[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Proposed Rules]
[Pages 44094-44154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17031]
[[Page 44093]]
Vol. 76
Friday,
No. 141
July 22, 2011
Part II
Environmental Protection Agency
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40 CFR Part 260, 261 and 266
Definition of Solid Waste; Proposed Rule
Federal Register / Vol. 76 , No. 141 / Friday, July 22, 2011 /
Proposed Rules
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261 and 266
[EPA-HQ-RCRA-2010-0742; FRL-9431-4]
RIN 2050-AG62
Definition of Solid Waste
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to revise certain exclusions from the definition of solid
waste for hazardous secondary materials intended for reclamation that
would otherwise be regulated under Subtitle C of the Resource
Conservation and Recovery Act (RCRA). The purpose of these proposed
revisions is to ensure that the recycling regulations, as implemented,
encourage reclamation in a way that does not result in increased risk
to human health and the environment from discarded hazardous secondary
material.
DATES: Comments must be received on or before September 20, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2010-0742 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to RCRA-docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2010-0742.
Fax: Fax comments to: 202-566-9744, Attention Docket ID
No. EPA-HQ-RCRA-2010-0742.
Mail: Send comments to: OSWER Docket, EPA Docket Center,
Mail Code 28221T, Environmental Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington DC 20460, Attention Docket ID No. EPA-HQ-RCRA-
2010-0742. Please include two copies of your comments. In addition,
please mail a copy of your comments on the information collection
provisions to the Office of Information and Regulatory Affairs, Office
of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th
St., Washington DC 20503.
Hand delivery: Deliver two copies of your comments to:
Environmental Protection Agency, EPA Docket Center, Room 3334, 1301
Constitution Avenue, NW., Washington DC, Attention Docket ID No. EPA-
HQ-RCRA-2010-0742. Such deliveries are only accepted during the
docket's normal hours of operation and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID Number EPA-HQ-RCRA-
2010-0742. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, such as CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday
through Friday, excluding legal holidays. The telephone number for the
Public Reading Room and the OSWER Docket is (202) 566-1744.
FOR FURTHER INFORMATION CONTACT: For more detailed information on
specific aspects of this rulemaking, contact Marilyn Goode, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division, MC 5304P, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460, (703) 308-8800,
(goode.marilyn@epa.gov) or Tracy Atagi, Office of Resource Conservation
and Recovery, Materials Recovery and Waste Management Division, MC
5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, at (703) 308-8672 (atagi.tracy@epa.gov). For
information on future public meetings on this proposal, contact Amanda
Geldard, Office of Resource Conservation and Recovery, Materials
Recovery and Waste Management Division, MC 5304P, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460,
at 703-347-8975 (geldard.amanda@epa.gov.) Information regarding these
public meetings will also be posted at EPA's Web site at: http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm.
SUPPLEMENTARY INFORMATION:
A. Does this action apply to me?
Entities potentially affected by today's action include between
6,500 to 9,100 industrial facilities (depending on the regulatory
option(s) selected) in upwards of 622 industries that generate or
recycle hazardous secondary materials that are (1) Currently regulated
as RCRA Subtitle C hazardous wastes, (2) hazardous secondary materials
currently excluded under the 2008 DSW final rule (three exclusions), or
(3) hazardous secondary materials currently excluded from RCRA Subtitle
C under other recycling exclusions (32 exclusions). Most of the 622
industries have relatively few counts of potentially affected entities
and are not listed here. There are 27 industries with the largest
counts of potentially affected entities which EPA evaluated in detail
in its ``Regulatory Impact Analysis'' (RIA) for today's action. These
industries in ascending code order by 6-digit NAICS codes are: (1)
323110 Commercial Lithographic Printing; (2) 324110 Petroleum
Refineries; (3) 325188 All Other Basic Inorganic Chemical
Manufacturing; (4) 325199 All Other Basic Organic Chemical
Manufacturing; (5) 325211 Plastics Material and Resin Manufacturing;
(6) 325412 Pharmaceutical Preparation Manufacturing; (7) 325510 Paint
and Coating Manufacturing; (8) 325998 All Other Miscellaneous Chemical
Product and Preparation Manufacturing; (9)
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326199 All Other Plastics Product Manufacturing; (10) 331111 Iron and
Steel Mills; (11) 331492 Secondary Smelting, Refining & Alloying of
Nonferrous Metal (except Copper, Aluminum); (12) 332312 Fabricated
Structural Metal Manufacturing; (13) 332812 Metal Coating, Engraving
(except Jewelry and Silverware) and Allied Services to Manufacturers;
(14) 332813 Electroplating, Plating, Polishing, Anodizing and Coloring;
(15) 332999 All Other Miscellaneous Fabricated Metal Product
Manufacturing; (16) 333415 Air Conditioning, Warm Air Heating
Equipment, and Commercial and Industrial Refrigeration Equipment
Manufacturing, (17) 334412 Bare Printed Circuit Board Manufacturing;
(18) 334413 Semiconductor and Related Device Manufacturing; (19) 334418
Printed Circuit Assembly, (20) 336399 All Other Motor Vehicle Parts
Manufacturing; (21) 336412 Bare Printed Circuit Board Manufacturing;
(22) 336413 Other Aircraft Part and Auxiliary Equipment Manufacturing;
(23) 541710 Research & Development in the Physical, Engineering, and
Life Sciences; (24) 562211 Hazardous Waste Treatment and Disposal; (25)
611310 Colleges, Universities and Professional Schools; (26) 622110
General Medical and Surgical Hospitals; and (27) 928110 National
Security.
In aggregate, the RIA estimates the future average annualized costs
to industry to comply with the seven proposed revisions at between $7.2
million to $13.1 million per year under a lower-bound state adoption
scenario, which results in 13% of recycling facilities implementing the
revisions, and between $7.4 million to $47.5 million per year under an
upper-bound state adoption scenario, which results in 74% of recycling
facilities implementing the revisions. This range reflects uncertainty
about the ultimate number of states which may voluntarily adopt the
proposed revisions. More information on the potentially affected
entities, industries, and industrial materials, as well as the economic
impacts of this proposed rule, is presented in Section XVII.A of this
preamble and in the Regulatory Impact Analysis available in the docket
for this final rule.
B. What To Consider When Preparing Comments for EPA
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark all information that
you claim to be CBI. For CBI information in a disk or CD-ROM that you
mail to EPA, mark the outside of the disk or CD-ROM as CBI and then
identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed, except in accordance with procedures set forth
in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The Agency may ask for commenters to
respond to specific questions or organize comments by referencing a
Code of Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If estimating burden or costs, explain methods used to
arrive at the estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate any concerns and
suggest alternatives.
Make sure to submit comments by the comment period
deadline identified above.
Preamble Outline
I. Statutory Authority
II. List of abbreviations and acronyms
III. What is the intent of this proposal?
IV. What is the scope of this proposal?
V. History of the Definition of Solid Waste
VI. Definition of Solid Waste Environmental Justice Analysis
VII. Exclusion for Hazardous Secondary Materials That Are
Transferred for the Purpose of Legitimate Reclamation
VIII. Alternative Subtitle C Regulation for Hazardous Recyclable
Materials
IX. Revisions to the Exclusion for Hazardous Secondary Materials
That Are Legitimately Reclaimed Under the Control of the Generator
X. Revisions to the Definition of Legitimacy
XI. Revisions to Solid Waste Variances and Non-Waste Determinations
XII. Request for Comment on Re-Manufacturing Exclusion
XIII. Request for Comment on Revisions to Other Recycling Exclusions
and Exemptions
XIV. Effect of This Proposal on Other Programs
XV. Implementation Issues With 2008 DSW Final Rule
XVI. State Authorization
XVII. Administrative Requirements for This Rulemaking
I. Statutory Authority
These regulations are proposed under the authority of sections
2002, 3001, 3002, 3003, 3004, 3007, 3010, and 3017 of the Solid Waste
Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.
This statute is commonly referred to as ``RCRA.''
II. List of Abbreviations and Acronyms
CERCLA--Comprehensive Environmental Response, Compensation, and
Liability Act.
CFR--Code of Federal Regulations.
DOT--Department of Transportation.
DSW--Definition of Solid Waste.
EPA--Environmental Protection Agency.
HSWA--Hazardous and Solid Waste Amendments of 1984.
LDR--Land Disposal Restrictions.
NAICS--North American Industry Classification System.
NPL--National Priority List.
RCRA--Resource Conservation and Recovery Act of 1976.
RIA--Regulatory Impact Analysis.
III. What is the intent of this proposal?
Today's proposal would revise and clarify the RCRA definition of
solid waste (DSW) for certain types of hazardous secondary materials
that are currently conditionally excluded from the definition of solid
waste. These exclusions were promulgated in October 2008 (73 FR 64688,
October 30, 2008) and were intended to encourage the recovery and reuse
of valuable resources as an alternative to land disposal or
incineration, while at the same time maintaining protection of human
health and the environment.
In response to concerns raised by stakeholders about potential
increases in risks to human health and the environment from hazardous
secondary materials, EPA is proposing to revise the 2008 DSW final rule
in order to ensure that the rule, as implemented, encourages
reclamation in a way that protects human health and the environment
from the mismanagement of hazardous secondary materials.
IV. What is the scope of this proposal?
In today's notice, EPA is proposing to revise the definition of
solid waste regulations that were promulgated in October 2008 and that
deal with the regulatory status of certain types of
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hazardous secondary materials sent for reclamation. The 2008 DSW final
rule does not apply to recycling of ``inherently waste-like'' materials
(40 CFR 261.2(d)); recycling of hazardous secondary materials that are
``used in a manner constituting disposal,'' or ``used to produce
products that are applied to or placed on the land''(40 CFR
261.2(c)(1)); or for ``burning of hazardous secondary materials for
energy recovery'' or ``used to produce a fuel or otherwise contained in
fuels'' (40 CFR 261.2(c)(2)).
The regulatory changes being proposed today are summarized below.
The intent of this summary is to give a brief overview of the proposed
changes. More detailed discussions, including the Agency's rationale
for the changes, are discussed in later sections. In addition, to aid
commenters in their review, EPA has also included in the docket for
today's proposal an informational redline/strikeout version of the
proposed revised regulations as compared to the current Code of Federal
Regulations.
A. Exclusion for Hazardous Secondary Materials That Are Transferred for
the Purpose of Reclamation
EPA is proposing to replace the exclusion at 40 CFR 261.4(a)(24)
and (25) for hazardous secondary materials that are transferred from
the generator to other persons for the purpose of reclamation with an
alternative Subtitle C regulation for hazardous recyclable
materials.\1\ (See Section VIII for a detailed discussion of the
alternative regulatory approach.) EPA's new analyses of potential
hazards posed by the 2008 DSW final rule indicate that, when
implemented, the transfer-based exclusion may pose significant risk to
human health and the environment from hazardous secondary material that
may become discarded. While the transfer of materials is inherent in
ordinary commerce and does not automatically indicate discard has
occurred, in the case of hazardous secondary materials transferred for
reclamation, EPA has determined that only a specific set of hazardous
secondary materials and reclamation practices clearly do not involve
discard. Based on new EPA analyses, EPA believes that in most cases,
hazardous secondary materials transferred to another party for
reclamation are discarded and are best regulated under RCRA Subtitle C.
Further discussion of this proposed withdrawal can be found in Section
VII of this preamble.
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\1\ A hazardous secondary material is 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. A
hazardous recyclable material is a hazardous wastes that is
recycled. Unlike hazardous secondary materials, hazardous recyclable
materials have clearly been discarded and therefore are always solid
wastes.
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B. Alternative Subtitle C Regulation for Hazardous Recyclable Materials
EPA is proposing to replace the transfer-based exclusion with an
alternative Subtitle C regulation in 40 CFR 266.30 for hazardous
recyclable materials, with the intention of promoting the safe and
sustainable reclamation of these materials. Under these alternative
requirements, the hazardous recyclable materials must be managed
according to the current RCRA Subtitle C requirements, including
manifesting and hazardous waste permits for storage, except that
generators may accumulate hazardous recyclable materials for up to a
year without a RCRA permit if the generator makes advance arrangements
for legitimate reclamation and documents those arrangements in a
reclamation plan. EPA also requests comment on setting an upper limit
on the amount of hazardous recyclable material accumulated at the
generator at any one time. Further discussion of these proposed
alternative standards can be found in Section VIII of this preamble.
C. Revisions to the Exclusion for Hazardous Secondary Materials
Reclaimed Under the Control of the Generator
EPA is proposing to retain the exclusion for hazardous secondary
materials reclaimed under the control of the generator with certain
revisions, including (1) adding a regulatory definition of
``contained'' to 40 CFR 260.10; (2) making notification a condition of
the exclusion; (3) adding a recordkeeping requirement for speculative
accumulation in 40 CFR 261.1(c)(8); and (4) adding a recordkeeping
requirement for reclamation under toll manufacturing agreements in 40
CFR 261.4(a)(23)(i)(C). EPA is also requesting comment on whether to
withdraw the toll manufacturing provision of the exclusion. Further
discussion of these proposed revisions can be found in Section IX of
this preamble.
D. Legitimacy
EPA is also proposing revisions to the definition of legitimacy in
40 CFR 260.43, including (1) applying the codified definition to all
recycling activities regulated under 40 CFR 260-266; (2) making all
legitimacy factors mandatory, with a petition process for instances
where a factor is not met, but the recycling is still legitimate; and
(3) requiring documentation of legitimacy. Further discussion of these
proposed revisions can be found in Section X of this preamble.
E. Revisions to Solid Waste Variances and Non-Waste Determinations
EPA is also proposing revisions to the solid waste variances and
non-waste determinations found in 40 CFR 260.30-260.34 in order to
foster greater consistency on the part of implementing agencies and
help ensure the protectiveness of the implementation of the solid waste
variances and non-waste determinations. Proposed revisions include (1)
requiring facilities to re-apply for a variance in the event of a
change in circumstances that affects how a material meets the criteria
upon which a solid waste variance has been based; (2) requiring
facilities to re-notify every two years with updated information; (3)
revising the criteria for the partial reclamation variance to more
clearly explain when the variance applies and to require, among other
things, that the criteria for this variance must be reviewed and
evaluated collectively; (4) revising the criteria for the non-waste
determination in 40 CFR 260.34 and requiring that petitioners
demonstrate why the existing solid waste exclusions would not apply to
their hazardous secondary materials; and (5) designating the Regional
Administrator as the EPA recipient of petitions for variances and non-
waste determinations. Further discussion of these proposed revisions
can be found in Section XI of this preamble.
F. Request for Comment on Re-Manufacturing Exclusion
EPA is also requesting comment on an exclusion from the definition
of solid waste for specific types of higher-value hazardous secondary
materials sent for re-manufacturing into similar products and on a
petition process for higher-value hazardous secondary materials that
are not included within this exclusion, but that are destined to be re-
manufactured into similar products. This exclusion would help promote
sustainable materials management by extending the productive use of
these materials and thus minimizing the amount of raw materials used
overall and all the associated environmental impacts of production.
Further discussion of this possible exclusion can be found in Section
XII of this preamble.
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G. Request for Comment on Revisions to Other Recycling Exclusions and
Exemptions
EPA is also requesting comment on revisions that would affect other
definition of solid waste exclusions and hazardous waste exemptions for
recyclable materials. These possible revisions include (1)
recordkeeping for speculative accumulation in all cases; (2) requiring
facilities to re-notify every two years with updated information on
their operating status under the various exclusions and exemptions; and
(3) containment standards for excluded hazardous secondary material.
Further discussion of these possible revisions can be found in Section
XIII of this preamble.
V. History of the Definition of Solid Waste
A. Background
RCRA gives EPA the authority to regulate hazardous wastes (see,
e.g., RCRA sections 3001-3004). The original statutory designation of
the subtitle for the hazardous waste program was Subtitle C and the
national hazardous waste program is referred to as the RCRA Subtitle C
program. Subtitle C is codified at 42 USC 6921 through 6939f.
``Subtitle C'' regulations are found at 40 CFR parts 260 through 279.
``Hazardous wastes'' are those that, because of their quantity,
concentration, or physical, chemical, or infectious characteristics,
may (1) cause, or significantly contribute to an increase in mortality
or an increase in serious irreversible or incapacitating reversible
illness, or (2) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored, transported,
or disposed of, or otherwise managed (see RCRA section 1004(5)).
Hazardous wastes are a subset of solid wastes.
Materials that are not solid wastes are not subject to regulation
as hazardous wastes under RCRA Subtitle C. Thus, the definition of
``solid waste'' plays a key role in defining the scope of EPA's
authorities under Subtitle C of RCRA. The statute defines ``solid
waste'' as ``* * * any garbage, refuse, sludge from a waste treatment
plant, water supply treatment plant, or air pollution control facility
and other discarded material * * * resulting from industrial,
commercial, mining, and agricultural operations, and from community
activities * * *'' (RCRA Section 1004 (27) (emphasis added)).
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 (see 45 FR 33090-95, May 19,
1980; 50 FR 604-656, January 4, 1985 (see in particular pages 616-
618)). EPA has offered three arguments in support of this:
The statute and the legislative history suggest that
Congress expected EPA to regulate certain materials that are destined
for recycling as solid and hazardous wastes (see 45 FR 33091, citing
numerous sections of the statute and U.S. Brewers' Association v. EPA,
600 F. 2d 974 (DC Cir. 1979); 48 FR 14502-04, April 3, 1983; and 50 FR
616-618, January 4, 1985).
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 has 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 160 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 proposed rule corroborate the fact that
recycling operations can and have resulted in significant damage
incidents.
Excluding all hazardous secondary materials destined for
recycling would allow materials to move in and out of the hazardous
waste management system depending on what any person handling the
hazardous secondary materials intended to do with them, which is
inconsistent with the RCRA mandate to track hazardous wastes and
control them from ``cradle to grave.''
Hence, RCRA confers on EPA the authority to regulate discarded
hazardous secondary materials even if they are destined for recycling
and may be beneficially reused. The Agency has therefore developed in
part 261 of 40 CFR a definition of ``solid waste'' for Subtitle C
regulatory purposes. (Note: This definition is narrower than the
definition of ``solid waste'' for RCRA endangerment and information-
gathering authorities. (See 40 CFR 261.1(b). Also Connecticut Coastal
Fishermen's Association v. Remington Arms Co., 989 F.2d 1305, 1315 (2d
Cir.1993) holds that EPA's use of a narrower and more specific
definition of solid waste for Subtitle C purposes is a reasonable
interpretation of the statute. See also Military Toxics Project v. EPA,
146 F.3d 948 (DC Cir. 1998).)
EPA has consistently asserted that hazardous secondary materials
are not excluded from regulation as solid wastes merely because of a
claim that they will be recycled. EPA has consistently considered
hazardous secondary materials intended for ``sham recycling'' (i.e.,
disposal performed in the guise of recycling) to be discarded and,
hence, to be solid wastes for Subtitle C purposes (see 45 FR 33093, May
19, 1980; 50 FR 638-639, January 4, 1985). The U.S. Court of Appeals
for the DC 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 (DC Cir.
2000)).
B. A Series of DC Circuit Court Decisions on the Definition of Solid
Waste
Because the interpretation of what constitutes a solid waste is the
foundation of the hazardous waste regulatory program, there has been
quite a bit of litigation over the meaning of ``solid waste'' under
Subtitle C of RCRA. Specifically, industries representing mining and
oil refining interests challenged EPA's January 1985 regulatory
definition of solid waste. In 1987, the DC 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 (DC
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 held that recycled materials could be
regulated as
[[Page 44098]]
discarded materials. The Court mentioned at least two examples of
recycled materials that may be regulated as wastes, 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 may be regulated as solid wastes (824 F. 2d
at 1179).
Subsequent decisions by the DC Circuit also indicate that some
materials destined for recycling may be considered ``discarded.'' 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
(DC 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 (DC Cir. 1990)).
It also is worth noting that two other Circuits also have held that
EPA may regulate at least some materials destined for reclamation
rather than final discard. The U.S. Court of Appeals for the Eleventh
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
(Eleventh 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)).
In 1998, EPA promulgated a rule in which EPA regulated under
Subtitle C 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. As a condition of the exclusion,
EPA prohibited the land-based storage of these mineral processing
secondary materials prior to reclamation because it considered
hazardous secondary materials from the mineral processing industry that
were stored on the land to be solid wastes (63 FR 28581, May 26, 1998).
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 hazardous secondary materials that are
removed from a production process for storage are not ``immediately
reused,'' and therefore are ``discarded'' (63 FR 28580, May 26, 1998).
The mining industry challenged the rule, and the DC Circuit vacated
the provisions that expanded EPA regulation over characteristic by-
products and sludges destined for reclamation (Association of Battery
Recyclers v. EPA (``ABR''), 208 F.3d 1047 (DC 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).
In its most recent opinion dealing with the definition of solid
waste, Safe Food and Fertilizer v. EPA (``Safe Food''), 350 F.3d 1263
(DC Cir. 2003), the DC Circuit upheld an EPA rule that excludes from
the definition of solid waste hazardous secondary materials used to
make zinc fertilizers, and the fertilizers themselves, as 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
hazardous secondary materials used to make the fertilizer have not been
discarded. The conditions also 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 (also called ``the identity principle''). 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 because the differences in health and
environmental risks between the two types of fertilizers are so slight
as to be substantively meaningless.
The Court also 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'' constitutes a reasonable set of tools to establish that the
recycled hazardous secondary materials and fertilizers are not
discarded.
C. October 2003 Proposal To Revise the Definition of Solid Waste
Prompted by concerns articulated in various Court opinions decided
up to that point, in October 2003, EPA proposed a rule which defined
those circumstances under which hazardous secondary materials would be
excluded from RCRA's hazardous waste regulations because they are
generated and reclaimed in a continuous process within the same
industry. In addition, the Agency also clarified in a regulatory
context the concept of ``legitimate recycling,'' which has been a key
component of RCRA's regulatory
[[Page 44099]]
program for hazardous material recycling, but which up to that point,
had been implemented without specific regulatory criteria (68 FR 61558,
October 28, 2003).
In response to the October 2003 DSW proposal, a number of
commenters criticized the Agency for not having conducted a study of
the potential impacts of the proposed regulatory changes. These
commenters expressed the general concern that deregulating hazardous
secondary materials that are reclaimed in the manner proposed could
result in the mismanagement of these materials, and could create new
cases of environmental damage that would require remedial action under
Federal or state authorities. Some of the commenters further cited a
number of examples of environmental damage that were attributed to
hazardous secondary material recycling, including sites listed on the
Superfund National Priorities List (NPL).
Other commenters to the 2003 DSW proposal expressed the view that
the great majority of these cases of recycling-related environmental
problems occurred before RCRA, CERCLA, or other environmental programs
were established in the early 1980s. These commenters argued that these
environmental programs--most notably, RCRA's hazardous waste
regulations and the liability provisions of CERCLA--have created strong
incentives for proper management of recyclable hazardous secondary
materials and recycling residuals. Several commenters further noted
that, because of these developments, industrial recycling practices
have changed substantially since the early 1980s and present day
generators and recyclers are much better environmental stewards than in
the pre-RCRA/-CERCLA era. Thus, they argued that cases of
``historical'' recycling-related environmental damage are not
particularly relevant when modifying the current RCRA hazardous waste
regulations for hazardous secondary materials recycling.
D. Recycling Studies
In light of these comments on the 2003 DSW proposal, and in
deliberating on how to proceed with the rulemaking effort, the Agency
decided that additional information on hazardous secondary material
recycling would benefit its regulatory decision-making, and would
provide stakeholders with a clearer picture of the hazardous secondary
material recycling industry in this country. Accordingly, the Agency
examined three issues that we believed were of particular importance to
revising the definition of solid waste:
How do responsible generators and recyclers of hazardous
secondary materials ensure that recycling is done in an environmentally
safe manner?
To what extent have hazardous secondary material recycling
practices resulted in environmental problems since enactment of major
waste management statutes, and why?
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
the 2008 DSW final rule under the following titles:
An Assessment of Good Current Practices for Recycling of
Hazardous Secondary Materials (EPA-HQ-RCRA-2002-0031-0354) (``study of
successful recycling'').
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'').
In the study of successful recycling, 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 manage it
responsibly without the risk of releases or other environmental damage.
These recycling and waste audits of other companies' facilities are
common to those generators that responsibly recycle 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 that can inform a generator that its hazardous
secondary material has been properly managed.
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 that are relevant for
the purpose of this rulemaking effort. To address commenters' concerns
that historic damages are irrelevant to current practices because
environmental programs (post-RCRA and -CERCLA implementation) have
created strong incentives for proper management of recyclable hazardous
secondary materials, EPA only included cases where damages occurred
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.\2\ The Agency believes that
the occurrence of certain types of environmental problems associated
with post-1982 recycling practices shows that discard has occurred. In
particular, instances where hazardous secondary materials were
abandoned (e.g., in warehouses) and which required removal overseen by
a government agency and the expenditure of public funds clearly
demonstrate that the hazardous secondary material was discarded. Of the
208 damage cases, 69 cases (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.
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\2\ EPA initially identified over 800 potential damage cases,
most of which were not included in the analysis because (1) the
damages occurred before 1982, (2) the damages were not caused by
recycling, or (3) there was not enough information to determine when
the damages occurred or whether recycling contributed to the
damages. The cases EPA considered, but did not include, were listed
in an appendix to the report to allow the public to comment on
whether additional cases should be included in the analysis. As a
result of public comment, EPA identified one new damage case and
updated two existing damage case profiles with more information
about environmental problems, as detailed in Addendum: An Assessment
of Environmental Problems Associated with Recycling of Hazardous
Secondary Materials (EPA-HQ-RCRA-2002-0031-0601). EPA determined
that the new damage case and supplemental information were
consistent with the damage cases previously cited in the study.
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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, while mismanagement of recycling
residuals was the primary cause in 71 cases (34%). Often, in the case
of mismanagement of recycling residuals,
[[Page 44100]]
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,
while the drums were reused or recycled.
The market forces study used accepted economic theory to describe
how various market incentives can influence a firm's decision-making
process when recycling hazardous secondary materials. This study helps
explain some of the possible fundamental economic drivers of both the
successful and unsuccessful recycling practices.
As pointed out by some commenters to the 2003 DSW proposed rule,
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
used 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 were (1) commercial recycling, where the primary business of
the firm is the recycling of hazardous secondary materials that are
accepted 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 either use or recycle hazardous secondary materials obtained from
other firms, with the objective of reducing the cost of their
production inputs. The report looked at how the outcome from each model
is potentially affected by three market characteristics: (1) The value
of the recycled product, (2) the price stability of recycling output or
inputs, and (3) the net worth of the firm.
An individual firm's decision-making is based on many factors and
extrapolating a firm's likely behavior from a few factors could be an
over-simplification. However, when used in conjunction with other
information, the economic theory can be quite illuminating. For
example, according to the market forces study, 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, in certain types of commercial recycling, the
product has low value, the prices are unstable, and/or the firm has a
low net worth. Facilities in these situations can be more susceptible
to environmental problems from the over-accumulation or mishandling of
hazardous secondary materials, especially when compared to recycling by
a well-capitalized firm that yields a product with high value. These
predicted outcomes appear to be supported by the results of the
environmental problems study, which showed the majority of
environmental damages occur at off-site commercial recyclers.
However, as shown by the study of successful recycling, generators
who might otherwise bear 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, allowing recyclers to plan their operations more
effectively.
Further discussion of the recycling studies, including the
methodology and limitations of the studies, can be found in the March
2007 supplemental proposal (72 FR 14178-83), and the October 2008 DSW
final rule (73 FR 64673-74) and the studies themselves can be found in
the docket for the 2008 DSW final rule (EPA-HQ-RCRA-2002-0031-0355).
E. March 2007 Supplemental Proposal To Revise the Definition of Solid
Waste
In March 2007, EPA published a supplemental proposal that provided
the public the opportunity to comment on these studies. The Agency also
re-structured the proposed rule and proposed (1) two exclusions for
hazardous secondary materials recycled under the control of the
generator (one exclusion would apply to hazardous secondary materials
managed in non-land-based units, and the other exclusion would apply to
hazardous secondary materials managed in land-based units) and (2) an
exclusion for hazardous secondary materials transferred to another
party for reclamation. The Agency also proposed a non-waste
determination petition process, and re-proposed the legitimacy
criteria, with certain modifications (72 FR 14172, March 26, 2007).
For the exclusions of hazardous secondary materials reclaimed under
the control of the generator, EPA described three circumstances under
which we believed that discard does not take place and where the
potential for environmental releases is low. The three situations
involve hazardous secondary materials that are generated and
legitimately reclaimed at the generating facility, legitimately
reclaimed at a different facility within the same company, or
legitimately reclaimed through a tolling arrangement. Under all three
circumstances, the hazardous secondary materials must be generated and
reclaimed within the United States or its territories. Because the
hazardous secondary material generator in these situations still finds
value in the hazardous secondary materials, has retained control over
them, and intends to use them, EPA proposed to exclude these materials
from the definition of solid waste and, thus, from regulation under
Subtitle C of RCRA, provided the reclamation is legitimate and the
hazardous secondary materials are contained and not speculatively
accumulated. In addition, EPA proposed that facilities generating and
reclaiming hazardous secondary materials under the control of the
generator must submit notification to their regulatory authority.
For the exclusion of hazardous secondary materials transferred to
another party for reclamation (referred to as the transfer-based
exclusion), the Agency proposed conditions that, when met, would
indicate that these hazardous secondary materials were not discarded.
For example, one of the conditions would require the generator to make
reasonable efforts, a form of due diligence, to determine that its
hazardous secondary materials would be properly and legitimately
recycled (and that the hazardous secondary material would not be
discarded). Another condition would require the reclamation facility to
have adequate financial assurance (thus demonstrating that the
hazardous secondary material would not be abandoned). In addition, EPA
proposed that both the generator and reclaimer would be required to
maintain shipping records (to demonstrate that the hazardous
[[Page 44101]]
secondary material was sent for reclamation and was received by the
reclaimer). Furthermore, the reclaimer would be subject to additional
storage and residual management standards (to address the instances of
discard observed at off-site reclamation facilities in the damage
cases). Finally, facilities operating under the transfer-based
exclusion must also submit notification to their regulatory authority.
In addition, the 2007 DSW supplemental proposal included a case-by-
case non-waste determination petition process that would allow
applicants to receive a formal determination from EPA that their
hazardous secondary materials were not discarded and therefore were not
solid wastes. The case-by-case petition process would allow EPA or the
authorized state to take into account the particular fact pattern of
the recycling and to determine that the hazardous secondary materials
in question were not solid wastes. The petition process for the non-
waste determination was the same as that for the variances from the
definition of solid waste found at 40 CFR 260.31.
EPA also proposed a definition of legitimate recycling that
restructured the legitimacy factors originally proposed in October
2003. The proposed legitimacy factors would be used to determine that
the recycling of hazardous secondary materials is not a ``sham'' and is
not waste treatment.
F. October 2008 Final Rule To Revise the Definition of Solid Waste
In October 2008, EPA promulgated a final rule largely as proposed
in March 2007, with some revisions and clarifications, including (1)
clarifying that hazardous secondary materials held at a transfer
facility for less than 10 days are considered to be in transport (and
therefore such transfer facilities are not considered to be storing the
hazardous secondary materials for the purpose of the DSW exclusion),
(2) allowing the use of intermediate facilities that store hazardous
secondary materials for more than 10 days under the transfer-based
exclusion, provided the facilities comply with the same conditions
applicable to reclamation facilities, (3) requiring facilities
operating under the generator-controlled and/or the transfer-based
exclusion to notify their regulatory authority prior to operating under
the exclusion and every other year thereafter, and (4) making
legitimacy a condition of the exclusions and the non-waste
determinations in that rule, but not finalizing the legitimacy language
for all recycling activities.
G. Section 7004 Petition Submitted by the Sierra Club and Industry
Response
On January 29, 2009, the Sierra Club submitted an administrative
petition under RCRA section 7004(a), 42 U.S.C. 6974(a), to the
Administrator of EPA requesting that the Agency repeal the October 2008
revisions to the definition of solid waste rule and stay the
implementation of the rule.
The administrative petition was submitted at the same time that the
American Petroleum Institute (API) and Sierra Club filed judicial
Petitions for Review under RCRA section 7006(a), 42 U.S.C. 6976(a)
challenging the rule in the United States Court of Appeals for the
District of Columbia Circuit (DC Circuit). These cases, designated as
Docket Nos. 09-1038 and 1041, respectively, are currently before the DC
Circuit.
The petition argued that the revised regulations are unlawful and
that they increase threats to public health and the environment without
producing compensatory benefits and, therefore, should be repealed.
Among other things, the petition singled out the lack of regulatory
definitions for key conditions of the rule and disagreed with the
Agency's findings that the rule would have no adverse environmental
impacts, including the finding there would be no adverse impact to
environmental justice communities or children's health.
On March 6, 2009, a coalition of industry associations (``industry
coalition'') submitted a letter to the Administrator of EPA in response
to the Sierra Club petition. This letter requested that EPA deny Sierra
Club's petition on the grounds that the 2008 DSW final rule comports
with court cases construing the scope of the definition of solid waste
under RCRA, and that the 2008 DSW final rule achieves significant
economic and conservation benefits, while imposing significant controls
on the hazardous secondary material recycling industry that are fully
protective of the environment. The letter also responds to each of the
specific points raised by Sierra Club in its petition.
H. June 2009 Public Meeting and the Draft DSW Environmental Justice
Analysis Methodology
In response to Sierra Club's administrative petition and the
industry coalitions letter to the Administrator, EPA issued a May 27,
2009, Federal Register notice (74 FR 25200) describing possible actions
and optional paths forward, as well as announcing a public meeting on
June 30, 2009, to allow the public and interested stakeholders the
opportunity to provide input to the decision-making process.
In the May 27, 2009, Federal Register notice announcing the public
meeting, EPA described the scope of possible action, which is governed
by the concept of ``discard.'' As stated in RCRA section 1004(27),
``solid waste'' is defined as ``* * * any garbage, refuse, sludge from
a waste treatment plant, water supply treatment plant, or air pollution
control facility and other discarded material * * * resulting from
industrial, commercial, mining and agricultural activities.'' The May
2009 public meeting notice said that ``[b]ecause the final revisions to
the definition of solid waste are closely tied to EPA's interpretation
of ``discard,'' EPA does not expect to completely repeal the rule or
stay its implementation, because such an action could result in
hazardous secondary materials that are not discarded being regulated as
hazardous waste. In particular, EPA said that it does not expect to
repeal either the exclusion for hazardous secondary materials reclaimed
under the control of the generator or the non-waste determination
petition process. However, the Agency stated that it could revise other
parts of the definition of solid waste rule, such as the definition of
legitimacy and the transfer-based exclusion, in ways that could
increase environmental protection, while still appropriately defining
when a hazardous secondary material being reclaimed is a solid waste''
(74 FR 25203).
Thirty-three people spoke at the public meeting, and approximately
4,000 written comments were received, of which the majority were from
private citizens who wrote in via a mass e-mail campaign to repeal the
rule. The remaining comments came from state and local governments
(17), the generating industry (28), the waste management/recycling
industry (15), environmental, public health and community organizations
(12), and academics (2). Industry comments were uniformly in favor of
denying the Sierra Club petition to repeal the rule, citing legal
issues and the protectiveness of the rule's conditions. Environmental
and community organizations, on the other hand, were uniformly in favor
of repealing the rule, expressing concerns over the protectiveness,
enforceability and environmental justice and children's health impacts
of the rule. Waste management/recycling industry comments were split,
with hazardous waste recyclers generally advocating that EPA retain and
improve the rule with more stringent standards. Other
[[Page 44102]]
waste management industry comments, particularly those from companies
representing landfills and incinerators, were in favor of repealing the
rule. State comments expressed concerns about implementing the rule,
particularly given the economic climate, and generally were in favor of
repealing or significantly revising the transfer-based exclusion. EPA
appreciates all the comments that were provided and has carefully
considered them in deciding to revisit the definition of solid waste in
today's proposal. A copy of the public meeting transcript and the
comments submitted in response to the public meeting notice are
available in the docket for the public meeting (Docket ID number EPA-
HQ-RCRA-2009-0315).
Many commenters (including those at the public meeting and those
who responded with written comments) expressed strong concerns that the
Agency did not adequately address environmental justice in the
rulemaking. In response to the concerns over the environmental justice
analysis, EPA committed to perform a more rigorous and thorough
analysis of the environmental justice impacts of the 2008 DSW final
rule. On January 15, 2010, EPA released for public input a draft
methodology for conducting the DSW Environmental Justice Analysis. The
draft methodology was presented to the National Environmental Justice
Advisory Committee (NEJAC) and discussed at three public roundtable
meetings.
I. Settlement Agreement With the Sierra Club
1. Overview of Settlement Agreement
On September 7, 2010, EPA signed a settlement agreement with the
Sierra Club under which the Sierra Club agreed to withdraw their
administrative petition and EPA agreed to prepare a notice of proposed
rulemaking to be signed no later than June 30, 2011, which would
address, at a minimum, the issues raised in the Sierra Club's
administrative petition, including the four issues discussed in the May
27, 2009, public meeting Federal Register notice (74 FR 25200). The
settlement agreement did not specify the outcome of the final rule or
specifically what regulatory changes EPA would propose. A notice taking
final administrative action concerning the notice of proposed
rulemaking is to be signed no later than December 31, 2012.
The settlement agreement was approved by the court on January 11,
2011. Today's proposal represents EPA's fulfillment of the portion of
the settlement agreement concerning the proposed rule.
The four issues in the settlement agreement are (1) the definition
of ``contained'' (which includes the issue of defining ``significant
releases'') (addressed in Section IX.B.1 of this preamble), (2)
notification before operating under the exclusion (addressed in Section
IX.B.2 of this preamble), (3) the definition of ``legitimacy''
(addressed in Section X of this preamble) and (4) the transfer-based
exclusion (addressed in Section VII of this preamble). Other issues
presented in the administrative petition are discussed below.
2. Request to Immediately Stay the Implementation of and Revoke the
2008 DSW Rule
The Sierra Club's administrative petition included a request to
immediately stay and revoke the 2008 DSW final rule. To support this
request, the petition asserted that the damage case study demonstrates
that hazardous waste recycling has caused substantial harm to health
and the environment and that the 2008 DSW final rule increases the
likelihood of greater future harm. The petition also asserted that the
2008 DSW final rule does not account for the possibility that unstable
recycling markets or financial conditions increase the risk of
hazardous waste abandonment. In addition, the petition asserted that
the 2008 DSW final rule will not substantially increase recycling and
that the economic benefits are few and will only accrue to deregulated
industries. Additionally, the petition claimed that there would be job
losses in the hazardous waste treatment industry and increased worker
health problems as a result of the rule.
EPA addressed Sierra Club's request to revoke the 2008 DSW final
rule in whole and stay its implementation in the May 27, 2009, public
meeting notice, which continues to reflect EPA's current thinking. In
that notice, EPA stated at 74 FR 25202:
The scope of possible changes to the definition of solid waste
is governed by the concept of ``discard.'' As discussed in the
preamble to the DSW final rule, EPA used the concept of discard as
the central organizing idea behind the October 2008 revisions to the
definition of solid waste. As stated in RCRA section 1004(27),
``solid waste'' is defined as ``* * * any garbage, refuse, sludge
from a waste treatment plant, water supply treatment plant, or air
pollution control facility and other discarded material * * *
resulting from industrial, commercial, mining and agricultural
activities'' (emphasis added). Therefore, in the context of the DSW
final rule, a key issue relates to the circumstances under which a
hazardous secondary material that is recycled by reclamation is or
is not discarded (73 FR 64675). In exercising its discretion in the
DSW final rule to define what constitutes ``discard'' for hazardous
secondary materials reclamation, EPA included an explanation of how
each provision of the final rule relates to discard (73 FR 64676-
64679).
For example, in the DSW final rule, EPA determined that if the
generator maintains control over the recycled hazardous secondary
material and if the material is legitimately recycled under the
standards established in the final rule and 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 reclamation process, the generator
ensures that the hazardous secondary materials are not discarded.
(See 73 FR 64676.)
Because the final revisions to the definition of solid waste are
closely tied to EPA's interpretation of the concept of ``discard,''
EPA does not plan to repeal the rule in whole or stay its
implementation. Such an action could result in hazardous secondary
materials that are not discarded being regulated as hazardous
wastes. In particular, EPA does not expect to repeal either the
exclusion for hazardous secondary materials reclaimed under the
control of the generator or the non-waste determination petition
process.
However, EPA believes that there may be opportunities to revise
or clarify the definition of solid waste rule, particularly with
respect to the definition of legitimacy and the transfer-based
exclusion, in ways that could improve implementation and enforcement
of the provisions, thus increasing environmental protection, while
still appropriately defining when a hazardous secondary material
being reclaimed is a solid waste and subject to hazardous waste
regulation.
Today's proposal includes a discussion of several potential changes
to the generator-controlled exclusion and to the non-waste
determination petition process, but, for the reasons stated above, EPA
did not stay the rule and is not proposing to withdraw either
provision.
3. Adequacy of EPA's Analyses
Finally, the Sierra Club petition asserted that EPA's conclusion
that the 2008 DSW final rule would have no adverse environmental
impacts, and therefore would have no disproportional adverse impacts to
minority and low-income communities, is unsupported by the
administrative record. In response to these comments and similar
comments by other stakeholders at the 2009 public meeting, EPA
committed to producing an expanded analysis of the potential
disproportionate impacts of the 2008
[[Page 44103]]
DSW final rule. A draft methodology for the analysis was shared with
the public in January 2010, and three public roundtable discussions
were held to discuss the draft methodology.\3\ EPA considered the
comments raised in those discussions and conducted an analysis. The
analysis has undergone peer review, the results of which are included
in the docket for today's proposed rule. The environmental justice
analysis is discussed in detail in the next section (Section VI) below.
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\3\ U.S. EPA. Draft Environmental Justice Methodology for the
Definition of Solid Waste Rule, January 2010, http://www.epa.gov/epawaste/hazard/dsw/ej.htm.
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J. Commitment to Sustainable Materials Management
In addition to addressing the environmental and public health
concerns raised by the Sierra Club and other commenters, EPA also
envisions today's proposal as an opportunity to discuss focused
approaches to revising the hazardous waste recycling regulations to
promote sustainable materials management, while ensuring protection of
human health and the environment. Sustainable materials management is
an approach to serving human needs by using/reusing resources most
productively and sustainably throughout their life cycles, generally
minimizing the amount of materials involved and all the associated
environmental impacts. Sustainable materials management is a core
element of RCRA's resource conservation objectives.
The shift to sustainable materials management by taking a life-
cycle approach to managing materials is articulated in EPA's 2020
Vision Report: Sustainable Materials Management: The Road Ahead,\4\
which was endorsed by both the Environmental Council of the States
(ECOS) and the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO).\5\ Sustainable materials management, as
articulated in the ``2020 Vision Report,'' is aligned also with the
vision and efforts of the World Business Council for Sustainable
Development.\6\
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\4\ http://www.epa.gov/waste/inforesources/pubs/vision.htm.
\5\ Environmental Council of the States Resolution 10-1 on
National Sustainable Materials Management, approved March 23, 2010,
and Letter from Gary Baughman, president, ASTSWMO, to Matt Hale,
Director, Office of Solid Waste, U.S. EPA, February 3, 2010.
\6\ http://www.wbcsd.org/web/projects/BZrole/Vision2050-FullReport_Final.pdf.
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Sustainable materials management helps identify opportunities to
reduce environmental impacts, including greenhouse gas reductions, and
societal impacts across the life cycle of materials from how they are
extracted, manufactured, distributed, used, reused, recycled, and
disposed. It works to ensure unintended consequences are avoided.
Efficiencies gained in a sustainable materials management approach,
especially with respect to non-renewable materials, can result in less
energy used, more efficient use of materials, more efficient movement
of goods and services, conservation of water, and reduced volume and
toxicity of waste.
By considering system-wide impacts, sustainable materials
management casts a far broader net than traditional waste and chemicals
management approaches and represents a change in how we think about
environmental protection. Hazardous waste regulations can only
influence a small part of the picture, but to the extent that the
Agency can use today's proposal to help advance these goals, while
ensuring protection of human health and the environment, EPA believes
that it makes sense to do so.
VI. Definition of Solid Waste Environmental Justice Analysis
To achieve the goals of Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, EPA must consider environmental justice when developing a
regulation. Because decisions involving a regulation must be informed
by a consideration of a number of different issues, an environmental
justice analysis is one of several analyses the Agency uses when
developing regulations. The environmental justice analysis may be
qualitative and/or quantitative and is designed to provide the
appropriate information on disproportionately high and adverse impacts
to minority and/or low-income populations to decision-makers. To the
extent an environmental justice analysis reveals potential
disproportionately high adverse impacts on minority and/or low-income
populations, this result can affect how EPA uses its policy discretion
under applicable authorities to pursue specific regulatory options or
provide opportunities to involve the public in the implementation of
regulations.
The purpose of the DSW environmental justice analysis is two-fold.
First, the analysis represents a systematic examination of the
potential for an increase in adverse impacts under the 2008 DSW final
rule (considered independently from which communities might be
impacted). Second, the analysis includes a demographic analysis
characterizing the extent any potential adverse impacts are likely to
affect minority and/or low-income communities. The results of this
analysis have informed EPA's decision-making on which regulatory
options to pursue, within scope of the Agency's authority to regulate
hazardous waste.
The methodology for the DSW environmental justice analysis consists
of six steps:
------------------------------------------------------------------------
------------------------------------------------------------------------
Step 1: Hazard Includes two phases: (1) Identifying
characterization. potential hazards that could pose risks
to human health and the environment from
recycling of hazardous secondary
materials, including accidental releases
of hazardous constituents and (2)
analyzing the likelihood of such hazards
occurring under the requirements of the
2008 DSW exclusions as compared to the
pre-2008 DSW hazardous waste
regulations.
Step 2: Identification of Modeling the locations of facilities
potentially affected (including potential new facilities)
communities. that are likely to choose to take
advantage of the 2008 DSW final rule.
Step 3: Demographics of Mapping the location of the facilities
potentially affected modeled in Step 2 and identifying the
communities. demographics (e.g., minority population
and income level) of the surrounding
communities.
Step 4: Identifying other Identifying important vulnerability
factors that affect factors. These include factors that may
vulnerability in potentially increase the likelihood of ``damages,''
affected communities. the likelihood that a facility is sited
within a community, or the likelihood of
health risks in the event of releases.
Examples include the presence of other
pollution sources and any information
about the public health of the
surrounding population.
Step 5: Information Synthesizing all the information to
synthesis: assessment of characterize whether the 2008 DSW rule
disproportional impact. will facilitate the occurrence of any
adverse impacts and whether some
population groups (e.g., minority or low
income populations) would be
overrepresented in the impacted
communities.
[[Page 44104]]
Step 6: Identification of Identifying potential strategies to
potential preventive and prevent non-compliance and releases to
mitigation strategies. the environment and also strategies to
mitigate any impacts identified under
step 5.
------------------------------------------------------------------------
A brief description of the six steps is presented below.
A. Step 1--Hazard Characterization
The first step of the methodology is hazard characterization, which
includes both identifying the potential hazards that hazardous
secondary materials recycling could pose to human health and the
environment, and evaluating the likelihood of such hazards resulting in
increased risk under the 2008 DSW final rule. In conducting this
analysis, EPA, assessed a number of different scenarios, which reflect
how such hazardous secondary materials may be managed.
With respect to the first part of the analysis, because hazardous
secondary materials sent to recycling are physically and chemically
similar, if not identical to many of the hazardous wastes sent for
treatment and disposal, the potential risks from their management are
similar, if not the same, as from hazardous wastes sent for treatment
and disposal. The most commonly recycled hazardous secondary materials
are spent solvents and electric arc furnace dust (which is recycled to
reclaim metals). Spent solvents present particular management
challenges in that recycling them involves the storage of liquids
containing volatile organic chemicals and includes both halogenated and
non-halogenated organic chemicals, which represent a broad range of
chemicals and associated hazards. Electric arc furnace dust, which is
usually in a solid state, presents different management challenges,
including that the dust contains high concentrations of toxic metals,
the storage of the dust is typically in waste piles, and the potential
for the dust to become wind-blown, or otherwise released, and the
potential for toxic metals contained in this waste to leach into the
ground water.
These two classes of hazardous secondary materials (as well as
other hazardous secondary materials that are recycled) can pose risks
via a wide variety of exposure routes and include a range of potential
adverse health effects, both carcinogenic and non-carcinogenic, as well
as a potential for acute impacts, such as fires and explosions.
The second part of the hazard characterization step--determining
whether these hazards could result in increased risk to human health
and the environment--is a complex issue because of the interactions
between how the regulations are written and how they are actually
implemented. Under the 2008 DSW final rule, EPA believed that the
conditions of the rule, which were designed to determine when a
hazardous secondary material is not discarded, would also prevent any
increase in risk. For example, the condition that the hazardous
secondary materials be ``contained'' was intended to address this
issue. If the material is not released to the environment, there would
be no increased exposure or associated risk.
However, what the 2008 analysis failed to take into account was
whether the conditions of the rule--such as the ``contained''
standard--would operate as effectively in the real world as the more
prescriptive requirements of the RCRA hazardous waste regulations. One
of the most common criticisms of the January 2010 draft environmental
justice methodology was that it did not include consideration of the
potential for adverse impact from removing some of the important
protections of the hazardous waste regulations, particularly the public
participation requirements, which were also not considered by the
Agency when developing the 2008 DSW final rule.
A more detailed comparative analysis of the regulatory requirements
under the 2008 DSW final rule with the hazardous waste regulations
reveals potentially significant gaps in environmental protection under
the 2008 DSW final rule, particularly the incentives to accumulate
larger volumes of hazardous secondary materials, the reduction in
oversight resulting from eliminating the permit requirement for
storage, and the reduction in the public's access to information and
the opportunity for public participation. The specific gaps vary
depending on the baseline scenario and the post-DSW scenario being
considered,\7\ and in some cases, there is also a potential for
increased benefits, primarily from resource conservation and from
reduced transportation distances.\8\
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\7\ The specific scenarios evaluated were (1) generator
continues current recycling practices; (2) generator switches from
off-site disposal to on-site reclamation; (3) generator switches
from off-site disposal to off-site recycling under the control of
the generator; (4) generator switches from off-site disposal to off-
site recycling at a RCRA-permitted facility; (5) generator switches
from off-site disposal to off-site recycling at a U.S. facility
without a RCRA permit; (6) generator switches from off-site disposal
to exporting for recycling; (7) generator switches from off-site
recycling at a facility without a permit to another type of
recycling under the 2008 DSW final rule; and (8) generator switches
from off-site recycling at a RCRA-permitted facility or exporting
waste for recycling to another type of recycling under the 2008 DSW
final rule.
\8\ By reporting the potential for increased benefits under
certain scenarios, EPA does not intend to imply that such benefits
could justify increased risk to human health and the environment
from discarded hazardous secondary material. Promoting resource
conservation and recovery is a major goal of RCRA, but this goal
does not supersede the mandate to assure that hazardous waste
management practices are protective of human health and the
environment.
---------------------------------------------------------------------------
B. Step 2--Identification of Potentially Affected Communities
The second step of the methodology identified those potential
facilities that can represent the facilities that are likely to take
advantage of the 2008 DSW final rule. These facilities are grouped into
four different categories: (1) Facilities that have already notified
under the 2008 DSW final rule (``Notification Facilities''), (2)
facilities from the environmental problems study (many of which
operated under various exclusions or reduced regulations) which have
documented environmental damages from recycling activities (``Damage
Case Facilities''), (3) hazardous waste facilities that are likely to
recycle under the rule (including hazardous waste generators producing
more than a truckload (25 tons) of recyclable hazardous secondary
materials annually, and hazardous waste recyclers) (``Hazardous Waste
Facilities''), and (4) facilities currently recycling non-hazardous
industrial waste (e.g., antifreeze) that could most easily switch or
expand to recycling under the 2008 DSW final rule (``Non-Hazardous
Industrial Waste Facilities'').
C. Step 3--Demographics of Potentially Affected Communities
The third step characterized the demographics of the communities
within a three-kilometer radius around these facilities and determined
whether they had a larger proportion of minority and/or low-income
individuals as compared to the nation as a whole, and as compared to
the population in the state.\9\ The comparison was done at both at the
community and at the population level.
---------------------------------------------------------------------------
\9\ EPA chose a three-kilometer radius as an approximation of
the potential area that could be affected by an acute release
scenario (such as a fire or explosion) at a reclamation facility.
EPA focused on the acute scenario because such a scenario posed the
most immediate harm to public health.
---------------------------------------------------------------------------
For the community-level analysis, the question is whether the
communities
[[Page 44105]]
around a facility had a higher or lower percentage of minority and/or
low-income population as compared to the comparison population (i.e.,
national or state population). In general, some communities will have a
higher percentage than the comparison population, while some
communities will have a lower percentage. As long at these differences
have a regular, or uniform, distribution, they generally would not
indicate potential for disproportionate adverse impact. However, if the
number of communities with a higher percentage of minority and/or low-
income population is greater than that of the comparison populations,
then there is a potential for disproportionate adverse impact. The
higher the average differences between the potentially affected
communities and the comparison group, the greater the potential for a
disproportionate adverse impact.
In the chart below, the category that consistently demonstrates the
potential for disproportionate adverse impact are the damage case
facilities, which is the third category of facilities identified in
Step 2, although a few other categories indicates the potential for
disproportionate adverse impact in a few instances.\10\ For both the
national and the state comparison populations, more than 50 percent of
the damage case facilities are located in communities with minority and
low-income populations that have a higher representation than the
comparison populations. In addition, the average difference in these
cases (i.e., the average amount that these facilities have a higher-
than-average percentage of minorities or low-income populations) ranges
from 6-8 percent.
---------------------------------------------------------------------------
\10\ For the damage cases, EPA notes that demographic data is
not necessarily matched to the temporal period associated with the
beginning of the damage case. For example, if the damage case began
in 1990, EPA did not examine demographics from 1990, but rather the
demographics were from 2000.
Community-Level Analysis of Potential Disproportionate Adverse Impacts of 2008 DSW Final Rule to Minority and
Low-Income Communities
[Values greater than 50% indicate potential disproportionate impact]
----------------------------------------------------------------------------------------------------------------
National National State State
comparison % comparison % comparison % comparison %
communities communities communities communities
with higher with higher with higher with higher
minority low-income minority low- income
representation representation representation representation
(average (average (average (average
difference) difference) difference) difference)
----------------------------------------------------------------------------------------------------------------
Facilities that Have Notified (40 total)........ 7.5% 32.5% 50.0% (IA) 64.0% (IA)
(-20.7%) (-2.0%) (3.1%) (1.7%)
20.0% (NJ) 0% (NJ)
(-11.0%) (-3.7%)
31.3% (PA) 50% (PA)
(-2.3%) (2.6%)
Damage Case Facilities (217 total).............. 53% 65% 55.8% 69%
(8.2%) (5.9%) (8.2%) (6.7%)
Hazardous Waste Facilities (2,677 total)........ 42% 48% 47.9% 50.6%
(0.9%) (1.5%) (4.0%) (1.8%)
Non-Hazardous Industrial Waste Facilities (25 36% 40% 36% 44%
total)......................................... (-5.0%) (-0.5%) (-2.55%) (-0.3%)
----------------------------------------------------------------------------------------------------------------
The population-level analysis examines the demographics of the
total potentially affected population \11\ as compared to the total
comparison population to determine (1) whether there is a substantially
greater probability of members in a population group of concern
(minority or low-income) being present as compared to members of the
comparison population, and (2) whether members of the population group
of concern comprised a substantially greater proportion of the
potentially affected population than the comparison populations. These
two comparisons are referred to as (1) the Affected Population Ratio,
and (2) the Demographic Ratio. In both cases, if the ratio is greater
than 1.0, then there is a potential for disproportionate adverse impact
to the population of concern, and the larger the ratio, the greater the
disproportionality.
---------------------------------------------------------------------------
\11\ The total affected population is the sum of each of the
populations around all the facilities in a category.
[[Page 44106]]
Population-Level Analysis of Potential Disproportionate Impacts of 2008 DSW Rule to Minority and Low-Income
Communities
[Ratios greater than 1.0 indicate potential disproportionate impact to population of concern all results
statistically significant (p-value <0.05)]
----------------------------------------------------------------------------------------------------------------
National National State State
comparison comparison low- comparison comparison low-
minority income minority income
population population population population
affected affected affected affected
population population population population
ratio ratio ratio ratio
demographic demographic demographic demographic
ratio ratio ratio ratio
----------------------------------------------------------------------------------------------------------------
Notification Facilities (40 total).............. 0.70 1.05 1.80 (IA) 1.34 (IA)
0.76 1.04 1.76 (IA) 1.32 (IA)
1.02 (NJ) 0.64 (NJ) 0.65
1.01 (NJ) (NJ)
1.46 (PA) 1.74 (PA)
1.47 (PA) 1.63 (PA)
Damage Case Facilities (217 total).............. 2.87 1.98 2.59 2.04
1.86 1.80 1.64 1.90
Hazardous Waste Facilities (2,677 total)........ 1.90 1.39 1.94 1.47
1.80 1.50 2.04 1.83
Non-Hazardous Industrial Waste Facilities (25 1.19 1.16 1.34 1.17
total)......................................... 1.12 1.14 1.20 1.15
----------------------------------------------------------------------------------------------------------------
The chart above shows that the population level analysis has a
greater incidence of potential disproportionate adverse impact to
minority and low-income populations than the community-level analysis.
For the population-level analysis, the potential for disproportionate
impact (i.e., ratios greater than one) occurs under all categories,
while the community-level analysis exhibits the potential for
disproportionate impact primarily in the damage case facility category.
This difference can occur when the populations of those communities
that do have a greater percentage of minority or low-income individuals
also have a significantly higher total population than those
communities that do not. In other words, for the categories of
facilities, except the damage case facilities, the facilities of
concern generally do not appear to be disproportionately located in
minority or low-income communities. The facilities that are located in
minority and low-income communities have the potential to adverse
impact much larger populations than those which are not, resulting in
an overall potential disproportionate adverse impact to minority and
low-income populations as a whole.
D. Step 4--Other Factors That Affect Vulnerability in Potentially
Affected Communities
In addition to considering the potential for the 2008 DSW final
rule to result in adverse impacts that disproportionately affect
minority and low-income communities, the DSW environmental justice
analysis also considers other factors that could affect the impacts of
the rule, based on categories from EPA's interim guidance on
incorporating environmental justice into rulemaking.\12\ Two of these
factors are of particular concern to the 2008 DSW final rule: Ability
to participate in the decision-making process, and multiple and
cumulative effects.\13\
---------------------------------------------------------------------------
\12\ U.S. EPA Interim Guidance on Considering Environmental
Justice During the Development of an Action July 2010. http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in-rulemaking-guide-07-2010.pdf.
\13\ The other factors are (1) susceptible populations, (2)
unique exposure pathways, and (3) physical infrastructure. Because
of the wide variety of locations of the facilities and the many
different hazardous secondary materials involved, any one of these
factors could be present at a site, but EPA does not have specific
information on these factors being particularly associated with the
2008 DSW final rule.
---------------------------------------------------------------------------
1. Ability To Participate in the Decision-Making Process
A key element of environmental justice is ensuring that all people
have an opportunity for meaningful involvement in decision-making which
may impact them. Certain groups may not have historically participated
in decision-making because of economic (e.g., income), social (e.g.,
language barriers, education levels, distrust of government), and
infrastructural reasons (e.g., access to public transportation). A
critical concern is whether, and the extent to which, communities have
the ability to influence the types and number of regulated activities
taking place in their community, as well as the requirements,
conditions, and parameters under which such activities must operate
(e.g., permit conditions). Under the 2008 DSW final rule, facilities
claiming an exclusion must submit an initial and biennial notification
to EPA or the state, providing general facility information and
describing hazardous secondary material types and activities under the
exclusion.
However, under the 2008 DSW final rule, this information is not
made directly available to potentially affected communities, and
facilities and regulators are not required to solicit or consider
community input into the decision-making process as is the case with
RCRA-permitted facilities.\14\ Thus, by removing the RCRA permitting
requirement for facilities that manage excluded hazardous secondary
materials, the 2008 DSW final rule also removed one of the key
provisions for allowing communities to participate in the regulatory
process (at least as it concerns the management of the hazardous
secondary materials excluded under the rule). Communities with lower
participation levels may experience greater adverse impacts from
environmental decision-making because their input has not been
considered fully, particularly if competing interests are set forth
more effectively. This effect is most likely to occur in communities
that have traditionally been excluded from the decision-making process.
---------------------------------------------------------------------------
\14\ Although not required, EPA has posted on the Internet a
list of facilities that have notified under the DSW exemption. The
most recent list can be found at http://www.epa.gov/epawaste/hazard/dsw/notify-sum.pdf.
---------------------------------------------------------------------------
[[Page 44107]]
2. Multiple and Cumulative Effects
Minority, low-income, and indigenous communities that have been
affected by multiple pollution sources may be at risk for increased
health consequences. Potential sources of pollution can include, for
example, industrial facilities, landfills, transportation-related air
emissions, poor housing conditions (e.g., lead-based paint), leaking
underground storage tanks, pesticides, and incompatible land uses. An
analysis of the cumulative effects from multiple stressors can provide
a more complete evaluation of a population's health risks from
pollutants. For example, an analysis of discrete stressors and effects
on a population might conclude that nearby pollution sources are within
regulatory limits; however, an analysis of cumulative effects might
determine that a person's collective exposure to a contaminant from
multiple sources exceeds a health-based limit.
An examination of the facilities that have already notified under
the 2008 DSW final rule shows that multiple environmental hazards are a
potential concern for communities around these facilities.\15\ All have
multiple facilities reporting to EPA, either under RCRA, the Clean Air
Act (CAA), or the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA--also known as Superfund), within a three-
kilometer radius of the facility.
---------------------------------------------------------------------------
\15\ See U.S. EPA Environmental Justice Analysis of the
Definition of Solid Waste Rule, Section 5.2, Table 5.1.
---------------------------------------------------------------------------
E. Step 5--Assessment of Disproportionate Impact
As discussed under Step 1 in Section VI.A. of this preamble, the
environmental justice analysis demonstrates that hazardous secondary
material recycling can pose significant potential hazards to human
health and the environment, and that it is reasonable to conclude that
the potential for hazards from hazardous secondary materials recycling
adversely impacting human health and the environment has increased
under the 2008 DSW final rule. Of particular concern are (1) the
absence of required measures (e.g., weekly inspections, training,
contingency plans, etc.) at hazardous secondary materials reclaimers to
prevent problems (e.g., spills, fires, explosions, etc.), (2) the
incentives to accumulate larger volumes of hazardous secondary
materials due to longer storage time limits and (3) the reduction in
access to information and opportunity for public participation.
Moreover, as discussed under Step 3 in Section VI.C. of this
preamble, some of the communities potentially impacted by this increase
in risk of adverse impacts are minority and low-income communities, and
in most cases the populations potentially impacted are
disproportionately minority and/or low income. In particular, the
population-level analysis shows a potential disproportionate impact to
minority and low-income populations, with the damage case facilities,
the hazardous waste facilities and the non-hazardous waste facilities
all consistently showing potential statistically significant
disproportionate representation in potentially affected communities. In
addition, as discussed under Step 4 in Section VI.D. of this preamble,
underlying vulnerabilities traditionally associated with minority and
low-income communities can pose the potential to exacerbate potential
adverse impacts of the 2008 DSW final rule. The ability of communities
to participate in the decision-making process and potential for
multiple and cumulative effects are of particular concern.
F. Step 6--Identification of Potential Strategies To Mitigate Adverse
Impacts
Potential strategies to mitigate adverse impacts of the 2008 DSW
final rule, including the disproportionate impacts to minority and low-
income communities, include both possible regulatory changes and
implementation strategies.
1. Regulatory Changes
Regulatory changes to the 2008 DSW final rule were made according
to EPA's authority under RCRA to regulate discarded material. As
discussed in the preamble to the 2008 DSW final rule, EPA used the
concept of discard as the central organizing idea behind the October
2008 revisions to the definition of solid waste.
As stated in RCRA section 1004(27), ``solid waste'' is defined as
``* * * any garbage, refuse, sludge from a waste treatment plant, water
supply treatment plant, or air pollution control facility and other
discarded material * * * resulting from industrial, commercial, mining
and agricultural activities.'' In exercising its discretion in the 2008
DSW final rule to define what constitutes ``discard'' for hazardous
secondary materials reclamation in the 2008 DSW final rule, EPA
included an explanation of how each provision of the final rule relates
to discard (73 FR 64676-64679).
While the concept of discard also is the central organizing
principle in this proposed rule since EPA only has authority under RCRA
to regulate materials that have been discarded, the Federal Register
notice announcing the June 2009 public meeting identified areas or
opportunities to revise the 2008 DSW final rule in ways that could
increase environmental protection, including in environmental justice
communities, while still appropriately defining when a hazardous
secondary material being reclaimed is a solid waste and subject to
hazardous waste regulation (74 FR 25202). The purpose of today's
proposal is to provide notice and the opportunity to comment on
potential regulatory revisions to address the potential for adverse
impacts to human health and the environment from discarded material,
including disproportionate impacts to minority and low income
communities.
In particular, the proposed withdrawal of the transfer-based
exclusion and its replacement with an alternative Subtitle C standard
could be one way of addressing the concerns regarding third-party
recyclers, including the impact of longer accumulation times, the lack
of preventative measures under the containment standard, the lack of
public participation requirements, the lack of RCRA air standards, and
concerns regarding certain transportation issues. In addition, the
proposed codification of the ``contained'' standard could be one way of
addressing the lack of preventative measures and the lack of RCRA air
standards under the generator-controlled exclusion. The proposed
additional recordkeeping requirements for speculative accumulation and
legitimacy could be one way of helping ensure that hazardous secondary
material is being legitimately recycled and not simply discarded
through over-accumulation and abandonment, and recordkeeping under the
tolling and same-company provisions will help ensure that the hazardous
secondary materials meet their intended destinations. Each of these
proposed changes are discussed in more detail in Sections VII-X of this
preamble. EPA requests comment on whether there are additional or
alternate regulatory approaches for addressing the potential adverse
impacts of the 2008 DSW final rule.
2. Implementation Measures
In addition to considering regulatory changes to address potential
adverse impacts of the 2008 DSW final rule, EPA can take steps in
implementing the 2008 DSW final rule that would help mitigate any
potential adverse impacts. These steps include closely monitoring the
[[Page 44108]]
facilities notifying under the 2008 DSW final rule, making information
about the DSW facilities available to the public, and working with the
states and EPA Regions to ensure they have the information they need to
ensure compliance with the provisions of the rule, and making available
to the public information about the facilities that have notified. EPA
has begun this process for the states and territories currently
operating under the 2008 DSW final rule and plans to continue these
efforts in order to help prevent potential adverse impacts at the same
time that revisions to the rule are under consideration.
VII. Exclusion for Hazardous Secondary Materials That Are Transferred
for the Purpose of Legitimate Reclamation
EPA is proposing to replace the exclusion for hazardous secondary
materials that are transferred for the purpose of legitimate
reclamation with an alternative Subtitle C standard. EPA believes that
such a standard would be more appropriate for hazardous secondary
material because (1) the Agency reasonably believes (as explained in
detail in the 2008 DSW final rule) that, absent specific conditions,
transfers of hazardous secondary materials to third-party reclaimers
generally involve discard, and (2) the conditions of the 2008 DSW final
rule have serious gaps, particularly the incentives to accumulate
larger volumes of hazardous secondary materials, the reduction in
oversight resulting from eliminating the permit requirement for
storage, and the reduction in the public's access to information and
the opportunity for public participation, that could create a
potentially unacceptable likelihood of adverse effects to human health
and the environment from such discarded material.
A. Summary of Transfer-Based Exclusion
The exclusion for hazardous secondary materials that are
transferred for the purpose of legitimate reclamation, 40 CFR
261.4(a)(24) and (25),\16\ applies to hazardous secondary materials
(i.e., spent materials, listed sludges, and listed by-products) that
are generated and subsequently transferred to a different person or
company for the purpose of reclamation. As long as the conditions and
restrictions to the exclusion are satisfied, the hazardous secondary
materials would not be subject to the Subtitle C hazardous waste
regulations.
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\16\ 40 CFR 261.4(a)(24) is the primary transfer-based exclusion
and 40 CFR 261.4(a)(25) contains the export requirements for the
transfer-based exclusion.
---------------------------------------------------------------------------
General requirements under this exclusion include that:
Hazardous secondary material generators, reclaimers, and
intermediate facilities (i.e., facilities that would not reclaim the
hazardous secondary material, but would store them for more than 10
days) must submit a notification prior to operating under the exclusion
and by March 1 of each even-numbered year thereafter to the EPA
Regional Administrator or, in an authorized state, to the State
Director (see 40 CFR 260.42), reporting volumes and types of hazardous
secondary materials being reclaimed and
Hazardous secondary materials managed at such facilities
must not be speculatively accumulated as defined in Sec. 261.1(c)(8)
and must be legitimately reclaimed as specified in Sec. 260.43.
Conditions applicable to generators of hazardous secondary
materials are found at 40 CFR 261.4(a)(24)(v) and include:
Containment of such hazardous secondary materials,
Reasonable efforts, a form of due diligence, to ensure
that the intermediate facility or reclaimer intends to manage or
recycle the hazardous secondary material properly and legitimately, and
Retention of records of off-site shipments for three
years.
Conditions applicable to intermediate facilities and reclaimers of
hazardous secondary materials are found at 40 CFR 261.4(a)(24)(vi) and
include:
Containment of such materials,
Transmittal of confirmations of receipt to generators,
Retention of records for hazardous secondary materials
received and sent off-site,
Financial assurance equivalent to that required of
hazardous waste facilities, and
(For reclaimers) proper management of any residuals
generated from the reclamation activities.
In addition, if any of the hazardous secondary materials excluded under
40 CFR 261.4(a)(24) are generated and then exported to another country
for reclamation, the exporter must notify and obtain consent from the
receiving country and file an annual report. This export requirement is
codified in 40 CFR 261.4(a)(25).
B. EPA's Rationale for Replacing the Transfer-Based Exclusion
The first part of the Agency's rationale for replacing the
transfer-based exclusion is based on the fact that EPA has already
determined that, absent specific conditions, it is reasonable to
conclude that transfers of hazardous secondary materials to third-party
recyclers generally involve discard except for instances where EPA has
promulgated a case-specific exclusion that a hazardous secondary
material is not a solid waste. This determination is unchanged from the
2008 DSW final rule. As noted in the preamble to the 2008 DSW final
rule, generators of hazardous secondary materials who do not reclaim
these materials themselves often ship these materials to a commercial
facility or another manufacturer for reclamation in order to avoid the
costs of disposing of the material. Because of the low commercial value
and the high potential liability associated with most types of
hazardous secondary materials (i.e., spent materials and listed
hazardous waste by-products and sludges), generators will typically pay
the reclamation facility to accept these hazardous secondary materials
or receive a salvage fee that only partially offsets the cost of
transporting and managing them. In such situations, 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 (73 FR 64675).
This behavior of hazardous secondary materials not being managed as
a useful product is evidenced by the results of the environmental
problems study, found in the docket of the 2008 DSW final rule. Of the
208 damage cases discussed in the 2008 DSW final rule, 195 (or
approximately 94%) were from reclamation activities of 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 (73 FR 64673).
In addition, the market forces study in the docket for the 2008 DSW
final rule 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 the receipt of the hazardous
secondary materials. Recyclers of hazardous secondary materials in this
situation
[[Page 44109]]
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 have less flexibility than in-house recyclers in changing how
they manage their hazardous secondary materials (e.g., during price
fluctuations, in-house recyclers can more easily switch from recycling
to disposal or from recycled inputs to virgin inputs, while commercial
recyclers cannot switch to disposal without obtaining a RCRA permit)
(73 FR 64674).
The 2008 DSW final rule attempted to address this pattern of
adverse impacts to human health and the environment from hazardous
secondary materials transferred to a third party for recycling by
setting conditions for the transfer-based exclusion. The intent of
these conditions was to define when transfers to third-party recyclers
would not result in discard. The link between each of the conditions
and their ability to prevent discard is discussed in detail in the 2008
DSW final rule preamble at 73 FR 64675-79. However, EPA failed to take
into account how the conditions of the 2008 transfer-based exclusion
would work when actually implemented. EPA's analysis of the 2008 DSW
final rule assumed that DSW conditions would operate with the same
level of oversight as the Subtitle C hazardous waste regulations.
Which leads to the second part of EPA's rationale for replacing the
transfer-based exclusion. Before excluding materials that have already
been determined to be hazardous wastes, the Agency needs adequate
assurance that the conditional exclusion will not result in discarded
hazardous materials posing significant risks to human health and the
environment (e.g, fires/explosion, soil and water contamination, air
emissions, and abandoned hazardous secondary materials). Because EPA
has already evaluated these hazardous secondary materials (for example,
during a hazardous waste listing determination) and determined them to
be solid and hazardous wastes, a conditional exclusion must be
reasonably expected not to result in the excluded hazardous secondary
material being discarded.
As discussed in more detail in Section XIII of this preamble, over
the years EPA has developed many such conditional exclusions (found in
40 CFR 261.4(a)). In each of these cases, EPA did so by examining the
specific hazardous secondary material, or the specific recycling
practice, or both, before making a determination that they are not
solid waste. However, unlike these types of specific transfer-based
exclusions from the definition of solid waste (found in 40 CFR
261.4(a)), the 2008 transfer-based exclusion in 40 CFR 261.4(a)(24) and
(25) did not focus on the chemical or physical properties of any
particular type of hazardous secondary material, or on how it is
typically managed. Instead, the transfer-based exclusion is broadly
applicable to a wide range of hazardous spent materials and listed by-
products and sludges. Thus, while other solid waste exclusions were
developed based on EPA's knowledge of the specific hazardous secondary
materials, the industries generating them, or the current recycling
management practice for those hazardous secondary materials, the 2008
DSW transfer-based exclusion relied entirely on the conditions that
were developed by EPA operating as the Agency anticipates they should.
The conditions themselves were developed in a reasoned manner,\17\ but
without specific evidence that they would work as intended (i.e., would
not result in significant risk to human health and the environment from
discarded materials).
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\17\ See Chapter 11, Regulatory Impact Analysis: EPA's 2008
Final Rule Amendments to the Industrial Recycling Exclusions of the
RCRA Definition of Solid Waste, EPA-HQ-RCRA-2002-0031-0602.
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However, the conditions for the transfer-based exclusion in the
2008 DSW final rule lack several important implementation provisions
that the Subtitle C requirements for treatment, storage, and disposal
facilities provide. These provisions ensure a greater level of
oversight of the Subtitle C requirements, thereby increasing the
likelihood of compliance and decreasing the potential for risk to human
health and the environment from discarded hazardous secondary material.
Most important of these is the permit requirement under RCRA section
3005, which ensures that EPA or the state has reviewed a facility's
planned operations before waste management begins and which allows
public participation in the environmental decision-making process under
RCRA section 7004. Subtitle C requirements for treatment, storage, and
disposal facilities also include a statutory provision that such
facilities be inspected every two years under RCRA section 3008(e).
Finally, the detailed regulatory standards for hazardous waste
management help ensure that both the regulatory authority and the
regulated community have the specific information they need to comply
in such a way that meets EPA's expectations when the rule was
promulgated. EPA has performed a detailed regulatory comparison of the
2008 DSW final rule with the hazardous waste regulations, identifying
significant differences that could lead to the potential for an
increased likelihood of environmental and public health hazards,
including fires/explosion, soil and water contamination, air emissions,
and abandoned hazardous secondary materials.\18\
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\18\ See Chapter 2 and Attachment A of EPA's Environmental
Justice Analysis of the Definition of Solid Waste Rule, available in
the docket for today's proposal.
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EPA has also carefully monitored the implementation of the 2008 DSW
final rule since it came into effect in December 2008. A total of 27
facilities are operating under the transfer-based exclusion, 23 of
which are generators transferring off-site and 4 which are reclamation
facilities.\19\ All four reclamation facilities are RCRA permitted.
(There are no unpermitted reclaimers currently operating under the
transfer-based exclusion.) Of the 23 generators operating under the
transfer-based exclusion, 6 generators appear to have either started or
substantially increased their recycling as a result of the 2008 DSW
exclusions. These six generators had previously reported in their 2007
or 2009 biennial report that they sent their solvents offsite for fuel
blending, and then in 2009 or 2010 notified that they are sending their
spent solvents for reclamation under the 2008 DSW final rule.\20\ To
date, no environmental problems have been reported at facilities
claiming the DSW exclusions. However, because all reclaimers operating
under the transfer-based exclusion also have RCRA hazardous waste
permits, most of the novel conditions of the transfer-based exclusion
(e.g., reasonable efforts audits and financial assurance for
reclamation facilities without a RCRA permit) have not been tested.
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\19\ Some of these facilities are also managing hazardous
secondary materials under the generator-controlled exclusion.
\20\ U.S. EPA, EPA's Evaluation of Data Collected from
Notifications Submitted under the 2008 Definition of Solid Waste
Exclusions, June 30, 2011.
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Based on this reconsideration of the DSW transfer-based exclusion
conditions, EPA is now proposing that hazardous secondary materials
transferred for the purpose of legitimate reclamation are most
appropriately regulated under Subtitle C of RCRA. The evidence of past
damage cases leading to significant risk to human health and the
environment from hazardous secondary materials originally intended for
recycling and the underlying
[[Page 44110]]
perverse incentives of the recycling market to over-accumulate such
hazardous secondary materials intended for recycling, resulting in
discard of the material, indicate the need to regulate these hazardous
secondary materials as hazardous waste, unless there is specific
information about a hazardous secondary material or reclamation
practice that indicates discard is not occurring. EPA is therefore
proposing to withdraw the transfer-based exclusion found in 40 CFR
261.4(a)(24) and (25). EPA requests comment on this withdrawal, and is
particularly interested in any information commenters can provide about
alternative approaches that would address the concerns regarding
ensuring that a transfer-based exclusion does not result in significant
risk to human health and the environmental from discarded hazardous
secondary material (e.g., by adding more conditions, such as requiring
the reclamation facility be inspected every five years, or by requiring
the reclamation facility certify annually that there have been no
releases).
At the same time, EPA acknowledges that some specific types of
hazardous secondary materials are more like valuable commodities than
solid wastes, and the act of transferring them to a third-party does
not automatically involve discard. Many of the other exclusions in 40
CFR 261.4(a) are for these types of materials, and the non-waste
determination process under 40 CFR 260.34(c) provides an administrative
process for determining that additional hazardous secondary materials
are indistinguishable from products and therefore are not waste. In
addition, in Section XII of this preamble, EPA is requesting comment on
a possible re-manufacturing exclusion from the definition of solid
waste for certain higher-value hazardous secondary materials whose
management is more like manufacturing than waste management. EPA also
requests comment if there are other specific hazardous waste streams or
recycling practices, that, similarly to those found in 40 CFR
261.4(a)(6)-(21), would be most appropriately addressed through a
conditional exclusion due to their physical or chemical properties and/
or current management practices.
VIII. Alternative Subtitle C Regulation for Hazardous Recyclable
Materials
A. Purpose of the Alternative Subtitle C Regulatory Standards for
Hazardous Recyclable Materials
As discussed above, after examining the potential adverse impacts
to human health and the environment from discarded hazardous secondary
materials transferred to another party for reclamation, EPA is
proposing to replace the transfer-based exclusion with an alternative
regulatory scheme for hazardous recyclable materials transferred from
the generator to other persons for the purpose of reclamation. EPA
recognizes the environmental benefits of safe recycling and how
recycling can contribute to the goal of sustainable materials
management, and acknowledges that in some cases the additional costs of
Subtitle C regulation can be an economic disincentive to such
recycling. However, as discussed in Section VII above, because (1) the
Agency reasonably believes that, absent specific conditions, transfers
of hazardous secondary materials to third-party reclaimers generally
involve discard, and (2) the conditions of the 2008 DSW final rule have
serious gaps that could create a potentially unacceptable likelihood of
adverse effects to human health and the environment from such discarded
material, the Agency has decided to replace the transferred based
exclusion with an alternative hazardous waste standard.
Specifically, EPA is proposing alternative hazardous waste
standards under 40 CFR part 266 subpart D for generators of hazardous
recyclable materials sent for reclamation. ``Hazardous recyclable
materials'' would be defined as hazardous waste being reclaimed. EPA is
proposing to use this term to be consistent with other standards for
the management of specific hazardous wastes in 40 CFR part 266, and to
distinguish them from the ``hazardous secondary materials'' reclaimed
under the control of the generator and excluded under 40 CFR
261.4(a)(23). These proposed alternative standards are designed to be
as protective as the current hazardous waste standards, but tailored to
the specific circumstances faced by generators of hazardous waste who
would want to send their materials to a reclaimer, but are not able to
do so because they cannot accumulate enough hazardous waste during the
generator accumulation time limits to make such recycling economically
viable.
Under these alternative standards, the hazardous recyclable
material would, for the most part, be subject to all hazardous waste
regulations (i.e., accumulated in Subtitle C storage units, transported
under a hazardous waste manifest, sent to a RCRA-permitted facility or
a facility operating under 40 CFR 261.6(c)(2)). However, in order to
allow generators time to accumulate enough hazardous recyclable
material to make reclamation more economical, EPA is proposing
alternative regulatory standards that would allow hazardous recyclable
materials to be accumulated up to one year without a permit or interim
status (although the hazardous waste generator standards would continue
to apply).
To guard against the risks of over-accumulation and possible
abandonment of hazardous recyclable materials, EPA is proposing that
before operating under the alternative standard and by March 1 of each
even-numbered year thereafter, a generator must notify the EPA Regional
Administrator (or the State Director, if the state is authorized). In
addition, before operating under the alternative standard, the
generator must develop a reclamation plan that provides details of
where the hazardous recyclable material will be sent for reclamation, a
short description of the recycling process, and the estimated volume of
materials in each shipment. Also, the generator must contact the
reclaimer in advance and make arrangements for the recycling. In
addition, EPA is requesting comment on setting an upper limit on the
amount of hazardous recyclable material a generator may accumulate at
any one time, limiting it to no more than two shipments worth of
hazardous secondary materials (as documented in the reclamation plan)
at any point in time. Finally, as discussed below, EPA is requesting
comment on allowing an alternative manifest system for hazardous
recyclable materials regulated under this provision by replacing the
hazardous waste manifest with a ``hazardous recyclable materials
manifest.''
B. Proposed Part 266 Standards for the Management of Hazardous
Recyclable Material
Under the proposed part 266 subpart D Hazardous Recyclable
Materials standards, large quantity generators and small quantity
generators of hazardous recyclable materials would need to meet the
alternative requirements described below.
1. Notification
Under the proposed alternative standards, generators would be
required to submit a notification prior to operating under this
standard and by March 1 of each even-numbered year thereafter to the
EPA Regional Administrator using EPA Form 8700-12.\21\ In states
authorized by EPA to
[[Page 44111]]
administer the RCRA Subtitle C hazardous waste program, notifications
may be sent to the state director. The notice must include:
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\21\ These notification requirements are the same as those
currently found in 40 CFR 260.42.
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The name, address and EPA ID number of the facility;
The name and telephone number of a contact person;
The NAICS (North American Industry Classification System)
code of the facility;
The regulatory citation under which the hazardous
recyclable materials will be managed (i.e., 40 CFR part 266 subpart D).
When the facility expects to begin managing the hazardous
recyclable materials in accordance with the alternative standard;
A list of hazardous recyclable materials that will be
managed according to the new standard (reported as the EPA hazardous
waste numbers that would apply if the hazardous recyclable materials
were managed as hazardous waste);
The quantity of each hazardous recyclable material to be
managed annually; and
The certification (included in EPA Form 8700-12) signed
and dated by an authorized representative of the facility.
EPA believes that the information requested in the notification is
the minimum information necessary to ensure that such hazardous
recyclable materials are managed in a manner that is protective of
human health and the environment.
Generators would be required to notify on a per facility basis. In
other words, each generator facility managing hazardous recyclable
materials would need to submit a notification form in accordance with
the alternative standard. One notification cannot cover two or more
generators or facilities. Furthermore, each generator need only use one
notification form to list all of the hazardous recyclable materials to
be managed under the exclusion at any particular facility (i.e.,
generators need not file separate notifications for each hazardous
recyclable material). We also would require facilities that stop
managing hazardous recyclable materials in accordance with the
exclusion to notify the Regional Administrator (or State Director)
using the same EPA Form 8700-12 within 30 days after ceasing to claim
the exemption.
2. Reclamation Plan
Prior to operating under the alternative standard, generators would
be required to make and document advance arrangements for reclamation.
These advance arrangements would be documented in a reclamation plan
that (1) describes the hazardous recyclable material(s) and identifies
the reclamation facility where the material will be sent, (2) includes
written confirmation from the facility that they are able to reclaim
the hazardous recyclable material (3) documents the amount of hazardous
recyclable material expected in each shipment and the anticipated
frequency of shipments, and (4) documents that the reclamation is
legitimate per 40 CFR 260.43. The purpose of the reclamation plan is to
ensure that the hazardous secondary material will be recycled
legitimately and not over-accumulated and abandoned. The reclamation
plan must be kept on-site for at least three years from the date the
generator ceases to operate under the alternative standards
3. Management Standards
Generators operating under the proposed alternative standards would
be able to accumulate hazardous recyclable materials on site for one
year or less without a permit or without having interim status,
provided that they follow the usual requirements for on-site management
of hazardous wastes by large quantity or small quantity generators,
with the following exceptions:
(a) While accumulated on-site, each container and tank is labeled
or marked clearly with the words ``hazardous recyclable material,''
rather than being marked as ``hazardous waste.''
(b) As noted, the allowed accumulation period will be up to one
year, rather than 90 or 180 days, respectively.\22\
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\22\ Small quantity generators may accumulate hazardous waste
on-site for up to 270 days if they transport, or offer the waste for
transport, over a distance of 200 miles or more for off-site
treatment, storage, and disposal.
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EPA believes that the combination of the requirements of the
notification and the reclamation plan (including the provision
mandating advance arrangements for reclamation) would be as fully
protective as the current generator times limits of 90 days for large
quantity generator and 180/270 days for small quantity generators,
since the reclamation plan will help demonstrate that the hazardous
recyclable materials are going to be recycled and not be stored
indefinitely, and the notification provision will allow proper
oversight of this provision.
However, EPA also requests comment on limiting the maximum volume
of a hazardous recyclable materials accumulated on-site at any one time
to no more than two standard shipments to the designated facility, as
identified in the generator's reclamation plan. Under such a
requirement, the maximum volume would differ depending on the hazardous
recyclable materials and where they are being transferred to, but it
would ensure that the generator is not accumulating more than what it
would need to make an off-site shipment economically feasible. (Setting
the upper limit at two shipments worth would allow the generator to
continue to accumulate hazardous recyclable materials while the first
shipment is being prepared).
4. Transportation
Before transporting hazardous recyclable materials or offering
hazardous recyclable materials for transportation off-site, a hazardous
recyclable material generator would need to meet all the applicable
pre-transportation requirements for hazardous waste generators under 40
CFR part 262 subparts B and C, including the need to package, label and
placard the materials in accordance with Department of Transportation
standards, as applicable to large or small quantity generators and
preparing a hazardous waste manifest.
In addition, EPA requests comment on allowing an alternative
hazardous recyclable materials manifest. Under the alternative manifest
system, the same requirements (e.g., filling out the manifest,
recordkeeping and procedures for rejected shipments) and information
would apply to hazardous recyclable materials shipped on a hazardous
recyclable materials manifest as those that apply to the hazardous
waste manifest, but the manifests would be labeled ``hazardous
recyclable materials manifest.'' Such an alternative system would
require conforming changes to 40 CFR 262.20, 262.21, 262.40(a), 262.42,
the appendix to part 262, 263.20, 263.22, 264.71, 264.72, 265.71 and
265.72, plus 49 CFR 171.8 (DOT regulations) and EPA would integrate
such a system into any future e-manifest systems. EPA requests comment
on whether an alternative manifest would benefit the regulated
community in such a way that would be worth the additional
administrative effort in setting up such a system.
C. Request for Comment
EPA requests comment on the alternative standards for hazardous
recyclable materials sent to reclamation, particularly on whether the
longer accumulation times without requiring a hazardous waste permit or
complying with the interim status standards and alternative designation
of the materials as ``hazardous recyclable materials'' will
[[Page 44112]]
help encourage legitimate reclamation. EPA notes that although the
materials would be labeled as ``hazardous recyclable materials,'' they
would be, by definition, still hazardous wastes and, per 40 CFR 261.5,
would count towards a facility's generator status (e.g., Large Quantity
Generator, Small Quantity Generator). EPA requests comment on this
issue.
In developing this proposed alternative standard, EPA also
considered whether there were other areas, besides longer accumulation
times, alternative labeling, and hazardous recyclable material
manifests, where alternative standards for generators would help
encourage safe and legitimate recycling of hazardous recyclable
materials. Below is a discussion of the other major areas of the
generator standards. EPA requests comment on whether there are other
aspects of the hazardous waste generator standards where an alternative
standard for hazardous recyclable material generators would pose no
significant risk to human health and the environment from discarded
materials and would also promote increased recycling.
1. Storage Standards
Under the proposed alternative standards, generators must meet the
same design, operating, inspection, and closure standards (including
air emission standards) for containers, tanks, containment buildings,
and drip pads as they would under the hazardous waste regulations. One
alternative would be to replace these standards with the containment
standards proposed for generators operating under the generator-
controlled exclusion at Sec. 261.4(a)(23). Under that proposed
provision, a hazardous secondary material is contained if it is managed
in a unit, including a land-based unit as defined in Sec. 260.10, that
meets the following criteria: (1) The unit is in good condition, with
no leaks or other continuing or intermittent releases of hazardous
secondary materials to the environment, and is designed, as
appropriate, to prevent releases of hazardous secondary materials to
the environment. Such releases may include, but are not limited to,
releases through surface transport by precipitation runoff, releases to
groundwater, wind-blown dust, fugitive air emissions, and catastrophic
unit failures; (2) a unit that is properly labeled or otherwise has a
system (such as a log) to immediately identify the hazardous secondary
materials in the unit; and (3) a unit that does not hold incompatible
materials and addresses any potential risks of fires or explosions.
EPA solicits comment on whether such a containment standard would
help encourage generators to recycle, while posing no significant risk
to human health and the environment from discarded materials.
2. Manifest
As discussed earlier, EPA is requesting comment on allowing a
hazardous recyclable materials manifest as an alternative to the
hazardous waste manifest. Another option may be to use basic shipping
records to document off-site shipments of the hazardous recyclable
materials. This approach would be similar to how universal wastes are
managed under streamlined hazardous waste regulations. However, EPA
notes that two of the factors used to determine if a waste is
appropriate to be considered a universal waste is if the risk posed by
the waste during accumulation and transport is relatively low compared
to other hazardous wastes, and whether the quantities generated by each
generator are relatively small (see 40 CFR 273.81).
3. Personnel Training, Contingency Plan, and Emergency Procedures
Under the proposed alternative standards, large quantity generators
must meet the same personnel training, contingency plan and emergency
procedures as they would under the hazardous waste requirements. One
alternative could be to apply standards similar to the small quantity
generator requirements for management of hazardous recyclable materials
by hazardous recyclable material generators. Small quantity generator
requirements for personnel training, contingency planning and emergency
procedures may be particularly appropriate if EPA also, as discussed
above, applies a limit to the maximum amount of hazardous recyclable
materials accumulated on-site at any one time. These reduced
requirements may be appropriate if the maximum quantity of hazardous
recyclable materials is limited because of the decreased risks
associated with smaller quantities of materials present at any point in
time.
4. Biennial Report
Under RCRA Subtitle C, large quantity generators of hazardous waste
must submit biennial reports to their regulatory authority that
describe the type and quantity of hazardous waste generated, as well as
how the waste was managed (among other information). However, a
biennial reporting requirement may be duplicative of the requirement
for generators of hazardous recyclable materials to renotify in
compliance with 40 CFR 260.42, which also requires generators to report
the type and quantity of hazardous secondary materials generated and
reclaimed. Eliminating the biennial reporting requirement may avoid
duplication in reporting and reduce paperwork burden on generators of
hazardous recyclable materials. EPA requests comment on using the
renotification in lieu of requiring biennial reports.
IX. Revisions to the Exclusion for Hazardous Secondary Materials That
Are Legitimately Reclaimed Under the Control of the Generator
A. Summary of Current Exclusion
In the 2008 DSW final rule, EPA excluded from the definition of
solid waste those hazardous secondary materials that are legitimately
reclaimed under the control of the generator, provided the materials
are contained in the units in which they are stored, are not
speculatively accumulated, and are reclaimed within the United States
or its territories. Under the 2008 DSW final rule, the generator must
also periodically notify EPA or the authorized state (as discussed
previously) that it is operating under the exclusion. The regulatory
provision excluding hazardous secondary materials under the control of
the generator that are managed in land-based units is currently found
at 40 CFR 261.4(a)(23), while the provision excluding such materials
that are managed in non-land-based units is currently found at 40 CFR
261.2(a)(2)(ii). A land-based unit is defined in 40 CFR 260.10 as an
area where hazardous secondary materials are placed in or on the land
before recycling, but this definition does not include land-based
production units. Examples of land-based units include surface
impoundments and piles. Examples of non-land-based units include tanks,
containers, and containment buildings.
The definition of ``hazardous secondary material generated and
reclaimed under the control of the generator'' is currently found at 40
CFR 260.10. Hazardous secondary materials are considered ``under the
control of the generator'' under the following circumstances:
They are generated and then reclaimed at the generating
facility; or
They are generated and reclaimed at different facilities,
if the generator certifies that the hazardous secondary
[[Page 44113]]
materials are sent either to a facility controlled by the generator or
to a facility under common control with the generator, and that either
the generator or the reclaimer has acknowledged responsibility for the
safe management of the hazardous secondary materials; or
They are generated and reclaimed pursuant to a written
agreement between a tolling contractor and toll manufacturer, if the
tolling contractor certifies 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.
Under this provision, the hazardous secondary materials must be
contained, whether they are stored in land-based or non-land-based
units. The materials are also subject to the speculative accumulation
requirements of 40 CFR 261.1(c)(8), as well as the provisions for
legitimate recycling at 40 CFR 260.43. Finally, under 40 CFR 260.42,
the generator (and the reclaimer, if the generator and reclaimer are
located at different facilities) must send a notification prior to
operating under the exclusion and by March 1 of each even-numbered year
thereafter to the EPA Regional Administrator or, in an authorized
state, to the State Director.
By maintaining control over, and potential liability for, the
hazardous secondary materials and the reclamation process, the
generator ensures that such materials have not been discarded. When
reclaimed under the control of the generator, the hazardous secondary
materials are being handled as a valuable commodity rather than a
waste. However, if such hazardous secondary materials are released into
the environment and are not recovered for legitimate recycling
immediately, they have been discarded (i.e., are solid and hazardous
wastes) and the generator is subject to all applicable Federal and
state regulations, as well as applicable cleanup authorities. (See 73
FR 64680, October 30, 2008 for a more detailed discussion of the
generator-controlled exclusion.)
B. Proposed Changes to Generator-Controlled Exclusion
As discussed in Section V.I.2 of today's proposal, EPA is not
proposing to withdraw the generator controlled exclusion. In the 2008
DSW final rule, EPA determined that if the generator maintains control
over the recycled hazardous secondary materials and if the materials
are legitimately recycled under the standards established in the final
rule and not speculatively accumulated within the meaning of EPA's
regulations, then the hazardous secondary materials are not discarded.
This is because the hazardous secondary materials are being treated as
a valuable commodity rather than as a waste. By maintaining control
over, and potential liability for, the reclamation process, the
generator ensures that the hazardous secondary materials are not
discarded (see 73 FR 64676). EPA has not received any information that
would cause the Agency to reverse this determination, and this
continues to be the underlying rationale for the generator-controlled
exclusion.
However, EPA does believe that revisions to the generator-
controlled exclusion are needed in order to ensure that it operates as
intended and does not result in discarded hazardous secondary material
posing a significant risk to human health and the environment. The
proposed changes are in five areas: (1) The contained standard, (2)
notification as a condition, (3) recordkeeping for speculative
accumulation, (4) recordkeeping for the tolling provision, and (5)
clarifying edits to the regulatory text. In each of the five areas, the
proposed changes are intended to improve the implementation of the
generator-controlled exclusion to ensure that it is correctly
functioning to only exclude hazardous secondary material that is not
discarded.
1. Contained Standard
Under the generator-controlled exclusion, hazardous secondary
materials must be contained, regardless of whether they are stored in
land-based units or non-land-based units. The contained standard is a
key provision for determining that a hazardous secondary material is
not discarded. Hazardous secondary materials that are not contained and
are instead released to the environment are not destined for recycling
and are clearly discarded. In today's proposed rule, EPA is retaining
the ``contained'' condition based on the same rationale used in the
2008 DSW final rule, but is adding a regulatory definition of contained
to make it easier for implementing agencies and the regulatory
community to determine that a material is contained.
In the preamble to the 2008 DSW final rule (73 FR 64681), the
Agency stated that such material is ``contained'' if it is placed in a
unit that controls the movement of the hazardous secondary materials
out of the unit and into the environment. However, EPA did not provide
specific guidance on how an implementing agency or the regulated
community would determine if a unit did adequately control the movement
of hazardous secondary materials and meet the contained standard.
In the same preamble, EPA also discussed the issue of releases to
the environment from stored hazardous secondary materials and when such
materials could be considered ``contained.'' We stated that in the
event of a release to the environment, the hazardous secondary
materials remaining in the unit may or may not meet the terms of the
exclusion, and specifically stated that such hazardous secondary
materials would be considered wastes if a ``significant'' release
occurred as a result of its not being managed as a valuable raw
material, intermediate, or product, including storing acidic materials
in a tank not suitable for such materials or failure to monitor the
structural integrity of a tank, resulting in releases. If these
releases were not immediately recovered, they would be considered
discarded and, if hazardous, subject to the appropriate Federal or
state regulations and applicable authorities. The Agency also noted
that a ``significant'' release is not necessarily large in volume. For
example, unaddressed small releases to the environment could cause
significant damage over time and, if the hazardous secondary materials
are managed in such a way that such unaddressed releases are likely to
continue, the hazardous secondary materials still remaining in the unit
could be considered discarded because they were not being managed as a
valuable raw material, intermediate, or product.
Conversely, the Agency also said that a unit in good condition
could experience small releases resulting from normal operations of the
facility, or a released material could be captured by secondary
containment before being released to the environment. In those cases,
the unit would retain its exclusion from the RCRA hazardous waste
regulations and the hazardous secondary material 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.
EPA did not finalize a regulatory definition of ``contained,'' nor
did the 2008 DSW final rule impose specific performance or storage
standards. In response to comments on the 2007 DSW supplemental
proposal suggesting such specific standards, EPA stated its belief that
such detailed measures were unnecessary for hazardous secondary
[[Page 44114]]
materials that are handled as valuable products and are destined for
recycling. Rather, in the Agency's view at that time, regulatory
authorities could determine whether such hazardous secondary materials
were contained by considering site-specific circumstances (such as
local conditions) and measures employed by the facility (such as
liners, leak detection measures, and monitoring) to determine whether
the hazardous secondary materials were contained in a storage unit.
Since implementation of the 2008 DSW final rule, the Agency has
reconsidered its position about whether a regulatory definition of
``contained'' might be necessary for hazardous secondary materials
managed under the control of the generator. EPA has received a
considerable number of inquiries from state authorities and the
regulated community about how to determine if a hazardous secondary
material is contained. In particular, there have been many questions
about when a release is ``significant'' and when hazardous secondary
materials remaining in a unit that has suffered a release should be
considered discarded.
Of particular concern is the lack of preventative measures in the
contained standard in the 2008 DSW final rule, which is noted as a
major regulatory gap in the environmental justice analysis discussed in
Section VI of this preamble. As noted above, EPA did not provide
specific guidance on which types of units would be considered as
adequately containing a hazardous secondary material. In the 2008 DSW
final rule preamble, only the absence of containment, i.e., a release
to the environment, is discussed, and even then the confusion over
whether a release is ``significant'' makes proper implementation of the
contained standard problematic.
Given that the contained standard is one of the major requirements
for determining that hazardous secondary materials reclaimed under the
generator-controlled exclusion are not discarded, this lack of
specificity has the potential to undermine the exclusion. That is, if
the primary or only way to determine that the hazardous secondary
material is not contained is to wait until it is released to the
environment, then the 2008 DSW final rule increases the likelihood of
discard for these materials. The Agency therefore has considered
whether adding a regulatory definition of ``contained'' could resolve
this uncertainty without sacrificing the flexibility that would allow
the implementing authority to take into account a wide variety of case-
specific circumstances when necessary.
For these reasons, EPA is today proposing to amend 40 CFR 260.10 to
include a regulatory definition of ``contained.'' Under today's
proposal, a hazardous secondary material is contained if it is managed
in a unit, including a land-based unit as defined in Sec. 260.10, that
meets the following criteria: (1) The unit is in good condition, with
no leaks or other continuing or intermittent unpermitted releases of
the hazardous secondary materials to the environment, and is designed,
as appropriate for the hazardous secondary material, to prevent
releases of the hazardous secondary materials to the environment. Such
releases may include, but are not limited to, releases through surface
transport by precipitation runoff, releases to groundwater, wind-blown
dust, fugitive air emissions, and catastrophic unit failures; (2) the
unit is properly labeled or otherwise has a system (such as a log) to
immediately identify the hazardous secondary materials in the unit; and
(3) the unit does not hold incompatible materials and addresses any
potential risks of fires or explosions. Hazardous secondary materials
in units that meet the applicable requirements of 40 CFR part 264 or
265 are considered to be contained.
This proposed definition specifies factors which, if met,
demonstrate that the hazardous secondary materials in a unit are
handled as valuable raw materials, intermediates, or products and thus
are not being discarded. We note that the criteria in proposed 40 CFR
261.4(a)(23)(i) are all measures suggested by commenters in response to
the June 2009 public meeting on the 2008 DSW final rule. These criteria
also exemplify practices discussed in the preamble to that rule
regarding containment of hazardous secondary materials, such as ways to
prevent releases and operation and maintenance of the storage unit in
the same manner as a production unit. The appropriateness of specific
measures undertaken to ensure a hazardous secondary material is
contained would depend on the material in the unit. For example, in the
case of land-based piles of hazardous secondary materials in the form
of fine particulate matter, a covering to prevent wind-blown dust could
demonstrate that the unit was designed to prevent releases of such
materials. On the other hand, land-based piles of hazardous secondary
materials in the form of scrap metal that is unlikely be carried off by
the wind would not need a covering to be considered contained.
If these criteria were not met and a release of the hazardous
secondary materials subsequently occurred that was not immediately
recovered, the materials remaining in the unit would be considered
solid and hazardous wastes and the unit would be subject to the
appropriate hazardous waste regulations.
Also, to clarify the regulatory status of units from which releases
have occurred, the Agency is also proposing to add to 40 CFR
261.4(a)(23) the following: (1) A hazardous secondary material released
to the environment is discarded and a solid waste unless it is
immediately recovered for the purpose of reclamation; and (2) hazardous
secondary material managed in a unit with leaks or other continuing or
intermittent unpermitted releases of the hazardous secondary material
to the environment is discarded and a solid waste.
In the preamble to the 2008 DSW final rule, EPA referred to
``significant'' releases as the criterion to determine whether
hazardous secondary materials remaining in the unit should be
considered wastes. We believe that today's proposed codification better
expresses our intent that all releases are of potential concern.
However, under today's proposal, in the event of a release from a unit
to the environment, the hazardous secondary materials that remain in
the unit could still meet the terms of the exclusion, as long as the
other provisions of the containment definition are met. A single
release that is quickly addressed would not generally affect the
regulatory status of the hazardous secondary materials still contained
in 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 hazardous secondary materials from being
released to the environment or would allow immediate recovery of the
materials. In that case, the unit would not be subject to the RCRA
hazardous waste regulations 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 for reclamation and
would be subject to appropriate regulation.
EPA also notes that certain units may be subject to occasional
precipitation runoff that consists essentially of water, with trace
amounts of hazardous constituents. For example, precipitation runoff
containing trace amounts of metals may occur from units storing
[[Page 44115]]
furnace bricks collected from production units and stored on the ground
in walled bins before being used as feedstocks in the metals production
process. Similarly, metal components from fired ammunition or other
scrap metal are sometimes stored on the ground before being sent for
recycling, and precipitation may run off from this unit. As long as
such runoff does not contain hazardous secondary material (e.g., it is
essentially rainwater with trace amounts of metals), it would not be
considered a ``release of hazardous secondary material.'' Therefore,
the runoff would not cause the land-based units to be subject to
Subtitle C controls. On the other hand, if the hazardous secondary
material itself is swept away by the runoff (e.g., if the hazardous
secondary material consists of fine particulate matter, such as
electric arc furnace dust), this transport via precipitation runoff
could be considered a ``release of a hazardous secondary material'' and
that pile may not be considered contained.
A unit that has had a release of hazardous secondary materials and
is likely to have one in the future (as demonstrated by not meeting the
three factors in the standard) \23\ is not ``contained'' and is
therefore a solid waste and the unit would be subject to Subtitle C
regulation. In order to determine whether a unit that has had a release
is likely to suffer future releases, the regulatory authorities should
consider all the factors in proposed 40 CFR 261.4(a)(23)(i). The Agency
believes that this procedure is more likely to provide effective
guidance to regulatory authorities and the regulated community than the
current criterion of ``significant.''
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\23\ The unit (which can include a land-based unit such as a
pile) must meet the following three criteria: (1) The unit is in
good condition with no leaks or other continuing or intermittent
releases of hazardous secondary materials to the environment and is
designed, as appropriate for the hazardous secondary material, to
prevent releases of the hazardous secondary material to the
environment. Such releases may include, but are not limited to,
releases through surface transport by precipitation runoff, releases
to groundwater, wind-blown dust, fugitive air emissions, and
catastrophic unit failures; (2) the unit is properly labeled or
otherwise has a system (such as a log) to immediately identify the
hazardous secondary material in the unit; and (3) the unit does not
hold incompatible materials and addresses any potential risks of
fires or explosions.
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EPA notes that under today's proposal, this definition of
``contained'' would apply to both land-based units and non-land-based
units under the generator-controlled exclusion. For the reasons
explained in section IX.B.5 of this preamble, EPA is proposing to place
all requirements for both types of units in 40 CFR 261.4(a)(23).
The Agency solicits comment on whether the proposed changes to 40
CFR 261.4(a)(23)(i) will be effective in improving the implementability
and enforceability of the ``contained'' requirement, and on whether
additional requirements might be needed to achieve this end, or to
ensure the hazardous secondary material is not discarded. We also
request comment on whether the proposed regulatory definition of
``contained'' allows sufficient flexibility to regulatory authorities
to evaluate site-specific circumstances that might be relevant to
whether a hazardous secondary material could be considered discarded.
2. Notification
a. Summary. Under 40 CFR 260.42, hazardous secondary material
generators, tolling contractors, toll manufacturers, intermediate
facilities, and reclaimers managing hazardous secondary materials under
40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25), are required to
submit a notification prior to operating under these exclusions and by
March 1 of each even-numbered year thereafter to their regulatory
authority. Facilities must also notify their regulatory authority
within 30 days of stopping management of hazardous secondary materials
under the rule.
The intent of the notification requirement is to provide basic
information to the regulatory agencies about who will be managing
hazardous secondary materials under the exclusion. The specific
information included in the notification requirement enables regulatory
agencies to monitor compliance and to ensure that the hazardous
secondary materials are managed according to the exclusion and not
discarded. Notification information is collected in EPA's RCRAInfo
database, which is the national repository of all RCRA Subtitle C site
identification information, whether collected by a state authority or
EPA. As explained in the 2008 DSW final rule, EPA believes our
authority to request such information is inherent in our authority to
determine whether a material is discarded. We consider this 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 continues to support the underlying rationale outlined
in the 2008 DSW final rule for the need to collect this information.
(See 73 FR 64682, October 30, 2008, for a more detailed discussion of
our authority to collect this information.)
As codified, the requirement to provide this notification is not a
condition of the exclusions. Thus, although failure to comply with the
requirement constitutes a violation of RCRA, it does not affect the
excluded status of the hazardous secondary material.
b. Proposed changes. We are proposing today to make the
notification provision in 40 CFR 260.42 a condition of the generator-
controlled exclusion in 40 CFR 261.4(a)(23).
In the 2009 Federal Register notice announcing the June 2009 DSW
public meeting, EPA listed as an issue for discussion whether
notification should be a condition, rather than a requirement, of the
exclusions. A number of commenters weighed in on both sides of this
issue. On one hand, commenters stated that keeping notification as a
requirement would create an unintended incentive for hazardous
secondary material generators, intermediate facilities and reclaimers
not to notify, because those who chose not to notify would likely evade
oversight for many years and, if caught, could simply regard the
violation as a ``paperwork violation,'' and regard the possible penalty
for that violation as a cost of doing business. These commenters also
argued that the failure of a hazardous secondary material generator,
intermediate facility or reclaimer to provide notification is a strong
indication that these entities are either unaware of or trying to
circumvent the regulatory requirements. In both cases, these actions
potentially increase the likelihood for environmental damage.
Therefore, failure to notify should be regarded as more serious than a
reporting violation and should remove the excluded status of the
hazardous secondary materials.
Conversely, some commenters supported maintaining notification as a
requirement, arguing that if an entity fails to notify, it does not
necessarily indicate that the hazardous secondary materials were
discarded and, therefore, should not automatically affect the excluded
status of such materials.
At issue here are not the specifics of the notification in 40 CFR
260.42, but rather the consequences an entity would face for failing to
notify. Thus, if notification is a requirement under the authority of
RCRA section 3007 of the exclusion, it means that failure to notify
would constitute a violation of the notification regulations. On the
other hand, if notification is a condition of the exclusion, it means
failure to notify
[[Page 44116]]
would potentially result in the loss of the exclusion for the hazardous
secondary materials (i.e., the hazardous secondary materials would
become solid and hazardous wastes and subject to full Subtitle C
regulation).
In the 2008 DSW final rule, EPA considered the notification
requirement as providing basic information to regulatory authorities,
but determined that notification, in and of itself, did not allow
regulatory authorities to directly determine that hazardous secondary
materials were discarded. In other words, a generator or intermediate
facility/reclaimer could fail to notify yet still be legitimately
reclaiming (or storing the material prior to reclamation) their
hazardous secondary materials according to the conditions of the
exclusion (73 FR 64739, October 30, 2008).
However, the notification provision is also the only formal
indication of a facility's intent to reclaim a hazardous secondary
material under the conditional exemption and not discard it. For
example, if during an inspection of a large quantity generator of
hazardous waste, EPA were to discover a hazardous secondary material
that had been stored on-site for more than 90 days without a RCRA
permit (an act that would typically be a violation of the hazardous
waste regulations), a previously filed notification would be an
indication that the facility was planning to reclaim the hazardous
secondary material under the conditions of the exclusion. Absent such a
notification, it would be difficult for the facility to justify its
true intentions for the hazardous secondary material. Failure to meet
the notification provision would be a strong indication that the
facility either did not intend to comply with or was unaware of the
provisions of the exclusion, since it failed to comply with the first
step for claiming the exclusion. In both cases, the lack of
notification could indicate that the hazardous secondary material may
be mismanaged.
Making notification a condition of the rule would further
discourage facilities from trying to evade enforcement by not notifying
because the costs of not notifying could be significantly higher than
if notification remains a requirement. Notification is important for
informing regulators and the public about hazardous secondary materials
activity and, without such notification, regulators are unable to
effectively monitor compliance. Additionally, state commenters have
argued that enforcement discretion is commonly used to distinguish
between the unintentional administrative oversight of ``not notifying''
and a blatant attempt at evading enforcement. Making notification a
condition of the exclusion provides states the ability to properly
enforce against this latter group, while leaving the flexibility to
tailor enforcement in appropriate cases. EPA is therefore proposing
today to make the notification provision in Sec. 260.42 a condition of
the generator-controlled exclusion in Sec. 261.4(a)(23). Additionally,
we are also requesting comment on making notification a condition of
the re-manufacturing exclusion and of the other recycling exclusions
and exemptions (see Section XII ``Request for Comment on Re-
manufacturing Exclusion'' and Section XIII ``Request for Comment on
Revisions to Other Recycling Exclusions and Exemptions'').
3. Recordkeeping for Speculative Accumulation
In addition to the containment provision, hazardous secondary
materials that are generated and legitimately reclaimed under the
control of the generator are subject to the speculative accumulation
provisions of 40 CFR 261.1(c)(8). If these hazardous secondary
materials are speculatively accumulated, they are considered discarded.
EPA did not propose changes to the speculative accumulation provisions
in the March 26, 2007, DSW proposal and has not reopened any
substantive provision of the speculative accumulation requirement.
However, since implementation of the 2008 DSW final rule, EPA has
received questions from regulatory authorities about enforcement of the
speculative accumulation requirement. In particular, enforcement
personnel have suggested that ease of enforcement would be greatly
facilitated if persons subject to the speculative accumulation
requirement were required to post a start date for the accumulation. In
this way, inspectors and other regulatory authorities could quickly
ascertain how long a facility has been storing an excluded hazardous
secondary material, and, therefore, whether that facility was in
compliance with the storage time limits of 40 CFR 261.4(a)(23)(iii) and
40 CFR 261.1(c)(8).
EPA agrees with this suggestion and is therefore proposing to amend
40 CFR 261.4(a)(23)(iii) to require persons operating under the
generator-controlled exclusion to place a label on the storage unit
indicating the first date that the excluded hazardous secondary
material began to be accumulated. In cases where placing a label on the
storage unit is not practicable (e.g., if materials are stored in a
surface impoundment), we are proposing as an alternative to amend 40
CFR 261.4(a)(23)(iii) to require persons operating under the generator-
controlled exclusion to document in an inventory log the first date
that the excluded hazardous secondary material began to be accumulated.
EPA also notes that we are not proposing any changes or otherwise
reopening the substantive requirements of the speculative accumulation
condition.
The Agency notes that placing labels on storage units or entering
accumulation start dates in inventory logs is likely to already be part
of normal business operations at many facilities. For this reason, we
believe that this proposed requirement is not unduly burdensome and
will provide a greater degree of clarity and certainty both to the
regulated community and to regulatory authorities who are trying to
determine when excluded hazardous secondary materials began to be
accumulated. EPA solicits comment on whether this proposed requirement
will be effective in meeting this goal and on whether other methods of
measuring storage durations and/or identifying start dates would be
equally effective (such as a requirement to post accumulation start
dates in storage areas, within a specified number of feet of the
storage unit).
As proposed, this recordkeeping provision would only apply to the
exclusion under 40 CFR 261.4(a)(23). However, the same arguments for
tracking accumulation start dates could be made more broadly for all
recycling subject to the speculative accumulation limits. Thus, EPA is
also requesting comment on whether to add this recordkeeping
requirement to the speculative accumulation provision in 40 CFR
261.1(c)(8) itself.
4. Tolling Provision
Under the 2008 DSW final rule, hazardous secondary materials are
eligible for the generator-controlled exclusion if they are generated
and reclaimed pursuant to a written agreement between a tolling
contractor and toll manufacturer, if the tolling contractor certifies
that it has entered into a 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.
For purposes of this exclusion, a tolling contractor is a person
who arranges for the production of a product or intermediate made from
specified unused materials through a written
[[Page 44117]]
contract with a toll manufacturer. The toll manufacturer is the person
who produces a product or intermediate made from specified unused
materials pursuant to a written contract with a tolling contractor.
Under the 2008 DSW final rule, the tolling contractor must certify that
it has a written contract with the toll manufacturer to manufacture a
product or intermediate made from specified unused materials, and that
the tolling contractor will reclaim the hazardous secondary materials
generated during the manufacture of the product or intermediate. The
tolling contractor must also certify that it retains ownership of, and
liability 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 at the toll manufacturer's facility. This certification should
be made by an official familiar with the terms of the written contract
and should be retained at the site of the tolling contractor.
However, there were no requirements to keep records of shipments of
hazardous secondary materials sent or received pursuant to the written
contract between the tolling contractor and the tolling manufacturer.
Since implementation of the final rule, the Agency has received
inquiries from regulatory authorities regarding the enforceability of
the tolling provision. These authorities believe that it would be
easier to determine if tolling contractors and manufacturers were in
compliance with the requirements for the tolling exclusion if records
were kept of these shipments. The Agency agrees with these suggestions
and is therefore proposing to amend 40 CFR 261.4(a)(23)(ii) to add a
recordkeeping requirement for tolling contractors and manufacturers.
The proposed language would require the tolling contractor to
maintain at its facility for no less than three years records of all
hazardous secondary materials received pursuant to the written contract
with the tolling manufacturer. It would also require the tolling
manufacturer to maintain at its facility for no less than three years
records of all hazardous secondary materials shipped pursuant to its
written contract with the tolling contractor. In both cases, the
records must contain the name of the transporter, the date of the
shipment, and the type and quantity of the hazardous secondary material
shipped or received pursuant to the written contract. These
requirements may be satisfied by routine business records (e.g.,
financial records, bills of lading, copies of DOT shipping papers, or
electronic confirmations). EPA solicits comment on whether this
proposed requirement would make the exclusion for hazardous secondary
materials generated pursuant to a tolling contract easier to enforce.
We also solicit comment on other information which would be appropriate
for the recordkeeping requirements.
While not specifically raised by regulatory authorities, the same
question of enforceability could be raised if a hazardous secondary
material is generated and reclaimed at different facilities where both
facilities are under the control of the generator. Therefore, EPA also
solicits comments on whether the recordkeeping requirement should also
apply to hazardous secondary materials reclaimed off-site at the same
company under 40 CFR 261.4(a)(23).
Furthermore, the Agency is also soliciting comment on whether the
specific tolling exclusion for hazardous secondary materials generated
and reclaimed under the control of the generator should be retained or
eliminated. We note that since implementation of the 2008 DSW final
rule, no facilities have notified that they are operating under the
tolling exclusion, which, in any event, applies only to a small subset
of generators and reclaimers. The definitions under this exclusion
(with its attendant certifications) are complicated and involve
applying the exemption to companies other than the original generators
and relying on contractual commitments to ensure generator control. If
the exclusion is going to be only infrequently utilized, while possibly
adding some additional risks of discard, it might be better for both
the regulated community and regulatory authorities if it were not part
of the exclusions granted to hazardous secondary materials generated
and reclaimed under the control of the generator. Instead, persons
operating under tolling arrangements would be eligible for the proposed
alternative hazardous waste regulations for hazardous recyclable
materials transferred to a third-party for reclamation. These proposed
alternative regulations are discussed in Section VIII of this preamble.
If this approach were finalized, there would be no need for definitions
and certifications that are specific to tolling arrangements. On the
other hand, the tolling contractor conducting the reclamation might
need to obtain a RCRA storage permit. Toll manufacturing can be an
efficient method for material production and the Agency does not wish
to unnecessarily discourage sustainable reclamation practices under
these arrangements. EPA requests comment on the likelihood and extent
to which generators expect to rely on toll manufacturing arrangements
and on the risks and benefits of including tolling arrangements in our
proposed alternative regulatory scheme, or on maintaining their
eligibility under the generator-controlled exclusion.
5. Other Changes
The Agency is also proposing a number of structural changes to the
regulations in the 2008 DSW final rule in order to make the generator
controlled exclusion simpler and easier to understand. In the 2008 DSW
final rule, the requirements for non-land-based units operating under
the generator-controlled exclusion were found at 40 CFR
261.2(a)(2)(ii), while the requirements for land-based units operating
under the same exclusion were found at 40 CFR 261.4(a)(23). Since the
requirements for the two types of units are identical, we believe that
all the requirements for units operating under the control of the
generator should be placed in one regulatory provision. We are
therefore proposing to move the requirements listed in 40 CFR
261.2(a)(2)(ii) to 40 CFR 261.4(a)(23). We believe this will provide
more clarity and transparency to all users of the regulations.\24\
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\24\ In making this change, we are still keeping the definition
for land-based operating units since the notification requirement at
40 CFR 260.42 still will request whether or not the unit managing
the hazardous secondary material is a land-based operating unit or a
non-land-based operating unit.
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Another proposed change concerns the definitions of terms
applicable to the generator-controlled exclusion. In the 2008 DSW final
rule, these definitions (including certification requirements) were
found in 40 CFR 260.10. We are proposing today to move these
definitions to 40 CFR 261.4(a)(23). We believe that placing all
definitions applicable to the generator-controlled exclusion together
with the requirements for that exclusion in the same regulatory section
will make it easier to locate and understand this exclusion in a single
reading.
X. Revisions to the Definition of Legitimacy
A. Summary of Current Definition of Legitimacy
Under the RCRA Subtitle C definition of solid waste, certain
hazardous secondary materials, if recycled, are not solid wastes and,
therefore, are not subject to RCRA's ``cradle to grave'' management
system. The basic idea
[[Page 44118]]
behind this principle is that recycling of these hazardous secondary
materials often closely resembles industrial manufacturing rather than
waste management. However, due to the economic incentives for managing
hazardous secondary materials outside the RCRA Subtitle C regulatory
system, there is a potential for some handlers to claim that they are
recycling the hazardous secondary materials when, in fact, they are
conducting waste treatment and/or disposal.
To guard against this, 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
discussed the definition of solid waste (50 FR 638, January 4, 1985)
and continuing through the 2008 DSW final rule. The legitimacy
provision that is required for the definition of solid waste final
exclusions and non-waste determinations promulgated in the 2008 DSW
final rule (40 CFR 260.43) is designed to distinguish between real
recycling activities--legitimate recycling--and sham recycling, an
activity undertaken by an entity to avoid the requirements of managing
a hazardous secondary material as a hazardous waste. This provision is
substantively the same as the Agency's long-standing policy that has
been expressed in our earlier preamble discussions and policy
statements. The legitimacy provision applicable to these exclusions and
non-waste determinations is based on the 2003 DSW proposal, the 2007
DSW supplemental proposal, the 2008 DSW final rule, and all relevant
information available to EPA as contained in the rulemaking record for
the 2008 DSW final rule. The preamble to the 2008 DSW final rule
contains the operative discussion on the four legitimacy factors that
should be used when making legitimate recycling determinations.
In the 2008 DSW final rule, hazardous secondary materials that are
not legitimately recycled are discarded materials and, therefore, are
solid wastes (40 CFR 260.43). This provision also states that any
facility claiming an exclusion at Sec. 261.2(a)(2)(ii), Sec.
261.4(a)(23), Sec. 261.4(a)(24), or Sec. 261.4(a)(25) or using a non-
waste determination at Sec. 260.30(d) or (e) must be able to
demonstrate that its recycling activity is legitimate.
The structure of the legitimacy standard in the 2008 DSW final rule
has two parts. The first part includes a requirement that hazardous
secondary materials being recycled must provide a useful contribution
to the recycling process or to the product of the recycling process and
a requirement that the product of the recycling process is valuable.
These two factors make up the core of legitimacy and, therefore, a
process that does not conform to them cannot be a legitimate recycling
process, but would be considered sham recycling.
The second part of legitimacy in the 2008 DSW final rule includes
two factors that must be considered, but not necessarily met, when a
recycler is making a legitimacy determination. That is, EPA believed
that these two factors that must be considered when making a legitimacy
determination did not always need to be met. This was because the
Agency is aware of a few situations in which a legitimate recycling
process does not conform to one or both of these two factors, yet the
reclamation activity would still be considered legitimate.
EPA did not believe that this will be a common occurrence, but in
recognition that legitimate recycling may still occur in these
situations, EPA promulgated the factors that address the management of
the hazardous secondary materials and the presence of hazardous
constituents in the product of the recycling process as factors that
must be considered in the overall legitimacy determination, but not
factors that must always be met.
Following is a summary of the four legitimacy factors that were
codified in the 2008 DSW final rule. The preamble to the 2008 DSW final
rule includes a lengthy discussion of the four legitimacy factors that
is the operative discussion for making legitimate recycling
determinations (73 FR 64700, October 30, 2008).
Summary of the Four Factors in the 2008 DSW Final Rule
Factor 1--Useful Contribution: ``Legitimate recycling must involve
a hazardous secondary material that provides a useful contribution to
the recycling process or to a product of the recycling process * * *
The hazardous secondary material provides a useful contribution if it
(i) contributes valuable ingredients to a product or intermediate; or
(ii) replaces a catalyst or carrier in the recycling process; or (iii)
is the source of a valuable constituent recovered in the recycling
process; or (iv) is recovered or regenerated by the recycling process;
or (v) is used as an effective substitute for a commercial product''
(40 CFR 260.43(b)(1)).
This factor expresses the principle that hazardous secondary
materials should contribute value to the recycling process. This factor
is an essential element to legitimate recycling because real recycling
is not occurring if the hazardous secondary materials being added or
recovered do not add anything to the process or recycled product. This
factor is intended to prevent the practice of adding hazardous
secondary materials to a manufacturing operation simply as a means of
disposing of them, or of recovering only small amounts of a
constituent, both of which EPA would consider sham recycling. For
hazardous secondary materials to meet this factor, not every
constituent or component of the hazardous secondary material has to
make a contribution to the recycling activity. For example, a
legitimate recycling operation involving precious metals might not
recover all of the components of the hazardous secondary material, but
would recover precious metals with sufficient value to consider the
recycling process legitimate. In addition, the recycling activity does
not have to involve the hazardous component of the hazardous secondary
materials if the value of the contribution of the non-hazardous
component justifies the recycling activity.
Factor 2--Valuable Product or Intermediate: ``The recycling process
must produce a valuable product or intermediate * * * 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'' (40 CFR 260.43(b)(2)).
This factor expresses the principle that the product or
intermediate of the recycling process should be a material of value,
either to a third party who buys it from the recycler, or to the
generator or recycler itself, who can use it as a substitute for
another material that it would otherwise have to buy or obtain for its
industrial process. This factor is an essential element of the concept
of legitimate recycling because recycling cannot be occurring if the
product or intermediate of the recycling process is not of use to
anyone and, therefore, is not a real product. This factor is intended
to prevent the practice of running hazardous secondary materials
through an industrial process for the purpose of avoiding the costs of
hazardous waste management, rather than for the purpose of using the
product or intermediate of the recycling activity. Such a practice
would be sham recycling.
Factor 3--Managed as a Valuable Commodity: ``The generator and the
recycler should manage the hazardous secondary material as a valuable
commodity. Where there is an analogous raw material, the hazardous
secondary material should be managed,
[[Page 44119]]
at a minimum, in a manner consistent with the management of the raw
material. Where there is no analogous raw material, the hazardous
secondary material should be contained. Hazardous secondary materials
that are released to the environment and are not recovered immediately
are discarded'' (40 CFR 260.43(c)(1)).
This factor expresses 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 materials are
managed before they enter 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 will be released
into the environment and discarded.
Factor 4--Comparison of Toxics in the Product: ``The product of the
recycling process does not (i) contain significant concentrations of
any hazardous constituents found in Appendix VIII of part 261 that are
not found in analogous products; or (ii) contain concentrations of any
hazardous constituents found in Appendix VIII of part 261 at levels
that are significantly elevated from those found in analogous products;
or (iii) exhibit a hazardous characteristic (as defined in part 261
subpart C) that analogous products do not exhibit'' (40 CFR
260.43(c)(2)).
This factor expresses the principle that when making a legitimacy
determination, one needs to look at the concentrations of the hazardous
constituents found in the product made from the hazardous secondary
materials and compare them to the concentrations of hazardous
constituents in analogous products that were not made from hazardous
secondary materials. 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 significantly higher levels of hazardous constituents
than were in the analogous products; 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 the product effective for 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 materials are not being legitimately
recycled. Evaluating the significance of levels of hazardous
constituents in products of the recycling process may involve taking
into consideration several variables, such as the type of product, how
it is used and by whom, whether or not the elevated levels of hazardous
constituents compromise the efficacy of the product, the availability
of the hazardous constituents to the environment, and others.
In addition to promulgating the legitimate recycling provision in
the 2008 DSW final rule, EPA included a discussion of how the current
legitimacy policy continues to apply to existing recycling exclusions
and how the four factors included in the legitimacy provision at 40 CFR
260.43 are substantively the same as the current legitimacy policy. The
Agency included a lengthy discussion of how it developed the legitimacy
factors in 40 CFR 260.43 by closely examining the questions and sub-
questions in its long-standing policy memo on the subject, OSWER
Directive 9441.1989(19) (April 26, 1989), also known as the Lowrance
Memo, and in the relevant Federal Register preambles, and converting
this policy guidance into four direct factors. The detailed
explanations of how each of the four factors is derived from the
Lowrance Memo and other existing policy statements can be found at 73
FR 64708-64710, October 30, 2008.
B. Proposed Changes to the Definition of Legitimacy
1. Legitimacy Codified for all Recycling
In today's action, EPA is proposing to codify the legitimate
recycling requirement for all hazardous secondary materials
recycling.\25\ In the October 28, 2003, proposal at 68 FR 61581-61588,
EPA discussed its position on the relevance of legitimacy to hazardous
secondary materials recycling in general and to the redefinition of
solid waste specifically. At that time, we proposed to codify in the
RCRA hazardous waste regulations four general criteria to be used in
determining whether recycling of hazardous secondary materials is
legitimate. In the supplemental proposal of March 26, 2007, at 72 FR
14197-14201, we proposed two changes to the 2003 proposed legitimacy
criteria and asked for public comment on those changes. The changes
were (1) a restructuring of the proposed criteria, called ``factors''
in that proposal, to make two of them mandatory, while leaving the
other two as factors to be considered, and (2) additional guidance on
how the economics of the recycling activity should be considered in a
legitimate recycling determination.
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\25\ This legitimate recycling requirement does not apply to
non-hazardous secondary materials. For information on the legitimacy
requirement for those materials, see the Identification of Non-
Hazardous Secondary Materials that Are Solid Waste Final Rule (76 FR
15456, March 21, 2011).
---------------------------------------------------------------------------
EPA's 2008 DSW final rule codified legitimacy for the recycling
covered by the exclusions and non-waste determinations in that
rulemaking. However, at that time, EPA did not codify the legitimacy
factors for other recycling exclusions/activities, but explained that
the concept of legitimacy finalized in that rule as a restriction or a
condition for the final exclusions and the non-waste determinations is
not substantively different from the Agency's longstanding policy that
has been expressed in our earlier preamble discussions and policy
statements.
Upon further consideration of legitimacy, EPA believes that
codifying the legitimacy factors for all recycling would provide a
number of benefits. These benefits include ensuring that this important
requirement is more readily accessible to the public, including the
regulated community, by being published in the Federal Register and in
the Code of Federal Regulations. EPA also expects that this action will
prevent or minimize fraudulent or sham recycling, which will make the
legitimacy provision a more enforceable standard for states and other
entities implementing RCRA. In the Regulatory Impact Analysis for this
proposed rule, we estimate that 5,321 facilities are currently
recycling hazardous secondary materials in the U.S. For these
facilities, this requirement that is currently implicit in the
regulations and described in guidance would become an explicit
regulatory requirement.
a. What is the proposed scope of the legitimacy provision? If
codified for all recycling, the definition of legitimacy would apply to
these types of hazardous secondary materials, in addition to the final
exclusions and non-waste determinations promulgated in the 2008 DSW
final rule:
Hazardous recyclable materials that are managed under
today's proposed alternative Subtitle C regulations for hazardous
recyclable materials.
[[Page 44120]]
Hazardous secondary materials that, because they are
recycled, are excluded or exempted from Subtitle C regulation under
other regulatory provisions (e.g., see the exclusions from the
definition of solid waste in 40 CFR 261.4(a)).
Materials formally determined to be non-wastes under the
procedures in 40 CFR 260.34.
Recyclable hazardous wastes that are regulated under
Subtitle C prior to recycling or subject to reduced regulation.
The concept of legitimate recycling is also used to determine if a
unit is a recycling unit exempt from RCRA Subtitle C permitting or is a
regulated waste treatment or storage unit subject to full RCRA Subtitle
C permitting.\26\ If finalized for all recycling, the legitimacy
factors would apply to these situations as well.
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\26\ Certain exempt legitimate recycling facilities are still
subject to RCRA air emission standards.
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One important note is that EPA has previously examined in depth a
number of waste-specific and industry-specific recycling activities and
has promulgated specific regulatory exclusions or provisions that
address the legitimacy of these practices in much more specific terms
than the general factors being promulgated today. Thus, there would be
situations where today's proposed broadly applicable factors would
overlap with these more specific legitimacy provisions.
One example is the regulation for zinc fertilizers made from
recycled hazardous secondary materials. In the zinc fertilizer
regulation, among the requirements established by EPA are specific
numerical limits on five heavy metal contaminants and dioxins in the
zinc fertilizer product exclusion at 40 CFR 261.4(a)(21). These limits
would be the ``comparable'' standard for those contaminants when
determining if the recycling meets legitimacy factor 4 (Comparison of
Toxics in the Product). However, if fertilizer made from hazardous
secondary materials contains other hazardous constituents that do not
have specific numerical limits in 40 CFR 261.4(a)(21), then the
generator or recycler would need to compare the levels of those
hazardous constituents with those in an analogous fertilizer product
not made from hazardous secondary materials. Other examples of more
specific legitimacy provisions are found in the regulations for
comparable fuels at Sec. 261.38, the use constituting disposal
provisions in part 266 subpart C, and the burning for energy recovery
and material recovery provisions in part 266 subpart H.
In doing a legitimacy determination on a fuel made from hazardous
secondary material under the comparable fuels exclusion, the
regulations contain concentration limits for a comprehensive list of
chemicals. If the fuel meets those limits, it would generally meet
legitimacy factor 4 (unless it contains a hazardous constituent that is
not on the list of chemicals in Sec. 261.38 Table 1). However, the
regulated entity would need to consider the other legitimacy factors as
well in making an overall legitimacy determination on the hazardous
secondary material being burned as a comparable fuel.
For hazardous secondary materials being used in a manner
constituting disposal under 40 CFR part 266 subpart C, a person would
need to determine if the hazardous secondary material being recycled in
this way meets all four legitimacy factors in 40 CFR 260.43, in
addition to meeting the conditions of 40 CFR part 266 subpart C.
Meeting the applicable treatment standards as required by Sec. 266.20
would not substitute for meeting legitimacy factor 4 because those
standards are technologically-based standards and are not based on a
comparison to an analogous product. Those standards in some cases would
be more stringent while in other cases, they may be less stringent.
The legitimacy provisions would also apply to hazardous secondary
materials being burned either for energy recovery or material recovery
under 40 CFR part 266 subpart H. For those materials being burned for
metals recovery, meeting the concentration limits in 40 CFR
266.100(d)(2) would be considered comparable for the sake of legitimacy
factor 4. The regulated entity would have to ensure that the recycling
meets the other legitimacy factors as well to be in compliance with the
overall legitimate recycling provision.
EPA is proposing that these more specific provisions remain
applicable and that the legitimacy factors would not replace them. That
is, regulated entities would need to comply with both the specific
regulatory conditions of their recycling exclusions, as well as any of
the legitimate recycling factors not explicitly covered by the specific
recycling exclusion. The Agency seeks public comment on the overlap
between the general legitimacy provision and the specific recycling
exclusions.
b. Why is EPA proposing to codify legitimacy for all recycling? In
the 2008 DSW final rule, EPA explained that it was finalizing codified
legitimacy factors only for the exclusions and non-waste determinations
in that rule to avoid confusion among the regulated community and state
and other implementing regulatory agencies about the status of
recycling under existing exclusions. At the time, EPA did not expect
members of the regulated community to revisit their previously-made
legitimacy determinations.
After evaluating the comments in response to the May 27, 2009,
public meeting notice (74 FR 25200) and concerns brought up in the
subsequent public meetings, EPA has determined that the benefits from
having identical codified legitimacy requirements outweigh concerns
about making administrative changes to the requirement. One codified
legitimacy standard will be less confusing and more clear to the
regulated community, implementing agencies and the public.
EPA's environmental problems study documents a number of recycling
damage cases that have resulted from sham recycling. For example,
several cases of sham recycling detail cases of lead- and other metal-
contaminated materials from secondary lead smelters and battery
recyclers being used as fill in residential neighborhoods and as play
sand for children.\27\ These are clear cases of sham recycling, but can
be difficult for states and other implementing agencies to enforce
against because the requirement is not in the regulations. EPA believes
that including legitimacy in the regulations for all recycling will
make it easier to enforce these sham recycling cases and will help
implementing agencies fulfill their mandate to protect human health and
the environment.
---------------------------------------------------------------------------
\27\ U.S. EPA, An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials, Appendix
2, EPA-HQ-RCRA-2002-0031-0358, Appendix 2, pp. 3-4, 238, 294-295,
298-299.
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EPA also believes that there will be benefits to the environment
from requiring those who are recycling under existing exclusions and
other provisions to do this kind of evaluation of their recycling
process with legitimacy considerations in mind. EPA believes that
codifying the legitimacy factors for all recycling and the requirement
to document legitimacy determinations, as discussed below, will result
in more thorough, accurate and consistent legitimacy determinations.
However, as we discuss below, documentation of the legitimacy
determination (i.e., how the hazardous secondary material meets the
legitimacy factors) needs only to be available from the effective date
of this rule.
EPA continues to believe that the four legitimacy factors we are
proposing to codify for all recycling are substantively
[[Page 44121]]
the same as the existing policy found in previous Federal Register
preamble statements and its long-standing policy memo on the subject
(i.e., the Lowrance Memo). An analysis that shows how the four factors
are derived from and equivalent to the Lowrance Memo and other policy
statements is in the 2008 DSW final rule preamble (73 FR 64708-64710).
In addition, EPA continues to believe that the vast majority of
recycling of hazardous secondary materials in the regulated community
is currently legitimate and would already meet all four legitimacy
factors.
It is the Agency's belief that it is an advantage for the
regulatory agencies to have the regulatory requirements for legitimacy
be identical for all recycling processes and to have the legitimacy
provision promulgated in the regulations. Because legitimacy is an
inherent concept underlying all of the current recycling exclusions,
the legitimate recycling standard already applies to all hazardous
secondary materials recycling and hazardous waste recycling, whether
such recycling remains under the hazardous waste regulations or is
excluded from the definition of solid waste. Therefore, the change
being proposed today would result in the details of an existing
standard being added to the regulations and thereby being more publicly
available.
It has been our long-standing policy and it is well understood
throughout the regulated community and the implementing state
regulatory agencies that recycling must be legitimate. EPA firmly
believes that the legitimacy factors are a simplification and
clarification of this existing policy and, as such, the large majority
of existing determinations should not change or need to be revisited.
We are reiterating today that simply codifying the legitimacy standard
is not changing the underlying principles of legitimate recycling that
have existed since the basic RCRA DSW structure was put in place in
1985.
We recognize that under some of the existing exclusions, certain
conditions may fulfill certain legitimacy factors or considerations,
but this is not universally the case for all of the recycling
exclusions. Even under the existing exclusions, there remains the
possibility of someone claiming an existing recycling exclusion as a
means of discarding their hazardous waste. Thus, simply meeting the
conditions of an exclusion does not automatically ensure that the
recycling is legitimate and codifying the legitimacy factors for all
recycling emphasizes this fact. The codified legitimacy factors would
apply to all future recycling of hazardous secondary materials as well,
unless we establish specific legitimacy conditions for a specific
recycling practice that stand in for the more general factors.
EPA is asking for comments on this proposed approach to the
legitimate recycling requirement. EPA is particularly interested in
examples of cases where it would not be appropriate for the legitimacy
factors to be codified.
2. All Legitimacy Factors Being Mandatory
a. What structure is EPA proposing for the legitimacy factors? In
this proposed rule, EPA is reconsidering the current legitimacy
structure and proposing that all the legitimacy factors be mandatory.
EPA is proposing also that a petition process be available if a
legitimate recycling process can be shown to be legitimate even though
it does not meet one or both of the factors that currently have to be
considered.
As stated above, in the 2008 DSW final rule, EPA finalized a
structure for legitimacy that included two factors that had to be met
and two factors that had to be considered, but not necessarily met. We
stated that we thought this approach would be clearer than the guidance
for legitimacy being followed at that time, but would still provide
some flexibility in those cases where recycling did not meet all the
legitimacy factors, but the recycling activity was still legitimate.
In this proposal, EPA is reconsidering its position on this issue
and now believes that it would be most appropriate for all legitimacy
factors to be mandatory, with a petition process for those cases where
the recycling process is legitimate, even though factor 3 or factor 4
or both are not met. EPA is proposing this administrative change in the
structure of the legitimacy factors for several reasons. Comments in
response to EPA's May 27, 2009, notice of a public meeting and comments
provided at that public meeting on June 30, 2009, reiterated that most
of the state agencies that would be responsible for implementing the
DSW regulations when the state has adopted the program support an
approach in which all legitimacy factors are mandatory. EPA also
expects that making all of the legitimacy factors mandatory would be
less complicated across the overall RCRA Subtitle C program and would
improve both the effectiveness and the protectiveness of the legitimacy
provision.
Commenters also argued that the legitimacy provision does not
effectively address EPA's expectation that most recycling should meet
all four legitimacy factors and leaves too much leeway for potential
sham operations. A structure with four mandatory factors and a petition
process for an entity that believes that its recycling is legitimate
despite not meeting factor 3 or factor 4 or both does convey EPA's
belief that these exceptions to the legitimacy factors are rare.
In addition, EPA had believed that the two mandatory factors and
two factors to be considered would be protective of human health and
the environment because, under the regulations in 40 CFR 260.43,
exceptions to all four factors being met would only happen in cases of
recycling that was legitimate anyway--that is, cases where either
factor 3 or factor 4 were not met would have to have valid reasons for
still being legitimate. However, it is not clear that this result will
always occur in practice. Continued confusion about how the regulations
work and concerns from state agencies that are and will be responsible
for the enforcement and implementation of this provision are making EPA
revisit its previous decision that this structure would be protective.
Specifically, in the design of the legitimacy provision in the 2008
DSW final rule, EPA did not intend to make it possible for materials
going for reclamation to be mismanaged or to allow recycled products
that could pose a risk into the market. EPA heard in further comments,
however, that states and implementing agencies remained concerned that
the structure of the factors would lead to these outcomes. These
comments about the protectiveness of the legitimacy structure received
from those regulators during actual implementation of the 2008 DSW
final rule are one of the main reasons that EPA is rethinking its
approach.
EPA continues to believe that the majority of recycling currently
taking place would meet all legitimacy factors, but recognizes that
there may be instances where recycling may be legitimate, but not meet
one or both of the two factors that were labeled ``to be considered''
in the 2008 DSW final rule. It is critical that the legitimacy
regulations be flexible enough to allow for these situations,
particularly if the regulations are going to apply to all recycling.
Therefore, EPA is proposing a petition process for facilities that
believe that their recycling processes are legitimate despite not
meeting one or both of these two final factors. EPA's proposal for how
this petition process would work is described later in this section.
Comments in response to the May 27, 2009, Federal Register notice
also
[[Page 44122]]
demonstrated that despite EPA's efforts to clarify what it meant by
``factors to be considered'' and how the Agency thought that structure
would work in implementation of legitimacy, many commenters still found
the requirement confusing and believed the regulated community as a
whole would be confused as well. EPA believes that a structure where
all factors must be met with a petition process for any exceptions
would be more straightforward than the current two mandatory factors
with two factors that have to be considered.
EPA notes that the ultimate determination of legitimacy would be
the same under either approach (i.e., whether factors 3 and 4 ``must be
considered'' or ``must be met''). Under the current structure requiring
the factors be considered, a person making a legitimacy determination
regarding a recycling process that does not meet one or both of these
factors (i.e., is not being managed as a valuable commodity or has
elevated levels of hazardous constituents in the product) would need a
strong reason for why the recycling is still legitimate and, in the
case of an enforcement action, would be required to demonstrate that
reason. Under the proposed restructuring of the factors, under the same
scenario, the recycler would be required to demonstrate legitimacy up
front as part of a petition process and receive EPA approval before
claiming an exemption. In other words, there would be no substantive
distinction between the final legitimacy determination under the two
approaches, but the administrative process for making that
determination would be different.
One potential concern with the proposed new structure is that it
will require all entities making a legitimacy determination to reassess
whether they meet all four factors and, if a facility's recycling does
not meet factor 3 or factor 4 or both, it would either have to
reengineer the process or submit a petition for a legitimacy variance.
However, under the revisions being proposed today, all recyclers of
hazardous secondary materials would be required to consider the
legitimacy of their recycling in order to document that their recycling
is legitimate for their files. Therefore, under EPA's proposal, the
only burden on top of that requirement would be in the instance where a
facility would need to submit a petition of a legitimacy variance.
Finally, in designing the legitimacy factors that apply throughout
the RCRA program, particularly in the various parts of the definition
of solid waste, EPA is striving for consistency and cohesiveness. EPA's
recent Identification of Non-Hazardous Secondary Materials that are
Solid Wastes final rule (76 FR 15456, March 21, 2011) includes
legitimacy factors for non-hazardous secondary materials that are
burned in combustion units as fuels or used as ingredients. Despite the
differences in the circumstances covered by that rule and this proposed
rule, the legitimacy concepts are similar. EPA's non-hazardous
secondary material rule mandates that all legitimacy factors must be
met and in proposing to alter the legitimacy factors for hazardous
secondary materials, EPA is proposing to line up these concepts in a
consistent manner.
b. Petition process for legitimacy. As stated above, EPA believes
it is critical that the legitimacy requirement have flexibility for
those situations where a facility is recycling legitimately, but is not
meeting factor 3 and/or factor 4. The petition process being proposed
would be a mechanism for that flexibility, while also allowing the
implementing agency to review the site-specific nature of the recycling
practice and ensure that it is legitimate. EPA is seeking comment on
the various aspects of this proposed process. EPA believes that the
situations that would warrant legitimacy variances are rare, but seeks
comment again on specific recycling scenarios that are legitimate yet
do not meet either legitimacy factor 3 and/or legitimacy factor 4.
Commenters to the 2007 DSW supplemental proposal suggested the idea
of a petition process with four mandatory factors. EPA considered this
option for the 2008 DSW final rule, but did not finalize it. However,
after determining that an approach to legitimacy with all four factors
being mandatory may be most appropriate, EPA is returning to the idea
of a petition process to provide the needed flexibility and oversight
to legitimacy determinations.
Information To Be Included in the Petition
Of primary interest, the petition would need to include information
on the hazardous secondary material being recycled and the recycling
process itself in the context of the four legitimacy factors. EPA
continues to believe that legitimacy factors 1 and 2--which state that
the material being recycled has to provide a useful contribution to the
recycling product or process and that the process must produce a
valuable product or intermediate--have to be met for recycling to be
considered legitimate. A facility would be eligible to submit a
petition for a legitimacy variance to its implementing agency under
Sec. 260.43(c) if it has met legitimacy factors 1 and 2, but for some
reason does not meet either factor 3, the requirement that the
hazardous secondary material is managed as a valuable commodity, or
factor 4, the requirement that the levels of any contaminants in the
product of the recycling process be comparable to or lower than an
analogous product or both.\28\
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\28\ EPA is proposing to amend legitimacy factors 3 and 4 in
this proposal. These are discussed below in X.B.3. and X.B.4.
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Thus, the legitimacy variance petition would include a narrative
description of how the facility's recycling process addresses each of
the four legitimacy factors. For the factor or factors that the process
does not meet, the petition would have to explain how the recycling
process does not meet the factor(s), but why the recycling should
nevertheless be determined to be legitimate.If, for example, the
recycling process does not meet factor 3, the petition would include an
in-depth description of how the hazardous secondary materials are
managed and stored on-site and how analogous raw materials, if there
are any, are stored on-site, as well as an explanation for why the
storage of the hazardous secondary materials is different yet still
indicative of management as a valuable product or intermediate. It may
be appropriate to include photos or engineering specifications to
illustrate the nature of the material storage. As described below, the
Agency is also proposing to modify the language of this factor slightly
to allow for situations where the hazardous secondary material is
stored in a way that is different from the analogous raw material, but
is stored in a manner equally protective. We are proposing that in
those situations, a person would not have to petition for a legitimacy
variance simply because the storage method was different than how the
analogous raw material was stored.
For a recycling process that does not meet factor 4 because the
levels of contaminants in the product of the recycling process are not
comparable to or lower than the levels in an analogous product, the
petition should include a description of the product and its uses and
an explanation of why the recycling is legitimate despite the elevated
contaminant levels from the hazardous secondary material. This
explanation could include considerations such as the lack of plausible
exposure pathways to humans and the environment from the product, the
bioavailability of the toxics in the product, or other factors, as
[[Page 44123]]
appropriate. It may also be appropriate in this section to include
relevant product specifications, either from the specific facility or
industry-wide, as well as results from any toxicity testing of the
product of the recycling process.
In the 2008 DSW final rule, EPA gave the following example of where
recycling could still be considered legitimate, even though the
contaminant levels could be considered significantly higher than an
analogous product. The example of the reuse of lead contaminated
foundry sands may or may not be legitimate, depending on the use. The
use and reuse of foundry sands for mold making in a facility's sand
loop using a non-thermal reclamation process under normal industry
practices has been found to be legitimate because the sand is part of
an industrial process where there is little chance of the hazardous
constituents being released into the environment or causing damage to
human health and the environment when it is kept inside, because there
is lead throughout the foundry's process, and because there is a clear
value to reusing the sand. However, in the case of lead contaminated
foundry sand used as children's play sand, the same high levels of lead
would disqualify this use from being considered legitimate recycling.
In fact, the Agency is considering codifying the determination that the
reuse of foundry sands for mold making in a foundry's sand loop using a
non-thermal reclamation process is legitimate recycling and thus, these
facilities would not need to submit a legitimacy variance petition
since the Agency has already examined the practice and determined it is
legitimate recycling. The Agency requests comment on this and on
whether there are other similar cases where existing legitimacy
determinations should be codified.
In addition, the facility submitting a petition would also be
required to include in its petition a detailed description of its
process and its hazardous secondary materials, including, where
applicable, material flow charts or diagrams, or other information the
implementing agency may request. Because of the case-by-case nature of
legitimacy determinations, the implementing agency reviewing the
petition will need this detailed information to make an accurate
assessment of the legitimacy of the process.
Process for Evaluating the Petition
EPA is proposing that this petition process be managed by the state
agencies where a state implements the RCRA Subtitle C program. In
states where EPA implements Subtitle C, the petition process would be
run by the appropriate EPA Regional office.
EPA is proposing that in responding to a legitimacy variance
petition, the implementing agency would follow the same procedures
already in place for variances from solid waste, variances to be
classified as a boiler, and for non-waste determinations in Sec.
260.33. After evaluating the petition for a legitimacy variance and, if
necessary, visiting the requesting facility, the implementing agency
would issue a draft notice tentatively granting or denying the
application. Notification of the tentative decision would be provided
by newspaper advertisement or radio broadcast in the locality where the
recycler is located and be made available on EPA's Web site. The
implementing agency would then accept comment on the tentative decision
for at least 30 days and may also hold a public hearing. The
implementing agency would issue its final decision after receipt of
comments and after any public meetings.
Upon receiving a legitimacy variance, EPA is proposing that the
facility include this information in the appropriate place of the RCRA
Site ID Form (EPA Form 8700-12). EPA is proposing to revise this form
to provide a place to check that a legitimacy variance has been
received. The variance would not expire as long as the conditions
relevant to the legitimacy variance described in the original petition
do not change. The facility would be required to confirm that its
process has not changed by re-notifying every two years, also through
the RCRA Site ID Form. The facility should keep records of its
legitimacy variance as part of its legitimacy documentation.
EPA is seeking comment on the legitimacy petition process as
proposed here and how the design of this process would work for both
implementing agencies and facilities that may have to submit such a
petition. In addition, EPA is seeking information on how many
facilities may have to submit legitimacy petitions under this proposed
requirement.
3. Proposed New Language for Legitimacy Factor 3 (Managed as a Valuable
Commodity)
The 2008 DSW final rule codified four factors as part of the Sec.
260.43 definition of legitimacy, as summarized above. Factor 3
addressed the management of the hazardous secondary materials before it
is recycled. Specifically, the regulatory language for this factor
reads as follows:
``The generator and the recycler should manage the hazardous
secondary material as a valuable commodity. Where there is an
analogous raw material, the hazardous secondary material should be
managed, at a minimum, in a manner consistent with the management of
the raw material. Where there is no analogous raw material, the
hazardous secondary material should be contained. Hazardous
secondary materials that are released to the environment and are not
recovered immediately are discarded.''
In making all legitimacy factors mandatory, the first sentence of
the regulatory language would be revised to read as follows: ``The
generator and the recycler must manage the hazardous secondary material
as a valuable commodity.'' In addition, the Agency is proposing that
the language following that sentence be changed to the following to
more closely reflect the intent of the provision: ``Where there is an
analogous raw material, the hazardous secondary material, must be
managed, at a minimum, in a manner consistent with the management of
the raw material or in an equally protective manner.'' Thus, a
generator or recycler would not have to submit a petition for a
legitimacy variance if their hazardous secondary material is stored in
a different manner than the analogous raw material, as long as that
storage was as protective as the way the analogous raw material was
stored. For example, a hazardous secondary material in powder form that
is shipped in a woven super sack in good condition (i.e., that does not
leak or spill) and stored in an indoor containment area would be
considered managed ``in an equally protective manner'' as an analogous
raw material that is shipped and stored in drums.
The entire new proposed paragraph at 40 CFR 260.43(a)(3) would read
as follows: ``The generator and the recycler must manage the hazardous
secondary material as a valuable commodity. Where there is an analogous
raw material, the hazardous secondary material must be managed, at a
minimum, in a manner consistent with the management of the raw material
or in an equally protective manner. Where there is no analogous raw
material, the hazardous secondary material must be contained. Hazardous
secondary materials that are released to the environment and are not
recovered immediately are discarded.''
In addition, EPA would like to clarify that managing a hazardous
secondary material in a manner consistent with the management of an
analogous raw material can include situations where the raw material
and the hazardous secondary material (e.g., scrap metal) are both
stored on the ground.
[[Page 44124]]
EPA requests comment on these changes to the language in factor 3.
4. Proposed New Language for Legitimacy Factor 4 (Comparison of Toxics
in the Product)
The 2008 DSW final rule codified four factors as part of the Sec.
260.43 definition of legitimacy, as summarized above. Factor 4
addressed the issue of toxics along for the ride in the products made
from hazardous secondary materials. Specifically, the factor found at
40 CFR 260.43(c)(2) specifies that the product of the recycling process
does not (1) contain significant concentrations of any hazardous
constituents found in Appendix VIII of part 261 that are not found in
analogous products; or (2) contain concentrations of any hazardous
constituents found in Appendix VIII of part 261 at levels that are
significantly elevated from those found in analogous products; or (3)
exhibit a hazardous characteristic (as defined in part 261 subpart C)
that analogous products do not exhibit.
The agency is proposing to change the wording within the regulatory
language of this legitimacy factor from ``significant'' and
``significantly elevated'' to ``comparable to or lower than'' because
it more clearly reflects the intent of this factor. The agency believes
``comparable to or lower than'' means that any contaminants present in
the product made from hazardous secondary materials are within a small
acceptable range. In making this change, we also are simplifying the
regulatory text by combining subparagraphs (i) and (ii) since it is no
longer necessary to separate those instances where the hazardous
constituents are or are not present in the analogous product. This
language is also consistent with the Identification of Non-Hazardous
Secondary Materials that are Solid Wastes final rule (76 FR 15456,
March 21, 2011). However, we are not changing the basic meaning of this
factor. Operationally, the terms ``comparable'' and ``not significant''
or ``not significantly elevated'' are the same for hazardous secondary
materials recycling and the examples the Agency provided in the 2008
DSW final rule preamble that explained how the Agency envisions this
factor working are still appropriate. Those examples are repeated here.
For example, if paint made from reclaimed solvent contains
significant amounts of cadmium, but the same type of paint made from
virgin raw materials does not contain cadmium, it could indicate that
the cadmium serves no useful purpose and is being passed though the
recycling process and discarded in the product. Thus, the levels of
cadmium would not be considered ``comparable'' and the paint would fail
this legitimacy factor.
In a second example, if a lead-bearing hazardous secondary material
was reclaimed and then that material was used as an ingredient in
making ceramic tiles and the amount of lead in the tiles was
significantly higher than the amount of lead found in similar tiles
made from virgin raw materials, the recycler should look more closely
at the factors to determine the overall legitimacy of the process. The
significantly higher levels of lead would indicate that the recycled
product is not comparable to an analogous product and, thus, the
recycling process is really a sham.
Another example is if zinc galvanizing metal made from hazardous
secondary materials that were reclaimed contains 500 parts per million
(ppm) of lead, while the same zinc product made from raw materials
typically contains 475 ppm. These levels would be considered comparable
since they are within a ``small acceptable range'' and, thus, the
product would meet this factor. If, on the other hand, the lead levels
in the zinc product made from reclaimed hazardous secondary materials
were considerably higher, these levels may not be comparable, and would
require the recycler to look more closely at this factor since it may
indicate that the product was being used to illegally dispose of the
lead and that the activity is sham recycling, unless the recycler
submits a petition and receives a determination from the implementing
agency that other factors demonstrate otherwise and the recycling
activity is determined to be legitimate.
In another example, if a ``virgin'' solvent contains no detectable
amounts of barium, while spent solvent that has been reclaimed contains
a minimal amount of barium (e.g., 1 ppm), this difference would likely
be considered comparable.
The new proposed language for 40 CFR 260.43(a)(4) would specify
that the product of the recycling process (1) must contain
concentrations of any hazardous constituents found in Appendix VIII of
part 261 at levels that are comparable to or lower than those found in
analogous products and (2) must not exhibit a hazardous characteristic
(as defined in part 261 subpart C) that analogous products do not
exhibit.
EPA requests comment on these changes to the language in factor 4
and specifically, whether any commenters have examples of where this
change in language would change the outcome of the legitimacy
determination. If EPA were to receive specific information on numerous
cases where the product of hazardous secondary material recycling had
levels of hazardous constituents that were not comparable to those
found in products made from raw materials, but the Agency still
considered the recycling to be legitimate, such information would be
important in EPA's final decision about whether factor 4 should be
mandatory or should remain a factor ``to be considered.''
In addition, EPA requests comment on whether it would be helpful
for the Agency to develop additional guidance on what constitutes
``comparable'' levels of hazardous constituents for certain products of
hazardous secondary materials reclamation. For most types of hazardous
secondary materials reclamation, EPA does not believe that additional
guidance would be needed. For example, the three most common types of
hazardous secondary materials reclamation--solvents recovery, metals
recovery, and acid regeneration-- are expected to result in recycled
products that are easily compared to their non-recycled counterparts.
This is because it is EPA's understanding that the products of solvents
recovery, metals recovery, and acid regeneration are generally
indistinguishable from products made from raw materials. Users and
recyclers of these common industrial materials are very familiar with
the formulations of these commercial products and can easily identify
whether there are hazardous constituents at elevated levels beyond what
is typically found in these products. This could be informed by product
specifications, where such specifications are available for the
hazardous constituents. However, there may be some types of products
from recycled hazardous secondary materials which are less common or
more unusual for which guidance might be useful. EPA requests comment
on whether such guidance would be useful and, if so, for which specific
products made from hazardous secondary materials, and encourages
commenters to submit data or identify which sources of data could be
used to develop such guidance.
Commenters should also provide views, and related data, on what
parameters may be used to characterize ``comparable levels'' for
classes of hazardous secondary materials. EPA requests the data for
specific hazardous secondary materials, including identification of the
industrial process, industrial sector, and the specific use for the
hazardous secondary material.
[[Page 44125]]
5. Documentation of Legitimacy
When the Agency codified the legitimacy standard in the 2008 DSW
final rule, we did not require specific documentation regarding the
legitimacy determination, although the regulatory language stated that
persons claiming to be excluded from hazardous waste regulation because
they are engaged in reclamation must be able to demonstrate that the
recycling is legitimate. Specifically, 40 CFR 260.43 states that any
facility claiming an exclusion at Sec. 261.2(a)(2)(ii), Sec.
261.4(a)(23), Sec. 261.4(a)(24), or Sec. 261.4(a)(25) or using a non-
waste determination at Sec. 260.30(d) or (e) must be able to
demonstrate that its recycling activity is legitimate.
Although there was no specific recordkeeping requirement that went
along with the ability to demonstrate legitimacy in the 2008 DSW final
rule, EPA stated that we expected 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 Sec.
261.2(f). Section 261.2(f) requires persons claiming that materials are
not solid waste or are conditionally exempt from RCRA Subtitle C
regulation to provide appropriate documentation of these claims. Under
the 2008 DSW final rule, when a recycling process does not conform to
one or both of the two non-mandatory factors under Sec. 260.43(c), the
Agency would expect the facility to show that it considered the
factor(s) and why the recycling activity overall remains legitimate.
Although Sec. 261.2(f) will still apply in enforcement actions, we
have since decided that it would be most useful to implementing
agencies if the information documenting a recycling activity as
legitimate was assembled in advance and available at all times.
After implementing the DSW exclusions in several states since its
promulgation in 2008, we have determined that documentation of
legitimacy is an important step in ensuring compliance with this
provision and will make oversight and enforcement more effective. We
are therefore proposing today to require that persons who perform the
recycling include documentation in their paperwork to explain how their
hazardous secondary materials are legitimately recycled. We generally
expect that this documentation would be a narrative description, which
could include photographs or other illustrations of how the recycling
of their hazardous secondary materials meets all four factors of
legitimate recycling. All recyclers of hazardous secondary materials
would need to maintain this documentation on site where the recycling
occurs for the duration of the recycling operations and for three years
after the recycling operations cease. If the recycling occurs on-site
at a generator's facility rather than at the recycler's facility, then
the documentation would be maintained at the generator's facility.
Written documentation would provide an easily-available explanation
of the facility's rationale for the legitimacy of its process that is
available to the implementing agency on regular inspections or as part
of compliance assistance. In addition, generators sending materials to
third-party recyclers could also ask for a copy of the recycler's
legitimacy documentation to ensure that their materials are going to
legitimate recycling.
This provision would require that persons claiming that their
recycling activity is legitimate have the burden to provide written
documentation showing how the hazardous secondary materials provide a
useful contribution to the recycling process, how the product of the
recycling activity--whether it is a product or process intermediate--is
valuable, how the generator or the recycler manages the hazardous
secondary materials as a valuable commodity, and how the levels of any
hazardous constituents in the product made from hazardous secondary
materials are comparable to or lower than those in analogous products
made from virgin materials. If the hazardous secondary material
recycler determines that one or both of the latter two factors were not
met, it would need to produce documentation that it has petitioned the
implementing agency for a legitimacy variance, as described above, and
received a determination that the recycling was indeed legitimate, even
though one or both of those factors were not met.
The Agency is not proposing any specific format for the
documentation of legitimacy; however, we expect that the recycler would
have written documentation describing the recycling process and how it
meets each legitimacy factor. For example:
Useful contribution legitimacy factor--the recycler would
document how the hazardous secondary materials provide a useful
contribution to the recycling process or to the product or intermediate
of the recycling process. The regulatory text for this factor provides
five specific ways in which useful contribution can be achieved. The
recycler would need to document how the hazardous secondary materials
add value and/or are useful to the recycling process in one or more of
these ways: (i) Contributing valuable ingredients to a product or
intermediate; (ii) replacing a catalyst or carrier in the recycling
process; (iii) providing a valuable constituent to be recovered; (iv)
being regenerated; or (v) being used as an effective substitute for a
commercial product. For example, if the hazardous secondary material is
a source of a valuable constituent, such as a precious metal, the
document would explain the specific precious metals recovered and their
value to the process.
Valuable product or intermediate legitimacy factor--the
recycler would explain how the product or intermediate made from
hazardous secondary material is valuable, either in a monetary sense or
through its intrinsic value. If the product made from hazardous
secondary material is sold, the documentation of sale could be proof of
the value of the material to a third party. Such documentation could be
in the form of a selection of receipts or contracts and agreements that
establish the terms of the sale or transaction. A recycler that has not
yet arranged for the sale also could demonstrate value by showing that
the product or intermediate can replace another product or intermediate
that is available in the marketplace. Demonstrating intrinsic value may
be less straightforward than demonstrating the value of products that
are sold in the marketplace, but could involve an explanation of the
industrial process that shows how the product of the recycling process
or intermediate replaces an alternative product that would otherwise
have to be purchased.
Managed as a valuable commodity legitimacy factor--the
recycler would include a description of how the hazardous secondary
material is managed and explain how this management is similar or
provides equivalent protection to the management of an analogous raw
material. That is, the documentation would describe how the hazardous
secondary material is stored and handled prior to being inserted into
the recycling process. Where there is no analogous raw material, the
recycler would explain how the management of the hazardous secondary
material ensures that the material is contained as proposed in 40 CFR
260.10.
Comparison of toxics in the product legitimacy factor--the
recycler would include any data or information that shows that the
levels of hazardous constituents in the product are comparable to or
lower than those found
[[Page 44126]]
in analogous products. For example, if a recycling process produced
paint, the levels of hazardous constituents in the paint would be
compared to the levels of the same constituents found in a similar
paint made from virgin raw materials. This comparison would be included
in the documentation of this legitimacy determination. A recycler is
also allowed to perform this evaluation by comparing the hazardous
constituents in the hazardous secondary material feedstock with those
in an analogous raw material feedstock. This may be easier in cases
where the recycler knows that the hazardous secondary material is very
similar in profile to the raw material. It may also be preferable in
cases where the recycler creates an intermediate which is later
processed again and may end up in two or more products, where there is
no analogous product or when production of the product of the recycling
process has not yet begun.
As discussed above, the Agency is also proposing that the
legitimacy standard be codified for all hazardous secondary material
recycling, not only for the specific DSW exclusions promulgated in the
2008 DSW final rule. As part of ensuring that all hazardous secondary
material recycling is legitimate, we are proposing that recyclers under
these other exclusions and those recycling under the Subtitle C
hazardous waste regulations (which often are subject to reduced
regulatory requirements) also maintain documentation in their files of
why their recycling is legitimate. This proposed administrative
requirement would apply to all recycling that is ongoing after the
effective date of the final rule adopting this requirement. We are
interested in receiving public comment on this issue.
As far as how documentation would work for existing exclusions, as
we noted in the 2003 DSW proposal, EPA has already examined in depth a
number of waste-specific and industry-specific recycling activities and
has promulgated specific regulatory exclusions or provisions that
address the legitimacy of these practices in much more specific terms
than the general factors that were finalized as part of the 2008 DSW
exclusions and non-waste determination process. One example is the
regulation for zinc fertilizers made from recycled hazardous secondary
materials. In the zinc fertilizer regulation, among the requirements
established by EPA are specific numerical limits on five heavy metal
contaminants and dioxins in the zinc fertilizer product exclusion at 40
CFR 261.4(a)(21). We believe that data showing the zinc fertilizer
product meets those numerical limits would be sufficient for
documenting that the product meets legitimacy factor 4 (comparison of
toxics in the product) for these contaminants. As noted earlier, if
fertilizer made from hazardous secondary materials contains other
hazardous constituents that do not have specific numerical limits in 40
CFR 261.4(a)(21), then the generator or recycler would need to compare
the levels of those hazardous constituents with those in an analogous
fertilizer product not made from hazardous secondary materials. Other
examples of existing exclusions where EPA has established specific
conditions that are related to their legitimacy determinations are
shredded circuit boards excluded under 40 CFR 261.4(a)(14), which must
be free of mercury switches, mercury relays, and nickel-cadmium and
lithium batteries, and comparable fuels excluded under 40 CFR
261.4(a)(16), which must meet specific levels for hazardous
constituents (thus, meeting legitimacy factor 4).
The conditions developed for the recycling exclusions in Sec.
261.4(a) were found to be necessary under material-specific rulemakings
that determined when the particular hazardous secondary materials in
question are not solid wastes. When EPA originally made the decision
that these hazardous secondary materials are not solid waste, the
Agency took into account the relevant factors about the hazardous
secondary materials, including how the materials were managed and what
toxic chemicals were present.
Thus, for those specific exclusions in Sec. 261.4(a) that have
conditions that relate directly to legitimacy, documentation that shows
that the recycling facility meets those conditions would be what is
necessary to show that the recycling of such material is meeting those
specific legitimacy factors. However, a recycling facility would also
have to include a description of how it meets the other legitimacy
factors that may not be reflected in the waste-specific conditions of
the exclusion, in its legitimacy documentation.
EPA is requesting comment on the requirement for documentation of
legitimacy from facilities performing the recycling, for both the 2008
DSW exclusions and for the existing recycling exclusions. In
particular, EPA is requesting comment on whether the proposed
documentation requirement is necessary for implementation and
enforcement of the legitimacy provision.
XI. Revisions to Solid Waste Variances and Non-Waste Determinations
The Agency is also proposing today to modify the existing
regulation of solid waste variances at 40 CFR 260.31(c), 40 CFR 260.33
and 40 CFR 260.34 to foster greater consistency on the part of
implementing agencies and help ensure the protectiveness of the
implementation of the solid waste variances and non-waste
determinations. Specifically, EPA is proposing to do the following:
1. Revise 40 CFR 260.33(c) to require facilities to re-apply for a
variance in the event of a change in circumstances that affects how a
material meets the criteria upon which a solid waste variance has been
based;
2. Add a provision at 40 CFR 260.33(d) stating that facilities
receiving a variance or non-waste determination must provide
notification as required by Sec. 260.42 of this chapter;
3. Revise the criteria for the partial reclamation variance in 40
CFR 260.31(c) to more clearly explain when the variance applies and to
require, among other things, that the criteria for this variance must
be reviewed and evaluated collectively, since each criterion reinforces
and supports other criterion;
4. Revise the criteria for the non-waste determination in 40 CFR
260.34 to require that petitioners explain or demonstrate why their
hazardous secondary materials cannot meet, or should not have to meet,
the existing DSW exclusions under Sec. Sec. 261.2 or 261.4; and
5. Designate the Regional Administrator as the EPA recipient of
petitions for variance and non-waste determinations.
Finally, EPA is requesting comment on other possible steps to help
ensure national consistency and protectiveness in the implementation of
variances and non-waste determinations.
In response to the May 27, 2009, Federal Register notice announcing
the DSW public meeting, commenters identified issues with the
implementation of the non-waste determination process, arguing that (1)
determinations can lead to inconsistency among states and may
negatively impact economies for states that are more stringent in their
determinations; (2) determinations may require a large amount of state
resources to review and process; and, (3) determinations that are
indefinitely approved may not receive the proper level of oversight
required to ensure that
[[Page 44127]]
legitimate and safe reclamation is occurring.\29\
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\29\ EPA stated in the public meeting notice that we did not
expect to repeal the non-waste determination process and thus we did
not explicitly ask for comment on the provision in the notice.
However, in some cases, commenters did address this provision.
---------------------------------------------------------------------------
While these comments were focused on the non-waste determination
petition process in the 2008 DSW final rule (which was the focus of the
public meeting), they can apply equally to the solid waste variances as
well, since the procedures in 40 CFR 260.33 are intended to apply to
both. Thus, EPA is proposing to make changes that affect both the solid
waste variances and the non-waste determinations.
A. Proposed Revisions to Procedures for Variances and Non-Waste
Determinations Found in 40 CFR 260.33
Under the current regulatory framework, 40 CFR 260.30 provides the
Administrator with the authority to grant a variance from the
definition of solid waste or a non-waste determination on a case-by-
case basis if materials are recycled in a particular manner. The
practical effect of both the solid waste variances and the non-waste
determinations is the same; once a petition is granted by EPA or the
authorized state, the hazardous secondary material is not regulated as
a solid or hazardous waste. The procedures for these variances and non-
waste determinations are found in 40 CFR 260.33.
In today's proposed rule, EPA is proposing two changes to 40 CFR
260.33. First, EPA is proposing to make all variances subject to the
provision in 40 CFR 260.33(c) that would require an applicant to re-
apply for a variance in the event that the material no longer meets the
relevant criteria. Second, EPA is proposing to make all variances and
non-waste determinations subject to the biennial notification
requirements in 40 CFR 260.42.
1. Requirement That an Applicant Re-Apply in the Event the Material No
Longer Meets the Relevant Criteria
The 2008 DSW final rule noted that once a non-waste determination
has been granted, the applicant is obligated to ensure the hazardous
secondary material continues to meet the criteria of the non-waste
determination, including any conditions specified therein by the
regulatory authority. If a change occurs that affects how the hazardous
secondary materials meet the relevant criteria and (if applicable) any
conditions as specified by the regulatory authority and the applicant
fails to re-apply to the Administrator for a formal determination, the
hazardous secondary materials may be determined to be solid and
hazardous waste and subject to the RCRA Subtitle C hazardous waste
requirements (73 FR 64712-13, October 30, 2008). This requirement was
codified at 40 CFR 260.33(c).
The requirement that the hazardous secondary materials determined
to not be a solid waste must continue to meet the relevant criteria of
a solid waste variance or non-waste determination is inherent in the
regulations. Failure to meet the criteria could indicate that the
hazardous secondary materials are discarded and a solid waste and would
trigger the need to re-examine the circumstances of the recycling. The
2008 DSW final rule codified this requirement in order to enhance
clarity and assist in its implementation, but only focused on the non-
waste determination provisions because that was the scope of that rule.
EPA is now proposing to explicitly apply 40 CFR 260.33(c) to all
the solid waste variances, as well as the non-waste determination
provisions listed in 40 CFR 260.30 to ensure that if there are changes
that may impact how hazardous secondary materials meet the relevant
criteria, that such changes be considered by the regulatory authority
to ensure that those criteria continue to be met. Codifying this
requirement would help ensure clarity and consistency by providing an
administrative procedure for reconsidering a variance in the event that
the hazardous secondary material no longer meets the relative criteria
for the variance.
2. Proposed Re-Notification Requirement
The second proposed change to 40 CFR 260.33 is to require
facilities receiving variances or non-waste determinations to re-notify
EPA or the State Director, if the state is authorized for this aspect
of the rule, every two years by March 1 of each even-numbered year and
to notify within 30 days of stopping management of hazardous secondary
materials under the variance or non-waste determination using EPA Form
8700-12 in compliance with 40 CFR 260.42. The current process cannot
track variances or non-waste determinations at a national level and
over time. This lack of tracking can lead to state-to-state
inconsistency in determinations because one state cannot easily access
information regarding similar determinations made by another state. Two
commenters expressed specific concern over this inconsistency, arguing
that variations in stringency can drive jobs out of more-stringent
states and into less-stringent states. These commenters argued that
more detailed or restrictive criteria and EPA oversight are necessary
to ensure that non-waste determinations are issued consistently across
states. One of the commenters also recommended increasing transparency
by making the non-waste determinations available online. Additionally,
lack of tracking inhibits effective oversight of facilities receiving
variances and non-waste determinations because it does not provide
regulatory authorities with a mechanism for receiving updated
information.
Amending the procedures for variances and non-waste determinations
to require re-notification ensures that regulatory authorities are
provided regularly updated information (such as information regarding
quantities of hazardous secondary materials managed under the
determination). Such updating enables better compliance with the
criteria and with any stipulations of the variance or non-waste
determination. Additionally, this information can be used to identify
facilities which may have undergone changes to their reclamation
process significant enough to trigger a review of the determination
under 40 CFR 260.33(c).
This proposed change is also based on EPA's experience with the
Sec. 260.42 notification requirement. Since the 2008 DSW final rule
became effective on December 29, 2008, EPA has received a number of
notifications from facilities managing hazardous secondary materials
under the generator-controlled and transfer-based exclusion and has
judged the notification provision to have worked well in enabling
regulatory authorities to monitor compliance of the facilities with the
conditions of the exclusions. Regulatory authorities receive
information on the name and location of the facilities operating under
the exclusion and the types and quantities of hazardous secondary
materials the facility is managing, which allows the regulatory
authority to prioritize inspections, as well as create a list of
facilities that would benefit from training and compliance assistance
on the rule.
Additionally, notification has allowed regulatory authorities to
follow up with facilities that appear to have misunderstood the
regulations. For example, notification allows regulatory authorities to
contact facilities that notified that they were operating under the
exclusions but were, in fact, residing in a state that had not adopted
the 2008 DSW final rule. Notification in these instances allowed
regulatory authorities to identify problems and to intervene
[[Page 44128]]
early to prevent potential mismanagement. Based on experience with
receiving notifications under the 2008 DSW final rule, EPA is convinced
of the value of the notification provision in ensuring proper
implementation of its rules and believes that such notification for
variances and non-waste determinations would increase the transparency
and oversight of facilities receiving a variance or non-waste
determination.
In addition to re-notification, EPA also plans to increase the
transparency of the variance and non-waste determination petition
processes by providing online access to a list of facilities receiving
variances and non-waste determinations, including any supporting
documentation upon which a determination has been made. Ideally, this
Web site would function as a clearinghouse of information so that the
states could use each other's determinations to inform determinations
within their own state borders. EPA believes this sharing of
information would increase consistency in determinations across states.
EPA plans to work with states to develop a process for collecting
information regarding non-waste determinations so that EPA can include
these facilities in its online database.
B. Proposed Revisions to Partial Reclamation Variance
The ``partial reclamation'' variance at 40 CFR 260.30(c) applies to
materials that have been reclaimed, but must be reclaimed further
before the materials are completely recovered (i.e., ``partial
reclamation''). In turn, 40 CFR 260.31(c) provides the specific
standards that a material must meet in order to be eligible for a
variance from classification as a solid waste.
Today, the Agency is proposing to revise the partial reclamation
variance provision of 40 CFR 260.31(c) to clarify when partially-
reclaimed materials are not solid waste because they are commodity-
like. The objectives of these proposed revisions are to clarify the
regulatory language, foster consistent application of the variance
criteria, and make clear that the variance should be granted only when
partial reclamation has produced a commodity-like material. EPA's
proposed modifications of 40 CFR 260.31(c) include (1) revising the
introductory text to clarify when the variance applies; (2) revising
the introductory text to require that all of the decision criteria must
be met; (3) revising the language of all of the decision criteria; and
(4) eliminating the sixth criterion ``other relevant factors.''
1. The Current Partial Reclamation Variance Provision
Under the current regulations, 40 CFR 260.30, 260.31, and 260.33
together provide variance mechanisms for three types of recycled
materials which the Regional Administrator (or State Director, in an
authorized state) may determine, on a case-by-case basis, are not solid
waste if they meet specified criteria. One of the variances, found in
40 CFR 260.30(c), with associated criteria at 40 CFR 260.31(c),
addresses materials that have been partially reclaimed but must be
reclaimed further before the materials are completely recovered. Under
current 40 CFR 260.31(c), the Regional Administrator may grant a
request for a variance for such materials if, after initial
reclamation, the resulting material is commodity-like. The
determination that a partially reclaimed material is commodity-like is
made using the following six factors:
(1) The degree of processing the material has undergone and the
degree of further processing that is required;
(2) The value of the material after it has been reclaimed;
(3) The degree to which the reclaimed material is like an analogous
raw material;
(4) The extent to which an end market for the reclaimed material is
guaranteed;
(5) The extent to which the reclaimed material is handled to
minimize loss; and
(6) Other relevant factors.
In the preamble to the 1985 Definition of Solid Waste final rule
(January 4, 1985; 50 FR 655) where this provision was promulgated, EPA
stated that ``the Regional Administrator may weigh these factors as she
sees fit, and may rely on any or all of them to reach a decision.''
2. The Intent of the Partial Reclamation Variance
When the partial reclamation variance provision was promulgated in
1985, EPA's intent was to provide a mechanism for determining that a
hazardous waste had undergone sufficient reclamation (a type of
processing) to produce a material that was more like a commodity than a
solid waste. The variance would be applicable if the material was
commodity-like, even though some further reclamation was required
before the material became a commercial product. EPA intended that the
variance would be applied at the point that the commodity-like material
was produced. After that point, the material would be managed as a
commodity rather than as a solid and hazardous waste. Prior to the
point that partial reclamation produced a commodity-like material, the
material would have to be managed as a hazardous waste.
The following discussion illustrates how the Agency intended the
variance to work for a typical treatment system involving three
parties: (1) A generator of hazardous waste; (2) a partial reclamation
facility that receives, stores, and partially reclaims the hazardous
waste to produce a commodity-like material; and (3) a final reclaimer,
or end market, that receives the commodity-like material and uses it as
a substitute for products or intermediates in production processes that
involve further reclamation.
First, the generator would manage and ship the hazardous waste
following all of the applicable hazardous waste regulations, including
waste quantity determinations, accumulation time limits, generator
accumulation technical requirements, and hazardous waste manifest
procedures for shipping. Second, the partial reclamation facility would
receive the hazardous waste under a hazardous waste manifest. The
facility would also have a RCRA permit for management of the hazardous
waste until the point that the partial reclamation process had produced
a commodity-like material.
Once the partial reclamation process had produced a commodity-like
material, a partial reclamation variance from classification as solid
waste could be granted. Accordingly, management of the commodity-like
material after that point would not be covered by the partial
reclamation facility's RCRA permit. In addition, the partial
reclamation facility would not be required to use a manifest to ship
the commodity-like material to the final reclaimer.
Finally, the final reclaimer would receive the commodity-like
material from the partial reclaimer without a manifest. The final
reclaimer would not require a RCRA permit for management of the
commodity-like material because the material is not a solid and
hazardous waste.
The preceding discussion illustrates how the variance would apply
to a typical three-facility, three-step process. However, the critical
point is not how many steps or facilities are involved, but at what
point the partial reclamation process has produced a commodity-like
material as defined by the criteria in 40 CFR 260.31(c). Depending on
the materials and processes in question, this point could occur at
varying steps in the management of a hazardous waste, at varying
facilities where it is managed.
[[Page 44129]]
3. Experience With the Current Partial Reclamation Variance Provision
EPA has become aware that authorized states across the country have
interpreted and applied the variance provision inconsistently, even in
similar circumstances. This inconsistency may be due to (1) the wide
discretion allowed the regulatory authority to weigh any or all of the
decision criteria in any way it sees fit; (2) lack of clarity in the
decision criteria themselves; or (3) the general sixth criterion
``other relevant factors.''
This inconsistency has resulted in variances being granted under 40
CFR 260.31(c) for some materials that are not yet commodity-like and
that are still clearly hazardous waste. Therefore, EPA is proposing
revisions to the variance criteria to address the inconsistency among
authorized states, remove ambiguities, and clearly convey the original
intent that only hazardous wastes that have been partially reclaimed to
produce commodity-like materials are eligible for a variance from
classification as solid waste. Consistent and appropriate application
of the partial reclamation variance is necessary so that the hazardous
waste program provides the level of protection of human health and the
environment required by the RCRA statute in all communities in all
areas of the country.
An illustration of how the revised variance provision would be
applied to a commonly reclaimed hazardous waste example is included in
the Background Document ``F006 Reclamation.'' This document includes a
detailed description of how the proposed revised variance provision
would be used to make determinations about whether a variance would be
appropriate for listed hazardous waste F006 (wastewater treatment
sludges from electroplating operations) at various steps in the
reclamation process.
4. Proposed Revisions To Clarify and Improve the Partial Reclamation
Variance Provision
As stated above, EPA is proposing several revisions to 40 CFR
260.31(c). Each of the proposed revisions is discussed below.
a. Revision to clarify the introductory text of 40 CFR 260.31(c).
EPA is proposing to revise the introductory text of 40 CFR 260.31(c) to
clarify when a partial reclamation variance is applicable. The proposed
revised text would make it clear that the Regional Administrator may
grant requests for a variance from classifying as a solid waste those
materials that have been partially reclaimed but must be reclaimed
further before recovery is completed, only if the partial reclamation
has produced a commodity-like material. To qualify for a variance the
material must be legitimately recycled as specified in 40 CFR 260.43,
must be partially-reclaimed as determined by meeting criterion 1, and
must be commodity-like as determined by meeting criteria 2-5.
The revised text is intended to clarify that the variance is
applicable at the point that partial reclamation has produced a
commodity-like material. The revised text includes the phrase ``has
produced a commodity-like material'' and ``must be commodity-like.''
These changes clarify and reflect EPA's intent that the variance
applies only after partial reclamation has produced a commodity-like
material. The variance does not apply earlier in a process when a
hazardous waste is still present. While not a new regulatory
requirement, the proposed change also highlights that the commodity-
like material must be legitimately recycled. The revised introductory
text also replaces the term ``reclaimed'' with ``partially reclaimed''
to be more specific about when a variance would be applicable (i.e.,
after partial reclamation has produced a commodity-like material,
rather than after full reclamation). Finally, the revised text
clarifies that the first criterion is to be used to determine whether
partial reclamation has occurred and the remaining criteria are to be
used to determine whether a partially-reclaimed material is commodity-
like.
EPA requests comment on whether the proposed revisions to the
introductory text clarify the variance provision effectively and
whether they will result in appropriate and consistent decisions about
whether and when to grant a variance.
b. Revision to the introductory text of 40 CFR 260.31(c) to require
that all criteria are met. When the partial reclamation variance
provision was originally promulgated in 1985, EPA stated that the
Regional Administrator or authorized State Director could weigh the
decision criteria ``as she sees fit, and may rely on any or all of them
to reach a decision.'' Based on experience with the variance provision,
EPA is proposing to change the introductory text of 40 CFR 260.31(c) to
require that all criteria must be satisfied before a variance is
granted. EPA is proposing this change for several reasons. First,
criterion 1 emphasizes that the material must have been substantially
partially reclaimed to be eligible for a variance. (This is discussed
further in the next section below.) Second, we believe that each of the
proposed revised criteria numbers 2, 3, 4, and 5 appropriately reflects
a fundamental and essential characteristic of a commodity-like
material. Therefore, all criteria must be met for the material to be
determined to be commodity-like. In addition, clarifying that all of
the criteria must be met will result in more consistent application of
the variance by different decision makers.
EPA requests comment on whether (1) the revised introductory text
is more clear, (2) the revised criteria appropriately reflect the
fundamental characteristics of a commodity-like material; and (3)
requiring that all criteria must be met to grant a variance will foster
appropriate and consistent variance decisions.
c. Revisions to all criteria of 40 CFR 260.31(c). EPA is proposing
revisions to all of the criteria in 40 CFR 260.31(c). First, all of the
criteria have been revised to begin with the word ``whether'' to make
it clear that the regulatory authority must make a yes or no
determination as to whether the material meets each criterion. In
addition, all of the criteria have been revised to be clearer and to
better reflect the fundamental characteristics of a commodity-like
material. The proposed changes to each criterion are discussed below.
1. The degree of processing the material has undergone and the
degree of further processing that is required.
EPA is proposing to revise the criterion in 40 CFR 260.31(c)(1) to
require consideration of whether the degree of partial reclamation the
material has undergone is substantial.
This criterion examines the degree of reclamation the material has
undergone to become commodity-like. The more substantial the partial
reclamation step is, the more likely it is that the material generated
by the partial reclamation step is commodity-like.
First, EPA is proposing to replace the general term ``processing''
with the more specific and accurate term ``partial reclamation.''
Second, EPA is proposing to remove from the criterion the concept that
the initial partial reclamation step that makes a material commodity-
like should be compared to the further reclamation that occurs after
the material has become commodity-like. Experience with the variance
has clarified that the relevant question is whether the partial
reclamation that has been completed is substantial and that the
material produced is not the original hazardous waste. If the material
has been substantially partially reclaimed, it then can be evaluated to
determine whether it is commodity-like using the
[[Page 44130]]
remaining criteria. The degree of reclamation that occurs in the final
reclamation step is not indicative of whether the partially-reclaimed
material is commodity-like. This criterion would be satisfied when the
partial reclamation is substantial and has produced a material that is
no longer the original hazardous waste.
EPA requests comment on whether the proposed revisions to this
criterion clarify when a variance is applicable. EPA also requests
comment on the appropriateness of removing the requirement to compare
the degree of partial reclamation to the degree of final reclamation.
2. The value of the material after it has been reclaimed.
EPA is proposing to revise the criterion in 40 CFR 260.31(c)(2) to
require consideration of whether the partially-reclaimed material has
sufficient economic value that it will be purchased for final
reclamation.
This criterion examines the first of four fundamental
characteristics that indicates that a partially-reclaimed material is
commodity-like, the value of the material produced by the partial
reclamation step.
EPA is proposing to add the word ``partially-'' before the word
``reclaimed'' to clarify that the criterion applies to the partially-
reclaimed material, not the fully-reclaimed material produced later in
the process. EPA is also proposing to revise this criterion to reflect
the fundamental characteristic that a commodity-like material has
positive economic value. A partially-reclaimed material that is
commodity-like will be purchased by those who use it in manufacturing
and production operations. EPA notes that the value of a material
produced at a later stage of reclamation cannot be used to justify a
variance for the partially-reclaimed material produced earlier in the
process. In other words, the criterion must be applied to the material
as it is at the specific point in the reclamation process where
application of the variance is requested.
Evidence to support this criterion may include sales information;
demand for the material; and business contracts (e.g., contracts
specifying quantities of material sold, details of the transaction, and
the effective price paid for the partially reclaimed material by
purchasers (i.e., after subtracting transportation costs and any other
goods or services rendered in exchange for the material purchased)).
EPA requests comment on whether the proposed revisions clarify the
criterion and appropriately describe the fundamental economic value
characteristic of a commodity-like material.
3. The degree to which the reclaimed material is like an analogous
raw material.
EPA is proposing to revise the criterion in 40 CFR 260.31(c)(3) to
require consideration of whether the partially-reclaimed material is a
viable substitute for a product or intermediate, produced from virgin
or raw materials, which feeds subsequent production steps.
This criterion reflects the second of four fundamental
characteristics of a commodity-like material that must go through
further reclamation before it becomes a final commercial product. In
short, the material must be sufficiently analogous to a product or
intermediate used in a manufacturing process to substitute for that
product or intermediate.
First, as with other criteria, EPA is proposing to add the word
``partially-'' before the word ``reclaimed'' to clarify that the
criterion applies to the partially-reclaimed material, not the fully-
reclaimed material produced later in the process. Second, EPA is
proposing to replace the phrase ``is like an analogous raw material''
with the phrase ``is a viable substitute for a product or intermediate,
produced from virgin or raw materials, which feeds subsequent
production steps.'' This revision is intended to more accurately
describe the fundamental characteristic of a commodity-like material
used in production, which is that it will be used as a viable
substitute for a product or intermediate. A partially-reclaimed
material would meet this criterion if it is analogous to, or, in other
words, would replace, valuable products or intermediates in the
manufacturing process that have been produced (i.e., partially
reclaimed) from raw materials but require further processing
(reclamation) steps before the manufacturing process is complete.
Evidence to support this criterion would include a comparison of the
physical and chemical characteristics of the partially-reclaimed
material being considered for the variance to those of products or
intermediates produced from virgin raw materials.
EPA requests comment on whether the proposed revisions clarify the
criterion and appropriately describe the fundamental characteristic of
a commodity-like material related to substituting for a product or raw
material in a production process.
4. The extent to which an end market for the reclaimed material is
guaranteed.
EPA is proposing to revise this criterion in 40 CFR 260.31(c)(4) to
require consideration of whether there is a guaranteed end market for
the partially-reclaimed material.
This criterion addresses the third of four fundamental
characteristics of a commodity-like material, whether there is an end
market for the partially-reclaimed material. As with other criteria,
EPA is proposing to add the word ``partially-'' before the word
``reclaimed'' to clarify that the criterion applies to the partially-
reclaimed material for which the variance is sought. An end market for
further reclaimed material produced at a later stage of reclamation
cannot be used to justify a variance for a partially-reclaimed
material. EPA requests comment on whether this proposed revision
clarifies the criterion effectively.
In addition, although EPA is not proposing any other substantive
changes to the criterion, based on experience with the variance
provision, EPA believes that further explanation of this criterion is
necessary. The criterion requires an evaluation of whether an end
market is guaranteed for the material for which a variance is
requested. For example, if a facility requests a variance for an
incoming hazardous waste, the end market that would have to be
evaluated is the market for the incoming hazardous waste itself. A
demonstrated end market for materials the facility produces later from
the incoming hazardous waste would not be relevant to the analysis for
the incoming waste.
For an end market for a partially-reclaimed material to be
guaranteed, there must be secure demand and long-term markets for the
material. This would make it unlikely that large quantities of the
material will be stockpiled for long periods of time, lost, or
mismanaged due to insufficient demand. Assessing whether an end market
is guaranteed for the partially-reclaimed material requires that the
applicant for the variance provide end market information for the
material generated by the partial reclamation step. Evidence to support
this criterion may include the material's value as an input to a
production process, traditional usage of quantities of the material,
contractual arrangements for use of the material, and the likely
stability of markets for the material. Furthermore, the end market must
be demonstrated by a record of multiple actual purchases of the
partially-reclaimed material by other parties. Further reclamation that
can only be
[[Page 44131]]
conducted by the facility seeking the variance is not proof of an end
market.
5. The extent to which the reclaimed material is handled to
minimize loss.
EPA is proposing to revise the criterion in 40 CFR 260.31(c)(5) to
require consideration of whether the partially-reclaimed material is
handled to minimize loss.
This criterion addresses the fourth of four fundamental
characteristics of a commodity-like material, whether the partially-
reclaimed material is handled to minimize loss, or in other words, is
handled similarly to a commodity. As with other criteria, EPA is
proposing to add the word ``partially-'' before the word ``reclaimed''
to clarify that the criterion applies to the partially-reclaimed
material for which the variance is sought. Management of materials
produced at later stages of reclamation is not relevant to how the
partially-reclaimed material itself is handled. EPA requests comment on
whether this proposed revision clarifies the criterion effectively.
In addition, EPA's experience with the variance provision indicates
that further explanation of this criterion is necessary. Specifically,
this criterion requires evaluation of how the partially-reclaimed
material is handled before it is further reclaimed. Handling a
partially-reclaimed material to minimize loss indicates that the
material is commodity-like. Generally, persons handling hazardous waste
with little or no economic value do not have the same incentives to
minimize loss as persons handling commodities. Evidence to support this
criterion may include documentation of facility procedures used to
minimize loss (e.g., inspections, training), and storage and management
equipment designed to minimize loss.
6. Revision to eliminate criterion six.
Finally, EPA is proposing to eliminate the sixth and final
criterion concerning other relevant factors. When the partial
reclamation variance was promulgated in 1985, EPA believed that this
criterion could help determine whether a material is commodity-like.
However, based on experience with the variance provision, EPA now
believes that criteria numbers 2, 3, 4, and 5 (as proposed to be
revised) together accurately and fully reflect the fundamental
substantive characteristics of a commodity-like material for the
situation where a material has been partially reclaimed but must go on
for further reclamation before it is a final commercial product. We
have not seen other essential characteristics of this type of
commodity-like material identified in variances or applications. Thus,
we are proposing to eliminate this criterion. We also believe that
removing this general criterion will result in more consistent and
appropriate decision-making for partial reclamation variances.
EPA requests comment on removing the sixth criterion and whether
there are any additional characteristics that should be evaluated to
assess whether a material is commodity-like. EPA also requests comment
on whether one or more of the five remaining criteria should be
consolidated.
C. Proposed Change to Non-Waste Determinations
EPA is also proposing to add a criterion to both non-waste
determinations that require facilities applying for a non-waste
determination to explain or demonstrate why they cannot meet, or should
not have to meet, the existing DSW exclusions under Sec. Sec. 261.2 or
261.4.\30\ Because commenters to the 2009 DSW public meeting notice
have argued that the non-waste determinations may be burdensome to
states, EPA believes requiring applicants to formally consider and
explain why they are not eligible for an existing DSW exclusion will
reduce the burden on states. This criterion reduces burden on states in
two ways: (1) It requires facilities to consider existing exclusions
and standards first, before pursuing a non-waste determination, which
can, in turn, lead to facilities discovering that their intended
recycling fits under an existing exclusion and therefore a non-waste
determination petition is not needed; and (2) this criterion informs
the state why a facility believes it cannot meet an existing exclusion,
which is likely to be the state's first question before evaluating a
non-waste determination petition. Petitioners also would be allowed to
seek non-waste determinations if they could show that they should not
have to meet the conditions of another exclusion, but rather should be
allowed to operate under a non-waste determination with fewer or
different conditions. However, if EPA or the authorized state
determines that an applicant may, in fact, use an existing solid waste
exclusion under Sec. Sec. 261.2 or 261.4, this may be grounds for
denying a non-waste determination on the basis that regulatory relief
has already been granted.
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\30\ The two types of non-waste determinations are (1) a
determination for hazardous secondary materials reclaimed in a
continuous industrial process and (2) a determination for hazardous
secondary materials that are indistinguishable in all relevant
aspects from a product or intermediate.
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D. Designating the Regional Administrator To Receive Petitions
Lastly, we are proposing to change the word ``Administrator'' to
``Regional Administrator'' in 40 CFR 260.30, 260.31, 260.32, 260.33,
and 260.34. Due to the case-specific nature of the variances and non-
waste determinations, we believe these decisions should be made by the
Regional Administrator because of his or her regional authority. We
also note that although we propose to assign the decision-making
authority to the Regional Administrator, it is common practice within
EPA to work with other EPA offices, EPA Regions, EPA Headquarters on
decisions that may affect national policy.
E. Request for Comment on Other Possible Steps To Help Ensure National
Consistency and Protectiveness in the Implementation of Variances and
Non-Waste Determinations
EPA is also requesting comment on other possible steps to help
ensure national consistency and protectiveness in the implementation of
variances and non-waste determinations.
First, EPA is requesting comment on whether to require variances
and non-waste determinations to be renewed periodically, and, if so,
what time period would be appropriate (e.g., two or five years). A
renewal period would help ensures the hazardous secondary materials
continue to meet the criteria and remain valid over time. To a certain
extent, this concern would be addressed by the proposed revision to 40
CFR 260.33(c), which would require applicants to re-apply for a
variance or non-waste determination in the event of a change in
circumstances that affect how hazardous secondary materials meet the
relevant criteria, and by the proposed biennial re-notification, which
would require the applicant to review the management of their hazardous
secondary materials. However, the proposed revision to 40 CFR 260.33(c)
still relies on the applicant to recognize when there is a need to
reconsider a variance and take action, while a specific renewal period
would mandate a reconsideration. On the other hand, mandating a renewal
period would be an additional burden to the states, and may not be
necessary in all situations. Additionally, regulators could always
stipulate time limits in specific determinations, if warranted. EPA
requests comment on whether to require a renewal period and, if so, how
to minimize the burden on the states.
The second possible change EPA is requesting comment on is whether
to
[[Page 44132]]
require states to share copies of the variance and non-waste
determination petitions and the tentative decisions with EPA to allow
the Agency to comment and to encourage collaboration and national
consistency. EPA and the states share responsibility for environmental
protection and work as partners to solve the nation's environmental
challenges. Because solid waste variances and non-waste determinations
are made on a case-by-case basis, state governments are best situated
to understand and evaluate the specific factors involved with the
company submitting a petition. At the same time, EPA may be familiar
with similar cases in other states or EPA Regions and can often provide
additional expertise and a national perspective on issues that affect
more than one location. As a general matter, the state and EPA
frequently consult on such cases, helping to achieve the best results
possible, taking full advantage of the unique strengths of each
partner.
However, formalizing this type of collaboration would have the
benefit of reinforcing this working relationship and would help ensure
national consistency. Thus, EPA requests comment on whether to require
authorized states to forward to EPA copies of solid waste variance and
non-waste determinations petitions and tentative decisions on those
petitions for review and comment.
XII. Request for Comment on Re-Manufacturing Exclusion
A. Background
In addition to the proposed changes to the definition of solid
waste discussed in Sections VII-XI of this preamble, EPA is requesting
comment on a focused exclusion from the definition of solid waste for
certain types of higher-value hazardous secondary materials \31\ which
are being re-manufactured into commercial-grade products.
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\31\ ``Higher-value'' hazardous secondary materials are those
who have a higher value than most types of hazardous secondary
materials and can be used in manufacturing commercial-grade
products.
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The goal of the re-manufacturing exclusion would be to encourage
sustainable materials management by identifying specific types of
transfers of hazardous secondary materials to third parties that, under
appropriate conditions, do not involve discard and can result in
extending the useful life of a commercial-grade chemical.
Sustainable materials management, as discussed in more detail in
Section V.J. of this preamble, considers system-wide impacts, and
represents a shift away from end-of-life waste management and toward a
more sustainable future that avoids unintended consequences. The
benefits of sustainable materials management broadly include potential
reductions in energy used, more efficient use of materials, more
efficient movement of goods and services, conservation of water,
reduced greenhouse gas and other air emissions, and reduced volume and
toxicity of waste. In particular, when hazardous secondary materials
can be kept in the manufacturing process, rather than disposed of, or
used in a lower-value process such as cleaning or degreasing,
substantial environmental benefits can be obtained.
As discussed in Section VII of this preamble, EPA is proposing to
replace the transfer-based exclusion found in 40 CFR 261.4(a)(24) and
(a)(25) with an alternative Subtitle C regulatory scheme because of the
potential for adverse impacts to human health and the environment from
discarded hazardous secondary materials. EPA believes that such a
standard would be more appropriate for hazardous secondary material
because (1) the Agency reasonably believes (as explained in detail in
the 2008 DSW final rule) that, absent specific conditions, transfers of
hazardous secondary materials to third-party reclaimers generally
involve discard, and (2) the conditions of the 2008 DSW final rule have
serious gaps, particularly the incentives to accumulate larger volumes
of hazardous secondary materials, the reduction in oversight resulting
from eliminating the permit requirement for storage, and the reduction
in the public's access to information and the opportunity for public
participation, that could create a potentially unacceptable likelihood
of adverse effects to human health and the environment from such
discarded material.
However, as also discussed in Section VII, EPA acknowledges that
some specific types of hazardous secondary materials are more like
valuable commodities than solid wastes, and thus the act of
transferring them to a third party under appropriate conditions does
not necessarily involve discard. From a sustainable materials
management perspective, these materials are the ideal candidates for
focused regulatory changes that would address their life-cycle impacts
and help extend their useful life. Many of the other exclusions in 40
CFR 261.4(a) were developed for these types of hazardous secondary
materials, and the non-waste determination process under 40 CFR
260.34(c) provides an administrative process for additional hazardous
secondary materials that are indistinguishable from a product to be
determined to be non-wastes.
To further encourage sustainable materials management,, EPA is
requesting comment on an exclusion for the transfer of higher-value
hazardous secondary materials from one manufacturer to another, for the
purpose of extending the useful life of the original material product
by keeping such materials in commerce to reproduce a commercial grade
of the original material product (a process that for the purpose of
this preamble discussion EPA is defining as ``re-manufacturing''). Re-
manufacturing these higher-value hazardous secondary materials can have
significantly lower environmental impact than creating these material
products and using them one time in their virgin state and then
transferring them for off-site treatment and disposal, especially with
regards to non-renewable materials. Thus, re-manufacturing allows the
material products to be used again, lowering their life-cycle
environmental impacts significantly.
Specifically, EPA has reached a preliminary conclusion that, under
appropriate conditions, the potential for discard in inter-company re-
manufacturing transfers for certain higher-value spent solvents would
be low because they will be incorporated into the manufacturing process
rather than accumulated or disposed of. Once these solvents are re-
manufactured to commercial grade, they can be used as replacements for
virgin commercial grade solvents. The economic incentive for a company
receiving the spent solvents would be to sell or directly use (avoiding
purchase of virgin product) the re-manufactured solvent products to
realize an economic value. The company sending these higher-value
hazardous secondary materials for re-manufacturing is expected to have
little economic incentive to pay the receiving company more than a
nominal amount of money, since it would already be transferring
something of intrinsic market value (materials that can be easily re-
manufactured for profit). So, unlike the RCRA-permitted waste handler
which can charge a considerable fee for receiving discarded waste, the
company receiving these higher-value hazardous secondary materials for
re-manufacturing is expected to realize most of its profit from the
sale or use of re-manufactured solvents.
Once re-manufacturing processes are in place, EPA expects that
solvent re-manufacturers would be competitive with solvent
manufacturers even in the event of a downturn in the sizable
[[Page 44133]]
chemical markets. Companies would also have the flexibility to redirect
re-manufacturing capacity to manufacturing should it ever make economic
sense to do so, leaving little economic reason to accumulate unsold or
unused re-manufactured solvents.
Although the following discussion focuses mainly on spent solvents,
EPA would welcome information on other types of non-renewable hazardous
secondary materials that could benefit from a focused regulatory change
that would encourage sustainable materials management and be protective
of human health and the environment.
B. Conditions for the Re-Manufacturing Exclusion
Given the wide variety of hazardous secondary materials and
industrial processes, EPA believes it is reasonable to set conditions
for the exclusion which there is supporting evidence that discard will
be avoided and risk will be controlled. The supporting evidence that
EPA is relying on for defining the conditions of this exclusion has
been gathered from some of the Agency's ongoing efforts to promote
sustainability and resource conservation.
In particular, the Green Engineering Program within the Office of
Chemical Safety and Pollution Prevention (OCSPP) has for several years
been studying re-manufacturing scenarios for ``once-used'' solvents in
several industry sectors that use solvents as chemical manufacturing
and processing aids. By focusing on the life-cycle (cradle-to-grave)
impact of the manufacture, process, and use of chemicals, and reviewing
Toxics Release Inventory (TRI) production-related waste reporting, EPA
has found that a large, but often hidden lifecycle environmental impact
of a final consumer product is from the solvents used to produce the
consumer product. For example, pharmaceutical manufacturers use at
least 100 kg of solvents to make 1 kg of active pharmaceutical
ingredient. The lifecycle impact of these solvent streams, which often
are disposed after a single use under current regulatory conditions, is
very high.EPA has determined that the environmental impacts from
solvents used as manufacturing and processing aids could be
significantly reduced if the product life of solvents used for these
purposes were extended to more than a single use.\32\
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\32\ U.S. EPA Benefits of the Re-manufacturing Exclusion, June
2011.
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Based on this information, EPA proposes that all of the following
conditions would need to be satisfied for eligibility under a re-
manufacturing exclusion. The purpose of these conditions is to ensure
that the exclusion would focus on higher-value hazardous secondary
materials that are being re-manufactured rather than discarded.
(1) The hazardous secondary material consists of one or more of the
following solvents: Toluene, xylenes, ethylbenzene, 1,2,4-
trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-
butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane,
methyl isobutyl ketone, N,N-dimethylformamide, tetrahydrofuran, n-butyl
alcohol, ethanol, and methanol;
(2) The hazardous secondary material originated from using one or
more of the above-listed solvents in commercial grade for reacting,
extracting, purifying, or blending chemicals in the pharmaceutical,
organic chemical, or plastics and resins manufacturing sectors, or the
paint and coatings sector;
(3) After re-manufacturing, the continuing use of the solvent is
limited to reacting, extracting, purifying, or blending chemicals in
the pharmaceutical, organic chemical, or plastics and resins
manufacturing sectors, or the paint and coatings sector, or using them
as ingredients in a product. These allowed continuing uses correspond
to chemical functional uses enumerated under the proposed modification
to the Inventory Update Rule of the Toxic Substances Control Act (40
CFR parts 704, 710-711), including Industrial Function Codes U015
(solvents consumed in a reaction to produce other chemicals) \33\ and
U030 (solvents become part of the mixture).\34\
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\33\ U015 Intermediates: Chemical substances consumed in a
reaction to produce other chemical substances for commercial
advantage. A residual of the intermediate chemical substance which
has no separate function may remain in the reaction product.
\34\ U30 Solvents (which become part of product formulation or
mixture): Chemical substance used to dissolve another substance
(solute) to form a uniformly dispersed mixture (solution) at the
molecular level. Examples include diluents used to reduce the
concentration of an active material to achieve a specified effect
and low gravity materials added to reduce cost.
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(4) After re-manufacturing, the continuing use of the solvent does
not involve cleaning or degreasing oil, grease, or similar material
from textiles, glassware, metal surfaces, or other articles (These
disallowed continuing uses correspond to chemical functional uses in
Industrial Function Code U029 under the proposed modification of the
Inventory Update Rule of the Toxics Substances Control Act);
(5) Additionally, both the hazardous secondary material generator
and the re-manufacturer would have to
a. Notify EPA or the State Director, if the state is authorized for
the program, and update the notification every two years per 40 CFR
260.42;
b. Develop and maintain a re-manufacturing plan which includes
information on the types and expected annual volumes of solvents to be
re-manufactured, the processes and industry sectors that generate the
solvents, the specific uses and industry sectors for the re-
manufactured solvents and the legitimacy of the re-manufacturing
process;
c. Maintain records of shipments and confirmations of receipts for
a period of three years from the dates of the shipments;
d. Prior to re-manufacturing, store the hazardous spent solvents in
tanks or containers that meet technical standards that would be the
same as those found in 40 CFR part 264 subparts I and J, with the tanks
and containers being labeled or otherwise having an immediately
available record of the material being stored; \35\ During re-
manufacturing, and during storage of the hazardous secondary materials
prior to re-manufacturing, ensure that there is effective control of
hazardous air emissions by complying with all applicable NESHAP
standards, and with the requirements of 40 CFR part 264 or 265 subparts
AA, BB, CC; and
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\35\ These standards would be specified in the regulatory
language of this exclusion, but would be the same technical
standards as those required in 40 CFR part 264 subparts I and J.
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e. Meet the requirements prohibiting speculative accumulation per
40 CFR 261.1(c)(8).
The rationale for the data elements under each condition is
provided below. EPA requests comment on each of the conditions, the
specific data elements under each condition, and/or any other types of
scenarios that might also meet EPA's proposed definition of re-
manufacturing (i.e., the transfer of a higher-value secondary material
from one manufacturer to another, for the purpose of keeping the
hazardous secondary material in commerce to produce a commercial grade
product). In addition, EPA requests comment on whether, as part of the
re-manufacturing plan, the hazardous secondary materials generator and
the re-manufacturer should be required to estimate the energy and
environmental benefits of re-manufacturing versus the use of virgin
feedstock.
[[Page 44134]]
1. Designated Solvents
EPA has identified 18 chemicals that could be included in the re-
manufacturing exclusion. They are toluene, xylenes, ethylbenzene,
1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl
tert-butyl ether, acetonitrile, chloroform, chloromethane,
dichloromethane, methyl isobutyl ketone, N,N-dimethylformamide,
tetrahydrofuran, n-butyl alcohol, ethanol, and methanol.\36\
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\36\ U.S. EPA, Selection of Industry Sectors, Chemicals and
Functions in the Re-manufacturing Exclusion, June 2011.
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EPA believes that including these 18 chemicals in a re-
manufacturing exclusion is a good opportunity for reducing the risks
associated with these chemicals at the present time. Risk is a function
of hazard and exposure, and, from a hazard perspective, all of these
chemicals have suspected or recognized hazardous health effects
associated with their manufacture, processing, and use.\37\ Although
EPA and industry have been working to find substitutes for the more
hazardous of these solvents, or find ways to use less of them, this has
not yet been achieved.\38,\ \39\ With respect to the pharmaceutical
sector in particular, complex chemical processes already registered
with the Food and Drug Administration are involved, and EPA has found
this a very challenging area to address. In addition, some of these
solvents are building block and primary intermediate chemicals, making
them difficult to replace. Until lower-risk substitutes for these
solvents are found, it is helpful from a health risk standpoint to
minimize the volume of solvents manufactured and to limit exposure to
those already manufactured. This is something that the re-manufacturing
exclusion can help achieve.
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\37\ Allen, D., Shonnard, D, Green Engineering: Environmentally
Conscious Design of Chemical Processes, Risk Concepts, chapter 2,
pgs 35-62, Austin, S., US EPA Editor, Published by Prentice-Hall,
2001.
\38\ For information on U.S. EPA's Green Chemistry Program, see
http://www.epa.gov/gcc/.
\39\ Information on the American Chemical Society's Green
Chemistry Institute's Pharmaceutical Roundtable is available via the
ACS Web site http://portal.acs.org/portal/acs/corg/content.
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The exclusion can help reduce exposure to these solvents in three
ways. First, the exclusion would extend the useful life of existing
solvents, which would reduce the health risks associated with their
manufacture by slowing the rate at which they are manufactured. Second,
the exclusion would reduce exposure to solvents already manufactured by
reducing the fuel blending of spent solvents. Re-manufacturing a spent
solvent will eliminate the need for blending it with another spent
solvent to satisfy the fuel-ratio requirements of incinerators and
cement kilns. This, in turn, will reduce the fugitive emissions
associated with unloading and loading containers of volatile solvents
at fuel-blending facilities. All solvents are volatile, and virtually
all spent solvents must go through the fuel-blending process prior to
disposal.\40\ Third and finally, the exclusion can reduce the potential
exposure from any transportation incidents, since it is likely spent
solvents can be transported shorter distances for re-manufacturing
purposes than they can for disposal purposes.\41\
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\40\ U.S. EPA, Selection of Industry Sectors, Chemicals and
Functions in the Re-manufacturing Exclusion, June 2011.
\41\ Id.
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These 18 solvents are used in large volumes as chemical
manufacturing aids, chemical processing aids, and chemical formulation
aids (generally referred to as ``processing aids'' for the purpose of
this rule). The ``processing aids'' solvents assist in the reaction,
extraction, purification, and blending of ingredients and reactive
products, but are not themselves reacted. These processing aid
solvents, once used, can then be re-manufactured to commercial grade
again. These higher-value solvents were selected because there are
existing markets for all these solvents to be re-manufactured to serve
similar purposes to those of the original commercial-grade materials.
Note that, as explained below, these hazardous spent solvents would
only be eligible if their originating use was of a specific type, and
if they are re-manufactured to serve certain types of commercial
functions. This restriction would help limit the exclusion to higher-
value materials and processes that resemble manufacturing more than
waste management.
EPA believes that spent solvents are particularly appropriate for
the re-manufacturing exclusion because they are derived from a non-
renewable resource (petroleum), and they are manufactured in the
industrial chemicals sector, which, according to EPA's report on
sustainable materials management, ranks third overall as far as direct
adverse overall impact to the environment.\42\ EPA requests comment on
whether these solvents are appropriate for inclusion in the re-
manufacturing exclusion, and whether there are other solvents,
chemicals or other types of hazardous secondary materials that should
be included in the re-manufacturing exclusion. In particular, EPA
requests comment on opportunities for re-manufacturing other types of
non-renewable hazardous secondary materials, such as metal catalysts or
other types of metal-bearing hazardous secondary materials.
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\42\ U.S. EPA. 2020 Vision Report: Sustainable Materials
Management: The Road Ahead, Table 1, page 25. http://www.epa.gov/waste/inforesources/pubs/vision.htm. The other top ranked sectors
are electric services (1) and cotton production
(2).
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2. Chemical Functions
EPA believes that the re-manufactured chemical product should serve
a similar functional purpose as the original commercial-grade material
so that it can substitute for virgin product, since it is this
substitution that displaces some manufacturing of virgin product and
fosters a system where the original solvent remains in commerce and is
not discarded. EPA has identified the following chemical functions for
possible inclusion in the re-manufacturing exclusion: chemical
manufacturing aid (reacting, extracting, blending and/or purifying
chemicals), and chemical processing aid (extracting, blending and
purifying chemicals).\43\ The solvents used for these functions can be
separated readily from the other reaction components and therefore do
not get contaminated as do solvents used for cleaning or degreasing
operations, which are more likely to become discarded.
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\43\ U.S. EPA, Selection of Industry Sectors, Chemicals and
Functions in the Re-manufacturing Exclusion, June 2011.
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More environmental benefits will be obtained by maximizing the
number of times a chemical product can be used at high-purity grade as
an aid to chemical manufacturing and processing, before it is used for
at lower-purity as a cleaner or degreaser. While it is possible to
extend the product life of a used chemical as a cleaner/degreaser, it
takes significantly less energy to bring solvents used as chemical
manufacturing aids back to commercial grade than to bring solvents used
as cleaners and degreasers back to lower grade functionality, making
re-manufacturing of the higher-value solvents more economically
feasible.
Accordingly, the functions that the re-manufactured chemical
products should serve would be the same as those enumerated above, plus
the use in the formulation of the final product (a function which
causes the solvent to remain in the product), or use as a chemical
intermediate (a function which causes the solvent to be consumed in a
chemical reaction).
With respect to the hazardous secondary material generator, this
[[Page 44135]]
exclusion would focus on the functions of aiding chemical manufacturing
and processing because the solvents performing these functions retain
their original physical and chemical properties. In these functions,
the solvents do not get contaminated by substances from which they are
difficult to separate, such as inks and greases, but only get mixed
with pure product ingredients, from which they can be separated readily
in a commercially feasible manner. Furthermore, manufacturing and
processing operations can be more easily controlled in terms of
exposure and releases, whereas the spent solvents from downstream uses
such as degreasing and cleaning operations are of inherently lower-
value and these downstream operations result in more widespread
exposure and releases and a higher potential for discard.
EPA requests comment on whether these chemical functions are
appropriate for inclusion in the exclusion and whether there are other
chemical functions that should also be included in the re-manufacturing
exclusion.
3. Manufacturing Sectors
EPA intends that any exclusion would be limited to companies whose
primary business is manufacturing, rather than waste management, as
indicated by particular NAICS codes. EPA has identified the operations
of four manufacturing sectors as candidates for the re-manufacturing
exclusion: Pharmaceutical manufacturing (NAICS 325412), basic organic
chemical manufacturing (NAICS 325199), plastics and resins
manufacturing (NAICS 325211), and the paints and coatings manufacturing
sectors (NAICS 325510). Manufacturers within these four sectors all use
one or more of the eighteen identified solvents as chemical
manufacturing, processing, and formulation aids in high volumes. Based
on the Toxics Release Inventory information, these four sectors are
also closely associated with the chemical functions identified in the
exclusion and currently use a high volume of the solvents for the
functional purposes included in this exclusion. Therefore, these four
sectors seem to be good candidates for inclusion in the exclusion.\44\
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\44\ U.S. EPA, Selection of Industry Sectors, Chemicals and
Functions in the Re-manufacturing Exclusion, June 2011
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As discussed earlier, companies whose primary business is the sale
of a commercial product do not operate under the same market forces as
commercial recyclers, whose profit depends on maximizing the amount of
hazardous secondary material accepted, creating a perverse market
incentive to over-accumulate hazardous secondary material, resulting in
discard. It is not intended that the exclusion could be utilized by a
commercial recycler even if it undertook reclamation operations
involving the chemicals and chemical functions described above.
Commercial recyclers are best regulated by the RCRA hazardous waste
standards since waste handling is their primary business and RCRA
standards are the primary governing standards for this line of
business.
EPA requests comment on whether these sectors are appropriate for
inclusion in the exclusion, and whether there are other industry
sectors that should be included in the re-manufacturing exclusion. In
particular, while the re-manufacturing exclusion on which EPA is
requesting comment focuses on those industry sectors that generate
large volumes of spent solvents, we also are interested in other
industry sectors that would generate other materials, especially other
types of non-renewable materials, such as metal-bearing hazardous
secondary materials. For example, the ``2020 Vision Report'' identifies
industry sectors that could be evaluated and for which significant
environmental gains could be realized through sustainable materials
management. Thus, EPA requests comment on which sectors provide the
most opportunity for reducing overall environmental impact by
encouraging sustainable materials management through re-
manufacturing.\45\
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\45\ For an analysis of materials, products and services ranked
by overall environmental impact, see U.S. EPA. 2020 Vision Report:
Sustainable Materials Management: The Road Ahead, Table 1, page 25.
http://www.epa.gov/waste/inforesources/pubs/vision.htm.
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4. Additional Exclusion Conditions
EPA has identified the following additional conditions as necessary
for the proper implementation of a re-manufacturing exclusion and to
ensure that the hazardous secondary materials are managed in a way that
does not involve discard.
a. Notification. Notification under a re-manufacturing exclusion
would serve the same purpose and operate similarly to the notification
provision found at 40 CFR 260.42. In other words, hazardous secondary
material generators and re-manufacturers would have to submit a
notification prior to operating under the exclusion and by March 1 of
each even-numbered year thereafter using EPA form 8700-12 to the EPA
Regional Administrator or the State Director, in an authorized state.
Additionally, these facilities would have to notify within 30 days of
stopping management of hazardous secondary materials under the
exclusion. The notification would include:
The name, address and EPA ID number (if applicable) of the
facility;
The name and telephone number of a contact person;
The NAICS and TRI code of the facility;
When the facility expects to begin managing the hazardous
secondary material in accordance with the re-manufacturing exclusion;
A list of the hazardous secondary materials that would be
managed according to the new standard (reported as the EPA hazardous
waste numbers that would apply if the materials were managed as
hazardous waste);
The quantity of each hazardous secondary material solvents
to be managed annually; and
The certification signed and dated by an authorized
representative of the facility.
The intent of the notification requirement is to provide basic
information to the regulatory agencies about who will be managing
hazardous secondary materials under the re-manufacturing exclusion. The
specific information included in the notification requirement enables
regulatory agencies to monitor compliance and to ensure hazardous
secondary materials are managed in accordance with the exclusion and
not discarded.
b. Re-manufacturing plan. A key issue for a re-manufacturing
exclusion would be how the facilities operating under the exclusion
would demonstrate that they meet the requirements (e.g., that the
hazardous secondary materials, functions, and manufacturing sectors are
those identified in the exclusion). A straightforward method would be
to require a re-manufacturing plan to be prepared and maintained by
both the hazardous secondary material generator and re-manufacturer
that includes information on the types and expected annual volumes of
solvents to be excluded, the processes and industry sectors that
generate the chemicals, the specific uses and industry sectors--for the
re-manufactured solvents, and the legitimacy of the re-manufacturing
process (see Section X for further discussion on legitimacy). The
hazardous secondary material generator would also be required to make
arrangements with the re-manufacturer to jointly develop this plan and
to verify the appropriateness of the hazardous secondary materials for
the re-
[[Page 44136]]
manufacturing process before claiming the exclusion, thus helping
ensure that the hazardous secondary material will be re-manufactured
and not discarded.
c. Record of shipments and confirmations of receipts. Under a re-
manufacturing exclusion, generators and re-manufacturers would need to
maintain at the facility records of shipments of hazardous secondary
materials for a period of three years. Specifically, for each shipment
of hazardous secondary material, the generator and re-manufacturer
would need to maintain documentation of when the shipment occurred, who
the transporter was, and the type and quantity of the hazardous
secondary materials in the shipment. This recordkeeping requirement may
be fulfilled by ordinary business records, such as bills of lading.
However, EPA requests comment on whether for ease of implementation and
enforcement, it should require more standardized record-keeping, such
as the use of a standardized bill of lading.
In addition, generators would need to maintain confirmations of
receipt for all off-site shipments of hazardous secondary materials in
order to verify that the hazardous secondary materials reached their
intended destination and were not discarded. These receipts must be
maintained at the facility for a period of three years from when they
were created. Specifically, the documentation of receipt would include
the name and address of the re-manufacturer, and the type, quantity,
and date of hazardous secondary materials received. The Agency might
not require a specific template or format for confirmation of receipt
since routine business records (e.g., financial records, bills of
lading, copies of Department of Transportation (DOT) shipping papers,
and electronic confirmation of receipt) would contain the appropriate
information sufficient for meeting this requirement. However,
documented information must be verifiable. Therefore, EPA requests
comment on whether for ease of implementation and enforcement, it
should require more standardized record-keeping, such as requiring a
standard method of confirmation of receipt and/or keeping this
information in a readily accessible file.
This provision is being proposed in order that all parties
responsible for the excluded hazardous secondary materials would be
able to demonstrate that the materials were in fact sent for re-
manufacturing and arrived at the intended facility and were not
discarded in transit.
d. Management in tanks and containers. Solvents, whether virgin or
spent, are best stored in tanks or containers that possess inherent
controls to address issues such a volatile air emissions, leaks, and
fires or explosions. As discussed in Section VI of this preamble, spent
solvents present particular management challenges associated with the
storage of liquids containing volatile organic chemicals and include
both halogenated and non-halogenated organic chemicals, which represent
a broad range of chemicals and associated hazards.
EPA believes that by focusing on higher-value spent solvents going
to re-manufacturing, a re-manufacturing exclusion reduces the chance of
mismanagement of the spent solvents. However, given the history of
solvent mismanagement, as demonstrated in the damage cases found in
environmental problems study,\46\ EPA also believes it would be
appropriate to make an explicit condition that spent solvents excluded
under a re-manufacturing exclusion be labeled or otherwise have an
immediately available record of the material being stored and be stored
prior to re-manufacturing in tanks or containers that meet technical
standards that will ensure that the solvents will go to re-
manufacturing and will not be discarded via leaks, spills or
explosions.
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\46\ U.S. EPA An Assessment of Environmental Problems Associated
With Recycling of Hazardous Secondary Materials (EPA-HQ-RCRA-2002-
0031-0355).
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For ease of implementation, EPA requests comment on establishing
explicit tank and container standards which meet the technical
standards that would be the same as those found in 40 CFR part 264
subparts I and J. The tank and container standards of 40 CFR part 264
were developed for hazardous wastes, but an analysis of the full set of
technical requirements under subparts I and J shows that they are
comparable to product storage standards from a number of sources,
including regulations promulgated under the Occupational Safety and
Health Act (OSHA), DOT, and industry standards, and may also be
appropriate standards for storage prior to re-manufacturing.\47\
Establishing technical standards equivalent to subparts I and J has the
benefit of using standards that the regulated community are already
familiar with, and which are designed to prevent the spent solvents
from being discarded through leaks or explosions. EPA also believes
that during re-manufacturing and storage prior to re-manufacturing,
there should be effective controls of hazardous air emissions. This can
be ensured by requiring that equipment, vents, and tanks meet the
technical standards of the National Emission Standards for Hazardous
Air Pollutants (NESHAP) applicable to the sector, or absent such
standards for the particular operation or piece of equipment covered by
the exemption, then the standards equivalent to those found in 40 CFR
part 264 or 265 subparts AA (vents), BB (equipment) and CC (tank
storage).
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\47\ U.S. EPA Equivalent Containment Standards for the Re-
manufacturing Exclusion, June 2011.
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EPA requests comment on using these standards or other alternative
standards that would be appropriate for helping to demonstrate that the
excluded spent solvents under the re-manufacturing exclusion are being
managed as a commodity rather than being discarded.
e. No speculative accumulation. In addition to the other
conditions, hazardous secondary materials under a re-manufacturing
exclusion would still be subject to the speculative accumulation
restrictions in 40 CFR 261.1(c)(8), which includes both a time
limitation and a requirement that the facility be able to show that
there is a feasible means of recycling/recovering the hazardous
secondary material. This helps ensure that the materials are re-
manufactured and not discarded.
EPA requests comment on whether these conditions are appropriate
and whether there are additional conditions that should be also
included in any re-manufacturing exclusion.
C. Benefits of Re-Manufacturing Exclusion
The solvents identified as possible candidates for a re-
manufacturing exclusion are highly energy-intensive and carbon-
intensive at their creation and destruction. Therefore, any step
towards extending the useful life of these solvents (e.g., re-
manufacturing via distillation) significantly reduces the energy use
and carbon release associated with these solvents, as well as other
pollutants associated with their manufacturing and disposal.\48\ Using
solvents multiple times instead of once means fewer solvents need to be
produced and destroyed, which reduces the energy consumed for solvent
production and destruction. That is, less fuel is needed to re-
manufacture solvents than to produce solvents from virgin materials.
The reduction in fuel for manufacturing is significant because solvent
manufacture is energy intensive due to a combination of the high and
low temperature manufacturing steps involved. Also, less fuel is needed
to destroy solvents (at very high temperatures) if fewer solvents are
being
[[Page 44137]]
destroyed. Lastly, less pollution, including carbon, is released from
the solvents themselves when incinerated or burned as fuel at the end
of their useful life if fewer solvents are being incinerated or
burned.\49\
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\48\ U.S. EPA Benefits of the Re-manufacturing Exclusion, June
2011.
\49\ U.S. EPA Benefits of the Re-manufacturing Exclusion, June
2011.
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There is also a benefit of reduced transportation impacts
associated with extending the useful life of solvents. EPA research
indicates that in numerous instances the transport involved in
transferring a quantity of spent solvents for purposes of re-
manufacturing (including any delivery to secondary users) is measurably
less than the transport required for an equal quantity of solvents
disposed of and replaced with new solvents.\50\ In addition,
transportation impacts of virgin feedstocks would also be reduced.
Thus, allowing hazardous secondary material generators to re-
manufacture solvents is also likely to reduce the risks to communities
by reducing the likelihood of transportation accidents involving
hazardous materials, as well as reducing other adverse environmental
impacts from fuel consumed in transportation.
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\50\ U.S. EPA Benefits of the Re-manufacturing Exclusion, June
2011.
.
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Further, reduced manufacturing of virgin solvents would reduce the
quantity of ingredients needed and the toxic and hazardous pollutant
releases associated with solvent manufacture. Moreover, a re-
manufacturing exclusion would create a business-case incentive for
hazardous secondary material generators to re-manufacture solvents.
Reducing the economic barriers to solvent re-manufacturing (in
particular, avoiding the costs associated with RCRA permitting) would
make it commercially feasible for more chemical manufacturers to re-
manufacture solvents, and would thus serve to encourage chemical
manufacturers to reduce the overall environmental impacts of solvent
manufacturing and use.
Finally, the benefit of limiting the functions of re-manufactured
material to those performed by chemical manufacturers, processors, and
formulators is that there are existing commercial purposes for re-
manufactured solvents, which would limit or prevent the over-
accumulation of the spent solvents, which also reduces the likelihood
for discard.
D. Potential Rulemaking Variance Process To Add Candidates for Re-
Manufacturing Exclusion
EPA is requesting comment in today's proposal on a re-manufacturing
exclusion that is narrowly defined to apply to 18 solvents used for
specific functions within four industry sectors. However, it is
possible that other hazardous secondary materials, industry sectors,
and/or functional uses may also be suitable candidates for the re-
manufacturing exclusion if they involve the transfer of a higher-value
hazardous secondary material from one manufacturer to another, for the
purpose of re-manufacturing a material with significant commercial
value. If the Agency were to promulgate a re-manufacturing exclusion,
EPA is requesting comment on whether to also include a specific
petition process where petitioners may apply to EPA to request a
hazardous secondary material, industry sector, and/or functional use be
added to the exclusion.
The petition process would be similar to 40 CFR 260.20, where any
person may petition the Administrator to modify or revoke any
provisions of the hazardous waste rules. Thus, in the context of a re-
manufacturing exclusion, any person would be able to petition the
Administrator to add or remove hazardous secondary materials, industry
sectors, and/or specific use functions to the list of hazardous
secondary materials qualifying for this exclusion. To be successful,
the petitioner would need to demonstrate to the satisfaction of the
Administrator that the proposed regulatory amendment (1) meets the goal
of the re-manufacturing exclusion, which is to encourage sustainable
materials management by extending the productive life of a hazardous
secondary material; (2) involves the transfer of a higher-value
hazardous secondary material from one manufacturer to another for the
purpose of re-manufacturing the hazardous secondary material to produce
a product of significant commercial value; and, (3) results in neither
the hazardous secondary materials nor the products recovered being
discarded when the conditions of the exemption are followed. The
application could be required to include (1) the petitioner's name and
address; (2) a statement of the petitioner's interest in the proposed
action; (3) a description of the proposed action, including the
specific hazardous secondary material, industry (i.e., NAICS code) and
functional use (i.e., industrial functional code listed in 40 CFR
710.52(c)(4)(i)(C)); and (4) a statement of the need and justification
for the proposed action, including any supporting tests, studies, or
other information.
Under this possible petition process, the Administrator would make
a tentative decision to grant or deny a petition and then publish
notice of such tentative decision, either in the form of an advanced
notice of proposed rulemaking, a proposed rule, or a tentative
determination to deny the petition, in the Federal Register for written
public comment. The Administrator could, at his discretion, hold an
informal public hearing to consider oral comments on the tentative
decision.
After evaluating all public comments, the Administrator would make
a final decision by publishing in the Federal Register a regulatory
amendment or a denial of the petition.
E. Other Issues Related to a Possible Re-Manufacturing Exclusion
A re-manufacturing exclusion, as described above, would be based on
a direct business arrangement between the hazardous secondary material
generator of spent solvents and the re-manufacturer, such that the
spent solvents would be shipped directly from the generator to the re-
manufacturer. Therefore, EPA does not believe that it would be
necessary or appropriate to include intermediate storage facilities in
the exclusion. We also believe that including such intermediate storage
facilities would make it harder to keep track of the hazardous
secondary materials and would increase storage time frames, potentially
increasing the likelihood that the hazardous secondary materials will
not be safely recycled. However, the Agency also recognizes that not
allowing intermediate storage facilities to be part of the transaction
may have an adverse impact on small businesses since such intermediate
storage facilities would allow small businesses to ship their spent
solvent, that are likely generated in limited quantities, to the
intermediate facility for consolidation before they go to the re-
manufacturer. Thus, EPA requests comment on this issue.
Similarly, EPA anticipates that re-manufacturing arrangements would
be made within the United States, so that the companies involved would
be governed by the same set of laws and regulations as far at their re-
manufacturing agreements are concerned. EPA requests comment on
limiting the re-manufacturing exclusion to the United States, or
requiring the generator to notify the receiving country through EPA and
obtain consent from that country before shipment of the
[[Page 44138]]
hazardous secondary materials takes place. These notice and consent
requirements, which would be the same as those currently required under
the transfer-based exclusion (see 40 CFR 261.4(a)(25)), would provide
notification to the receiving country so that it can ensure that the
hazardous secondary materials are reclaimed rather than disposed of or
abandoned. As an additional benefit, these requirements would allow the
receiving country the opportunity to consent or refuse consent based on
its analysis of whether the re-manufacturing facility can properly
manage the hazardous secondary materials in an environmentally sound
manner within its borders.
EPA also requests comment on other possible conditions that could
be added to any re-manufacturing exclusion. In particular, EPA requests
comment on whether it should require the re-manufacturer to have
financial assurance. EPA required financial assurance for recyclers
under the transfer-based exclusion. Since the re-manufacturing
exclusion will be limited to higher-value solvents going to
manufacturers with a greater flexibility than commercial recyclers to
adjust to unstable markets, there may be less of a need for financial
assurance under this proposed exclusion. However, EPA requests comment
on whether financial assurance should nevertheless be included as a
condition to best ensure against discard. EPA also requests comment on
whether it should add public participation requirements and/or a
regulatory agency approval (short of a RCRA permit) before a re-
manufacturer may start handling hazardous secondary materials sent from
another company. EPA received input during its environmental justice
review of the 2008 DSW final rule that the absence of an opportunity
for public input was a deficiency of the transfer-based exclusion.
However, since the re-manufacturing exclusion will be limited to
manufacturing facilities, typically at their already existing
locations, and actually may reduce the environmental impacts at such
facilities, the need for public participation may be less. However, EPA
requests comment on whether it should nevertheless require a public
participation process to ensure that neighbors of a facility are aware
that it will be handling hazardous secondary materials sent from other
companies, and have input about how the protective conditions required
by the proposed exclusion will be met. Finally, EPA requests comment on
whether companies should be required to keep records and/or report to
EPA about the environmental benefits (e.g., reduced air emissions,
energy savings, reduced transportation impacts) that are realized
through their use of the re-manufacturing exclusion. EPA could then use
this information to measure performance of the exclusion, enable public
reporting of results, and facilitate information transfer in which
other companies can learn how to achieve similar benefits.
Additionally, we note that many companies already take advantage of
reporting tools in order to track progress towards corporate
sustainability goals and thus we believe that reporting would not pose
an undue burden on facilities.
XIII. Request for Comment on Revisions to Other Recycling Exclusions
and Exemptions
A. Background Information on Other Recycling Exclusions and Exemptions
As part of the 2008 DSW rulemaking, EPA developed a report, ``An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials'' (environmental problems study), which
analyzed 218 recycling damage cases.\51\ The goal of the environmental
problems study was to identify and characterize environmental problems
that have been attributed to hazardous secondary materials recycling
activities. EPA then used the findings from this study to craft a
number of conditions for the 2008 DSW final rule, which were
specifically designed to target the major causes of damage and thus
help define ``discard'' of hazardous secondary materials. These
conditions, however, were applied only to the 2008 DSW exclusions. In
developing today's proposal, we are interested in whether these
conditions should be codified for the pre-2008 recycling exclusions and
exemptions.
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\51\ The original environmental problems study, published
January 11, 2007, reviewed 208 damage cases. Based on information
submitted by commenters, EPA reviewed an additional 10 recycling
damage cases in an addendum to the environmental problems study,
published July 14, 2008.An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials, U.S.
EPA, January 11, 2007 and addendum. Report: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064801f3efb. Addendum (July 2008):
http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064806b5741, Addendum (June 2011)
found in today's docket.
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As part of the ``Environmental Justice Analysis of the Definition
of Solid Waste Rule'' (EJ analysis), EPA reviewed and analyzed each
damage case in the environmental problems study, including five
additional damage cases that were identified after the 2008 DSW final
rule was promulgated, and determined the regulatory provision that
likely, or potentially, governed the management of the hazardous
secondary materials. This analysis was based on the type of hazardous
secondary material and the date of the damage case (related to the
effective date of the regulatory provision), the results which can be
found in the docket for this rulemaking.\52\
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\52\ U.S. EPA Correlation of Recycling Damage Cases with
Regulatory Exclusions, Exemptions or Alternative Standards.
---------------------------------------------------------------------------
From this analysis, we conclude that over half of the damage cases
in this study were associated with hazardous secondary materials that
were likely excluded or exempted from Subtitle C under an existing
(pre-2008) regulatory provision. For example, 52 damage cases (23%) are
associated with scrap metal that is likely excluded under 261.4(a)(13)
and/or 261.6(a)(3)(ii). Drum reconditioning accounted for 23 damage
cases (10%), in which the residuals are likely excluded under 40 CFR
261.7. Additionally, 35 damage cases (16%) were associated with
recycling of batteries that are likely managed under 40 CFR 273.2 and/
or 40 CFR part 266 subpart G. Based on these results, and given that
many of the pre-2008 recycling exclusions specify limited or no
conditions, we believe that these provisions may not be adequately
enforceable in order to protect human health and the environment. Thus,
we are requesting comment today on codifying specific conditions for
these recycling exclusions.
EPA emphasizes that we are not reopening comment on any substantive
provisions of the regulatory exclusions or exemptions. The inclusion of
requirements for legitimacy, containment, and notification are strictly
meant as means to better enforce the regulations. Moreover, EPA
believes that the containment condition--as with the legitimacy
criteria--is implicit in all of the regulations to which it would
apply. If secondary material is not contained when it is being
recycled, it is simply being discarded.
As part of the 2008 DSW final rulemaking, we reviewed the recycling
studies and public comments in order to develop conditions that defined
discard of hazardous secondary materials. Four conditions required for
the generator-controlled exclusion in 40 CFR 261.4(a)(23)--legitimate
recycling, no speculative accumulation, containment, and notification--
constitute what we believe to be the minimum requirements necessary to
define when recycled
[[Page 44139]]
hazardous secondary materials are not discarded. Therefore, it seems
prudent to review past exclusions and exemptions to ensure these
regulatory provisions clearly require these newly codified standards.
Specifically, we are requesting comment on codifying the legitimate
recycling standard in 40 CFR 260.43, additional recordkeeping
requirements in the speculative accumulation standard in 40 CFR
261.1(c)(8), the contained standard in 40 CFR 260.10, and the
notification provision in 40 CFR 260.42 for 32 regulatory provisions
that exclude or exempt certain types of recycling from full Subtitle C
regulation. A list of these 32 regulatory provisions can be found
below. The new legitimacy standard would apply to all regulatory
provisions except for 40 CFR 261.7, because it involves determining
whether residues in containers are regulated, and no hazardous
secondary material is being reclaimed. The contained standard and
notification condition would apply to all provisions, although
facilities operating under provisions that already contain specific
regulatory requirements would have to continue meeting those
requirements. The additional recordkeeping requirements for speculative
accumulation would only apply to those regulatory provisions already
subject to speculative accumulation (i.e., hazardous secondary material
being used or reused per 261.2(e), characteristic by-products and
sludges being reclaimed as noted in 40 CFR 261.2 Table 1, and the
recycling-related exclusions in 40 CFR 261.4(a)), but would not apply
to commercial chemical products being reclaimed (see 40 CFR 261.2 Table
1) or to recycling provisions that apply to recycling of solid or
hazardous wastes (as noted in the chart below).
------------------------------------------------------------------------
--Citation Description
------------------------------------------------------------------------
260 & 261 Definition of Solid Waste
------------------------------------------------------------------------
1--260.30.............................. Procedures for variances and
non-waste determinations.
2--261.2 (e)........................... Use/Reuse.
3--261.2 Table 1....................... Characteristic sludges being
reclaimed.
4--261.2 Table 1....................... Characteristic by-products
being reclaimed.
5--261.2 Table 1....................... Commercial chemical products
being reclaimed.
------------------------------------------------------------------------
261.4(a) Exclusions from the Definition of Solid Waste
------------------------------------------------------------------------
6--261.4(a)(6)......................... Pulping Liquors.
7--261.4(a)(7)......................... Spent Sulfuric Acid.
8--261.4(a)(8)......................... Closed-Loop Recycling.
9--261.4(a)(9)......................... Spent Wood Preservatives.
10--261.4(a)(10)....................... Coke By-Product Wastes.
11--261.4(a)(11)....................... Splash Condenser Dross Residue.
12--261.4(a)(12)....................... Hazardous Oil-Bearing Secondary
Materials and Recovered Oil
from Petroleum Refining
Operations.
13--261.4(a)(13)....................... Processed Scrap Metal.
14--261.4(a)(14)....................... Shredded Circuit Boards.
15--261.4(a)(16)....................... Comparable Fuels.
16--261.4(a)(17)....................... Mineral Processing Spent
Materials.
17--261.4(a)(18)....................... Petrochemical Recovered Oil.
18--261.4(a)(19)....................... Spent Caustic Solutions from
Petroleum Refining.
19--261.4(a)(20)....................... Hazardous Secondary Materials
Used to Make Zinc Fertilizers.
20--261.4(a)(21)....................... Zinc Fertilizers Made from
Recycled Hazardous Secondary
Materials.
21--261.4(a)(22)....................... Used Cathode Ray Tubes (CRTs).
------------------------------------------------------------------------
261.4(b) Solid wastes which are not hazardous wastes
------------------------------------------------------------------------
22--261.4(b)(12)....................... Spent Chlorofluorocarbon
Refrigerants.
23--261.4(b)(14)....................... Used Oil Distillation Bottoms
used to manufacture asphalt
products.
------------------------------------------------------------------------
261.6 Requirements for recyclable materials (hazardous wastes)
------------------------------------------------------------------------
24--261.6(a)(3)(ii).................... Scrap metal.
25--261.6(a)(3)(iii)................... Waste-derived fuels from
refining processes.
26--261.6(a)(3)(iv).................... Unrefined waste-derived fuels
and oils from petroleum
refineries.
27--261.6(c)(2)........................ Reclaimers that do not store.
------------------------------------------------------------------------
261.7 Residues of hazardous waste in empty containers
------------------------------------------------------------------------
28--261.7.............................. Residues of hazardous waste in
empty containers.
------------------------------------------------------------------------
Part 266 Standards for the Management of Specific Hazardous Wastes
------------------------------------------------------------------------
29--266 Subpart C...................... Recyclable Materials Used in a
Manner Constituting Disposal.
------------------------------------------------------------------------
30--266 Subpart F...................... Materials Utilized for Precious
Metal Recovery.
31--266 Subpart G...................... Spent Lead-Acid Batteries Being
Reclaimed.
32--266 Subpart H...................... Hazardous Waste Burned in
Boilers and Industrial
Furnaces.
------------------------------------------------------------------------
Note that the possible changes discussed below would be in addition
to the proposed application of the definition of legitimacy to all
recycling, discussed in Section X of this preamble, and the request for
comment on
[[Page 44140]]
additional recordkeeping for speculative accumulation, discussed in
Section IX.B.2 of this preamble.
B. Possible Changes to Other Exclusions and Exemptions
1. Contained Standard
Under the 2008 DSW final rule, hazardous secondary materials must
be contained, whether they are stored in land-based units or non-land-
based units. Generally, such material is considered ``contained'' if it
is placed in a unit that controls the movement of the hazardous
secondary material out of the unit and into the environment. Hazardous
secondary materials that are released to the environment are not
destined for recycling and are clearly discarded. Additionally,
hazardous secondary materials that are not contained, and have not been
immediately recovered, are not being managed as valuable commodities,
which is relevant to determining whether the recycling process is
legitimate. Lastly, requiring that hazardous secondary materials be
contained ensures that the materials are managed in a manner protective
of human health and the environment.
In the environmental problems study, mismanagement of hazardous
secondary materials was determined to be the cause, or one of the
causes, in 11 percent of the damage cases. Since many of these damage
cases have been associated with a pre-2008 recycling provision, we
believe it appropriate to close this gap by specifically requiring
compliance with the contained standard in 40 CFR 260.10. Of course,
facilities operating under provisions that already contain management
requirements would have to continue meeting those requirements.
2. Notification
Under the 2008 DSW final rule, facilities managing hazardous
secondary materials are required to submit a notification prior to
operating under the exclusions and by March 1 of each even-numbered
year thereafter to the EPA Regional Administrator or State Director, if
a state is authorized for the program, using the Site ID form, EPA Form
8700-12. The intent of this notification requirement is to provide
basic information to regulatory authorities in order to enable adequate
compliance monitoring and to ensure hazardous secondary materials are
managed according to the exclusion and are not discarded. For example,
in the notification, EPA requires facilities to include the quantity of
hazardous secondary materials that will be managed under each exclusion
and disclose whether certain types of hazardous secondary materials
will be managed in land-based units. This information can be used to
assist RCRA inspectors in determining which facilities may warrant
greater oversight and provides a basis for setting enforcement
priorities. Furthermore, requiring facilities to notify when they have
stopped managing hazardous secondary materials allows states to follow
up at those facilities and ensure that the hazardous secondary
materials have not been discarded.
Notification information is collected in EPA's RCRAInfo database,
which is the national repository of all RCRA Subtitle C site
identification information, whether collected by a state or EPA. EPA
provides public access to this information through EPA's public Web
site.\53\
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\53\ http://www.epa.gov/epawaste/hazard/dsw/impresource.htm.
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The 2008 DSW final rule differed from other prior exclusions
because it required facilities claiming the exclusion to notify EPA, or
the authorized state, using an established EPA form (i.e., the Site ID
form) and required facilities to re-notify every two years. Together,
these requirements provide regulatory authorities with regularly
updated data in a consistent format that enables them to collect,
store, access, use, and publicly share information about these
facilities. In contrast, many of the pre-2008 DSW recycling exclusions
and exemptions do not contain any notification requirement and the few
provisions that do require notification do not require a specific
format for submitting the information or periodic updates. This results
in facilities providing information in various forms, such as letters,
which makes it difficult for regulatory authorities to share and use
the information.
Additionally, a one-time notification requirement has limited
value. With a one-time notification approach, there is no assurance
that the information collected in EPA's databases over time will
accurately reflect facilities that are managing hazardous secondary
materials according to the exclusions. Therefore, the Agency can
imagine instances where extensive resources are required to be spent on
`cleaning up' the data before regulatory authorities can use it to
identify facilities who are currently managing hazardous secondary
materials under the exclusions. With a one-time notification, we can
also foresee problems where regulatory agencies spend time and
resources monitoring compliance at facilities that have since stopped
managing hazardous secondary materials at some point in the past. This
inefficient use of resources would lower the overall effectiveness of
regulators' ability to monitor compliance and could potentially
increase the risk of environmental damage from abuse.
In the time since the 2008 DSW final rule became effective, we have
received more than 40 notifications from facilities managing hazardous
secondary materials under the generator-controlled and/or transfer-
based exclusions. This information has directly enabled regulatory
authorities to monitor compliance and assist implementation via
guidance materials and training. Additionally, notification has had the
added benefit of identifying facilities that planned to manage
hazardous secondary materials under the rule, but were, in fact,
ineligible for the exclusions. (For example, we have received
notifications from facilities located in a state that had not adopted
the 2008 DSW final rule.) Notification in these instances allowed
regulatory authorities to identify problems and to intervene early to
prevent potential mismanagement.
In the case of the many of the pre-2008 recycling exclusions and
exemptions, we do not require notification (and even in those instances
where we require notification, it is a one-time notification) and thus
have no reliable or efficient way to receive information that enables
regulatory authorities to adequately monitor these exclusions and
exemptions. We believe this gap increases the risk of environmental
damage stemming from improper management of hazardous secondary
materials being recycled. We, therefore, are requesting comment on
whether to require notification for those facilities operating under
pre-2008 recycling exclusions and exemptions.
Specifically, we are requesting comment on codifying notification
under Sec. 260.42 for facilities managing hazardous secondary
materials under the pre-2008 recycling provisions. For those exclusions
and exemptions that already require a one-time notification,
notification under Sec. 260.42 would replace, and not duplicate, the
one-time notification requirement.
XIV. Effect of This Proposal on Other Programs
A. Effect on Permitted and Interim Status Facilities
In the 2008 DSW final rule, EPA discussed how that rule would
affect permitted and interim status facilities.
[[Page 44141]]
Specifically, the Agency explained that permitted and interim status
disposal facilities that manage hazardous wastes excluded under the
2008 DSW final rule are affected by the final rule in a number of ways,
depending on the situation at the facility. (74 FR 64715-7) If a
permitted facility seeks to either terminate its operating permit or to
remove units from its permit as a result of the 2008 DSW final rule, a
facility must submit a Class I permit modification request with prior
Agency approval; however, the obligation to address facility-wide
corrective action remains in effect. Similarly, for facilities
operating under interim status, the owner or operator retains
responsibility for unaddressed corrective action obligations at the
facility.
However, if EPA finalizes today's proposal to replace the transfer-
based exclusion with an alternative Subtitle C regulatory approach, EPA
anticipates that the number of permitted and interim status facilities
that are able to take advantage of the exclusion would be significantly
reduced, because most of the permitted and interim status facilities
affected by the 2008 final rule are excluded under the transfer-based
exclusion. Furthermore, if EPA finalizes the re-manufacturing exclusion
discussed in Section XII of this preamble, the Agency would not expect
TSDFs to be affected, since that exclusion would be limited to
manufacturers. Regardless of the ultimate scope of the exclusion,
however, facilities with units covered by the exclusion should continue
to refer to the preamble in the 2008 final rule (at FR 64715-17) for a
discussion of the effect of the exclusion on permitted and interim
status facilities.
B. Effect on CERCLA
In 1999, Congress enacted the Superfund Recycling Equity Act
(SREA), explicitly defining those hazardous substance recycling
activities that may be exempted from liability under CERCLA (CERCLA
section 127). Today's proposal, if finalized, would not change the
universe of recycling activities that could be exempted from CERCLA
liability pursuant to CERCLA section 127. The proposal would only
change the definition of solid waste for purposes of the RCRA Subtitle
C requirements. The proposal also would 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.
C. Effect on the Derived-From Rule
In the 2008 DSW final rule (October 30, 2008, 73 FR 64692), EPA
notes that the ``derived from'' rule articulated in 40 CFR 261.3(c)(2)
does not apply to residuals from the reclamation of hazardous secondary
materials excluded under the generator-controlled and transfer-based
exclusions. These residuals are a new point of generation for the
purposes of applying the hazardous waste determination requirements of
40 CFR 262.11. 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 have to be managed in accordance with applicable state or Federal
requirements for non-hazardous wastes. EPA believes that in most cases,
this would not be an issue because residuals from hazardous secondary
material reclamation that may be of concern would either themselves be
listed hazardous waste (i.e., still bottoms from the reclamation of
solvents listed in 40 CFR 261.31) or would exhibit a characteristic
(i.e., residuals from metals reclamation with hazardous metals
concentrations above the toxicity characteristic in 40 CFR 261.24). EPA
requests comment, including for any available data, on the
hazardousness of reclamation residuals and whether the derived-from
rule would need to be modified to regulate these residuals as hazardous
waste.
D. Effect on Spent Petroleum Catalysts
In the 2008 DSW final rule, EPA deferred the question of whether
spent petroleum catalysts should be eligible for the exclusions pending
further consideration of the pyrophoric properties of the spent
petroleum catalysts (73 FR 64714). EPA noted that the Agency was
planning to propose--in a separate rulemaking from the 2008 DSW final
rule--an amendment to 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. 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 properties (i.e., can ignite
spontaneously in contact with air).
It was largely because of these pyrophoric properties that the
petroleum catalysts exhibit that EPA deferred the question of whether
spent petroleum catalysts should be included in the 2008 DSW final rule
exclusions. While spent petroleum catalysts can be a valuable source of
recoverable metals, the risk of these hazardous secondary materials
spontaneously igniting when in contact with air is not a property that
most metal recyclers would be expected to address, and thus, present
additional risks that are not presented by other types of metal-bearing
hazardous secondary materials and are therefore may be most
appropriately managed as hazardous waste when recycled.
Under today's proposal, EPA is proposing to replace the transfer-
based exclusion with an alternative Subtitle C regulatory approach, and
if finalized, would make the question of the eligibility of most types
of spent catalyst recycling for the 2008 DSW final rule exclusions
moot.\54\ However, EPA is also proposing to add a regulatory definition
of the ``contained'' standard which includes a requirement to address
the risk of fires and explosions. This provision, if properly
implemented, could address the pyrophoric properties of the spent
petroleum catalysts (as well as other types of ignitibility or
reactivity). EPA requests comment on whether this provision would
adequately address the potential for discard of spent petroleum
catalysts due to fire and explosions, thereby allowing EPA to remove
the ineligibility of K171 and K172 from the DSW exclusion, and on other
regulatory options, including adding more conditions (such as specific
container
[[Page 44142]]
standards) specific to pyrophoric materials to the exclusion.
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\54\ The spent catalysts would be eligible for the alternative
Subtitle C regulations discussed in Section VIII of this preamble.
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XV. Implementation Issues With 2008 DSW Final Rule
The 2008 DSW final rule became Federally effective on December 29,
2008. The rule was effective immediately in states and territories for
which EPA manages the RCRA program, specifically Alaska, Iowa, the U.S.
Virgin Islands, the Northern Mariana Islands, American Samoa, and
Tribal lands. The rule does not go into effect in states that are
authorized to manage their own RCRA programs unless and until the state
adopts the rule. Currently, four states--Idaho, Illinois, New Jersey,
and Pennsylvania--have adopted the rule. Within the states and
territories where the 2008 DSW final rule is effective, more than 40
facilities have notified that they are managing hazardous secondary
materials under the generator-controlled and/or the transfer-based
exclusion.
EPA believes that it is important to support effective
implementation of the 2008 DSW final rule in order to ensure that
hazardous secondary materials are properly managed and not discarded.
Our goal is to reduce the risk of mismanagement of hazardous secondary
materials that may occur from misunderstanding the regulations and
incorrect implementation of the requirements and conditions. To this
end, we have worked with the EPA Regions and states to provide training
and guidance materials for regulators and the regulated community.
Since the 2008 DSW final rule was codified, there have been number of
questions from states and the regulated community regarding how the
rule should be implemented and how it operates in special
circumstances.
Today, we are taking the opportunity to clarify these issues in the
context of the 2008 DSW final rule. It should be noted that some of
these implementation issues are specific to the transfer-based
exclusion found at 40 CFR 261.4(a)(24), which EPA is proposing to
replace with alternative management standards under Subtitle C of RCRA.
If EPA finalizes this change, some of these issues would become moot.
A. Mixing of Hazardous Secondary Materials Excluded Under 40 CFR
261.4(a)(24) With Similar Hazardous Wastes \55\
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\55\ This section restates our policy on this issue, which is
published in the ``Guidance for Mixing Hazardous Secondary Materials
Received Under the 40 CFR 261.4(a)(24) Exclusion from the Definition
of Solid Waste with Regulated Hazardous Wastes.'' This guidance can
be found in RCRAOnline and on our DSW Implementation Web site at
http://www.epa.gov/epawaste/hazard/dsw/impresource.htm.
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One issue regards whether hazardous secondary materials excluded
under 40 CFR 261.4(a)(24) can be mixed with other similar hazardous
wastes within permitted units or exempt recycling units and how such
mixing would affect the requirements of the generator and the
reclaimer. Under Sec. 261.4(a)(24), which covers hazardous secondary
materials transferred off-site for reclamation, hazardous secondary
material generators may send their materials to a facility that
operates under a RCRA Part B permit or interim status standards. In
this case, generators are not required to conduct reasonable efforts on
the reclaimer as long as the RCRA Part B permit extends to the
management of the hazardous secondary materials in question. We believe
Part B permits or the interim status standards provide adequate
assurance that the hazardous secondary materials will be well managed,
specifically because the hazardous secondary materials are managed in
units that are subject to stringent design and operating standards, the
reclaimer must demonstrate financial assurance, and the materials are
subject to the corrective action requirements in the event of
environmental problems.
EPA understands that some reclaimers are receiving the same type of
hazardous secondary materials for reclamation from multiple generators,
with some amount excluded under Sec. 261.4(a)(24) and some amount
regulated as hazardous waste. The regulatory status of the material
depends on how the generator who sent the materials chose to manage and
transfer the materials off site. We also understand that reclaimers are
interpreting Sec. 261.4(a)(24) to mean that hazardous wastes and
hazardous secondary materials must be stored in separate units and
reclaimed independently of each other in order to preserve the
regulatory status of the excluded material and the exclusion for the
generators that transferred the hazardous secondary materials to the
reclaimer.
It is clear in the 2008 DSW final rule that EPA allows hazardous
secondary materials that are excluded from full Subtitle C regulation
to be managed under a RCRA Part B permit or interim status standards.
Managing hazardous secondary materials under a RCRA Part B permit
affords further assurance that the hazardous secondary materials will
be properly managed and reclaimed. Additionally, we believe that taking
advantage of the existing recycling infrastructure both improves
efficiency under the rule and increases opportunities for recycling.
Section 261.4(a)(24) states that the exclusion applies if the
hazardous secondary materials are generated and transferred ``for the
purpose of reclamation.'' Thus, a reclaimer mixing excluded hazardous
secondary materials with regulated hazardous wastes of the same type
may only mix the materials for the purpose of reclamation (and not for
the purpose of, for example, burning for energy recovery or disposal).
Prior to mixing, the reclaimer must manage the excluded hazardous
secondary materials under Sec. 261.4(a)(24) up to the point that they
mix the excluded materials with similar materials that are regulated
hazardous waste. The reclaimer must comply with all applicable
conditions of Sec. 261.4(a)(24) because it is receiving hazardous
secondary materials transferred for the purpose of reclamation and
excluded from the definition of solid waste. The reclaimer must
therefore meet the applicable conditions of the Sec. 261.4(a)(24)
exclusion, including legitimate reclamation, recordkeeping, financial
assurance, containment of hazardous secondary materials, notification,
and the prohibition on speculative accumulation.
A reclaimer may only mix hazardous secondary materials excluded
under Sec. 261.4(a)(24) with regulated hazardous waste for the purpose
of reclamation. This can be satisfied by mixing in units that are
dedicated for reclamation, such as storage units that are connected to
reclamation units by hard pipes or other conveyance; storage units that
are solely used to store materials prior to the reclamation process;
and recycling units. Additionally, a reclaimer is not mixing for the
purpose of reclamation if the reclaimer first mixes the materials and
then makes a determination whether the mixture should be reclaimed or
sent for burning or disposal. This determination must be made prior to
mixing the excluded hazardous secondary materials with regulated
hazardous wastes.
After mixing the excluded hazardous secondary materials with
regulated hazardous waste, the reclaimer must manage the entire mixture
as hazardous waste for the purpose of reclamation. Excluded hazardous
secondary materials cannot be mixed with regulated hazardous waste and
still maintain the exclusion from the definition of solid waste. If
excluded hazardous secondary materials are
[[Page 44143]]
mixed with hazardous waste, the resulting mixture is a hazardous waste.
This follows the general principle that RCRA applicability cannot be
avoided by mixing a hazardous waste with another material.\56\
Therefore, the reclaimer must comply with the standard hazardous waste
regulations applicable to hazardous waste managed by an off-site
reclaimer (i.e., 40 CFR 261.6(c) and (d) or 40 CFR part 264 or 265).
The mixture must be stored and managed in compliance with the hazardous
waste regulations applicable to hazardous waste managed by an off-site
reclaimer (i.e., 40 CFR 261.6(c) and (d) or 40 CFR part 264 or 265). If
a reclaimer mixes hazardous secondary materials and other similar
hazardous wastes in a recycling unit, the mixture would be considered
hazardous waste, but the unit would be generally exempt from regulation
under 40 CFR 261.6(c)(2).
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\56\ Horsehead Resource Development Co., Inc. v. EPA, 16 F3d
1246 (February 1994).
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Mixing by the reclaimer of excluded hazardous secondary materials
received under 40 CFR 261.4(a)(24) with regulated hazardous wastes does
not affect the requirements applicable to generators who shipped the
hazardous secondary materials, provided that the hazardous secondary
materials are transferred for the purpose of reclamation and the
reclaimer complies with all applicable conditions of Sec. 261.4(a)(24)
prior to mixing. Excluded hazardous secondary materials mixed with
regulated hazardous wastes of the same type become hazardous waste at
the point of mixing and must be managed as such after that point.
Therefore, generators transferring hazardous secondary materials under
Sec. 261.4(a)(24) to a reclaimer who mixes may manage the hazardous
secondary materials under the Sec. 261.4(a)(24) exclusion (e.g.,
longer storage times, shipping without a manifest) because the
hazardous secondary materials have not yet been mixed with regulated
hazardous wastes. (Of course, the generator and the reclaimer must meet
all applicable conditions of Sec. 261.4(a)(24) prior to mixing.)
B. Rejected Loads
A second issue regards shipments of hazardous secondary material
transferred off-site by the generator for reclamation, but that are
subsequently rejected by the reclaimer (otherwise known as ``rejected
loads''). Because 40 CFR 261.4(a)(24) states that the exclusion applies
if the hazardous secondary material is generated and transferred ``for
the purpose of reclamation,'' EPA has received questions regarding how
generators and reclaimers should handle rejected loads.
Although EPA did not explicitly address rejected loads in the
preamble to the 2008 DSW final rule, we offered some guidance in our
Response to Comments document for that action. Specifically, we state
that if hazardous secondary materials transferred off-site for
reclamation are subsequently rejected by the reclaimer, the generator
can choose to send the hazardous secondary materials to another
reclamation facility, provided the generator continues to comply with
the conditions of the exclusion, including the speculative accumulation
limits.
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 2008 DSW final rule. If a hazardous
secondary material generator is unable to reclaim the hazardous
secondary material in compliance with the speculative accumulation
provision and the other terms of the exclusion, it must manage the
materials as solid and hazardous waste according to the RCRA Subtitle C
hazardous waste regulations. Furthermore, we believe the recordkeeping
conditions (records of all off-site shipments and confirmations of
receipt) are sufficient to ensure the hazardous secondary materials are
properly managed if a rejected shipment must be returned to the
hazardous secondary material generator or sent to an alternate
reclamation facility.
In the event of a rejected load, generators and reclamation
facilities should contact their regulatory authority in order to
receive instructions on a case-by-case basis. Reclamation facilities
should document their rejected loads, including information such as the
EPA ID number, name, and address of the generator, the date the
facility received the hazardous secondary material, a description and
quantity of the material, the ultimate destination and disposition of
the material, and an explanation of why the load was rejected.
Additionally, we note that efforts to prevent rejected loads may help
to avoid this issue altogether, for example, by sending test samples of
the hazardous secondary material to a reclaimer to ensure that
legitimate reclamation can be performed prior to sending the first
shipment.
C. Interstate Transport
A third implementation issue regards the transport of excluded
hazardous secondary materials from or to a state that has adopted the
2008 DSW final rule to or from a state that has not adopted the rule
and what conditions would apply in each state. Specifically, if the
originating state has adopted the 2008 DSW final rule, but the
receiving (or transfer) state has not adopted the rule, the hazardous
secondary materials (1) are subject to the hazardous waste requirements
of the receiving state that has not adopted the rule upon reaching the
border of that state (e.g., manifesting requirements); (2) must go to a
RCRA-permitted facility (or other authorized designated facility), and,
if stored, materials must be managed in permitted storage units (or
when applicable under interim status requirements); and (3) cannot go
to an unpermitted recycling facility which is not a designated facility
in a state that has not adopted the rule because such a facility would
not meet the conditions of the exclusion (e.g., financial assurance)
and since the receiving state would not have adopted the exclusion.
If the originating state has not adopted the rule, but the
receiving state has adopted the rule, the hazardous secondary materials
(1) must be managed as regulated hazardous waste not only in the
originating state, but also in the receiving state that has adopted the
rule (e.g., may be sent to a permitted recycling facility, in the
receiving state, which has notified that it is operating under the
exclusion, but must then be stored only in permitted units at that
facility) and (2) would not be eligible for the exclusion because the
generator in the originating state that has not adopted the rule would
not meet the conditions and requirements of the exclusion. In
particular, the fact that the generator would not have notified EPA
that it is sending the hazardous secondary material to an excluded
reclamation facility, and would not have performed a ``reasonable
efforts'' audit under 40 CFR 261.4(a)(24)(v)(B) to ensure that the
hazardous secondary material will be safely and legitimately reclaimed
could undermine the proper implementation of the 2008 DSW exclusion.
As noted in written comments submitted in response to the May 2009
public meeting Federal Register Notice, some states that do not plan on
adopting the 2008 DSW final rule in full would like the generators in
their states to be able to send their hazardous secondary materials to
facilities without RCRA permits that are operating under the 40
[[Page 44144]]
CFR 261.4(a)(24) transfer-based exclusion in states that have adopted
the rule\57\ One possible solution for such a state might be to adopt
the requirements applicable to generators in the 2008 DSW final rule
(found in 40 CFR 261.4(a)(24)(i-v and vii)), in addition to the state's
hazardous waste requirements, for those generators that wish to ship to
reclaimers without RCRA permits whose operations are covered by the
exclusion. In most cases, a generator following the generating state's
hazardous waste requirements would also meet the 2008 DSW final rule
requirements (i.e., no speculative accumulation, meeting DOT transport
requirements, containment, records of shipments), since the state's
RCRA program requirements (e.g., 90 and 180 day storage limits,
manifesting requirements) would be equally or more stringent than the
2008 DSW final rule requirements), but the generator would also need to
ensure that the hazardous secondary material meets the codified
definition of legitimacy under 40 CFR 260.43, perform a ``reasonable
efforts'' audit of the reclaimer and keep a copy of the audit for three
years per 40 CFR 261.4(a)(24)(v)(B) and (C), and provide notification
per 40 CFR 260.42. Thus, the hazardous secondary material would be
covered both by the state hazardous waste program in the generating
state that has not adopted the 2008 DSW final rule, and by the DSW
transfer-based exclusion in the reclaiming state that has adopted the
2008 DSW final rule.
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\57\ Generators in states that have not adopted the 2008 DSW
final rule are able to send their materials to RCRA-permitted
reclaimers under hazardous waste regulations.
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As discussed earlier, EPA has proposed to replace the transfer-
based exclusion with an alternative Subtitle C regulation, which would
possibly render this issue moot. However, EPA is interested in and
requests comments on these issues of how interstate transportation
should be handled, particularly whether states are interested in such a
solution, if the transfer-based exclusion is retained or not, and
whether it is an issue for any of the other exclusions EPA is proposing
to retain or is asking for comment on today. For example, should EPA
allow for the shipment of hazardous secondary materials from a state
which does not adopt the `under the control of the generator' exclusion
to a state that has adopted that exclusion. If so, what additional
requirements would the generating state have to adopt in order to allow
for such shipments. Similarly, if a re-manufacturing exclusion is
adopted, should EPA allow for the shipment of hazardous secondary
materials from a state that does not adopt that exclusion to a state
that adopts that exclusion. Again, what additional requirements would
the generating state have to adopt in order to allow for such
shipments.
D. Regulatory Status of Solvent Still Bottoms
A fourth implementation issue is whether still bottoms from the
reclamation of solvents can be burned for energy recovery without
invalidating the 2008 DSW final rule exclusions, which specifically
does not include burning for energy recovery. Still bottoms from the
reclamation of the solvents listed in 40 CFR 261.31(a) as F001-F005 are
themselves listed hazardous waste and are not products of solvent
reclamation. These still bottoms are a new point of generation, and
they may be burned for energy recovery under the hazardous waste
regulations without invalidating the exclusion.
XVI. State Authorization
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize a qualified state to
administer and enforce a hazardous waste program within the state in
lieu of the Federal program, and to issue and enforce permits in the
state. A state may receive authorization by following the approval
process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall
standards and requirements for authorization). EPA continues to have
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. An authorized state also continues to have
independent authority to bring enforcement actions under state law.
After a state receives initial authorization, new Federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
state until the state adopts and receives authorization for equivalent
state requirements. In contrast, under RCRA section 3006(g) (42 U.S.C.
6926(g)), new Federal requirements and prohibitions promulgated
pursuant to HSWA provisions take effect in authorized states at the
same time that they take effect in unauthorized states. As such, EPA
carries out HSWA requirements and prohibitions in authorized states,
including the issuance of new permits implementing those requirements,
until EPA authorizes the state to do so.
Authorized states are required to modify their programs only when
EPA enacts Federal requirements that are more stringent or broader in
scope than the existing Federal requirements.\58\ RCRA section 3009
allows the states to impose standards more stringent than those in the
Federal program (see also 40 FR 271.1(i)). Therefore, authorized states
are not required to adopt Federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous Federal regulations or
that narrow the scope of the RCRA program.
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\58\ EPA notes that decisions regarding whether a state rule is
more stringent or broader in scope than the federal program are made
when the Agency authorizes state programs.
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B. Effect on State Authorization of Proposed Rule
Today's notice proposes regulations that, if finalized, would not
be promulgated under the authority of HSWA. Thus, the standards, if
finalized, would be applicable on the effective date only in those
states that do not have final authorization of their base RCRA
programs. Moreover, authorized states are required to modify their
programs only when EPA promulgates Federal regulations that are more
stringent or broader in scope than the authorized state regulations.
For those changes that are less stringent, states are not required to
modify their program. This is a result of section 3009 of RCRA, which
allows states to impose more stringent regulations than the Federal
program.
The revisions to the definition of solid waste being proposed today
are more stringent than those promulgated under the 2008 DSW final
rule, so those states which have adopted the 2008 DSW final rule would
be required to modify their programs if these standards are finalized.
However, when compared to the Federal program that was in place when
the 2008 DSW final rule was finalized, many of today's proposed
revisions would be considered less stringent (e.g., the revised
generator-controlled exclusion and the potential re-manufacturing
exclusion) or are neither more nor less stringent (i.e., the
alternative Subtitle C regulations for reclaimed hazardous recyclable
materials). Therefore, authorized states that have not adopted the 2008
DSW final rule would not be required to modify their programs to adopt
these standards, if finalized.
However, the potential revisions to the other recycling exclusions
and exemptions discussed in Section XIII of this preamble that EPA is
currently
[[Page 44145]]
requesting comment on, including codifying the legitimacy criteria for
other exclusions as discussed in Section X of the preamble, would be
more stringent than the current Federal hazardous waste program, and
all authorized states would be required to modify their programs to
adopt equivalent, consistent and no less stringent requirements. Also,
the proposed changes to the standards and criteria for variances from
classification as a solid waste discussed in Section XI would be more
stringent than the current Federal hazardous waste program, and all
authorized states which have adopted the underlying Sec. 260.31
variance procedures would be required to modify their programs to adopt
equivalent, consistent and no less stringent requirements.
XVII. Administrative Requirements for This Rulemaking
A. Executive Orders 12866 and 13563: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it is likely to
``raise novel legal or policy issues'' under section 3(f)(4) of
Executive Order 12866. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in
response to OMB recommendations have been documented in the docket for
this action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
EPA's Regulatory Impact Analysis (RIA) document titled ``EPA's 2011
Proposed Revisions to Industrial Recycling Exclusions of the RCRA
Definition of Solid Waste'' which is available for public download from
the docket for this action. The RIA is briefly summarized here.
The RIA evaluates the potential future impacts of the seven
proposed revisions (i.e., Options 1 to 7 in the RIA) to the DSW
regulatory exclusions for industrial hazardous secondary materials
recycling. Six of the seven proposed revisions (i.e., RIA Options 1
thru 6) could affect EPA's 2008 DSW recycling exclusions (three
exclusions) involving between 662 and 3,671 facilities currently
recycling or disposing industrial hazardous wastes regulated under RCRA
Subtitle C without exclusions, while three of today's proposed
revisions (i.e., RIA Options 4, 5, and 7) in part or in whole could
affect EPA's pre-2008 recycling exclusions involving an estimated 5,321
industrial facilities engaged in current RCRA-excluded recycling
activities (32 exclusions).
The RIA presents a qualitative description of three categories of
expected future environmental and economic benefits for the proposed
revisions: (1) Reduction in future environmental damage cases
associated with industrial hazardous secondary materials recycling; (2)
increased environmental compliance; and (3) reduced liability, less
regulatory uncertainty, and lower legal and credit costs for recycling
facilities.
In aggregate, the RIA estimates the future average annualized costs
to industry to comply with the seven proposed revisions at between $7.2
million to $13.1 million per year under a lower-bound state adoption
scenario, which results in 13% of recycling facilities implementing the
revisions, and between $7.4 million to $47.5 million per year under an
upper-bound state adoption scenario, which results in 74% of recycling
facilities implementing the revisions (2011$ @7% discount rate). Based
on the 13% implementation scenario, netting out the $7.2 million to
$13.1 million average annual future costs for the seven proposed
revisions, from the 2011-updated DSW regulatory cost savings baseline
of $86.7 million per year (consisting of $79.3 million per year cost
savings to industry associated with the pre-2008 DSW exclusions, plus
$7.4 million cost savings per year for the 13% adoption rate of the
2008 DSW recycling exclusions), yields a future average annual net cost
savings for all DSW exclusions of $73.6 million to $79.5 million per
year (@7% ``base case'' discount rate over 50-years 2015 to 2064).
These two alternative future implementation scenarios represent
EPA's uncertainty about the future total count of state government
RCRA-authorized programs which may ultimately adopt today's proposal
when finalized. The lower-bound cost estimate represents an average
annual future implementation rate by facilities based on the actual
state government adoption rate associated with the 2008 DSW final rule.
As of April 2011, four states (ID, IL, NJ, PA) have adopted the 2008
DSW final rule, five other states and territories (AK, AS, IA, NMI, VI)
have adopted by EPA Regional Office administration of the RCRA
regulatory program in those areas, and a total of 49 facilities have
notified EPA they are managing hazardous secondary materials under the
2008 DSW final rule exclusions (divided over the 2.3 years between the
date of today's action and the December 2008 effective date of the
October 2008 DSW final rule, this 49 total facility count represents an
average annual implementation rate of about 21 facilities per year).
The upper-bound cost estimate represents hypothetical future non-
adoption by all 12 authorized states that commented unfavorably on the
transfer-based exclusion in the 2007 DSW proposed rule.\59\ The rule
was assumed to go into effect in all other states and territories.
Updated information about the identity of state governments which have
adopted the 2008 DSW final rule, and the total count and identity of
industrial facilities which have notified EPA they are managing
hazardous secondary materials under the 2008 DSW final rule exclusions,
is available at EPA's ``DSW Final Rule: Resources for Implementation''
Web page at http://www.epa.gov/waste/hazard/dsw/impresource.htm.
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\59\ The identity of the 12 states which commented unfavorably
as potential adopters of the 2008 DSW final rule are listed in
Exhibit 12A (pages 136 to 138) of EPA's ``Regulatory Impact
Analysis'' for the 2008 DSW final rule, which is available from
EPA's ``DSW Rulemakings'' Web page at http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm#2008, or from the Federal regulatory
docket as Document ID nr. EPA-HQ-RCRA-2002-0031-0602 at http://www.regulations.gov.
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B. Paperwork Reduction Act (Information Collection Request)
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2310.02. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
The information requirements proposed for this action help ensure
that (1) entities operating under the regulatory exclusions included in
today's proposal are held accountable to the applicable requirements
and (2) state and EPA inspectors can verify compliance when needed.
EPA estimates the total annual burden to respondents under the new
paperwork requirements to be 84,590 hours and $4,456,294 in O&M costs
($10,277,107, including labor costs).
[[Page 44146]]
Burden and costs continuing from the 2008 ICR include 1,046 hours and
$187 O&M ($72,614, including labor costs), respectively. The total
annual burden and O&M costs comparable to the 2008 ICR inventory would
be 85,635 hours and $4,456,481, or 256,905 hours and $13,369,443 over
three years. EPA estimates that the proposed 2011 revisions to the DSW
final rule will also affect other related ICRs, increasing their annual
burden and costs by 1,240 hours and $8,648 O&M ($79,392, including
labor costs), respectively. The total annual respondent burden and cost
as a result of the proposed rule, including impacts continuing from the
2008 ICR and impacts to associated ICRs, would be 86,876 hours and
$4,465,129 O&M ($10,429,113, including labor costs), respectively.
In addition, EPA estimates the total annual burden to the
government under the new paperwork requirements to be 43,863 hours and
$1,707 in O&M costs ($2,385,917, including labor costs). Burden and
costs continuing from the 2008 ICR include 1,107 hours and $27 in O&M
($60,225, including labor costs), respectively. The total annual burden
and O&M costs comparable to the 2008 ICR inventory would be 44,971
hours and $1,734 in O&M costs, or 134,913 hours and $5,202 in O&M costs
over three years. EPA estimates that the proposed 2011 revisions to the
DSW rule will also affect other related ICRs, increasing their annual
burden to the government by 12 hours ($481 labor costs), but no new O&M
costs. The total annual burden and cost to the government as a result
of the proposed rule, including impacts continuing from the 2008 ICR
and impacts to associated ICRs, would be 44,982 hours and $1,734 O&M
($2,444,889, including labor costs), respectively.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, EPA has established a public docket for
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2010-0742. Submit any comments related to the ICR to EPA and OMB. See
ADDRESSES section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after July 22, 2011, a comment to OMB is best assured of having its
full effect if OMB receives it by August 22, 2011. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For the purpose of assessing the impacts of today's proposed rule
on small entities, small entity is defined as (1) a small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
As presented in EPA's RIA for today's proposal, the types of small
entities which could potentially be directly regulated are in a wide
range of up to 620 industries. For purposes of analysis, the RIA
evaluated potential small business impacts in 27 NAICS code industries
with the largest number of facilities potentially affected. This RIA
identified the 27 industries by first looking at the count of
facilities by 6-digit NAICS codes for the current population of
facilities recovering hazardous secondary materials, including (1)
323110 Commercial Lithographic Printing; (2) 324110 Petroleum
Refineries; (3) 325188 All Other Basic Inorganic Chemical
Manufacturing; (4) 325199 All Other Basic Organic Chemical
Manufacturing; (5) 325211 Plastics Material and Resin Manufacturing;
(6) 325412 Pharmaceutical Preparation Manufacturing; (7) 325510 Paint
and Coating Manufacturing; (8) 325998 All Other Miscellaneous Chemical
Product and Preparation Mfg; (9) 326199 All Other Plastics Product
Manufacturing; (10) 331111 Iron and Steel Mills; (11) 331492 Secondary
Smelting, Refining & Alloying of Nonferrous Metal (except Copper,
Aluminum); (12) 332312 Fabricated Structural Metal Manufacturing; (13)
332812 Metal Coating, Engraving (except Jewelry and Silverware), and
Allied Services to Manufacturers; (14) 332813 Electroplating, Plating,
Polishing, Anodizing and Coloring; (15) 332999 All Other Miscellaneous
Fabricated Metal Product Manufacturing; (16) 333415 Air Conditioning,
Warm Air Heating Equipment, and Commercial and Industrial Refrigerator
Equipment Manufacturing; (17) 334412 Bare Printed Circuit Board
Manufacturing; (18) 334413 Semiconductor and Related Device
Manufacturing; (19) Printed Circuit Assembly, (20) 336399 All Other
Motor Vehicle Parts Manufacturing; (21) 336412 Bare Printed Circuit
Board Manufacturing; (22) 336413 Other Aircraft Part and Auxiliary
Equipment Manufacturing; (23) 541710 Research & Development in the
Physical, Engineering, and Life Sciences; (24) 562211 Hazardous Waste
Treatment and Disposal; (25) 611310 Colleges, Universities and
Professional Schools; (26) 622110 General Medical and Surgical
Hospitals; (27) 928110 National Security.
The estimated potential average annual impact (i.e., added
regulatory cost) on small entities is estimated to be significantly
less than 1% of annual sales for all affected small entities. The RIA
estimates that under the 13% base-case adoption scenario 910 small
entities could be affected by today's proposal (if promulgated) out of
a total 6,497 affected small plus non-small entities (i.e., 14%), and
1,274 small entities could be affected out of a total 9,102 potentially
affected small plus non-small entities (i.e., 14%) under the 74% upper-
bound adoption scenario. These counts include facilities currently
operating under the pre-2008 DSW recycling exclusions (32 exclusions),
plus additional current RCRA hazardous waste recyclers which in the
future could potentially operate under the 2008 DSW recycling
exclusions (3 exclusions). However, these facility count estimates are
based on analyses presented in EPA's RIA involving EPA's Toxic Release
Inventory (TRI) database for the pre-2008 exclusions, and EPA's RCRA
Hazardous Waste Biennial Report database for potential adoption of the
2008 DSW exclusions, and both databases have limitations which may make
these facility count estimates inaccurate. Specifically, some of the
facilities identified using the TRI database may be RCRA conditionally
exempt small quantity generators
[[Page 44147]]
(CESQGs) which will not be affected by today's proposal (and thus may
contribute to over-estimating in the RIA both small and total small
plus non-small entities affected under the pre-2008 exclusions), and
the BR database does not include comprehensive data on RCRA small
quantity generators (SQGs) which may contribute to under-estimating in
the RIA both small and total small plus non-small entities.
Based on the RIA's small entity ``sales test'' impact evaluation
method, the highest estimated potential impact on any single small
entity as a percentage of annual business revenues (i.e., the ``sales
test'' method) is estimated at 0.41%. The total number of small
businesses impacted at this level is estimated at 21 small entities
under the 13% base-case adoption scenario, and 30 small entities under
the 74% adoption scenario, which represents 2.3% to 2.4%, respectively,
of the 910 (13% scenario) to 1,274 (74% scenario) small entities which
could be impacted by today's proposal.
Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, we continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts and
suggestions on how to reduce such impacts.
D. Unfunded Mandates Reform Act
This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for state, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
Potential future annual added direct costs to state, local, and Tribal
governments could include 11 administrative activities associated with
a number of the options, including (1) receive, review and file
biennial notifications (RIA Options 2, 4, 6, & 7); (2) receive, review
and file reclamation plan (RIA Option 2); (3) receive, review and
approve emergency plans (RIA Option 2); (4) receive, review and file
notification of compliance regarding affected release area (RIA Option
2); (5) review RCRA permit applications and enter into database (RIA
Option 2); (6) evaluate legitimacy petitions (RIA Option 4); (7)
evaluate legitimacy documentation (RIA Options 4); (8) receive, review,
and file re-application for variance or non-waste determination (RIA
Option 5); (9) EPA provides online public access to a list (including
documentation) of facilities receiving non-waste determinations (RIA
Option 5); (10) petition process for re-manufacturing exclusion (RIA
Option 6); and (11) other state paperwork requirements under existing
paperwork requirements covering 2008 revisions to the RCRA definition
of solid waste, RCRA hazardous waste manifest system requirements,
hazardous waste generator standards, hazardous waste specific unit
requirements and special waste processes and types, and air emission
standards for tanks, surface impoundments and containers.
See the RIA for a complete description of the options and the
various administrative activities. The RIA estimates that the state
government share of future average annualized direct costs for the
above seven implementation requirements ranges between $8.5 million and
$9.1 million per year. No impacts are expected for local or Tribal
governments. Because these direct costs are well below the $100 million
annual direct cost threshold, this proposed rule is not subject to the
requirements of sections 202 or 205 of UMRA. This rule is also not
subject to the requirements of section 203 of UMRA because it contains
no regulatory requirements that might significantly or uniquely affect
small governments.
E. Executive Order 13132: Federalism
This action 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. The RIA for today's action presents
an evaluation of whether the proposed regulatory revisions could
``impose substantial direct compliance costs'' on state or local
governments. For purpose of quantitative analysis, the RIA applied a
numerical method known as the ``$25 million test.'' The analysis
evaluated whether annualized direct compliance costs to state or local
governments potentially exceed $25 million per year. Potential future
annual added direct costs to state or local governments could include
11 administrative activities associated with a number of the options,
including (1) receive, review and file biennial notifications (RIA
Options 2, 4, 6, & 7); (2) receive, review and file reclamation plan
(RIA Option 2); (3) receive, Review and approve emergency plans (RIA
Option 2); (4) receive, review and file notification of compliance
regarded affected release area (RIA Option 2); (5) review RCRA permit
applications and enter into database (RIA Option 2); (6) evaluate
legitimacy petitions (RIA Option 4); (7) evaluate legitimacy
documentation (RIA Options 4); (8) receive, review, and file re-
application for variance or non-waste determination (RIA Option 5); (9)
EPA provides online public access to a list (including documentation)
of facilities receiving non-waste determinations (RIA Option 5); (10)
petition process for re-manufacturing exclusion (RIA Option 6); and
(11) other state paperwork requirements under existing paperwork
requirements covering 2008 revisions to the RCRA definition of solid
waste, RCRA hazardous waste manifest system requirements, hazardous
waste generator standards, hazardous waste specific unit requirements
and special waste processes and types, and air emission standards for
tanks, surface impoundment and containers. See the RIA for a complete
description of the Options and the various administrative activities.
The RIA estimates that the maximum state government share of future
average annualized direct costs for these implementation tasks ranges
between $8.5 million and $9.1 million per year. No impacts are expected
for local governments. Because these direct costs are well below the
$25 million test threshold, we conclude that Executive Order 13132 does
not apply to this action. However, in the spirit of Executive Order
13132, and consistent with EPA policy to promote communications between
EPA and state and local governments, EPA specifically solicits comment
on this proposed action from state and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000), EPA may not issue a regulation that has Tribal implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by Tribal
governments, or EPA consults with Tribal officials early in the process
of developing the proposed regulation and develops a Tribal summary
impact statement.
EPA has concluded that this action may have Tribal implications.
However, it will neither impose substantial direct compliance costs on
Tribal governments, nor preempt Tribal law. Under the RCRA statute, the
Federal government implements hazardous waste regulations directly in
Indian Country. Thus, the changes to the hazardous waste regulations
proposed today would not impose any direct costs on Tribal governments.
In addition,
[[Page 44148]]
currently there are no facilities operating on land controlled by
Tribal governments, but if such facilities did locate in such areas,
then this action could have Tribal implications, to the extent that the
proposed rule is intended to address potential adverse impacts of the
2008 DSW final rule.
EPA consulted with Tribal officials early in the process of
developing this regulation to ensure they had an opportunity for
meaningful and timely input into its development. Tribal
representatives participated in the public meetings EPA held on the
draft environmental justice methodology and noted that the census data
used as the basis for the demographic analysis can undercount
indigenous populations. EPA has noted this limitation in the analysis
and has committed to working independently with the Tribal governments
as the rulemaking moves forward to ensure their concerns have been met.
EPA specifically solicits additional comment from Tribal officials on
this proposed action and any Tribal implications.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866. EPA has determined that this proposed rule
will not have an adverse impact to children's health because it
increases the level of environmental protection for all affected
populations, including children. This action's health assessment are
contained in Section VI of this preamble (as the hazard
characterization portion of the environmental justice analysis). The
public is invited to submit comments or identify peer-reviewed studies
and data that assess effects of early life exposure to hazardous
secondary materials being reclaimed.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. As defined in Executive Order 13211, a
``significant energy action'' is any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking that: (1) Is a significant regulatory action
under Executive Order 12866 or any successor order and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (2) is designated by OMB as a significant energy action.
This rule does not involve the supply, distribution, or use of energy
and is not a significant regulatory action under Executive Order 12866.
Thus, Executive Order 13211 does not apply to this rule.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Environmental Justice
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA has determined that this proposed
rule will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
increases the level of environmental protection for all affected
populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population. The purpose of this proposal is to
revise the 2008 DSW final rule in such a way that reduces potential
adverse impacts, including potential disproportionate impacts to
minority and low-impact communities. See Section VI. for further
discussion of the environmental justice analysis that was conducted for
this proposed rule, a copy of which is included in the docket to
today's proposed rule. In addition, the environmental justice analysis
was subject to peer review. Copies of the peer review comments that EPA
received, as well as how EPA responded to those comments are also in
the docket to this proposal. EPA requests comments on EPA's
environmental justice analysis, and whether there remains any potential
adverse impacts of the proposed rule, including disproportionate
impacts to minority and low-income communities, that is within the
Agency's discretion to address.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Solid Waste, Recycling.
40 CFR Part 266
Environmental protection, Hazardous Waste, Recycling.
Dated: June 30, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935,
6937, 6938, 6939 and 6974.
Subpart B--Definitions
2. Amend Sec. 260.10 as follows:
a. Remove the definition of ``hazardous secondary material
generated and reclaimed under the control of the generator,''
b. Add in alphabetical order the definition of ``contained'' to
read as follows:
Sec. 260.10 Definitions.
* * * * *
Contained means a unit (including a land-based unit as defined in
this
[[Page 44149]]
subpart) that meets the following criteria:
(1) The unit is in good condition, with no leaks or other
continuing or intermittent unpermitted releases of the hazardous
secondary materials to the environment, and is designed, as appropriate
for the hazardous secondary materials, to prevent releases of hazardous
secondary materials to the environment. Such releases may include, but
are not limited to, releases through surface transport by precipitation
runoff, releases to groundwater, wind-blown dust, fugitive air
emissions, and catastrophic unit failures;
(2) The unit is properly labeled or otherwise has a system (such as
a log) to immediately identify the hazardous secondary materials in the
unit; and
(3) The unit does not hold incompatible materials and addresses any
potential risks of fires or explosions. Hazardous secondary materials
in units that meet the applicable requirements of 40 CFR parts 264 or
265 are considered to be contained.
* * * * *
Subpart C--Rulemaking Petitions
3. Section 260.30 is amended by revising the introductory text to
read as follows:
Sec. 260.30 Non-waste determinations and variances from
classification as a solid waste.
In accordance with the standards and criteria in Sec. 260.31 and
Sec. 260.34 and the procedures in Sec. 260.33, the Regional
Administrator may determine on a case-by-case basis that the following
recycled materials are not solid wastes:
* * * * *
4. Amend Sec. 260.31 as follows:
a. Revise the introductory text of paragraphs (a) and (b);
b. Revise paragraph (c).
Sec. 260.31 Standards and criteria for variances from classification
as a solid waste.
(a) The Regional Administrator may grant requests for a variance
from classifying as a solid waste those materials that are accumulated
speculatively without sufficient amounts being recycled if the
applicant demonstrates that sufficient amounts of the material will be
recycled or transferred for recycling in the following year. If a
variance is granted, it is valid only for the following year, but can
be renewed, on an annual basis, by filing a new application. The
Regional Administrator's decision will be based on whether the
hazardous secondary material is legitimately recycled as specified in
Sec. 260.43 and the following criteria:
* * * * *
(b) The Regional Administrator may grant requests for a variance
from classifying as a solid waste those materials that are reclaimed
and then reused as feedstock within the original production process in
which the materials were generated if the reclamation operation is an
essential part of the production process. This determination will be
based on whether the hazardous secondary material is legitimately
reclaimed as specified in Sec. 260.43 and the following criteria:
* * * * *
(c) The Regional Administrator may grant requests for a variance
from classifying as a solid waste those materials that have been
partially reclaimed but must be reclaimed further before recovery is
completed, if the partial reclamation has produced a commodity-like
material. A determination that a partially reclaimed material for which
the variance is sought is commodity-like will be based whether the
hazardous secondary material is legitimately recycled as specified in
Sec. 260.43 and on whether all of the following decision criteria are
satisfied:
(1) Whether the degree of partial reclamation the material has
undergone is substantial;
(2) Whether the partially-reclaimed material has sufficient
economic value that it will be purchased for final reclamation;
(3) Whether the partially-reclaimed material is a viable substitute
for a product or intermediate produced from virgin or raw materials
which feeds subsequent production steps;
(4) Whether there is a guaranteed end market for the partially-
reclaimed material;
(5) Whether the partially-reclaimed material is handled to minimize
loss.
5. Section 260.32 is amended by revising the introductory text to
read as follows:
Sec. 260.32 Variances to be classified as a boiler.
In accordance with the standards and criteria in Sec. 260.10
(definition of ``boiler''), and the procedures in Sec. 260.33, the
Regional Administrator may determine on a case-by-case basis that
certain enclosed devices using controlled flame combustion are boilers,
even though they do not otherwise meet the definition of boiler
contained in Sec. 260.10, after considering the following criteria:
* * * * *
6. Section 260.33 is revised to read as follows:
Sec. 260.33 Procedures for variances from classification as a solid
waste, for variances to be classified as a boiler, for legitimacy
variances, or for non-waste determinations.
The Regional Administrator will use the following procedures in
evaluating applications for variances from classification as a solid
waste, applications to classify particular enclosed controlled flame
combustion devices as boilers, applications for legitimacy variances,
or applications for non-waste determinations.
(a) The applicant must apply to the Regional Administrator for the
variance or non-waste determination. The application must address the
relevant criteria contained in Sec. 260.31, Sec. 260.32, Sec.
260.34, or Sec. 260.43 as applicable.
(b) The Regional Administrator will evaluate the application and
issue a draft notice tentatively granting or denying the application.
Notification of this tentative decision will be provided by newspaper
advertisement or radio broadcast in the locality where the recycler is
located, and be made available on EPA's Web site. The Regional
Administrator will accept comment on the tentative decision for 30
days, and may also hold a public hearing upon request or at his
discretion. The Regional Administrator will issue a final decision
after receipt of comments and after the hearing (if any).
(c) In the event of a change in circumstances that affect how a
hazardous secondary material meets the relevant criteria contained in
Sec. 260.31, Sec. 260.32, Sec. 260.34 or Sec. 260.43 upon which a
variance or non-waste determination has been based, the applicant must
re-apply to the Regional Administrator for a formal determination that
the hazardous secondary material continues to meet the relevant
criteria and therefore is not a solid waste.
(d) Facilities receiving a variance or non-waste determination must
provide notification as required by Sec. 260.42 of this chapter.
7. Amend Sec. 260.34 as follows:
a. Revise the introductory text of paragraph (a);
b. Revise the introductory text of paragraph (b), and paragraph
(b)(4);
c. Revise the introductory text to paragraph (c), and paragraph
(c)(5).
Sec. 260.34 Standards and criteria for non-waste determinations.
(a) An applicant may apply to the Regional Administrator for a
formal determination that a hazardous
[[Page 44150]]
secondary material is not discarded and therefore not a solid waste.
The determinations will be based on the criteria contained in
paragraphs (b) or (c) of this section, as applicable. If an application
is denied, the hazardous secondary material might still be eligible for
a solid waste variance or exclusion (for example, one of the solid
waste variances under Sec. 260.31). Determinations may also be granted
by the State if the State is either authorized for this provision or if
the following conditions are met:
* * * * *
(b) The Regional Administrator may grant a non-waste determination
for hazardous secondary material which is reclaimed in a continuous
industrial process if the applicant demonstrates that the hazardous
secondary material is a part of the production process and is not
discarded. The determination will be based on whether the hazardous
secondary material is legitimately recycled as specified in Sec.
260.43 and on the following criteria:
* * * * *
(4) Other relevant factors that demonstrate the hazardous secondary
material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under Sec. 261.2 or Sec. 261.4 of this chapter.
(c) The Regional Administrator may grant a non-waste determination
for hazardous secondary material which is indistinguishable in all
relevant aspects from a product or intermediate if the applicant
demonstrates that the hazardous secondary material is comparable to a
product or intermediate and is reclaimed and is not discarded. The
determination will be based on whether the hazardous secondary material
is legitimately recycled as specified in Sec. 260.43 and on the
following criteria:
* * * * *
(5) Other relevant factors that demonstrate the hazardous secondary
material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under Sec. 261.2 or Sec. 261.4 of this chapter.
8. Amend Sec. 260.42 as follows:
a. Revise the introductory text to paragraph (a), and paragraphs
(a)(1), (a)(4), (a)(5), (a)(6), (a)(7), (a)(8) and (a)(9);
b. Remove paragraph (a)(10);
c. Revise paragraph (b).
Sec. 260.42 Notification requirement for hazardous secondary
materials.
(a) Facilities managing hazardous secondary materials or hazardous
recyclable materials under Sec. Sec. 260.30, 261.4(a)(23) or part 266
subpart D must send a notification prior to operating under the
regulatory provision and by March 1 of each even-numbered year
thereafter to the Regional Administrator using EPA Form 8700-12 that
includes the following information:
(1) The name, address, and EPA ID number of the facility;
* * * * *
(4) The regulation under which the hazardous secondary materials
will be managed;
(5) When the facility began or expects to begin managing the
hazardous secondary materials in accordance with the regulation;
(6) A list of hazardous secondary materials that will be managed
according to the exclusion (reported as the EPA hazardous waste numbers
that would apply if the hazardous secondary materials were managed as
hazardous wastes);
(7) For each hazardous secondary material, whether the hazardous
secondary material, or any portion thereof, will be managed in a land-
based unit;
(8) The quantity of each hazardous secondary material to be managed
annually; and
(9) The certification (included in EPA Form 8700-12) signed and
dated by an authorized representative of the facility.
(b) If a facility managing hazardous secondary materials has
submitted a notification, but then subsequently stops managing
hazardous secondary materials in accordance with the regulation(s)
listed above, the facility must notify the Regional Administrator
within thirty (30) days using EPA Form 8700-12. For purposes of this
section, a facility has stopped managing hazardous secondary materials
if the facility no longer generates, manages and/or reclaims hazardous
secondary materials under the regulation(s) above and does not expect
to manage any amount of hazardous secondary materials for at least one
year.
9. Section 260.43 is amended by revising the section heading and
paragraphs (a), (b) and (c) to read as follows:
Sec. 260.43 Legitimate recycling of hazardous secondary materials.
(a) Recycling of hazardous secondary materials for the purpose of
the exclusions or exemptions from the hazardous waste regulations or
alternate regulatory standards must be legitimate. Hazardous secondary
material that is not legitimately recycled is discarded material and is
a solid waste. In determining if their recycling is legitimate, persons
must address all the requirements of this paragraph.
(1) 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 hazardous
secondary material provides a useful contribution if it:
(i) Contributes valuable ingredients to a product or intermediate;
or
(ii) Replaces a catalyst or carrier in the recycling process; or
(iii) Is the source of a valuable constituent recovered in the
recycling process; or
(iv) Is recovered or regenerated by the recycling process; or
(v) Is used as an effective substitute for a commercial product.
(2) The recycling process must produce a valuable product or
intermediate. 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.
(3) The generator and the recycler must manage the hazardous
secondary material as a valuable commodity. Where there is an analogous
raw material, the hazardous secondary material must be managed, at a
minimum, in a manner consistent with the management of the raw material
or in an equally protective manner. Where there is no analogous raw
material, the hazardous secondary material must be contained. Hazardous
secondary materials that are released to the environment and are not
recovered immediately are discarded.
(4) The product of the recycling process:
(i) Must contain concentrations of any hazardous constituents found
in Appendix VIII of part 261 of this chapter at levels that are
comparable to or lower than those found in analogous products; or
(ii) Must not exhibit a hazardous characteristic (as defined in
part 261 subpart C) that analogous products do not exhibit.
(b) Persons performing the recycling of hazardous secondary
materials for the purpose of obtaining exclusions or exemptions from
the hazardous waste regulations or alternative regulatory standards
must maintain documentation of their legitimacy determination on-site.
(1) Documentation must be either a written description of how the
recycling meets all four factors in Sec. 260.43(a) or a copy of a
legitimacy variance received from the person's implementing agency.
[[Page 44151]]
(2) Documentation must be maintained for three years after the
recycling operation has ceased.
(c) An applicant may petition the Regional Administrator for a
formal determination that a recycling process is legitimate without
meeting the requirements under Sec. 260.43(a)(3) or Sec.
260.43(a)(4). The Regional Administrator will use the procedures in
Sec. 260.33 in evaluating petitions for legitimacy variances. In
making a determination on a petition for a legitimacy variance, the
Regional Administrator will evaluate all factors and consider
legitimacy as a whole. In determining whether a process that does not
meet one or both of the requirements under Sec. 260.43(a)(3) or Sec.
260.43(a)(4) is still legitimate, the Regional Administrator can
consider the protectiveness of the storage methods, exposure from
toxics in the product, the bioavailability of the toxics in the
product, and any other relevant considerations.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
10. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
Subpart A--General
11. Section 261.2 is amended by removing paragraph (a)(2)(ii) and
by revising the introductory text to paragraph (e)(1) to read as
follows:
Sec. 261.2 Definition of solid waste.
* * * * *
(e) * * * (1) Materials are not solid wastes when they can be shown
to be legitimately recycled as specified in Sec. 260.43 by being:
* * * * *
12. Amend Sec. 261.4, as follows:
a. Republish the introductory text of paragraph (a);
b. Revise paragraphs (a)(6) and (a)(7);
c. Revise the introductory text to paragraph (a)(8);
d. Revise paragraphs (a)(9)(i) and (a)(9)(ii);
e. Revise paragraphs (a)(10) and (a)(11);
f. Revise the first sentence of paragraph (a)(12)(i);
g. Revise the first sentence of paragraph (a)(12)(ii);
h. Revise paragraph (a)(13);
i. Revise the introductory text of paragraph (a)(14);
j. Revise paragraph (a)(17)(i);
k. Revise the introductory text to paragraph (a)(18);
l. Revise paragraph (a)(19);
m. Revise the introductory text to paragraph (a)(20) and the
introductory text to paragraph (a)(21);
n. Revise paragraph (a)(22)(ii);
o. Revise paragraph (a)(23);
p. Remove paragraphs (a)(24) and (a)(25);
q. Republish the introductory text of paragraph (b);
r. Revise paragraphs (b)(12) and (b)(14).
Sec. 261.4 Exclusions.
(a) Materials which are not solid wastes. The following materials
are not solid wastes for the purpose of this part:
* * * * *
(6) Pulping liquors (i.e., black liquor) that are legitimately
reclaimed as specified in Sec. 260.43 of this chapter in a pulping
liquor recovery furnace and then reused in the pulping process, unless
it is accumulated speculatively as defined in Sec. 261.1(c) of this
chapter.
(7) Spent sulfuric acid legitimately used to produce virgin
sulfuric acid as specified in Sec. 260.43 of this chapter, unless it
is accumulated speculatively as defined in Sec. 261.1(c) of this
chapter.
(8) Secondary materials that are legitimately reclaimed as
specified in Sec. 260.43 of this chapter and returned to the original
process or processes in which they were generated where they are reused
in the production process provided:
* * * * *
(9)(i) Spent wood preserving solutions that have been legitimately
reclaimed as specified in Sec. 260.43 of this chapter and are reused
for their original intended purpose; and
(ii) Wastewaters from the wood preserving process that have been
legitimately reclaimed as specified in Sec. 260.43 of this chapter and
are reused to treat wood.
* * * * *
(10) EPA Hazardous Waste Nos. K060, K087, K141, K142, K143, K144,
K145, K147, and K148, and any wastes from the coke by-products
processes that are hazardous only because they exhibit the Toxicity
Characteristic (TC) specified in Sec. 261.24 of this part when,
subsequent to generation, these materials are legitimately recycled as
specified in Sec. 260.43 of this chapter to coke ovens, to the tar
recovery process as a feedstock to produce coal tar, or mixed with coal
tar prior to the tar's sale or refining. This exclusion is conditioned
on there being no land disposal of the wastes from the point they are
generated to the point they are recycled to coke ovens or tar recovery
or refining processes, or mixed with coal tar.
(11) Nonwastewater splash condenser dross residue from the
treatment of K061 in high temperature metals recovery units, provided
it is shipped in drums (if shipped) and not land disposed before
legitimate recovery as specified in Sec. 260.43 of this chapter.
(12)(i) Oil-bearing hazardous secondary materials (i.e., sludges,
byproducts, or spent materials) that are generated at a petroleum
refinery (SIC code 2911) and are legitimately recycled as specified in
Sec. 260.43 of this chapter by being inserted into the petroleum
refining process (SIC code 2911--including, but not limited to,
distillation, catalytic cracking, fractionation, gasification (as
defined in 40 CFR 260.10) or thermal cracking units (i.e., cokers))
unless the material is placed on the land, or speculatively accumulated
before being so recycled. * * *
(ii) Recovered oil that is legitimately recycled as specified in
Sec. 260.43 of this chapter in the same manner and with the same
conditions as described in paragraph (a)(12)(i) of this section. * * *
(13) Excluded scrap metal (processed scrap metal, unprocessed home
scrap metal, and unprocessed prompt scrap metal) being legitimately
recycled as specified in Sec. 260.43 of this chapter.
(14) Shredded circuit boards being legitimately recycled as
specified in Sec. 260.43 of this chapter provided that they are:
* * * * *
(17) * * *
(i) The spent material is legitimately recycled as specified in
Sec. 260.43 of this chapter to recover minerals, acids, cyanide, water
or other values;
* * * * *
(18) Petrochemical recovered oil from an associated organic
chemical manufacturing facility, where the oil is legitimately recycled
as specified in Sec. 260.43 of this chapter by being inserted into the
petroleum refining process (SIC code 2911) along with normal petroleum
refinery process streams, provided:
* * * * *
(19) Spent caustic solutions from petroleum refining liquid
treating processes legitimately used as a feedstock as specified in
Sec. 260.43 of this chapter to produce cresylic or naphthenic acid
unless the material is placed on the land, or accumulated speculatively
as defined in Sec. 261.1(c).
(20) Hazardous secondary materials legitimately used as specified
in Sec. 260.43 to make zinc fertilizers,
[[Page 44152]]
provided that the following conditions specified are satisfied:
* * * * *
(21) Zinc fertilizers legitimately made from hazardous wastes, or
hazardous secondary materials that are excluded under paragraph (a)(20)
of this section as specified in Sec. 260.43 of this chapter, provided
that:
* * * * *
(22) * * *
* * * * *
(ii) Used, intact CRTs as defined in Sec. 260.10 of this chapter
are not solid wastes when exported for legitimate recycling as
specified in Sec. 260.43 of this chapter provided that they meet the
requirements of Sec. 261.40.
* * * * *
(23) Hazardous secondary material generated and legitimately
reclaimed under the control of the generator provided that it complies
with paragraphs (a)(23)(i) and (ii) of this section:
(i)(A) The hazardous secondary material is generated and reclaimed
at the generating facility (for purposes of this definition, generating
facility means all contiguous property owned, leased, or otherwise
controlled by the hazardous secondary material generator) or
(B) The hazardous secondary material is generated and reclaimed at
different facilities, if the reclaiming facility is controlled by the
generator or if both the generating facility and the reclaiming
facility are controlled by a person as defined in Sec. 260.10 of this
chapter, and if the generator provides one of the following
certifications: ``on behalf of [insert generator facility name], I
certify that this facility will send the indicated hazardous secondary
material to [insert reclaimer facility name], which is controlled by
[insert generator facility name] and that [insert the name of either
facility] has acknowledged full responsibility for the safe management
of the hazardous secondary material''. For purposes of this paragraph,
``control'' means the power to direct the policies of the facility,
whether by the ownership of stock, voting rights, or otherwise, except
that contractors who operate facilities on behalf of a different person
as defined in Sec. 260.10 of this chapter shall not be deemed to
``control'' such facilities, or
(C) The hazardous secondary material is generated pursuant to a
written contract between a tolling contractor and a toll manufacturer
and is reclaimed by the tolling contractor, if the tolling contractor
certifies the following: ``On behalf of [insert tolling contractor
name], I certify that [insert tolling contractor name] has a written
contract with [insert toll manufacturer name] to manufacture [insert
name of product or intermediate] which is made from specified unused
materials, and that [insert tolling contractor name] will reclaim the
hazardous secondary materials generated during this manufacture. On
behalf of [insert tolling contractor name] I also certify that [insert
tolling contractor name] retains ownership of, and responsibility for,
the hazardous secondary materials that are generated during the course
of the manufacture, including any releases of hazardous secondary
materials that occur during the manufacturing process''. The tolling
contractor must maintain at its facility for no less than three years
records of hazardous secondary materials received pursuant to its
written contract with the tolling manufacturer, and the tolling
manufacturer must maintain at its facility for no less than three years
records of hazardous secondary materials shipped pursuant to its
written contract with the tolling contractor. In both cases, the
records must contain the name of the transporter, the date of the
shipment, and the type and quantity of the hazardous secondary material
shipped or received pursuant to the written contract. These
requirements may be satisfied by routine business records (e.g.,
financial records, bills of lading, copies of DOT shipping papers, or
electronic confirmations). For purposes of this paragraph, tolling
contractor means a person who arranges for the production of a product
or intermediate made from specified unused materials through a written
contract with a toll manufacturer. Toll manufacturer means a person who
produces a product or intermediate made from specified unused materials
pursuant to a written contract with a tolling contractor.
(ii)(A) The hazardous secondary material is generated and reclaimed
within the United States or its territories.
(B) The hazardous secondary material is contained as defined in
Sec. 260.10 of this chapter. A hazardous secondary material released
to the environment is discarded and a solid waste unless it is
immediately recovered for the purpose of recycling. Hazardous secondary
material managed in a unit with leaks or other continuing releases of
the hazardous secondary material is discarded and a solid waste.
(C) The hazardous secondary material is not speculatively
accumulated, as defined in Sec. 261.1(c)(8), and the material is
placed in a storage unit with a label indicating the first date that
the excluded hazardous secondary material began to be accumulated. If
placing a label on the storage unit is not practicable, the first date
that the excluded hazardous secondary material began to be accumulated
must be entered in an inventory log.
(D) Notice is provided as required by Sec. 260.42 of this chapter.
(b) Solid wastes which are not hazardous wastes. The following
solid wastes are not hazardous wastes:
* * * * *
(12) Used chlorofluorocarbon refrigerants from totally enclosed
heat transfer equipment, including mobile air conditioning systems,
mobile refrigeration, and commercial and industrial air conditioning
and refrigeration systems that use chlorofluorocarbons as the heat
transfer fluid in a refrigeration cycle, provided the refrigerant is
reclaimed for further use in a manner that is legitimate as specified
in Sec. 260.43 of this chapter.
* * * * *
(14) Used oil re-refining distillation bottoms that are used as
feedstock to manufacture asphalt products in a manner that is
legitimate as specified in Sec. 260.43 of this chapter.
13. Amend Sec. 261.6 as follows:
a. Revise paragraph (a)(1);
b. Revise the introductory text to paragraph (a)(2) and add
paragraph (a)(2)(v);
c. Revise the introductory text to paragraph (a)(3);
d. Revise paragraph (c)(1) and the introductory text to paragraph
(c)(2).
Sec. 261.6 Requirements for recyclable materials.
(a)(1) Hazardous wastes that are legitimately recycled as specified
in Sec. 260.43 of this chapter are subject to the requirements for
generators, transporters, and storage facilities of paragraphs (b) and
(c) of this section, except for the materials listed in paragraphs
(a)(2) and (a)(3) of this section. Hazardous wastes that are
legitimately recycled will be known as ``recyclable materials.''
(2) The following recyclable materials are not subject to the
requirements of this section when legitimately recycled as specified in
Sec. 260.43 of this chapter but are regulated under subparts C through
N of part 266 of this chapter and all applicable provisions in parts
268, 270, and 124 of this chapter.
* * * * *
(v) Hazardous recyclable materials transferred for reclamation (40
CFR part 266, subpart D).
(3) The following recyclable materials are not subject to
regulation under parts
[[Page 44153]]
262 through parts 268, 270, or 124 of this chapter and are not subject
to the notification requirements of section 3010 of RCRA when
legitimately recycled as specified in Sec. 260.43 of this chapter:
* * * * *
(c)(1) Owners and operators of facilities that store recyclable
materials before they are recycled are regulated under all applicable
provisions of subparts A though L, AA, BB, and CC of parts 264 and 265,
and under parts 124, 266, 267, 268, and 270 of this chapter and the
notification requirements under section 3010 of RCRA, except as
provided in paragraph (a) of this section. (The recycling process
itself is exempt from regulation as long as the recycling is legitimate
as specified in Sec. 260.43 of this chapter, except as provided in
Sec. 261.6(d).)
(2) Owners or operators of facilities that recycle recyclable
materials without storing them before they are legitimately recycled
are subject to the following requirements, except as provided in
paragraph (a) of this section:
* * * * *
Subpart E--Exclusions/Exemptions
14. Section 261.38 is amended by adding paragraph (b)(17) to read
as follows:
Sec. 261.38 Exclusion of comparable fuel and syngas fuel.
* * * * *
(b) * * *
* * * * *
(17) Legitimate recycling. Excluded fuel must be legitimately
recycled as specified in Sec. 260.43 of this chapter.
* * * * *
15. Section 261.39 is amended by revising the introductory text to
read as follows:
Sec. 261.39 Conditional Exclusion for Used, Broken Cathode Ray Tubes
(CRTs) and Processed CRT Glass Undergoing Recycling.
Used, broken CRTs are not solid wastes if they are legitimately
recycled as specified in Sec. 260.43 of this chapter and meet the
following conditions:
* * * * *
16. Section 261.40 is revised to read as follows:
Sec. 261.40 Conditional Exclusion for Used, Intact Cathode Ray Tubes
(CRTs) Exported for Recycling.
Used, intact CRTs exported for legitimate recycling as specified in
Sec. 260.43 of this chapter are not solid wastes if they meet the
notice and consent conditions of Sec. 261.39(a)(5), and if they are
not speculatively accumulated as defined in Sec. 261.1(c)(8).
17. Section 261.41 is revised to read as follows:
Sec. 261.41 Notification and Recordkeeping for Used, Intact Cathode
Ray Tubes (CRTs) Exported for Reuse.
(a) Persons who export used, intact CRTs for legitimate reuse as
specified in Sec. 260.43 of this chapter must send a one-time
notification to the Regional Administrator. The notification must
include a statement that the notifier plans to export used, intact CRTs
for reuse, the notifier's name, address, and EPA ID number (if
applicable) and the name and phone number of a contact person.
(b) Persons who export used, intact CRTs for legitimate reuse as
specified in Sec. 260.43 of this chapter must keep copies of normal
business records, such as contracts, demonstrating that each shipment
of exported CRTs will be reused. This documentation must be retained
for a period of at least three years from the date the CRTs were
exported.
Subpart H (Sec. Sec. 261.140 through 261.151)--[Removed]
18. Subpart H, consisting of Sec. Sec. 261.140 through 261.151, is
removed.
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
19. The authority citation for part 266 continues to read as
follows:
Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017,
6905, 6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.
Subpart C--Recyclable Materials Used in a Manner Constituting
Disposal
20. Section 266.20 is amended by revising the introductory text to
paragraph (a), and paragraphs (b) and (d)(2), to read as follows:
Sec. 266.20 Applicability.
(a) The regulations of this subpart apply to recyclable materials
that are applied to or placed on the land, provided they are
legitimately recycled as specified in Sec. 260.43 of this chapter:
* * * * *
(b) Products produced for the general public's use that are used in
a manner that constitutes disposal and that contain recyclable
materials are not presently subject to regulation if the recyclable
materials have undergone a chemical reaction in the course of producing
the products so as to become inseparable by physical means and if such
products meet the applicable treatment standards in subpart D of part
268 (or applicable prohibition levels in Sec. 268.32 or RCRA section
3004(d), where no treatment standards have been established) for each
recyclable material (i.e., hazardous waste) that they contain, provided
they are legitimately recycled as specified in Sec. 260.43 of this
chapter.
* * * * *
(d) * * *
(2) They meet the applicable treatment standards in subpart D of
part 268 of this chapter for each hazardous waste that they contain and
provided they are legitimately recycled as specified in Sec. 260.43 of
this chapter.
21. Subpart D is added to part 266 to read as follows:
Subpart D--Hazardous Recyclable Materials
Sec. 266.30 Applicability.
(a) The regulations of this subpart apply to hazardous recyclable
materials that are reclaimed as defined in Sec. 261.1(a)(4) of this
chapter. For the purposes of this subpart, a hazardous recyclable
material is a hazardous waste this is being recycled.
(b) A hazardous recyclable material generator may accumulate
hazardous recyclable material onsite for one year or less without a
permit or without having interim status, provided that:
(1) The hazardous recyclable material generator provides
notification as required by Sec. 260.42 of this chapter;
(2) The hazardous recyclable material generator makes and documents
advance arrangements for reclamation prior to operating under this
subpart in a reclamation plan that:
(i) Describes the hazardous recyclable material and identifies the
reclamation facility where the material will be sent,
(ii) Includes written confirmation from the facility that they are
able to reclaim the hazardous recyclable material,
(iii) Documents the amount of hazardous recyclable material
expected in each shipment and the anticipated frequency of shipments,
and:
(iv) Documents that the reclamation is legitimate per 40 CFR
260.43;
(3) While hazardous recyclable materials are being accumulated on-
site, each container and tank is labeled or marked clearly with the
words, ``Hazardous recyclable material'';
(4) The hazardous recyclable material generator complies as
applicable either with all requirements applicable to large quantity
generators or all requirements applicable to small quantity generators,
except for the 90-day storage time limit
[[Page 44154]]
for large quantity generators and the 180-day (or 270-day) storage time
limit for small quantity generators, and except that tanks and
containers need not be labeled as containing ``hazardous waste'' if
they instead are labeled as containing ``hazardous recyclable
materials.''
(c) Persons who transport or who store hazardous recyclable
materials other than at the site of generation, prior to reclamation
are subject to all applicable requirements of parts 263 through 265 and
part 268 of this chapter.
Subpart F--Recyclable Materials Utilized for Precious Metal
Recovery
22. Section 266.70 is amended by revising paragraph (a) to read as
follows:
Sec. 266.70 Applicability and requirements.
(a) The regulations of this subpart apply to recyclable materials
that are legitimately reclaimed as specified in Sec. 260.43 of this
chapter to recover economically significant amounts of gold, silver,
platinum, palladium, iridium, osmium, rhodium, ruthenium, or any
combination of these.
* * * * *
Subpart G--Spent Lead-Acid Batteries Being Reclaimed
23. Section 266.80 is amended by revising the introductory text of
paragraph (a) to read as follows:
Sec. 266.80 Applicability and requirements.
(a) Are spent lead-acid batteries exempt from hazardous waste
management requirements? If you generate, collect, transport, store, or
regenerate lead-acid batteries for legitimate reclamation purposes as
specified in Sec. 260.43 of this chapter, you may be exempt from
certain hazardous waste management requirements. Use the following
table to determine which requirements apply to you. Alternatively, you
may choose to manage your spent lead-acid batteries under the
``Universal Waste'' rule in 40 CFR part 273.
* * * * *
Subpart H--Hazardous Waste Burned in Boilers and Industrial
Furnaces
24. Section 266.100 is amended by revising paragraph (a) to read as
follows:
Sec. 266.100 Applicability.
(a) The regulations of this subpart apply to hazardous waste burned
or processed in a boiler or industrial furnace (as defined in Sec.
260.10 of this chapter) irrespective of the purpose of burning or
processing, except as provided by paragraphs (b), (c), (d), (g), and
(h) of this section. In this subpart, the term ``burn'' means burning
for energy recovery or destruction, or processing for materials
recovery or as an ingredient. The emissions standards of Sec. Sec.
266.104, 266.105, 266.106, and 266.107 apply to facilities operating
under interim status or under a RCRA permit as specified in Sec. Sec.
266.102 and 266.103. Burning for energy recovery and processing for
materials recovery or as an ingredient must be legitimate recycling as
specified in Sec. 260.43 of this chapter.
* * * * *
[FR Doc. 2011-17031 Filed 7-21-11; 8:45 am]
BILLING CODE 6560-50-P