Texas Oil & Gas Association	7.1.1, 13.1.2

2002-0031-0054	National Marine Manufacturers Association	4, 4.1

2002-0031-0055	None	4, 6.2, 7.6.3

2002-0031-0056	Twitty, William C.	4

2002-0031-0057	WTS, Inc.	4

2002-0031-0058	Mitcham, Michael	4, 6.1

2002-0031-0059	Colorado Ready Mixed Concrete Association	4

2002-0031-0060	Bristol-Myers Squibb Company	3.1.3, 4, 4.1, 5.2, 7.6.1,
7.8, 9.1.2, 9.1.3.2, 9.2.2.2, 9.3, 10.1, 9.2.2.2.3, 7.1.1, 7.6, 7.6.3 

2002-0031-0061	Deere & Company	4, 4.1, 5.2, 5.2.3, 5.2.4, 8.1, 7.6,
5.2.5, 7.6.3

2002-0031-0062	Veolia Water North America	4.1, 5.2, 5.1, 5.2.1, 5.2.4,
8.2.1, 9.1.3.2, 9.1.4.2, 9.3, 7.1.1, 7.6, 7.6.3

2002-0031-0063	Nadler, Lawrence	 

2002-0031-0064	ExxonMobil Companies	4, 4.1, 6.2, 13.2, 13.1.2

2002-0031-0065	Nadler, Lawrence, et al	4, 4.1, 6.1, 6.1.1, 6.3, 5.2.1,
9.3.1, 9.2.1.1.4.1, 7.1.2

2002-0031-0066	Aggregate Industries	4

2002-0031-0067	State of North Carolina Hazardous Waste Section	3.2, 4,
4.1, 6.1, 6.2, 5.2.1, 8.2.1, 10.2.1, 10.2.2, 10.3, 12.1, 9.2.1.1.3, 7.6,
7.6.3, 7.1.2.1

2002-0031-0068	Georgia Department of Natural Resources	3.2, 4, 4.1, 6.1,
6.2, 5.2, 5.2.2, 5.1, 5.2.1, 5.2.3, 7.6.1, 8.2.1, 9.1.3.1, 9.1.4.1,
10.2.1, 9.2.2.1.3, 9.2.2.2.3, 7.1.2, 7.6, 5.2.5, 7.6.3

2002-0031-0069	Illinois Environmental Protection Agency	4.1, 5.2, 5.2.2,
6.5, 5.1, 5.2.1, 8.2.2, 9.5, 9.2.2.1.6, 9.2.2.1.7, 9.2.1.1.4.4,
9.2.1.2.3, 9.2.2.2.9, 5.2.5

2002-0031-0070	Texas Chemical Council	4, 4.1, 5.2, 5.2.1, 5.2.3,
9.1.4.2, 9.2, 9.3, 9.4.2, 10.1, 11, 9.2.2.1.1, 9.2.1.1.1, 9.2.1.1.3,
9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.5, 9.2.2.2.10, 9.2.2.2.12,
5.2.5 

2002-0031-0071	Laboratory Corporation of America Holdings	4

2002-0031-0072	Gage Products Company	1, 4, 4.1, 6.1, 8.2.1, 9.5,
9.1.3.3, 7.1.1, 13.2, 7.1.1.1

2002-0031-0073	Association of Battery Recyclers	3.2, 9.1.4.1, 10.1.2,
10.3, 11, 7.1.2

2002-0031-0074	Dow Chemical Company	4, 4.1, 6.1, 6.1.1, 6.2, 5.2, 5.2.1,
9.1.2, 9.1.4.1, 9.1.4.2, 9.2, 9.2.2.1, 9.3, 9.5, 10.1, 9.2.2.1.2,
9.2.2.1.3, 9.2.1.1.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.3,
9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.10, 9.2.2.2.12,
7.1.1, 2.1.1.1, 2.1.1.2, 2.1.1.3, 2.1.1.4

2002-0031-0075	Reclaimed Energy Co., Inc.	4

2002-0031-0076	Ross Environmental Services, Inc.	4, 4.1, 6.1, 6.5, 5.1,
5.2.1, 7.5.3, 9, 9.5, 7.5.5, 7.6, 2.1.3, 7.6.3

2002-0031-0077	Delaware Department of Natural Resources and
Environmental Control	4, 4.1, 5.2.2, 5.1, 8.2.2, 9.1.3.1, 9.1.4.1,
10.2.1, 7.6, 7.6.3

2002-0031-0078	Weyerhaeuser Company	10.1

2002-0031-0079	BHP Copper Company	4, 4.1, 9.6, 2.1.2

2002-0031-0080	National Recycling Coalition, Inc.	4, 7.6, 7.6.3, 7.1.2.1

2002-0031-0081	Ashland Inc.	4, 7.3, 7.7, 7.1.1

2002-0031-0082	ConocoPhillips	4, 4.1, 7.1.1, 13.2, 2.1.1.1, 13.1.1,
13.1.2

2002-0031-0083	Dupont Company	4, 4.1, 6.1, 6.2, 5.2, 5.1, 7.3, 5.2.1,
7.5.2.2, 8.2.1, 8.2.2, 9.1.3.2, 9.1.4.2, 9.3, 10.1, 7.7, 11, 9.2.2.1.1,
9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.8,
9.2.2.2.12, 7.1.1, 7.6, 2.1.1.1, 2.1.1.2, 5.3, 7.6.3, 2.1.1.3, 13.1.2

2002-0031-0084	Ohio Environmental Service Industries	4, 4.1, 6.1, 6.5,
5.1, 7.6.1, 7.5.3, 7.5.3, 8.2.1, 9.2, 7.5.5, 7.6

2002-0031-0085	Graphic Arts Coalition	4, 4.1, 5.2, 9.1.3.2, 9.3,
9.2.2.1.1, 9.2.1.1.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.7, 9.2.2.2.8,
9.2.2.2.11, 9.2.2.2.14, 7.1.1, 7.6, 7.6.3

2002-0031-0086	Arizona Mining Association	4.1, 2.1.2, 2.2.1, 13.1.3

2002-0031-0087	Phelps Dodge Corporation	4, 4.1, 7.1.1, 2.1.2, 2.2.1,
2.1.1.4, 2.1.1.4, 13.1.3

2002-0031-0089	Newmont Mining Corporation	4, 4.1, 5.1, 8.2.1, 9.1.3.2,
9.1.4.2, 9.2.2, 9.2.2.2, 9.3, 9.3.1, 9.3.3, 9.4.2, 10.1, 10.1.2, 12.1,
9.2.2.1.2, 9.2.2.1.4, 9.2.2.1.5, 9.2.2.1.6, 9.2.2.1.7, 9.2.2.2.2,
9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.7, 9.2.2.2.8,
9.2.2.2.10, 9.2.2.2.11, 9.2.2.2.12, 9.2.2.2.14, 9.1.3.3, 7.1.1, 7.6,
2.1.2, 7.6.3 

2002-0031-0090	R.S.A. Corp.	4, 4.1, 6.3, 5.2, 7.8, 7.1.1, 7.6, 7.6.3

2002-0031-0091	Metals Industries Recycling Coalition	2.2, 4, 4.1, 6.1,
5.2, 5.1, 7.5.2.2, 7.8, 9.1.4, 9.1.4.1, 9.3, 10.1, 10.3, 9.2.2.1.3,
9.2.2.1.4, 9.2.2.1.5, 9.2.1.1.3, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.1,
9.2.2.2.4, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.12, 9.2.2.2.14, 7.1.1, 7.6,
13.2, 2.1.1.1, 2.1.1.2, 7.6.3, 7.1.1.1, 2.1.1.3, 2.1.1.4

2002-0031-0092	Florida Department of Environmental Protection	4, 4.1, 6,
6.4, 5.2, 6.5, 5.1, 5.2.1, 5.2.3, 7.6.1, 8.1, 8.2.1, 9.1.3.1, 9.1.4.1,
9.2.2.1.3, 9.2.2.2.7, 7.1.2, 7.6, 13.2, 5.2.5

2002-0031-0093	American Chemistry Council	1, 2.2, 3.1.3, 4, 4.1, 6.1,
6.2, 5.2, 5.1, 5.2.1, 5.2.3, 7.8, 8.1, 9.1.2, 9.1.4, 9.1.4, 9.1.4.1,
9.1.4.2, 9.3, 10.1, 10.2.1, 10.2.2, 12.1, 9.2.2.1.1, 9.2.1.1.1,
9.2.1.1.3, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.5,
9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.9, 9.2.2.2.10, 9.2.2.2.12, 7.1.1, 7.6,
2.1.1.1, 2.1.1.2, 2.1.5.5, 2.2.1, 7.6.3, 7.1.1.2, 2.1.1.4, 13.1.2,
2.1.1.9

2002-0031-0094	Von Roll America, Inc.	4, 

2002-0031-0095	Maine Department of Environmental Protection	4, 4.1, 6.1,
5.2, 5.1, 5.2.1, 7.5.3, 9.1.3.1, 9.1.4.1, 10.2.1, 7.7, 11, 12.1,
9.2.2.2.3, 9.2.2.2.7, 7.6, 5.2.5, 7.6.3

2002-0031-0096	Anderson Development Company	4.1, 6.3, 5.2, 7.8, 7.1.1,
7.6, 7.6.3

2002-0031-0097	Institute of Scrap Recycling Industries, Inc.	4, 4.1,
6.1, 7.3, 9.1.4.1, 10.1, 9.2.2.1.1, 9.2.1.1.1, 9.2.1.1.4.5, 9.2.1.2.1,
9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.7, 9.2.2.2.8,
9.2.2.2.14, 7.1.1, 7.6, 2.1.1.1, 2.1.1.2, 2.1.1.3, 2.1.1.4, 13.1.2

2002-0031-0098	Connecticut Department of Environmental Protection	3.2,
3.3, 4, 4.1, 6.1, 6.4, 5.2, 5.2.2, 5.1, 5.2.1, 5.2.3, 7.6.1, 7.5.2.2,
8.1, 8.2.1, 9.1.4.1, 9.3, 10.2.1, 11, 12.1, 9.2.2.1.3, 9.2.2.1.4,
9.2.2.1.6, 9.2.2.2.1, 9.2.2.2.3, 9.2.2.2.6, 9.2.2.2.7, 9.2.2.2.8, 7.1.2,
5.2.5, 7.6.3, 13.1.1

2002-0031-0099	Crompton Corporation	4, 4.1, 9.2.1.1.2, 2.1.1.1

2002-0031-0100	Multi-Industry DSW Group	4, 4.1, 7.1.1, 2.1.1.1

2002-0031-0101	Michigan Chemistry Council	4, 4.1, 6.1, 8.2.1, 9.1.3.3,
7.1.1, 13.2, 7.1.1.1, 13.1.1

2002-0031-0102	Eastman Chemical Company	4, 4.1, 5.2, 5.2.3, 7.8,
9.1.3.2, 9.1.4.2, 9.2, 9.3, 9.3.1, 9.5, 9.6, 10.1, 9.2.1.2.2, 9.2.2.2.2,
9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.7, 9.2.2.2.8,
9.2.2.2.10, 9.2.2.2.12, 9.2.2.2.14, 7.1.1, 7.6, 2.1.1.1, 2.1.1.2, 2.2.1,
5.2.5, 7.6.3, 2.1.1.3, 2.1.1.4

2002-0031-0103	None	9

2002-0031-0104	Ohio Environmental Protection Agency	4, 4.1, 6.1, 5.2,
5.1, 7.3, 5.2.1, 7.5.2.2, 7.5.3.1, 9.1.4.1, 9.2, 10.1, 10.2.1,
9.2.2.1.3, 9.2.1.1.1, 9.2.1.1.4.1, 9.2.1.1.4.3, 9.2.1.2.1, 9.2.1.2.3,
9.2.2.2.1, 9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.12,
9.1.3.3, 7.1.1, 7.6, 13.2, 5.2.5, 7.6.3, 7.1.1.1

2002-0031-0105	None	10.1.1

2002-0031-0106	Horsehead Corp	4, 4.1, 5.2, 9.2, 7.1.1, 2.1.1.1

2002-0031-0107	Lone Star Steel Company	9.2.2.2.4, 9.2.2.2.14, 2.1.1.1,
7.1.1.1

2002-0031-0108	None	10.1.1

2002-0031-0109	Association of Battery Recyclers	9.1.4.1, 10.1.2, 11,
7.1.2

2002-0031-0110	Missouri Department of Natural Resources	4, 4.1, 6.1,
5.2, 5.1, 7.3, 5.2.1, 7.6.1, 9.1.4.1, 9.2, 9.3, 9.5, 2.1.3, 5.2.5,
13.1.1

2002-0031-0111	Paper Recycling Coalition	13.1.2

2002-0031-0112	IPC	1, 4, 4.1, 5.2, 5.1, 7.6.1, 7.8, 9.1.3.2, 9.1.4.1,
9.2, 12.1, 9.2.2.1.1, 9.2.1.1.1, 9.2.1.1.3, 9.2.1.2.1, 9.2.1.2.3,
9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.14, 7.1.1, 7.6, 13.2, 2.1.1.2, 2.2.1,
7.6.3, 2.1.1.3, 2.1.1.4

2002-0031-0113	Rhodia Inc., et al	10.1

2002-0031-0114	Georgia Pacific Corporation	10.1

2002-0031-0115	American Forest & Paper Association	9.1.2, 9.4, 10.1,
9.2.2.1.5, 9.2.2.1.6, 9.2.2.1.7

2002-0031-0116	None	13.2

2002-0031-0117	Clean Harbors Environmental Services, Inc.	4, 4.1, 8.2.1,
11, 12.1, 7.6, 2.1.3, 7.6.3

2002-0031-0118	None	10.1.1, 13.2

2002-0031-0119	Environmental Technology Council	3.2, 4, 4.1, 6.1, 5.2,
5.1, 5.2.1, 5.2.3, 7.6.1, 7.5.3, 8.2.1, 9, 9.1.3.1, 9.1.4.1, 9.2.4,
10.1, 10.2.1, 7.7, 10.3, 11, 12.1, 12.3, 9.2.2.1.3, 9.2.1.1.3,
9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.1, 9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.7,
9.2.2.2.8, 9.2.2.2.11, 7.6, 2.1.1.2, 2.1.3, 2.1.3.1, 2.1.3.1, 2.1.3.3,
2.1.3.3, 2.2.1, 5.2.5, 7.6.3, 7.1.1.1, 7.1.2.1, 2.1. 

2002-0031-0120	Rhodia Inc.	4, 10.1

2002-0031-0121	None	13.1.3

2002-0031-0122	Chaparral Steel Midlothian, L.P.	1, 4, 4.1, 6.1, 5.2,
5.1, 8.2.1, 9.1.4.1, 10.1, 9.2.2.1.3, 9.2.2.1.4, 9.2.1.1.1, 9.2.1.1.3,
9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.7, 9.2.2.2.8,
9.2.2.2.14, 7.1.1, 7.6, 2.1.1.1, 7.6.3, 2.1.1.3, 13.1.2

2002-0031-0123	Arizona Association of Industries	4, 9, 9.1.4.2, 9.2,
9.4.2, 9.2.2.2.2, 9.2.2.2.5, 9.2.2.2.10, 7.1.1, 2.1.1.1, 2.1.1.2,
2.1.1.3, 13.1.3 

2002-0031-0124	American Airlines, Inc	4, 6.1, 7.6.1, 9, 9.2.2.1.1,
9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.6, 9.2.2.2.13,
13.1.1, 13.1.2

2002-0031-0125	NORA	4, 4.1, 5.2, 7.6, 13.2, 7.1.1.1, 2.1.1.3

2002-0031-0126	Western Business Roundtable	4.1, 5.1, 8.2.1, 9.1.4.2, 11,
2.1.1.1, 2.1.1.2, 2.1.1.4

2002-0031-0127	United States Business Council for Sustainable
Development	4, 4.1, 9, 9.1.3.2, 9.3, 9.2.2.1.1, 9.2.1.1.1, 9.2.1.2.1,
9.2.2.2.3, 9.2.2.2.12, 7.1.1, 7.6, 2.1.1.1, 2.1.1.10

2002-0031-0128	Non-Ferrous Founders’ Society	 

2002-0031-0129	Non-Ferrous Founders’ Society	4, 4.1, 6.1, 8.2.1,
9.1.4.1, 9.3, 10.1, 9.2.2.1.3, 9.2.2.1.4, 9.2.2.1.5, 9.2.1.1.3,
9.2.1.2.3, 9.2.2.2.4, 9.2.2.2.14, 7.1.1, 2.1.1.1, 2.1.1.2, 13.1.1 

2002-0031-0130	Kentucky Environmental and Public Protection Cabinet	4,
4.1, 6.1, 6.5, 7.6.1, 9, 9.1.4.1, 11, 12.1, 9.2.2.1.3, 7.1.2, 2.1.3

2002-0031-0131	National Automobile Dealers Association	4, 4.1, 6.1, 5.2,
5.2.2, 5.1, 7.3, 7.1.1, 7.6, 13.2

2002-0031-0135	Systech Environmental Corporation	4, 6.1

2002-0031-0136	Foundry Association of Michigan	4, 4.1, 7.1.1, 13.1.3

2002-0031-0137	Koch Hydrocarbon Southwest LLC	4, 4.1, 9.3, 9.2.2.1.3,
9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.14, 7.1.1, 2.1.1.1, 2.1.1.2

2002-0031-0138	American Foundry Society	4, 4.1, 6.1, 5.1, 5.2.1, 5.2.3,
7.6.1, 8.1, 8.2.1, 9.1.1, 9.1.3.2, 9.2, 9.3, 10.1, 9.2.1.1.3, 9.2.2.2.3,
9.2.2.2.7, 9.2.2.2.8, 7.1.1, 2.1.1.1, 7.6.3, 7.1.1.2, 13.1.2

2002-0031-0139	Ohio Cast Metals Association	4.1, 7.3, 7.1.1

2002-0031-0140	New Jersey Department of Environmental Protection	4, 4.1,
6.1, 5.2.1, 8.2.1, 9.1.4.1, 9.2, 7.1.2, 7.6, 5.2.5, 13.1.2

2002-0031-0141	Giant Cement Holding Inc.	4, 7.1.1, 7.1.2.1, 2.1.1.4,
13.1.2

2002-0031-0142	Pasminco Zinc, Incorporated	4.1

2002-0031-0143	Doe Run Company	4, 5.1, 9.2, 9.2.1.1, 10.1.2, 10.2.1,
7.7, 9.2.2.1.2, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.1, 9.2.2.2.5, 9.2.2.2.14 

2002-0031-0144	Vanadium Producers and Reclaimers Association	4, 4.1,
6.1, 9.1.4.1, 9.3.1, 10.1.2, 10.2, 9.2.2.1.6, 7.1.2, 7.1.1.1, 13.1.2,
13.1.3

2002-0031-0145	The Aluminum Association	4, 4.1, 8.1, 9.1.4.1, 9.2, 7.1.1

2002-0031-0146	Safety-Kleen Systems, Inc.	4, 4.1, 4.1, 9, 9.1.3.1,
9.1.4.1, 12.1, 7.1.1, 7.1.1.1

2002-0031-0147	Hogan & Hartson LLP	4, 4.1, 6.1, 8.1, 9.6, 7.1.1

2002-0031-0148	Rhode Island Department of Environmental Management	4,
4.1, 6.1, 5.2, 5.1, 5.2.1, 5.2.3, 7.6.1, 8.2.1, 9.1.4.1, 9.2.2.2.3,
7.1.2

2002-0031-0149	Utility Solid Waste Activities Group, et al	4, 4.1, 5.2,
5.1, 7.3, 7.8, 8.1, 8.2.1, 9.1.3.2, 9.1.4.1, 9.2.1.1, 10.1, 9.2.2.1.1,
9.2.1.1.3, 9.2.1.1.4.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.1, 9.2.2.2.3,
9.2.2.2.4, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.14, 7.1.1, 7.5.5, 7.6, 2.1.1.1,
2.1.1.2, 2.1.1.3, 2.1.1.4

2002-0031-0150	The Vinyl Institute	4.1, 9.1.4.2, 2.1.1.1

2002-0031-0151	Univar USA Inc	4, 8.2.1

2002-0031-0152	National Mining Association	4, 4.1, 6.1, 6.2, 5.2, 5.1,
7.8, 8.2.1, 9.1.3.2, 9.1.4.2, 9.3, 9.3.1, 9.4.1, 11, 9.2.2.1.2,
9.2.2.1.5, 9.2.2.1.6, 9.2.1.1.1, 9.2.1.1.3, 9.2.1.1.4.2, 9.2.1.1.4.3,
9.2.1.2.2, 9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.6,
9.2.2.2.10, 9.2.2.2.11, 9.2.2.2.12, 7.1.1, 2.1.1.1, 2.1.1.2, 2.1.2,
2.1.2, 2.1.5.5, 2.1.1.3, 2.1.1.4, 2.1.1.6

2002-0031-0153	ASTSWMO	4, 4.1, 6.1, 6.2, 5.2, 5.2.2, 5.1, 5.2.1, 5.2.3,
7.6.1, 8.1, 8.2.1, 9.1.3.1, 9.1.4.1, 9.5, 11, 9.2.2.1.3, 9.2.1.1.3,
9.2.1.1.4.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.3, 9.2.2.2.7, 7.1.2, 7.5.5,
7.6, 5.2.5, 7.6.3, 7.1.1.1

2002-0031-0154	Electronic Industries Alliance, et al	4, 4.1, 9.1.4.2,
9.2.1.1, 9.2.1.1.3, 7.1.1

2002-0031-0155	Treated Wood Council	10.1, 7.1.1

2002-0031-0156	Milestone Contractors, L.P.	9.3, 9.4.1, 9.2.2.2.3,
9.2.2.2.10

2002-0031-0157	Ford Motor Company	4, 9.1.3.2, 9.3, 7.1.1

2002-0031-0158	Dow Corning Corporation	4.1, 6.1, 6.2, 5.2

2002-0031-0159	Micronutrients	9, 9.2.1.1.3, 9.2.2.2.4, 9.2.2.2.9

2002-0031-0160	Michigan Department of Environmental Quality	4, 8.1,
9.1.3.1, 9.6, 9.2.1.1.4.3, 7.1.1, 13.2

2002-0031-0161	Heritage Research Group	4, 4.1, 5.2, 5.2.5, 7.6.3

2002-0031-0162	Arizona Public Service Company	4, 6.1, 7.3, 9.1.3.2, 11,
9.2.2.1.1, 9.2.1.1.3, 9.2.1.2.1, 9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.7,
9.2.2.2.8, 9.2.2.2.12, 7.1.1 

2002-0031-0163	Heritage Environmental Services, LLC	4.1, 9.6

2002-0031-0164	Vermont Hazardous Waste Management Program	4, 6.1,
9.1.4.1, 9.2, 9.2.2.2.3, 9.1.3.3, 7.1.2

2002-0031-0165	RQAW Corporation	4, 5.2, 5.2.1, 9.2, 9.4.1, 9.2.2.1.5,
9.2.2.2.9, 9.2.2.2.10, 7.5.5, 7.6.3

2002-0031-0167	Alabama Department of Environmental Management	6.1, 5.2,
8.2.1, 9.1.4.1, 10.1, 7.6

2002-0031-0168	ChevronTexaco	1, 4, 9.2.2.1, 9.3, 9.2.2.1.1, 9.2.2.1.6,
9.2.1.1.1, 9.2.1.1.3, 9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.10, 9.2.2.2.12,
7.1.1, 2.1.1.1, 2.1.1.4 

2002-0031-0169	Alliance of Automobile Manufacturers	4, 4.1, 7.8,
9.1.3.2, 7.1.1, 2.1.1.2, 13.1.3

2002-0031-0170	Occidental Chemical Corporation	4.1, 9, 9.2.2.2.2,
9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.12, 7.1.1

2002-0031-0171	Tennessee Department of Environment and Conservation	2.2,
4, 4.1, 6.5, 7.6.1, 7.5.3.1, 9.1.3.2, 9.1.4.1, 9.5, 10.1, 9.2.2.2.3,
7.6.3, 13.1.1

2002-0031-0172	Cement Kiln Recycling Coalition	1, 4, 4.1, 5.2, 5.1, 9,
9.3, 9.4.2, 12.1, 12.4, 9.2.2.2.8, 7.1.2, 7.6, 13.2, 7.1.1.1, 13.1.1,
13.1.2

2002-0031-0173	JR Simplot Company	4.1, 6.1, 7.8, 9.1.4.2, 9.3, 2.1.1.1,
2.1.2, 2.1.1.3, 2.1.1.4, 2.1.1.7

2002-0031-0174	The Sherwin Williams Company	4.1, 5.2, 7.8, 10.1, 7.1.1,
7.6, 7.6.3

2002-0031-0175	Nebraska Department of Environmental Quality	4, 4.1,
8.2.1, 9.2, 9.2.1.1.4.4, 9.2.1.2.3, 9.2.2.2.3

2002-0031-0176	Hukill Chemical Corporation	4, 4.1, 5.1, 11, 7.1.2,
2.1.1.1, 13.1.1

2002-0031-0177	Pennsylvania Department of Environmental Protection	3.2,
4.1, 6.1, 5.2, 5.2.2, 5.1, 5.2.1, 7.6.1, 9.1.3.1, 9.1.4.1, 9.2.2.2.3,
9.2.2.2.7, 9.2.2.2.8, 5.2.5

2002-0031-0178	International Metals Reclamation Company, Inc	4, 4.1,
5.1, 5.2.1, 7.6.1, 7.8, 8.2.1, 9, 9.2.1.1, 10.2.1, 9.2.1.1.1, 9.2.1.1.3,
9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.8, 9.2.2.2.10, 9.2.2.2.12,
9.1.3.3, 7.1.1, 13.2, 7.6.2, 7.6.3, 7.1.1.1, 2.1.1.6

2002-0031-0179	American Petroleum Institute	4, 4.1, 6.1, 6.4, 5.2, 5.1,
7.3, 7.5.2.2, 9.1.3.2, 9.1.4.2, 9.2.2.1, 9.3, 10.1, 10.2.1, 10.2.2,
9.2.1.1.4.1, 9.2.2.2.4, 9.2.2.2.8, 7.1.1, 7.6, 2.1.1.1, 2.1.1.2,
2.1.5.5, 2.1.1.3, 2.1.1.4, 13.1.1, 2.1.1.6

2002-0031-0180	ASARCO Incorporated	4.1, 6.1, 9.1.3.2, 9.1.4.1, 9.2,
9.4.1, 9.2.1.1.3, 9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.11, 7.1.1

2002-0031-0181	Precious Metals Producers	4.1, 6.1, 5.1, 7.8, 8.2.1,
9.1.3.2, 9.1.4.2, 9.1.3.3

2002-0031-0182	NYSDEC	4, 4.1, 6.1, 5.2, 5.2.1, 5.2.3, 5.2.4, 7.5.2.2,
9.1.3.1, 9.2.2.1.3, 9.2.2.1.8, 9.2.1.1.4.1, 9.2.2.2.4, 9.2.2.2.9,
9.1.3.3, 7.1.2, 5.2.5

2002-0031-0183	L&L Redi Mix Inc	4

2002-0031-0184	Delta Laboratories, Inc	1, 4.1, 5.2, 7.8, 10.1, 7.1.1,
7.6, 7.6.3

2002-0031-0185	State of Washington Department of Ecology	4, 4.1, 6.1,
5.2.2, 5.1, 5.2.1, 5.2.3, 7.6.1, 9.1.3.1, 9.1.4.1, 9.2, 9.5, 9.2.2.1.3,
9.2.2.2.3, 9.2.2.2.8, 9.1.3.3, 7.1.1, 7.6, 5.2.5, 7.6.3

2002-0031-0186	Knauss, Elizabeth	4, 4.1, 5.2, 6.5, 5.1, 7.5.2, 9,
9.2.2.1.3, 9.2.2.2.7, 13.1.2, 13.1.3

2002-0031-0187	Flexible Packaging Association	4, 4.1, 8.2.1, 9.2.2.2.4

2002-0031-0188	Minnesota Pollution Control Agency	4, 5.2, 9.2

2002-0031-0189	Bayer CropScience	10.1

2002-0031-0190	Brush Wellman Inc.	1, 3.2, 4, 4.1, 9.1.4.2, 9.3, 9.5,
9.2.2.2.3, 9.2.2.2.5, 2.1.1.1

2002-0031-0191	State of Colorado Department of Public Health and
Environment	4, 4.1, 7.5.3, 10.3, 2.1.3, 7.6.3

2002-0031-0192	National Waste Disposal Association	4, 5.1, 7.5.3, 7.5.5

2002-0031-0193	American Ecology Corporation	3.2, 4, 4.1, 9.1.4.1, 12.1,
7.1.2.1

2002-0031-0194	Texas Commission on Environmental Quality	4, 6.1, 5.2,
5.1, 9.1.4.1, 10.1, 11, 9.2.2.2.3, 7.1.1, 7.6

2002-0031-0195	New Jersey Department of Environmental Protection	 

2002-0031-0196	Wisconsin Department of Natural Resources	4, 7.6.1,
8.2.1, 9.1.3.1, 9.3, 9.2.2.2.4, 9.1.3.3, 7.6

2002-0031-0197	Fertilizer Institute	4, 4.1, 5.2, 6.5, 5.1, 7.8, 8.2.1,
9.1.4.2, 9.2.2.1.2, 9.2.2.1.3, 9.2.1.1.1, 9.2.1.1.4.2, 9.2.1.2.3,
9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.11, 7.1.1, 2.1.1.1,
2.1.1.2, 2.1.5, 2.2.1, 13.1.2, 13.1.3

2002-0031-0198	Pharmaceutical Research and Manufacturers of America	4,
4.1

2002-0031-0199	National Paint  Coatings Association Inc.	4, 4.1, 6.1,
5.2, 5.1, 5.2.4, 7.8, 9.1.3, 9.1.3.2, 9.1.4.1, 9.2, 9.3, 10.1, 11,
9.2.2.1.1, 9.2.1.1.1, 9.2.1.1.3, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.3,
9.2.2.2.4, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.14, 7.1.1, 7.6, 2.1.1.1,
2.1.1.2, 5.2.5, 7.6.3, 2.1.1.3, 2.1.1.4, 13.1.1

2002-0031-0200	Air Products and Chemicals, Inc.	9.1.4.2, 10.1, 9.2.2.2.2

2002-0031-0201	Rohm and Haas Company	 

2002-0031-0202	PPG Industries, Inc	 

2002-0031-0203	PPG Industries, Inc	4, 4.1, 6.1, 6.2, 5.2, 9.1.3.2,
9.1.3.2, 9.1.4.1, 9.1.4.2, 9.2.2.2, 9.2.4, 10.1, 10.2.1, 12.1,
9.2.2.1.1, 9.2.1.1.1, 9.2.1.1.3, 9.2.1.1.4.4, 9.2.1.2.1, 9.2.1.2.3,
9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.7, 9.2.2.2.8, 9.2.2.2.12,
7.1.1, 7.6, 2.1.1.1, 2.1.1.2, 2.1.5.5, 13.1.2

2002-0031-0204	National Petrochemical & Refiners Association	3.3, 4,
4.1, 5.2, 5.1, 7.3, 7.8, 8.2.1, 9.1.4.2, 10.1, 9.2.1.1.3, 7.6, 13.2,
7.6.3, 13.1.2

2002-0031-0205	Valspar Corporation	4.1, 6.1, 7.8, 10.1, 7.1.1, 7.6,
7.6.3

2002-0031-0206	American Coke and Coal Chemicals Institute	4.1, 10.1

2002-0031-0207	American Iron and Steel Institute	4, 4.1, 5.2.1, 7.6.1,
10.1, 7.1.1

2002-0031-0208	CF Industries	6.4, 7.1.1, 13.2

2002-0031-0209	Alliance of Automobile Manufacturers, et al	 

2002-0031-0210	Massachusetts Department of Environmental Protection	4,
4.1, 6.1, 5.2, 5.2.1, 5.2.3, 7.6.1, 9.1.4.1, 9.2.2.2.3, 7.1.2

2002-0031-0211	International Precious Metals Institute	4, 5.2, 9,
9.1.3.1, 9.1.4.1, 9.3, 9.2.2.1.1, 7.1.1, 2.2.1

2002-0031-0212	United States Department of Energy	4, 4.1, 5.2, 5.1, 7.8,
8.1, 9.2, 10, 9.2.2.1.5, 9.2.2.1.6, 9.2.1.1.3, 9.2.1.2.3, 7.1.1, 7.6.3

2002-0031-0213	NEWMOA	4, 6.5, 8.1, 9.1.4.1, 11

2002-0031-0214	Colorado Department of Public Health and Environment, et
al	 

2002-0031-0215	Heritage Crystal Clean, LLC	4, 7.1, 7.3, 9.2.2.2.4,
9.2.2.2.6, 9.2.2.2.10, 2.1.1.1

2002-0031-0216	Trinity Consultants	4, 4.1, 5.1, 7.3, 7.8, 10.1,
9.2.2.2.8, 9.2.2.2.12, 13.2

2002-0031-0217	California Department of Toxic Substances Control	4, 4.1,
4.1, 6.1, 5.2, 7.2, 5.1, 7.3, 5.2.1, 8.2.1, 9.1.4.1, 7.1.1, 7.6, 5.2.5,
7.6.3

2002-0031-0219	ASTSWMO	6.1, 5.2, 5.2.1, 9.1.4.1, 11, 9.1.3.3, 5.2.5,
7.6.3

2002-0031-0221	Synthetic Organic Chemical Manufacturers Association	4.1,
7.1.1

2002-0031-0222	Synthetic Organic Chemical Manufacturers Association	1,
3.2, 4, 4.1, 4.1, 6.1, 6.3, 5.2, 5.2.2, 5.1, 5.2.1, 7.8, 9.1.3.2,
9.1.4.2, 9.2.4, 9.3, 10.1, 11, 9.2.1.1.3, 7.1.1, 7.6, 2.1.1.2, 5.2.5,
7.6.3, 2.1.1.6

2002-0031-0225	Kennecott Utah Copper Corporation	4, 4.1, 6.1, 6.2, 5.2,
5.1, 7.4.1, 7.8, 8.2.1, 9.1.3.2, 9.3, 9.2.2.1.2, 9.2.2.1.3, 9.2.2.1.5,
9.2.2.1.6, 9.2.1.1.1, 9.2.1.1.3, 9.2.1.1.4.2, 9.2.1.1.4.3, 9.2.1.2.1,
9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.5, 7.1.1, 2.1.1.1, 2.1.2, 7.1.1.2,
2.1.1.3, 2.1.1.4, 2.1.1.6

2002-0031-0227	Safe Food and Fertilizer	4, 2.1.3, 7.1.2.1

2002-0031-0231	Sierra Club et al	3.2, 4, 4.1, 6.1, 5.2, 5.1, 5.2.1,
5.2.3, 5.2.4, 7.5.3, 8.2.1, 9.2, 9.5, 10.2.1, 10.2.2, 10.3, 11, 12.1,
9.2.1.1.4.2, 9.2.1.2.3, 9.2.2.2.3, 2.1.3, 2.1.3.1, 2.1.3.2, 2.1.3.2,
2.1.3.3, 5.2.5, 7.6.3, 2.1.6, 13.1.1

2002-0031-0232	Shimensky, Terri	7.1.1

2002-0031-0233	Kolb, Monica	4

2002-0031-0341	None	4

2002-0031-0342	None	4

2002-0031-0343	Congress of the United States	2.2, 4, 10.3, 10.3, 12.1

2002-0031-0349	Synthetic Organic Chemical Manufacturers Association	4,
6.3

2002-0031-0430	Anonymous	1

2002-0031-0436	WRR Environmental Services Co., Inc.	3.1.3, 3.2.1, 3.2.2,
7.1.1, 13.2

2002-0031-0438	National Mining Association	7.7.1, 7.7, 11, 12.2, 7.7.3

2002-0031-0439	US Army Center for Health Promotion and Preventive
Medicine (USACHPPM)	5.2, 5.2.4, 10.1.2, 7.6, 7.6.3

2002-0031-0441	Metallix Refining Inc.	1, 5.2.1, 10.1

2002-0031-0442	Oak Ridge National Laboratory	6.2, 6.4, 5.2, 5.2.4,
7.4.1, 7.5.3.2, 7.5.4, 9.1.2, 9.1.4.2, 9.3, 9.3.1, 9.1.3.3, 7.6, 5.3,
7.6.3, 7.6.5 

2002-0031-0443	Council on Safe Transportation of Hazardous Articles,
Inc.	1

2002-0031-0444	Krimmel, Jim	7.5.3.2

2002-0031-0446	American Forest and Paper Association	9.1.2, 10.1

2002-0031-0447	Intel Corporation	5.2.2, 7.4.1, 7.4.1.1, 7.4.1.1.1,
7.4.1.1.2, 7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6, 7.4.1.5, 8.1,
5.2.5, 7.6.2, 7.6.3, 7.6.4, 7.6.5

2002-0031-0448	Ciba Specialty Chemicals	8.1, 13.2

2002-0031-0449	Treated Wood Council	9.1.2, 10.1, 10.1.2, 13.2

2002-0031-0450	World Resources Company	1, 11, 13.1.1

2002-0031-0451	Water Services Department (City of Phoenix, AZ)	1, 6.3

2002-0031-0452	International Metals Reclamation Company, Inc. (Imetco)
1, 4, 4.1, 6.1, 6.2, 6.3, 5.2, 5.1, 7.3, 7.6.1, 7.4.1, 7.4.1.1.6,
7.4.1.2, 7.5.2.1, 7.5.2.2, 7.5.3.1, 7.5.4, 7.8, 8.1, 8.4, 9.1.1,
9.2.3.1, 9.2.3.2, 10.2, 10.2.1, 2.1.4, 7.6.2, 7.6.5, 7.5.3.4

2002-0031-0453	RCRA Corrective Action Project	1, 8.1, 10.2.2, 2.1.4

2002-0031-0454	Aluminum Association	1, 4, 8.1, 9.2.1.1.1, 9.2.1.2.1,
7.6, 7.6.3, 13.1.3

2002-0031-0455	Air Products and Chemicals, Inc.	 

2002-0031-0456	Alcoa	1, 5.2, 8.1, 9.1.4.1, 7.6

2002-0031-0457	Ohio Environmental Service Indiustries	1, 3.1.3, 3.2.2,
6.1.1, 6.2, 6.3, 6.4, 6.4, 5.2, 5.2.2, 6.5, 5.1, 7.3, 5.2.1, 7.6.1,
7.4.1, 7.4.1.1, 7.4.1.1.1, 7.4.1.1.2, 7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5,
7.4.1.1.6, 7.4.1.5, 7.4.1.6, 7.5.1.2, 7.5.2.1, 7.5.2.2, 7.5.3.1, 7.8,
8.1, 9.1.1, 9.1.4.1, 9.2, 9.2.3.2, 9.5, 11, 9.2.1.1.1, 9.2.1.2.1,
9.2.2.2.2, 9.1.3.3, 7.1.2, 7.5.5, 13.2, 7.6.2, 7.6.4, 7.6.5 

2002-0031-0458	IPC- Association Connecting Electronics Industries	1, 4,
6.3, 6.4, 5.2, 5.2.2, 6.5, 7.3, 5.2.1, 7.6.1, 7.7.1, 7.4.1, 7.4.1.1,
7.4.1.5, 7.5.3.1, 7.5.3.2, 9.1.4.1, 9.2.3.1, 9.2.3.2, 12.1, 9.2.2.1.1,
9.2.1.1.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.1, 9.2.2.2.7, 9.2.2.2.12,
9.2.2.2.13, 9.2.2.2.14, 7.1.1, 7.5.5, 7.6, 13.2, 7.6.2, 7.6.3, 7.6.5,
7.1.1.2

2002-0031-0459	Monsanto Company	1, 3.2.2, 6.4, 2.1.2, 2.1.5.1

2002-0031-0460	Superior and Reclaimed Energy	1, 5.2, 5.2.2, 7.3, 5.2.1,
5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.2, 7.5.1.2, 7.5.2.2, 7.5.3.1, 9.1.1,
9.1.4.1, 9.5, 9.2.2.2.1, 9.2.2.2.12, 7.1.1, 7.5.5, 7.6.2, 7.6.3, 7.6.4,
7.6.5

2002-0031-0461	NASA	1, 6.1.1, 6.2, 6.3, 6.4, 5.2.2, 5.2.1, 7.4.1,
10.1.2, 7.5.5, 7.6, 7.6.3

2002-0031-0462	Solid Waste Management Coordinating Board	1, 3.2.3, 6.3,
6.4, 5.2, 7.7.2, 6.5, 5.1, 5.2.1, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.6,
7.5.2.2, 7.5.3.1, 10, 11, 9.2.2.1.3, 7.1.2, 7.5.5, 7.6.3, 7.5.3.3.4,
13.1.1

2002-0031-0463	American Iron and Steel Institute	1, 4.1, 6.1.1, 6.2,
6.4, 6.4, 5.2, 5.2.2, 7.3, 7.6.1, 7.4.1, 7.4.1.6, 7.5.1.1, 7.5.2.2,
7.5.3.2, 9.1.1, 9.2.3.1, 9.2.3.2, 11, 9.2.2.2.1, 7.6, 2.1.4, 7.6.4,
7.6.5, 

2002-0031-0464	Chevron	1, 7.4.1, 8.1, 12.1, 7.1.1, 13.2

2002-0031-0465	Kennecott Utah Copper Corporation	3.1, 3.1.3, 6.4,
7.4.1.5, 9.1.4, 9.2.2, 10.1, 9.2.2.1.2, 9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.2,
9.2.2.2.4, 9.2.2.2.11, 2.1.2

2002-0031-0466	Los Alamos National Security LLC	6.2, 6.4, 7.4.1,
7.4.1.5, 7.4.1.6, 7.6.4, 7.6.5

2002-0031-0467	American Foundry Society	1, 6, 6.2, 6.3, 6.4, 5.2, 5.2.2,
6.5, 7.3, 5.2.1, 7.5.2.2, 8.1, 8.5, 9.1.1, 10.1, 7.1.1, 7.6

2002-0031-0468	National Paint and Coatings Association	3.1.3, 6.1,
6.1.1, 6.2, 6.3, 6.4, 5.2, 5.1, 7.3, 7.4.1, 7.4.1.1, 7.4.1.2, 7.4.1.4,
7.8, 8.1, 8.5, 9.1.3.2, 9.1.4.1, 9.2.3.2, 10.1, 10.1.2, 11, 7.1.1,
7.5.5, 7.6, 2.1.4, 2.1.5.1, 7.6.3, 7.1.1.2

2002-0031-0469	Wesco Parts Cleaners	5.2, 10.1

2002-0031-0470	Florida Department of Environmental Protection	1, 3.1.3,
3.1.4, 3.2.2, 3.2.3, 6.1, 6.1.1, 6.2, 6.3, 6.4, 5.2, 5.2.2, 7.7.2, 6.5,
5.1, 7.3, 5.2.1, 5.2.3, 5.2.4, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.1,
7.4.1.1.2, 7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6, 7.4.1.6, 7.5.2.1,
7.5.2.2, 7.5.3.1, 8.1, 8.2.2, 8.2.3, 8.4, 8.5, 9.1.3.1, 9.1.4.1, 9.5,
10.1.2, 7.7, 9.2.2.1.1, 9.2.2.1.3, 9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.6,
9.2.2.2.13, 7.1.2, 7.5.5, 7.6, 5.2.5, 7.6.2, 7.6.3, 7.6.4, 7.6.5,
7.5.3.3.1, 13.1.1 

2002-0031-0471.1	Synthetic Organic Chemical Manufacturers Association	1,
6, 6.1, 6.2, 6.3, 7.1.1, 2.1.4

2002-0031-0471.2	Synthetic Organic Chemical Manufacturers Association
(SOCMA)	1, 4.1, 6, 6.1, 6.1.1, 6.1.2, 6.2, 6.3, 6.4, 6.4, 5.2, 5.2.2,
5.1, 5.2.1, 5.2.4, 7.4.1, 7.4.1.1, 7.4.1.2, 7.4.1.4, 7.5.3.2, 8.1, 8.5,
9.1.1, 9.1.4.1, 9.2.1, 9.2.3.1, 9.2.3.2, 10.1, 11, 12.1, 9.1.3.3, 7.1.1,
7.6, 5.2.5, 7.6.3

2002-0031-0472	American Chemistry Council	4.1, 6, 6.1.1, 6.2, 6.3, 6.4,
6.4, 5.2, 5.2.2, 7.7.2, 5.1, 7.3, 5.2.1, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1,
7.4.1.4, 7.4.1.6, 7.5.1, 7.5.1.1, 7.5.2.2, 7.8, 8.1, 9.1.1, 9.1.4.2,
9.2.2.1, 9.2.2.2, 9.2.3.1, 9.3, 9.3.1, 10.1.2, 7.7, 9.2.2.2.4,
9.2.2.2.5, 9.2.2.2.12, 7.1.1, 7.6, 13.2, 2.1.1.1, 2.1.1.2, 2.1.4,
2.1.5.1, 7.6.3, 7.6.4, 7.6.5, 7.5.1.3, 2.1.1.3, 2.1.1.4, 

2002-0031-0473	ConocoPhillips Company	1, 6.4, 5.2, 5.2.2, 7.7.2, 7.3,
5.2.1, 8.1, 9.1.1, 9.1.2, 9.1.4.1, 9.3, 10.1.2, 10.2.1, 9.2.2.1.1,
9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.1, 13.2, 7.6.3, 

2002-0031-0474	Arkema Inc.	6.1.1, 7.4.1, 7.4.1.1, 7.5.2.2, 7.8

2002-0031-0475	Vanadium Producers and Reclaimers Association	1, 3.2.2,
3.3, 6.1, 6.1.1, 6.3, 5.2, 7.7.2, 5.1, 7.3, 5.2.1, 5.2.3, 5.2.4, 7.6.1,
7.7.1, 7.4.1, 7.4.1.1, 7.4.1.4, 7.4.1.5, 7.5.1.2, 7.5.3.1, 7.5.4, 9,
9.2.2, 9.4, 9.5, 10.1.2, 7.7, 9.2.2.1.2, 7.5.5, 7.6, 7.6.3, 7.6.4,
7.6.5, 7.1.1.1, 13.1.2

2002-0031-0476	Alliance of Automobile Manufacturers	6, 6.1.1, 6.2, 6.4,
5.2, 5.2.2, 5.2.1, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.1, 7.4.1.1.2,
7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6, 7.4.1.4, 7.4.1.6, 7.5.3.1,
7.8, 8.1, 9.1.4.2, 9.2.2, 11, 9.2.2.1.2, 9.2.1.1.1, 9.2.1.1.4.5,
9.2.1.2.1, 9.2.1.2.3, 9.2.1.2.4, 9.2.2.2.2, 9.2.2.2.3, 7.1.1, 7.5.5,
7.6, 13.2, 2.1.4, 7.6.2, 7.6.4, 7.6.5

2002-0031-0478	National Association for Surface Finishing	1, 6.1, 6.2,
6.3, 6.4, 7.3, 7.4.1, 7.4.1.1, 7.4.1.2, 7.5.1.1, 7.5.2.2, 7.8, 9.1.1,
9.2.2, 9.2.3.1, 9.2.3.2, 11, 9.2.2.1.2, 9.2.2.1.3, 9.2.1.1.1, 9.2.1.2.1,
9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.12, 7.1.1, 13.2, 7.5.3.3.5, 13.1.3

2002-0031-0479	Anonymous	1, 3.1.3, 3.2.2, 3.2.3, 6.1.1, 6.3, 6.4, 5.2.2,
7.7.2, 7.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.1, 7.4.1.1.5, 7.4.1.1.6,
7.4.1.5, 7.4.1.6, 7.5.3, 7.5.4, 8.2.1, 8.3, 8.4, 8.5, 9.1.2, 9.1.4,
9.3.1, 10.1.2, 7.7, 12.1, 7.1.2, 7.5.5, 7.6, 10.2.1.1, 7.6.2, 7.6.3,
7.6.4, 7.6.5, 7.5.3.4, 13.1.1

2002-0031-0480	Missouri Coalition for the Environment	1, 3.2.2, 6, 13,
7.1.2

2002-0031-0481	National Mining Association	3.1, 3.1.1, 3.1.3, 3.1.4,
3.2.1, 3.2.2, 4, 4.1, 6.1.1, 6.1.1, 6.1.2, 6.1.2, 6.2, 6.4, 5.2, 7.7.2,
6.5, 5.1, 5.2.1, 7.4.1, 7.4.1.1, 7.4.1.5, 7.5.2.2, 7.5.3.2, 7.8, 8.1,
8.2.3, 9.1.1, 9.1.2, 9.1.3.2, 9.1.4.2, 9.2.3.1, 9.2.3.2, 9.3, 9.3.1,
10.1, 10.1.1, 10.1.2, 7.7, 11, 9.2.2.1.2, 9.2.2.1.3, 9.2.2.1.5,
9.2.2.1.8, 9.2.1.1.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.1.2.4, 9.2.2.2.2,
9.2.2.2.3, 9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.11, 9.2.2.2.12, 9.1.3.3, 7.6,
2.1.1.1, 2.1.1.2, 2.1.2, 2.1.4, 2.1.5, 2.1.5.1, 2.1.5.2, 2.1.5.3,
2.1.5.5, 2.2.1, 5.3, 7.7.3, 7.6.3, 7.6.5, 7.1.1.2, 2.1.1.3, 13.1.3,
2.1.1.8

2002-0031-0482	Clean Harbors Environmental Services	1, 3.1.3, 3.2.2,
3.3, 6.2, 6.3, 6.4, 5.2, 7.7.2, 5.1, 7.3, 5.2.1, 7.6.1, 7.7.1, 7.4.1,
7.4.1.1, 7.4.1.4, 7.4.1.6, 7.5.1.2, 7.5.2.1, 7.5.2.2, 7.5.3.1, 7.5.4,
9.2.1.2, 7.1.2, 7.5.5, 7.6.2, 7.6.4

2002-0031-0483	Doe Run Resource Corporation	10.1.2, 7.7, 

2002-0031-0484	DuraTherm, Inc.	1, 7.5.2.2, 7.5.3, 9, 9.2, 9.2.1.2,
9.2.2.1, 9.2.3.1, 9.3, 10.2.1, 7.7, 9.2.2.1.4, 9.2.1.2.3, 9.2.2.2.1,
9.2.2.2.3, 9.2.2.2.9, 7.1.2, 7.5.5, 7.6, 13.2, 13.2, 7.6.3, 7.1.1.1,
13.1.1

2002-0031-0485	Rohm and Haas Company	1, 4.1, 6, 6.1.1, 6.2, 6.3, 6.4,
5.2, 5.1, 7.3, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.5, 9.2.3.1, 7.1.1,
7.5.5, 7.6, 13.2, 7.6.5

2002-0031-0486	Dow Chemical Company	1, 3.2.2, 4.1, 6, 6.1.1, 6.2, 6.3,
6.4, 5.2, 5.2.2, 7.7.2, 5.1, 7.3, 5.2.1, 5.2.3, 7.6.1, 7.7.1, 7.4.1,
7.4.1.1, 7.4.1.4, 7.4.1.6, 7.5.1, 7.5.1.1, 7.5.2.2, 7.8, 8.1, 9.1.1,
9.1.2, 9.1.4.2, 9.2.2.2, 9.2.3.1, 9.3, 9.3.1, 9.3.2, 10.1, 10.1.2, 7.7,
9.2.2.2.1, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.12, 7.1.1, 7.5.5, 7.6, 13.2,
13.2, 2.1.1.1, 2.1.1.2, 2.1.4, 2.1.5.1, 7.6.4, 7.5.1.3, 2.1.1.3, 2.1.1.4

2002-0031-0487	Battery Council International	6, 10.1, 10.1.2, 7.1.1

2002-0031-0488	Tennessee Department of Environment and Conservation	6.4,
5.2, 7.3, 7.6.1, 7.8, 8.1, 8.3, 8.5, 9.1.4.1, 9.5, 12.1, 5.3, 5.3,
7.6.3, 13.1.1

2002-0031-0489	Arkansas Department of Environmental Quality	6.1, 6.2,
6.3, 6.4, 5.2, 5.2.2, 7.7.2, 5.2.1, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.3,
7.4.1.1.6, 7.4.1.3, 7.4.1.6, 7.5.1.2, 7.5.2.2, 7.5.3, 7.5.4, 8.1,
9.1.3.1, 9.1.4.1, 10.2, 10.2.1, 9.2.1.1.1, 9.2.1.2.1, 9.2.2.2.1,
9.2.2.2.4, 7.5.5, 7.6, 7.6.2, 7.6.3, 7.6.4, 7.6.5, 7.5.3.3.1, 7.5.3.4 

2002-0031-0490	Texas Commission on Environmental Quality 	6.4, 7.5.2.2,
7.5.3.1, 8.1, 9.1.3.2, 7.5.3.3.2, 7.5.3.3.4

2002-0031-0491	Dupont Company	1, 4, 4.1, 6.1.1, 6.1.2, 6.2, 6.3, 6.4,
5.2, 5.2.2, 7.7.2, 6.5, 5.1, 7.3, 5.2.1, 7.6.1, 7.7.1, 7.4.1, 7.4.1.1,
7.4.1.4, 7.5.2.2, 7.5.3.1, 8.2.2, 9.1.3.2, 9.2.3.1, 10.1.2, 7.7, 2.1.4,
2.1.5.5, 7.7.3, 7.6.2, 7.6.3, 7.6.4, 7.6.5, 13.1.3

2002-0031-0492	American Petroleum Institute	1, 6.2, 6.3, 6.4, 5.2,
5.2.2, 7.7.2, 7.3, 5.2.1, 5.2.4, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.5,
7.4.1.6, 7.5.1.1, 7.5.2.2, 7.5.3.2, 7.5.4, 7.8, 8.1, 9.1.1, 9.1.2,
9.1.4, 9.1.4.1, 9.2.3.1, 10.1.2, 10.2.1, 10.2.2, 9.2.1.1.1, 9.2.1.2.1,
7.1.1, 7.5.5, 7.6, 13.2, 2.1.1.2, 2.1.4, 2.1.5, 2.1.5.3, 5.3, 10.2.1.1,
7.6.2, 7.6.3, 7.6.4, 7.6.5, 2.1.1.3, 2.1.1.4, 13.1.3, 2.1.1.7 

2002-0031-0492.1	American Petroleum Institute	13.1.2

2002-0031-0493	Uniform and Textile Service Association	1, 6.3, 9.4,
9.2.2.1.3, 9.2.1.1.4.1, 9.2.2.2.9, 13.1.3

2002-0031-0494	NORA, An Association of Responsible Recyclers	1, 4, 5.2,
5.1, 8.1, 8.5, 10.1, 7.1.1, 7.6, 2.1.1.2, 7.5.3.3.6

2002-0031-0495	Massachusetts Department of Environmental Protection	1,
3.1.3, 6.1, 6.3, 6.4, 5.2, 7.7.2, 7.3, 5.2.1, 5.2.3, 7.6.1, 7.4.1,
7.4.1.1.2, 7.4.1.1.5, 7.4.1.4, 8.1, 9.1.3.1, 9.1.4.1, 9.2.3.2, 10.1.2,
11, 7.1.2, 5.2.5, 10.2.1.1, 7.6.2, 7.6.3, 7.6.4, 7.6.5

2002-0031-0496	Warner Norcross & Judd Attorneys at Law	6.2

2002-0031-0500	Department of Defense	1, 6.3, 7.4.1, 7.4.1.2, 7.4.1.5,
7.5.4, 8.1, 5.3, 13.1.1, 13.1.3

2002-0031-0501	Agmet Metals	1, 6.4, 7.4.1, 7.4.1.4, 11, 9.2.1.2.1

2002-0031-0502	Basel Action Network	1, 3.2.2, 7.7.1, 7.7, 7.7.3

2002-0031-0503	Univar USA Inc.	1, 7.3, 7.4.1.5, 7.4.1.6, 7.5.5

2002-0031-0505	Paper Recycling Coalition (PRC)	8.1, 13.1.2

2002-0031-0506	Eastman Chemical Company	3.1, 3.2.2, 5.2, 5.2.3, 9.1.2,
9.1.4, 9.1.4.2, 9.2.2.2, 9.4.2, 9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.4,
9.2.2.2.5, 9.2.2.2.10, 9.2.2.2.12, 5.3, 7.6.3

2002-0031-0507	Safety-Kleen Systems, Inc.	1, 3.1.3, 6.1.1, 6.4, 5.2,
5.2.2, 7.7.2, 7.2, 5.1, 7.3, 5.2.1, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1,
7.4.1.1.1, 7.4.1.1.2, 7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6,
7.4.1.2, 7.4.1.4, 7.4.1.6, 7.5.1.2, 7.5.2.1, 7.5.3.1, 7.5.4, 8.1,
9.1.3.1, 9.2.3.2, 9.5, 7.7, 9.2.1.2.3, 9.2.2.2.2, 7.5.5, 7.6, 7.6.2,
7.6.4, 7.6.5, 13.1.3

2002-0031-0509	Illinois Environmental Protection Agency	3.1.3, 3.2.3,
6.3, 6.4, 5.2.2, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.4,
7.4.1.6, 7.5.2.2, 7.5.4, 8.2.3, 8.4, 9.1.4.1, 9.2.4, 9.5, 10.2.1,
10.2.2, 9.2.2.1.5, 9.2.2.2.8, 7.5.5, 7.6.2, 7.6.4, 7.6.5

2002-0031-0510	US Chamber of Commerce	1, 3.2.2, 9.1.1, 9.1.4.1, 7.1.1,
7.6, 13.2

2002-0031-0511	3M	1, 6.1.1, 6.2, 7.3, 8.1

2002-0031-0512	Honda of America Mfg., Inc.	5.2.2, 7.6.1, 7.7.1, 7.4.1.1,
7.4.1.5, 7.4.1.6, 7.5.5, 7.6.3, 7.6.5

2002-0031-0513	Reusable Industrial Packaging Association (RIPA)	3.1.1,
3.2.2, 9, 13.1.3

2002-0031-0514	Association of Battery Recyclers, Inc.	10.1.2, 7.7

2002-0031-0515	RCRAInfo Change Management Process Site Identification
Program Group	5.2, 5.2.2, 5.2.5, 7.6.3

2002-0031-0516	New York State Department of Environmental Conservation
6.1.2, 6.3, 6.4, 5.2, 5.1, 5.2.1, 7.6.1, 7.4.1.1, 7.4.1.4, 7.5.2.2,
7.5.4, 8.1, 8.2.2, 8.3, 8.4, 9.2.2.2, 9.3, 10.1.2, 9.2.2.2.2, 9.2.2.2.4,
9.2.2.2.9, 7.5.5, 7.6.2, 7.6.4, 7.6.5, 7.5.3.4

2002-0031-0517	Oil Re-Refining Company (ORRCO)	1, 8.1, 8.5, 7.1.1,
7.5.3.3.6

2002-0031-0518	Institute of Scrap Recycling Industries, Inc.	3.1, 3.1.3,
6.1, 5.2, 7.3, 7.7.1, 7.5.3.2, 9.1.4.1, 9.2.3.2, 9.3, 11, 7.1.1,
2.1.1.1, 2.1.1.2, 2.1.5.4, 2.1.1.5, 13.1.2 

2002-0031-0519	Ford Motor Company	1, 7.4.1, 7.4.1.1.1, 7.4.1.1.4,
7.4.1.1.5, 8.1, 11, 7.6.5

2002-0031-0520	Precious Metals Producers	1, 3.2.2, 5.2, 9.1.2, 9.1.4.2,
9.5, 7.6, 2.1.1.1, 2.1.1.2, 7.6.3, 2.1.1.4

2002-0031-0521	Minnesota Pollution Control Agency	1, 3.1.3, 6.4, 5.2,
5.2.2, 7.7.2, 7.3, 7.6.1, 7.4.1, 7.5.1.2, 7.5.2.2, 7.5.3.1, 7.5.4, 7.8,
7.8, 8.1, 9.1.4.1, 9.2.2.1.1, 9.2.2.1.3, 9.2.2.1.8, 9.2.1.1.1,
9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.13, 7.1.2, 7.5.5,
5.2.5, 7.6.2, 7.6.3

2002-0031-0523	National Automobile Dealers Association	1, 4, 6.3, 5.2,
7.2, 5.1, 5.2.4, 11, 13.2

2002-0031-0524	ASARCO LLC 	4, 4.1, 9.1.4.1, 9.2.3.1, 9.2.3.2, 9.3,
9.3.1, 9.4.1, 10.1, 10.1.2, 9.2.1.1.1, 9.2.1.2.1, 9.2.1.2.3, 9.2.2.2.3,
9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.11, 7.1.1, 2.1.2, 2.1.4, 13.1.3, 13.1.3

2002-0031-0525	General Electric Company	1, 3.2.2, 7.4.1, 7.4.1.1.1,
7.4.1.6, 7.5.1.2, 7.5.3.1, 9.1.2, 9.1.3.1, 10.2.2, 2.1.5.2, 5.3, 7.6.4,
7.6.5, 7.5.3.4

2002-0031-0526	Fertilizer Institute	4, 6.2, 6.4, 5.2, 7.3, 7.4.1,
7.5.3.2, 8.1, 8.2.2, 9.1.3.2, 9.1.4.2, 9.2.3.2, 9.2.2.1.5, 9.2.2.2.2,
9.2.2.2.4, 9.2.2.2.11, 9.2.2.2.12, 2.1.1.2, 2.1.4, 2.1.1.3, 13.1.3 

2002-0031-0527	Heritage Environment Services, LLC	3.2.2, 4, 5.2, 5.2.2,
5.1, 5.2.1, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 9.2.2.2.10, 7.1.1, 7.5.5,
13.2, 7.6.3, 7.6.5, 7.5.3.3.7

2002-0031-0528	Freeport-McMoRan Copper & Gold, Inc.	1, 6.1, 6.2, 6.4,
5.2, 5.1, 7.4.1, 7.4.1.5, 7.5.3.2, 8.1, 8.2.2, 8.2.3, 9.1.2, 9.1.3.2,
9.2.3.2, 9.3, 10.1, 10.1.2, 9.2.2.1.2, 9.2.2.1.3, 9.2.2.1.7, 9.2.1.1.1,
9.2.1.2.1, 9.2.2.2.2, 9.2.2.2.4, 9.2.2.2.11, 9.2.2.2.12, 2.1.1.2, 2.1.2,
2.1.1.3, 13.1.3

2002-0031-0529	Metals Industries Recycling Coalition	6.3, 6.4, 5.2,
5.2.2, 6.5, 5.1, 7.3, 5.2.1, 7.6.1, 7.7.1, 7.4.1, 7.4.1.1, 7.5.1.2,
7.5.2.2, 7.8, 8.1, 9.1.1, 9.2.3.1, 9.2.3.2, 7.7, 12.1, 9.2.2.2.1,
9.2.2.2.4, 7.1.1, 7.6, 13.2, 2.1.4, 7.6.2, 7.6.4, 7.6.5, 7.5.3.3.5

2002-0031-0530	Maine Department of Environmental Protection	1, 6.3, 5.2,
5.2.2, 6.5, 5.2.1, 9.1.3.1, 5.2.5, 13.1.2

2002-0031-0531	Commonwealth of Pennsylvania	1, 4, 6.4, 5.2, 5.2.2, 7.3,
5.2.1, 7.4.1, 7.5.1.2, 8.1, 8.5, 9.1.3.1, 9.1.4.1, 9.5, 11, 9.2.2.2.2,
7.5.5, 7.6, 7.6.2, 7.5.3.4

2002-0031-0532	US Department of the Interior	1, 3.1.3, 3.2.1, 3.2.2,
3.3, 6.4, 6.5, 7.4.1

2002-0031-0533	DeWitt Barrels, Inc.	3.1.4, 3.2.2

2002-0031-0534	Utility Solid Waste Activities Group (USWAG)	6, 5.2, 7.3,
5.2.1, 7.6.1, 7.4.1, 7.4.1, 7.4.1.4, 7.4.1.6, 7.8, 8.1, 8.2.3, 9.1.1,
9.1.1, 9.1.3.2, 9.1.4.2, 9.2.3.1, 9.2.3.2, 9.3, 9.3.2, 9.2.1.1.1,
9.2.1.2.1, 9.2.2.2.1, 7.1.1, 7.6, 13.2, 2.1.4, 7.6.2, 7.6.3, 7.6.4,
7.6.5

2002-0031-0535	Brush Wellman, Inc.	1, 6.1.1, 6.2, 7.8, 8.1, 8.2.3,
9.2.2, 9.2.2.2, 10.1, 10.1.2, 9.2.2.1.3, 9.2.2.1.8, 9.2.2.2.3

2002-0031-0536	Nebraska Department of Environmental Quality	1, 3.1.3,
3.3, 6.1, 6.3, 6.4, 6.5, 5.1, 8.1, 9.1.3.1, 9.2, 9.3, 11, 9.2.1.1.4.4,
9.2.1.2.3, 9.2.2.2.3, 7.1.1, 7.5.5, 7.6.3, 13.1.1

2002-0031-0537	Arizona Association of Industries (AAI)	1, 6.1, 6.2, 6.4,
7.7.2, 8.1, 8.2.3, 9, 9.1.2, 9.1.4.2, 9.2.2, 9.3, 9.3.1, 9.5, 9.2.2.1.2,
9.2.2.1.3, 9.2.1.1.2, 9.2.1.1.4.1, 9.2.1.2.2, 9.2.2.2.2, 9.2.2.2.5,
2.1.1.2, 2.1.5.1, 2.1.5.4, 2.1.1.3, 13.1.1

2002-0031-0538	Georgia Department of Natural Resources	6.1, 6.2, 6.3,
6.4, 5.2, 5.2.2, 6.5, 5.1, 7.3, 5.2.1, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1,
7.4.1.4, 7.4.1.6, 7.5.1.2, 7.5.2.2, 7.5.3.1, 7.5.4, 8.1, 9.1.3.1,
9.1.4.1, 9.5, 10.2.1, 7.7, 9.2.2.1.2, 9.2.2.2.2, 9.2.2.2.6, 9.2.2.2.13,
5.2.5, 7.6.3, 7.6.4, 7.6.5, 7.5.3.3.4, 7.5.3.4

2002-0031-0539	Colorado Department of Public Health and Environment	1,
6.1.1, 6.3, 6.4, 5.2, 5.2.2, 5.1, 7.6.1, 7.4.1, 7.4.1.1, 7.5.1.2,
7.5.3.1, 8.2.1, 8.3, 9.1.4.1, 9.2.4, 9.5, 9.2.2.2.2, 7.6, 2.1.3, 7.6.2,
7.6.5 

2002-0031-0540	Rubber Manufacturers Association	13.1.2

2002-0031-0541	Northeast Waste Management Officials’ Association
(NEWMOA)	6.1, 6.2, 6.3, 5.2, 7.6.1, 8.1, 9.1.3.1, 9.1.4.1, 11, 7.1.2,
13.1.1

2002-0031-0543	Association of State and Territorial Solid Waste
Management Officials	1, 6.1, 6.2, 6.3, 6.4, 5.2, 5.2.2, 5.1, 7.3, 5.2.1,
5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.6, 7.5.1.2, 7.5.3.1, 8.1, 8.2.2,
8.2.3, 8.4, 8.5, 9.1.3.1, 9.1.4.1, 9.2.3.2, 9.5, 7.7, 11, 9.2.2.1.2,
9.2.2.1.3, 9.2.2.1.8, 9.2.1.1.1, 9.2.1.1.4.1, 9.2.1.2.1, 9.2.1.2.3,
9.2.2.2.2, 9.2.2.2.3, 9.2.2.2.4, 9.2.2.2.5, 9.2.2.2.6, 9.2.2.2.7,
9.2.2.2.13, 7.5.5, 7.6, 5.3, 5.2.5, 7.6.3, 7.6.4, 7.6.5, 7.5.3.3.1,
7.1.1.1, 7.1.1.1

2002-0031-0544	Michigan Department of Environmental Quality	1, 6.4,
5.2.1, 7.6.1, 8.1, 8.5, 9.1.3.1, 9.1.4.1, 9.5, 7.5.5, 7.6.3, 7.1.1.1

2002-0031-0545	Zinc Nacional S.A.	1, 7.7.1, 7.4.1, 7.7

2002-0031-0546	J.R. Simplot Company	1, 13.2

2002-0031-0547	Bayer CropScience LP (BCS)	10.1, 13.1.2

2002-0031-0548	Cement Kiln Recycling Coalition	3, 3.1.1, 3.1.2, 3.1.3,
6.3, 7.3, 5.2.1, 7.6.1, 7.4.1, 7.5.1.2, 7.5.3, 7.5.4, 8.5, 9.1.3.1, 11,
12.1, 7.1.2, 7.5.5, 13.2, 7.6.3, 7.6.4, 7.6.5

2002-0031-0549	Nissan North America, Inc.	6.1.1, 6.3, 6.4, 5.2, 5.2.2,
5.1, 7.3, 5.2.3, 7.6.1, 7.4.1, 7.4.1.1, 7.4.1.1.2, 7.4.1.5, 7.4.1.6,
8.1, 8.5, 7.5.5, 7.6, 2.1.1.1, 2.1.4, 7.6.2, 7.6.3, 7.6.4, 7.6.5

2002-0031-0550	Occidental Chemical Corporation (OxyChem)	7.3, 9.1.3.2,
9.1.4.2, 7.7, 9.2.2.2.4, 13.2, 2.1.1.1, 2.1.4

2002-0031-0551	Horsehead Corporation	1, 6.4, 7.5.1.2, 11, 7.1.1, 7.5.5

2002-0031-0552	Twin City Container, Inc.	3.1.4, 3.2.2, 13.1.3

2002-0031-0553	Heritage-Crystal Clean, LLC	6.3, 7.7.2, 5.1, 7.3, 8.1,
8.5, 10.1, 9.2.2.2.4, 13.2, 2.1.4

2002-0031-0554	Arizona Mining Association	4, 2.1.2

2002-0031-0555	Gage Products Company	1, 6, 6.3, 7.4.1.2, 7.5.3.1,
9.1.3.2, 9.1.4.2, 9.3, 9.5, 9.1.3.3, 13.2, 7.6.3

2002-0031-0557	Barrick Gold of North America, Inc.	9.1.3.2, 9.1.3.3,
2.1.1.1, 5.3

2002-0031-0558	Environmental Technology Council	3.1.3, 3.2.2, 3.3, 6,
6.1, 6.1.1, 6.2, 6.3, 6.4, 5.2, 5.2.2, 7.7.2, 7.2, 5.1, 7.3, 5.2.1,
7.6.1, 7.7.1, 7.4.1, 7.4.1.1, 7.4.1.1.1, 7.4.1.1.2, 7.4.1.1.3,
7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6, 7.4.1.2, 7.4.1.4, 7.5.1.2, 7.5.2.1,
7.5.2.2, 7.5.3, 7.5.3.1, 7.5.4, 7.8, 8.1, 8.2.3, 8.4, 8.5, 9.1.3.1,
9.1.4.1, 9.2.2.2, 9.3.1, 9.5, 12.1, 9.2.2.1.3, 9.2.2.2.2, 9.2.2.2.9,
7.5.5, 7.6, 2.1.3.1, 2.1.5.2, 5.2.5, 7.6.2, 7.6.3, 7.6.4, 7.6.5,
7.1.1.1, 2.1.6 

2002-0031-0559	Earthjustice	1, 3, 3.2.2, 3.3, 6.2, 6.3, 6.4, 5.2, 5.2.2,
7.7.2, 5.2.1, 5.2.3, 7.6.1, 7.7.1, 7.4.1, 7.4.1.1, 7.4.1.1.1, 7.4.1.1.2,
7.4.1.1.3, 7.4.1.1.4, 7.4.1.1.5, 7.4.1.1.6, 7.4.1.4, 7.4.1.6, 7.5.1.2,
7.5.2.2, 7.5.2.2, 7.5.3.1, 8.1, 8.5, 9.1.3.1, 9.2, 9.2.2, 9.5, 10, 7.7,
10.3, 11, 12.1, 12.6, 9.2.2.1.2, 9.2.2.1.3, 9.2.2.2.3, 7.1.2, 7.5.5,
7.6, 2.1.3, 2.1.3.1, 5.2.5, 7.6.2, 7.6.3, 7.6.4, 7.6.5, 7.5.3.4, 2.1.6,
13.1.2

2002-0031-0560	Non-Ferrous Founders' Society	9.1.4.1, 10.1, 13.1.3

2002-0031-0561	Safe Food and Fertilizer	11, 12.1, 12.4, 12.5, 2.1.3,
13.1.1

2002-0031-0562	Wisconsin DNR and MMP	6.4, 7.4.1, 8.1, 7.7, 11, 7.1.2

2002-0031-0563	New Jersey DEP	1, 6.1, 6.1.1, 6.2, 6.4, 5.2, 5.2.2,
5.2.1, 7.4.1.1, 7.5.3.1, 8.1, 9.1.3.1, 9.1.4.1, 9.2, 12.3, 12.4,
9.2.2.2.9, 7.1.2, 7.5.5, 7.6.2, 7.6.3, 7.6.4, 13.1.2

2002-0031-0564	EOG Environmental, Inc.	1, 3.1.3, 3.2.1, 3.2.3, 4.1, 5.2,
5.2.2, 7.7.2, 6.5, 5.1, 7.3, 7.4.1, 7.4.1.1, 7.4.1.1.5, 7.5.3, 7.8, 8.1,
8.4, 9, 9.1.3.1, 9.2.3.1, 10.1.2, 10.3, 12.1, 7.1.2, 7.5.5, 2.1.3.3,
7.6.3, 7.6.5, 2.1.6, 13.1.1



 See, for example the ABR decision, where the Court acknowledged that
the term "discard" could be "ambiguous as applied to some situations,
but not as applied to others," and particularly cited the difficulty in
examining the details of the many processes in the mineral processing
industry (208 F.3d at 1056).

 Estimates are from the Regulatory Impact Analysis for U.S. EPA’s 2008
Final Rule Amendments to the Industrial Recycling Exclusions from the
Definition of Solid Waste.

 Under the transfer-based exclusion in the final rule, a reclaimer
should also anticipate that a hazardous secondary material generator
will inquire as to whether the reclaimer intends to legitimately reclaim
hazardous secondary material (40 CFR 261.4(a)(24)(v)(B)(1)). Reasonable
effort inquiries will vary by generator and may include a request for
information or documentation of legitimacy.

 Section 3004(a), 42 U.S.C. 6921(a), only applies to hazardous wastes
“identified or listed under this subchapter” and, as such, only
applies to wastes listed under RCRA Subtitle C regulations. Section
3007(a) allows information gathering and inspections to enforce this
“chapter,” meaning all of RCRA and, thus, is not limited to wastes
that EPA has determined to be hazardous under section 3004.

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