Definition of Solid Waste, 44094-44154 [2011-17031]
Download as PDF
44094
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
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.
SUMMARY:
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:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: Comments may be sent by
electronic mail (e-mail) to RCRAdocket@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
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
DATES:
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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 https://
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 https://
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
PO 00000
Frm 00002
Fmt 4701
Sfmt 4702
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:
https://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)
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 https://
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 ReManufacturing 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
PO 00000
Frm 00003
Fmt 4701
Sfmt 4702
44095
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
E:\FR\FM\22JYP2.SGM
22JYP2
44096
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
1A
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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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.
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.
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.
E. Revisions to Solid Waste Variances
and Non-Waste Determinations
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
PO 00000
Frm 00004
Fmt 4701
Sfmt 4702
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 reapply 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 ReManufacturing 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 highervalue hazardous secondary materials
that are not included within this
exclusion, but that are destined to be remanufactured 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.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 informationgathering authorities. (See 40 CFR
261.1(b). Also Connecticut Coastal
Fishermen’s Association v. Remington
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
44097
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44098
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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,
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
1998). The conditional exclusion
decreased regulation over spent
materials stored prior to reclamation,
but increased regulation over byproducts 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 byproducts 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
PO 00000
Frm 00006
Fmt 4701
Sfmt 4702
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 EPArequired conditions in the rule, would
treat the exempted materials more like
valuable products than like negativelyvalued 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00007
Fmt 4701
Sfmt 4702
44099
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.
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,
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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44100
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 byproducts 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 oversimplification. However, when used in
conjunction with other information, the
economic theory can be quite
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
illuminating. For example, according to
the market forces study, industrial intraand 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 overaccumulated 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 restructured 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-
PO 00000
Frm 00008
Fmt 4701
Sfmt 4702
land-based units, and the other
exclusion would apply to hazardous
secondary materials managed in landbased 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 caseby-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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00009
Fmt 4701
Sfmt 4702
44101
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 transferbased 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
E:\FR\FM\22JYP2.SGM
22JYP2
44102
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00010
Fmt 4701
Sfmt 4702
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 lowincome 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
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
Step 1: Hazard characterization .........................
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Step 2: Identification of potentially affected communities.
Step 3: Demographics of potentially affected
communities.
Step 4: Identifying other factors that affect vulnerability in potentially affected communities.
Step 5: Information synthesis: assessment of
disproportional impact.
3 U.S. EPA. Draft Environmental Justice
Methodology for the Definition of Solid Waste Rule,
January 2010, https://www.epa.gov/epawaste/
hazard/dsw/ej.htm.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
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
44103
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 decisionmakers. 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 twofold. 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 decisionmaking 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:
Includes two phases: (1) Identifying 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.
Modeling the locations of facilities (including potential new facilities) that are likely to choose to
take advantage of the 2008 DSW final rule.
Mapping the location of the facilities modeled in Step 2 and identifying the demographics (e.g.,
minority population and income level) of the surrounding communities.
Identifying important vulnerability factors. These include factors that may increase the likelihood of ‘‘damages,’’ 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.
Synthesizing all the information to characterize whether the 2008 DSW rule 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.
4 https://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
PO 00000
Frm 00011
Fmt 4701
Sfmt 4702
from Gary Baughman, president, ASTSWMO, to
Matt Hale, Director, Office of Solid Waste, U.S.
EPA, February 3, 2010.
6 https://www.wbcsd.org/web/projects/BZrole/
Vision2050-FullReport_Final.pdf.
E:\FR\FM\22JYP2.SGM
22JYP2
44104
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
Step 6: Identification of potential preventive and
mitigation strategies.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 nonhalogenated 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 windblown, 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 noncarcinogenic, 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
Identifying potential strategies to prevent non-compliance and releases to the environment and
also strategies to mitigate any impacts identified under step 5.
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
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 offsite recycling at a RCRA-permitted facility or
exporting waste for recycling to another type of
recycling under the 2008 DSW final rule.
PO 00000
Frm 00012
Fmt 4701
Sfmt 4702
also a potential for increased benefits,
primarily from resource conservation
and from reduced transportation
distances.8
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 (‘‘NonHazardous 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.
For the community-level analysis, the
question is whether the communities
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.
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.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
around a facility had a higher or lower
percentage of minority and/or lowincome 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
44105
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.
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
comparison %
communities
with higher minority
representation
(average difference)
National
comparison %
communities
with higher
low-income
representation
(average
difference)
State
comparison %
communities
with higher minority representation
(average
difference)
State
comparison %
communities
with higher
lowincome representation
(average
difference)
Facilities that Have Notified (40 total) .............................................................
7.5%
(¥20.7%)
32.5%
(¥2.0%)
Damage Case Facilities (217 total) .................................................................
53%
(8.2%)
42%
(0.9%)
36%
(¥5.0%)
65%
(5.9%)
48%
(1.5%)
40%
(¥0.5%)
50.0% (IA)
(3.1%)
20.0% (NJ)
(¥11.0%)
31.3% (PA)
(¥2.3%)
55.8%
(8.2%)
47.9%
(4.0%)
36%
(¥2.55%)
64.0% (IA)
(1.7%)
0% (NJ)
(¥3.7%)
50% (PA)
(2.6%)
69%
(6.7%)
50.6%
(1.8%)
44%
(¥0.3%)
Hazardous Waste Facilities (2,677 total) .........................................................
Non-Hazardous Industrial Waste Facilities (25 total) ......................................
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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.
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.
11 The total affected population is the sum of each
of the populations around all the facilities in a
category.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
PO 00000
Frm 00013
Fmt 4701
Sfmt 4702
E:\FR\FM\22JYP2.SGM
22JYP2
44106
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
POPULATION-LEVEL ANALYSIS OF POTENTIAL DISPROPORTIONATE IMPACTS OF 2008 DSW RULE TO MINORITY AND LOWINCOME COMMUNITIES
[Ratios greater than 1.0 indicate potential disproportionate impact to population of concern all results statistically significant (p-value <0.05)]
National
comparison
minority
population
affected
population
ratio
demographic
ratio
National
comparison
low-income
population
affected population ratio
demographic
ratio
State
comparison
minority population
affected
population
ratio
demographic
ratio
1.80 (IA)
1.76 (IA)
1.02 (NJ)
1.01 (NJ)
1.46 (PA)
1.47 (PA)
2.59
1.64
1.94
2.04
1.34
1.20
Notification Facilities (40 total) .........................................................................
0.70
0.76
1.05
1.04
Damage Case Facilities (217 total) .................................................................
2.87
1.86
1.90
1.80
1.19
1.12
1.98
1.80
1.39
1.50
1.16
1.14
Hazardous Waste Facilities (2,677 total) .........................................................
Non-Hazardous Industrial Waste Facilities (25 total) ......................................
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
The chart above shows that the
population level analysis has a greater
incidence of potential disproportionate
adverse impact to minority and lowincome 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
1. Ability To Participate in the DecisionMaking 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
12 U.S. EPA Interim Guidance on Considering
Environmental Justice During the Development of
an Action July 2010. https://www.epa.gov/
environmentaljustice/resources/policy/consideringej-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.
PO 00000
Frm 00014
Fmt 4701
Sfmt 4702
State
comparison
low-income
population
affected
population
ratio
demographic
ratio
1.34 (IA)
1.32 (IA)
0.64 (NJ) 0.65
(NJ)
1.74 (PA)
1.63 (PA)
2.04
1.90
1.47
1.83
1.17
1.15
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 https://www.epa.gov/epawaste/hazard/dsw/
notify-sum.pdf.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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., leadbased 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.
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.
15 See U.S. EPA Environmental Justice Analysis of
the Definition of Solid Waste Rule, Section 5.2,
Table 5.1.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 lowincome 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 nonhazardous 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
PO 00000
Frm 00015
Fmt 4701
Sfmt 4702
44107
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 generatorcontrolled 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 overaccumulation 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
E:\FR\FM\22JYP2.SGM
22JYP2
44108
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
16 40
CFR 261.4(a)(24) is the primary transferbased exclusion and 40 CFR 261.4(a)(25) contains
the export requirements for the transfer-based
exclusion.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
exclusion are satisfied, the hazardous
secondary materials would not be
subject to the Subtitle C hazardous
waste regulations.
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
§ 261.1(c)(8) and must be legitimately
reclaimed as specified in § 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
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
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 byproducts 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 thirdparty 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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 inhouse 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 transferbased 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 transferbased 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).
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
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.
PO 00000
Frm 00017
Fmt 4701
Sfmt 4702
44109
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
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 transferbased 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 transferbased 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.
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
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.
19 Some of these facilities are also managing
hazardous secondary materials under the generatorcontrolled 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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44110
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 nonwaste 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 thirdparty 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
PO 00000
Frm 00018
Fmt 4701
Sfmt 4702
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 overaccumulation 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
21 These notification requirements are the same as
those currently found in 40 CFR 260.42.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
administer the RCRA Subtitle C
hazardous waste program, notifications
may be sent to the state director. The
notice must include:
• 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
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
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.
PO 00000
Frm 00019
Fmt 4701
Sfmt 4702
44111
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 pretransportation 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
E:\FR\FM\22JYP2.SGM
22JYP2
44112
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
§ 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 § 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 offsite 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
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
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 landbased 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 evennumbered 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 GeneratorControlled 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00021
Fmt 4701
Sfmt 4702
44113
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44114
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 generatorcontrolled 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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 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, landbased 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.
PO 00000
Frm 00022
Fmt 4701
Sfmt 4702
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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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.’’
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
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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 evennumbered 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
PO 00000
Frm 00023
Fmt 4701
Sfmt 4702
44115
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44116
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 260.42 a
condition of the generator-controlled
exclusion in § 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 Remanufacturing 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
PO 00000
Frm 00024
Fmt 4701
Sfmt 4702
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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,
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00025
Fmt 4701
Sfmt 4702
44117
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-landbased 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
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
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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44118
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 § 261.2(a)(2)(ii),
§ 261.4(a)(23), § 261.4(a)(24), or
§ 261.4(a)(25) or using a non-waste
determination at § 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00026
Fmt 4701
Sfmt 4702
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,
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 longstanding 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
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).
PO 00000
Frm 00027
Fmt 4701
Sfmt 4702
44119
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.
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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44120
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
• 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.
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 § 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.
26 Certain exempt legitimate recycling facilities
are still subject to RCRA air emission standards.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 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 § 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 nonwaste determinations in that rule to
PO 00000
Frm 00028
Fmt 4701
Sfmt 4702
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 previouslymade 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.
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
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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00029
Fmt 4701
Sfmt 4702
44121
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44122
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00030
Fmt 4701
Sfmt 4702
variance to its implementing agency
under § 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
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 onsite, 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
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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 nonwaste determinations in § 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 § 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:
PO 00000
Frm 00031
Fmt 4701
Sfmt 4702
44123
‘‘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.
E:\FR\FM\22JYP2.SGM
22JYP2
44124
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 § 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00032
Fmt 4701
Sfmt 4702
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 nonrecycled 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.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
§ 261.2(a)(2)(ii), § 261.4(a)(23),
§ 261.4(a)(24), or § 261.4(a)(25) or using
a non-waste determination at
§ 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 § 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 nonmandatory factors under § 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 § 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00033
Fmt 4701
Sfmt 4702
44125
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44126
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 industryspecific 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 261.4(a) were
found to be necessary under materialspecific 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
§ 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 wastespecific 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.
PO 00000
Frm 00034
Fmt 4701
Sfmt 4702
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
§ 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 §§ 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
legitimate and safe reclamation is
occurring.29
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 nonwaste 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 ReApply 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 re29 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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 nonwaste 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 evennumbered 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 nonwaste 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
PO 00000
Frm 00035
Fmt 4701
Sfmt 4702
44127
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 nonwaste 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 § 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
E:\FR\FM\22JYP2.SGM
22JYP2
44128
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 nonwaste 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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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.’’
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00036
Fmt 4701
Sfmt 4702
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.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
reclaimed further before recovery is
completed, only if the partial
reclamation has produced a commoditylike 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 commoditylike.’’ 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 commoditylike 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
PO 00000
Frm 00037
Fmt 4701
Sfmt 4702
44129
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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44130
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 partiallyreclaimed 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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.
PO 00000
Frm 00038
Fmt 4701
Sfmt 4702
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 partiallyreclaimed 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 partiallyreclaimed 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 partiallyreclaimed material to be guaranteed,
there must be secure demand and longterm 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 partiallyreclaimed 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 partiallyreclaimed material by other parties.
Further reclamation that can only be
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 partiallyreclaimed 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 partiallyreclaimed 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
criterion. We also believe that removing
this general criterion will result in more
consistent and appropriate decisionmaking 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 §§ 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 nonwaste determination, which can, in
turn, lead to facilities discovering that
their intended recycling fits under an
existing exclusion and therefore a nonwaste 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 §§ 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.
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.
PO 00000
Frm 00039
Fmt 4701
Sfmt 4702
44131
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 NonWaste 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 nonwaste 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
E:\FR\FM\22JYP2.SGM
22JYP2
44132
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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-bycase 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 nonwaste determinations petitions and
tentative decisions on those petitions for
review and comment.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
XII. Request for Comment on ReManufacturing 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.
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
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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 thirdparty 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
PO 00000
Frm 00040
Fmt 4701
Sfmt 4702
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 ‘‘remanufacturing’’). 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, remanufacturing 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 remanufacturing 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 remanufacturing 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 remanufacturers would be competitive
with solvent manufacturers even in the
event of a downturn in the sizable
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
chemical markets. Companies would
also have the flexibility to redirect remanufacturing 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) productionrelated 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
Based on this information, EPA
proposes that all of the following
conditions would need to be satisfied
32 U.S. EPA Benefits of the Re-manufacturing
Exclusion, June 2011.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
(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);
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.
PO 00000
Frm 00041
Fmt 4701
Sfmt 4702
44133
(5) Additionally, both the hazardous
secondary material generator and the remanufacturer 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 remanufacturing plan which includes
information on the types and expected
annual volumes of solvents to be remanufactured, 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 remanufacturing 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 remanufacturing, 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
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 remanufacturing (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 remanufacturing versus the use of virgin
feedstock.
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.
E:\FR\FM\22JYP2.SGM
22JYP2
44134
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
1. Designated Solvents
EPA has identified 18 chemicals that
could be included in the remanufacturing exclusion. They are
toluene, xylenes, ethylbenzene, 1,2,4trimethylbenzene, chlorobenzene, nhexane, cyclohexane, methyl tert-butyl
ether, acetonitrile, chloroform,
chloromethane, dichloromethane,
methyl isobutyl ketone, N,Ndimethylformamide, tetrahydrofuran, nbutyl alcohol, ethanol, and methanol.36
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 lowerrisk 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 remanufacturing exclusion can help
achieve.
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. Re36 U.S. EPA, Selection of Industry Sectors,
Chemicals and Functions in the Re-manufacturing
Exclusion, June 2011.
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 PrenticeHall, 2001.
38 For information on U.S. EPA’s Green Chemistry
Program, see https://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 https://portal.acs.org/portal/acs/corg/
content.
VerDate Mar<15>2010
20:25 Jul 21, 2011
Jkt 223001
manufacturing a spent solvent will
eliminate the need for blending it with
another spent solvent to satisfy the fuelratio 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
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 remanufactured to serve similar purposes
to those of the original commercialgrade 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 remanufactured 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 remanufacturing 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 remanufacturing exclusion, and whether
40 U.S. EPA, Selection of Industry Sectors,
Chemicals and Functions in the Re-manufacturing
Exclusion, June 2011.
41 Id.
42 U.S. EPA. 2020 Vision Report: Sustainable
Materials Management: The Road Ahead, Table 1,
page 25. https://www.epa.gov/waste/inforesources/
pubs/vision.htm. The other top ranked sectors are
electric services (#1) and cotton production (#2).
PO 00000
Frm 00042
Fmt 4701
Sfmt 4702
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.
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 remanufacturing 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.
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 remanufacturing of the higher-value
solvents more economically feasible.
Accordingly, the functions that the remanufactured 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
43 U.S. EPA, Selection of Industry Sectors,
Chemicals and Functions in the Re-manufacturing
Exclusion, June 2011.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
As discussed earlier, companies
whose primary business is the sale of a
commercial product do not operate
under the same market forces as
44 U.S. EPA, Selection of Industry Sectors,
Chemicals and Functions in the Re-manufacturing
Exclusion, June 2011
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 remanufacturing 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 metalbearing 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
4. Additional Exclusion Conditions
EPA has identified the following
additional conditions as necessary for
the proper implementation of a remanufacturing 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 remanufacturers would have to submit a
notification prior to operating under the
exclusion and by March 1 of each evennumbered year thereafter using EPA
form 8700–12 to the EPA Regional
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. https://www.epa.gov/waste/inforesources/
pubs/vision.htm.
PO 00000
Frm 00043
Fmt 4701
Sfmt 4702
44135
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 remanufacturing 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 remanufacturing 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-
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44136
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 remanufacturing 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 remanufacturing and arrived at the
intended facility and were not discarded
in transit.
d. Management in tanks and
containers. Solvents, whether virgin or
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 nonhalogenated organic chemicals, which
represent a broad range of chemicals
and associated hazards.
EPA believes that by focusing on
higher-value spent solvents going to remanufacturing, 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.
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 remanufacturing and storage prior to remanufacturing, there should be effective
controls of hazardous air emissions.
This can be ensured by requiring that
46 U.S. EPA An Assessment of Environmental
Problems Associated With Recycling of Hazardous
Secondary Materials (EPA–HQ–RCRA–2002–0031–
0355).
47 U.S. EPA Equivalent Containment Standards
for the Re-manufacturing Exclusion, June 2011.
PO 00000
Frm 00044
Fmt 4701
Sfmt 4702
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).
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 remanufactured 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 remanufacturing 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
48 U.S. EPA Benefits of the Re-manufacturing
Exclusion, June 2011.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
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 remanufacturing (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 remanufacture 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.
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 remanufactured solvents, which would
limit or prevent the over-accumulation
of the spent solvents, which also
reduces the likelihood for discard.
49 U.S. EPA Benefits of the Re-manufacturing
Exclusion, June 2011.
50 U.S. EPA Benefits of the Re-manufacturing
Exclusion, June 2011.
.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
D. Potential Rulemaking Variance
Process To Add Candidates for ReManufacturing 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 remanufacturing 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 remanufacturing 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 remanufacturing 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
PO 00000
Frm 00045
Fmt 4701
Sfmt 4702
44137
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 ReManufacturing 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 remanufacturer, 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 remanufacturing 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 remanufacturing 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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44138
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 remanufacturing 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 remanufacturer to have financial
assurance. EPA required financial
assurance for recyclers under the
transfer-based exclusion. Since the remanufacturing 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 remanufacturer 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 transferbased exclusion. However, since the remanufacturing 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
about the environmental benefits (e.g.,
reduced air emissions, energy savings,
reduced transportation impacts) that are
realized through their use of the remanufacturing 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.
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
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: https://www.regulations.gov/
search/Regs/
home.html#documentDetail?R=09000064801f3efb.
Addendum (July 2008): https://www.regulations.gov/
search/Regs/
home.html#documentDetail?R=09000064806b5741,
Addendum (June 2011) found in today’s docket.
PO 00000
Frm 00046
Fmt 4701
Sfmt 4702
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
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 generatorcontrolled 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
52 U.S. EPA Correlation of Recycling Damage
Cases with Regulatory Exclusions, Exemptions or
Alternative Standards.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
#—Citation
1—260.30 .................................................................................
2—261.2 (e) .............................................................................
3—261.2 Table 1 ......................................................................
4—261.2 Table 1 ......................................................................
5—261.2 Table 1 ......................................................................
261.4(a)
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
......................................................................
261.4(b)
Pulping Liquors.
Spent Sulfuric Acid.
Closed-Loop Recycling.
Spent Wood Preservatives.
Coke By-Product Wastes.
Splash Condenser Dross Residue.
Hazardous Oil-Bearing Secondary Materials and Recovered Oil from Petroleum
Refining Operations.
Processed Scrap Metal.
Shredded Circuit Boards.
Comparable Fuels.
Mineral Processing Spent Materials.
Petrochemical Recovered Oil.
Spent Caustic Solutions from Petroleum Refining.
Hazardous Secondary Materials Used to Make Zinc Fertilizers.
Zinc Fertilizers Made from Recycled Hazardous Secondary Materials.
Used Cathode Ray Tubes (CRTs).
Spent Chlorofluorocarbon Refrigerants.
Used Oil Distillation Bottoms used to manufacture asphalt products.
Requirements for recyclable materials (hazardous wastes)
24—261.6(a)(3)(ii) ....................................................................
25—261.6(a)(3)(iii) ...................................................................
26—261.6(a)(3)(iv) ...................................................................
27—261.6(c)(2) ........................................................................
261.7
Scrap metal.
Waste-derived fuels from refining processes.
Unrefined waste-derived fuels and oils from petroleum refineries.
Reclaimers that do not store.
Residues of hazardous waste in empty containers
28—261.7 .................................................................................
Part 266
Procedures for variances and non-waste determinations.
Use/Reuse.
Characteristic sludges being reclaimed.
Characteristic by-products being reclaimed.
Commercial chemical products being reclaimed.
Solid wastes which are not hazardous wastes
22—261.4(b)(12) ......................................................................
23—261.4(b)(14) ......................................................................
261.6
Definition of Solid Waste
Exclusions from the Definition of Solid Waste
6—261.4(a)(6) ..........................................................................
7—261.4(a)(7) ..........................................................................
8—261.4(a)(8) ..........................................................................
9—261.4(a)(9) ..........................................................................
10—261.4(a)(10) ......................................................................
11—261.4(a)(11) ......................................................................
12—261.4(a)(12) ......................................................................
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 recyclingrelated 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).
Description
260 & 261
13—261.4(a)(13)
14—261.4(a)(14)
15—261.4(a)(16)
16—261.4(a)(17)
17—261.4(a)(18)
18—261.4(a)(19)
19—261.4(a)(20)
20—261.4(a)(21)
21—261.4(a)(22)
44139
Residues of hazardous waste in empty containers.
Standards for the Management of Specific Hazardous Wastes
29—266 Subpart C ..................................................................
Recyclable Materials Used in a Manner Constituting Disposal.
30—266 Subpart F ...................................................................
31—266 Subpart G ..................................................................
32—266 Subpart H ..................................................................
Materials Utilized for Precious Metal Recovery.
Spent Lead-Acid Batteries Being Reclaimed.
Hazardous Waste Burned in Boilers and Industrial Furnaces.
Note that the possible changes
discussed below would be in addition to
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
the proposed application of the
definition of legitimacy to all recycling,
PO 00000
Frm 00047
Fmt 4701
Sfmt 4702
discussed in Section X of this preamble,
and the request for comment on
E:\FR\FM\22JYP2.SGM
22JYP2
44140
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 evennumbered 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
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
53 https://www.epa.gov/epawaste/hazard/dsw/
impresource.htm.
PO 00000
Frm 00048
Fmt 4701
Sfmt 4702
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 pre2008 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 § 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 § 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.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00049
Fmt 4701
Sfmt 4702
44141
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
54 The spent catalysts would be eligible for the
alternative Subtitle C regulations discussed in
Section VIII of this preamble.
E:\FR\FM\22JYP2.SGM
22JYP2
44142
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
standards) specific to pyrophoric
materials to the exclusion.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
One issue regards whether hazardous
secondary materials excluded under 40
55 This section restates our policy on this issue,
which is published in the ‘‘Guidance for Mixing
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 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
§ 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 § 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.
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 https://
www.epa.gov/epawaste/hazard/dsw/
impresource.htm.
PO 00000
Frm 00050
Fmt 4701
Sfmt 4702
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 § 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
§ 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 § 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
§ 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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 offsite 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).
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
§ 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
§ 261.4(a)(24) to a reclaimer who mixes
may manage the hazardous secondary
materials under the § 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
§ 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
56 Horsehead Resource Development Co., Inc. v.
EPA, 16 F3d 1246 (February 1994).
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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.
PO 00000
Frm 00051
Fmt 4701
Sfmt 4702
44143
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 RCRApermitted 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
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44144
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
CFR 261.4(a)(24) transfer-based
exclusion in states that have adopted
the rule57 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.
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
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.
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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.
PO 00000
Frm 00052
Fmt 4701
Sfmt 4702
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 nonHSWA, that are considered less
stringent than previous Federal
regulations or that narrow the scope of
the RCRA program.
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 generatorcontrolled 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
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.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
§ 260.31 variance procedures would be
required to modify their programs to
adopt equivalent, consistent and no less
stringent requirements.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 2011updated 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 RCRAauthorized 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
PO 00000
Frm 00053
Fmt 4701
Sfmt 4702
44145
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 https://
www.epa.gov/waste/hazard/dsw/
impresource.htm.
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).
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 https://
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 https://
www.regulations.gov.
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44146
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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-forprofit 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 6digit 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 &
PO 00000
Frm 00054
Fmt 4701
Sfmt 4702
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% basecase 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
(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 nonsmall entities affected under the pre2008 exclusions), and the BR database
does not include comprehensive data on
RCRA small quantity generators (SQGs)
which may contribute to underestimating 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 remanufacturing exclusion (RIA Option
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00055
Fmt 4701
Sfmt 4702
44147
legitimacy documentation (RIA Options
4); (8) receive, review, and file reapplication 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,
E:\FR\FM\22JYP2.SGM
22JYP2
44148
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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
PO 00000
Frm 00056
Fmt 4701
Sfmt 4702
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 § 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:
§ 260.10
Definitions.
*
*
*
*
*
Contained means a unit (including a
land-based unit as defined in this
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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:
§ 260.30 Non-waste determinations and
variances from classification as a solid
waste.
In accordance with the standards and
criteria in § 260.31 and § 260.34 and the
procedures in § 260.33, the Regional
Administrator may determine on a caseby-case basis that the following recycled
materials are not solid wastes:
*
*
*
*
*
4. Amend § 260.31 as follows:
a. Revise the introductory text of
paragraphs (a) and (b);
b. Revise paragraph (c).
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
§ 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
VerDate Mar<15>2010
20:25 Jul 21, 2011
Jkt 223001
specified in § 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
§ 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 § 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:
§ 260.32
boiler.
Variances to be classified as a
In accordance with the standards and
criteria in § 260.10 (definition of
‘‘boiler’’), and the procedures in
§ 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
§ 260.10, after considering the following
criteria:
*
*
*
*
*
PO 00000
Frm 00057
Fmt 4701
Sfmt 4702
44149
6. Section 260.33 is revised to read as
follows:
§ 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 § 260.31, § 260.32,
§ 260.34, or § 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 § 260.31,
§ 260.32, § 260.34 or § 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 § 260.42 of
this chapter.
7. Amend § 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).
§ 260.34 Standards and criteria for nonwaste determinations.
(a) An applicant may apply to the
Regional Administrator for a formal
determination that a hazardous
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44150
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 § 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 § 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 § 261.2 or § 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 § 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 § 261.2 or § 261.4 of this chapter.
8. Amend § 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).
§ 260.42 Notification requirement for
hazardous secondary materials.
(a) Facilities managing hazardous
secondary materials or hazardous
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
recyclable materials under §§ 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:
§ 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
PO 00000
Frm 00058
Fmt 4701
Sfmt 4702
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 onsite.
(1) Documentation must be either a
written description of how the recycling
meets all four factors in § 260.43(a) or a
copy of a legitimacy variance received
from the person’s implementing agency.
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
(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 § 260.43(a)(3) or
§ 260.43(a)(4). The Regional
Administrator will use the procedures
in § 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 § 260.43(a)(3) or
§ 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:
§ 261.2
Definition of solid waste.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
*
*
*
*
*
(e) * * * (1) Materials are not solid
wastes when they can be shown to be
legitimately recycled as specified in
§ 260.43 by being:
*
*
*
*
*
12. Amend § 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);
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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).
§ 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 § 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 § 261.1(c) of this chapter.
(7) Spent sulfuric acid legitimately
used to produce virgin sulfuric acid as
specified in § 260.43 of this chapter,
unless it is accumulated speculatively
as defined in § 261.1(c) of this chapter.
(8) Secondary materials that are
legitimately reclaimed as specified in
§ 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 § 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
§ 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
§ 261.24 of this part when, subsequent
to generation, these materials are
legitimately recycled as specified in
§ 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.
PO 00000
Frm 00059
Fmt 4701
Sfmt 4702
44151
(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 § 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 § 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 § 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 § 260.43 of this chapter.
(14) Shredded circuit boards being
legitimately recycled as specified in
§ 260.43 of this chapter provided that
they are:
*
*
*
*
*
(17) * * *
(i) The spent material is legitimately
recycled as specified in § 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
§ 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 § 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 § 261.1(c).
(20) Hazardous secondary materials
legitimately used as specified in
§ 260.43 to make zinc fertilizers,
E:\FR\FM\22JYP2.SGM
22JYP2
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
44152
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 § 260.43 of this chapter,
provided that:
*
*
*
*
*
(22) * * *
*
*
*
*
*
(ii) Used, intact CRTs as defined in
§ 260.10 of this chapter are not solid
wastes when exported for legitimate
recycling as specified in § 260.43 of this
chapter provided that they meet the
requirements of § 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 § 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 § 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
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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 § 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 § 261.1(c)(8), and the material
is placed in a storage unit with a label
indicating the first date that the
PO 00000
Frm 00060
Fmt 4701
Sfmt 4702
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
§ 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 § 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
§ 260.43 of this chapter.
13. Amend § 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).
§ 261.6 Requirements for recyclable
materials.
(a)(1) Hazardous wastes that are
legitimately recycled as specified in
§ 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 § 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
E:\FR\FM\22JYP2.SGM
22JYP2
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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 § 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 § 260.43 of this chapter,
except as provided in § 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
§ 261.38 Exclusion of comparable fuel and
syngas fuel.
*
*
*
*
*
(b) * * *
*
*
*
*
*
(17) Legitimate recycling. Excluded
fuel must be legitimately recycled as
specified in § 260.43 of this chapter.
*
*
*
*
*
15. Section 261.39 is amended by
revising the introductory text to read as
follows:
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
§ 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 § 260.43 of this chapter
and meet the following conditions:
*
*
*
*
*
16. Section 261.40 is revised to read
as follows:
§ 261.40 Conditional Exclusion for Used,
Intact Cathode Ray Tubes (CRTs) Exported
for Recycling.
Used, intact CRTs exported for
legitimate recycling as specified in
§ 260.43 of this chapter are not solid
wastes if they meet the notice and
consent conditions of § 261.39(a)(5), and
18:00 Jul 21, 2011
Jkt 223001
§ 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
§ 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
§ 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 (§§ 261.140 through
261.151)—[Removed]
18. Subpart H, consisting of
§§ 261.140 through 261.151, is removed.
14. Section 261.38 is amended by
adding paragraph (b)(17) to read as
follows:
VerDate Mar<15>2010
if they are not speculatively
accumulated as defined in § 261.1(c)(8).
17. Section 261.41 is revised to read
as follows:
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:
§ 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 § 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
PO 00000
Frm 00061
Fmt 4701
Sfmt 4702
44153
inseparable by physical means and if
such products meet the applicable
treatment standards in subpart D of part
268 (or applicable prohibition levels in
§ 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 § 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 § 260.43 of this chapter.
21. Subpart D is added to part 266 to
read as follows:
Subpart D—Hazardous Recyclable
Materials
§ 266.30
Applicability.
(a) The regulations of this subpart
apply to hazardous recyclable materials
that are reclaimed as defined in
§ 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 § 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
E:\FR\FM\22JYP2.SGM
22JYP2
44154
Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules
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:
§ 266.70
Applicability and requirements.
mstockstill on DSK4VPTVN1PROD with PROPOSALS2
(a) The regulations of this subpart
apply to recyclable materials that are
legitimately reclaimed as specified in
§ 260.43 of this chapter to recover
economically significant amounts of
gold, silver, platinum, palladium,
VerDate Mar<15>2010
18:00 Jul 21, 2011
Jkt 223001
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:
§ 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 § 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.
*
*
*
*
*
PO 00000
Subpart H—Hazardous Waste Burned
in Boilers and Industrial Furnaces
24. Section 266.100 is amended by
revising paragraph (a) to read as follows:
§ 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 § 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 §§ 266.104, 266.105, 266.106, and
266.107 apply to facilities operating
under interim status or under a RCRA
permit as specified in §§ 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 § 260.43 of this
chapter.
*
*
*
*
*
[FR Doc. 2011–17031 Filed 7–21–11; 8:45 am]
BILLING CODE 6560–50–P
Frm 00062
Fmt 4701
Sfmt 9990
E:\FR\FM\22JYP2.SGM
22JYP2
Agencies
[Federal Register Volume 76, Number 141 (Friday, July 22, 2011)]
[Proposed Rules]
[Pages 44094-44154]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17031]
[[Page 44093]]
Vol. 76
Friday,
No. 141
July 22, 2011
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
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
[[Page 44094]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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:
https://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
https://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 https://www.regulations.gov or e-mail. The https://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 https://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 https://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 https://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: https://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)
[[Page 44095]]
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
https://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
[[Page 44096]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
[[Page 44097]]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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,