Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule, 24664-24671 [2018-11578]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24664-24671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11578]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-OLEM-2018-0185; FRL-9977-56-OLEM]


Response to Vacatur of Certain Provisions of the Definition of 
Solid Waste Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is revising regulations 
associated with the definition of solid waste under the Resource 
Conservation and Recovery Act. These revisions implement vacaturs 
ordered by the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit), on July 7, 2017, as modified on March 
6, 2018.

DATES: This final rule is effective on May 30, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2018-0185. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Docket Center. See https://www.epa.gov/dockets/epa-docket-center-reading-room for more information on the Public Reading Room.

FOR FURTHER INFORMATION CONTACT: Office of Resource Conservation and 
Recovery, Materials Recovery and Waste Management Division, MC 5304P, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460, Tracy Atagi, at (703) 308-8672, ([email protected]).

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. General Information
II. Statutory Authority
III. Which regulations is EPA removing and replacing?
IV. When will the final rule become effective?
V. State Authorization
VI. Statutory and Executive Order (E.O.) Reviews

I. General Information

A. Does this action apply to me?

    This final rule applies to facilities that generate or recycle 
hazardous secondary materials (HSM). According to the revisions to the 
definition of solid waste promulgated in 2015, entities potentially 
affected by the original rule include over 5,000 industrial facilities 
in 634 industries (at the 6-digit North American Industry 
Classification System (NAICS) code level).\1\ Most of these 634 
industries have relatively few entities that are potentially affected. 
The top-5 economic sectors (at the 2-digit NAICS code level) with the 
largest number of potentially affected entities are as follows: (1) 41% 
in NAICS code 33--the manufacturing sector, which consists of metals, 
metal products, machinery, computer & electronics, electrical 
equipment, transportation equipment, furniture, and miscellaneous 
manufacturing subsectors, (2) 23% in NAICS code 32--the manufacturing 
sector, which consists of wood products, paper, printing, petroleum & 
coal products, chemicals plastics & rubber products, and nonmetallic 
mineral products manufacturing subsectors, (3) 3.0% in NAICS code 92--
the public administration sector, (4) 2.9% in NAICS code 61--the 
educational services sector, and (5) 2.8% in NAICS code 54--the 
professional, scientific and technical services sector.
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    \1\ 80 FR 1694/2, January 13, 2015.
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B. Why is EPA issuing a final rule?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedures are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for revising these provisions without prior 
proposal and opportunity for comment, because these revisions simply 
undertake the ministerial task of implementing court orders vacating 
these rules and reinstating the prior versions. As a matter of law, the 
orders issued by the United States Court of Appeals for the District of 
Columbia Circuit on July 7, 2017 and amended on March 6, 2018, (1) 
vacated the 2015 verified recycler exclusion for hazardous waste that 
is recycled off-site (except for certain provisions); (2) reinstated 
the transfer-based exclusion from the 2008 rule to replace the now-
vacated 2015 verified recycler exclusion; (3) upheld the containment 
and emergency preparedness provisions of the 2015 rule; (4) vacated 
Factor 4 of the 2015 definition of legitimate recycling in its 
entirety; and (5) reinstated the 2008 version of Factor 4 to replace 
the now-vacated 2015 version of Factor 4.\2\ It is, therefore, 
unnecessary to provide notice and an opportunity for comment on this 
action, which merely carries out the court's orders.
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    \2\ API v. EPA, 862 F.3d 50 (DC Cir. 2017), reh'g granted, No. 
09-1038, 2018 U.S. App. LEXIS 5613 (DC Cir. Mar. 6, 2018).
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    In addition, EPA finds that it has good cause to make the revisions 
immediately effective under section 553(d) of the Administrative 
Procedure Act, 5 U.S.C. 553(d), and section 3010(b) of RCRA, 42 U.S.C. 
6930(b). Section 553(d) provides that final rules shall not become 
effective until 30 days after publication in the Federal Register, 
``except . . . as otherwise provided by the agency for good cause,'' 
among other exceptions. The purpose of this provision is to ``give 
affected parties a reasonable time to adjust their behavior before the 
final rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (quoting legislative history). Thus, in 
determining whether good cause exists to waive the 30-day delay, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time

[[Page 24665]]

to prepare for the effective date of its ruling.'' Gavrilovic, 551 F.2d 
at 1105. EPA has determined that there is good cause for making this 
final rule effective immediately because this action merely implements 
court orders that vacate certain regulatory provisions and reinstate 
the prior versions. The court issued the mandate for its decision on 
March 14, 2018, at which point the orders became effective. Delaying 
the effectiveness of this rulemaking would lengthen the period between 
the change in the law (i.e., the court's mandate) and the corresponding 
update to the regulations. Minimizing that time period should reduce 
the possibility of confusion for the regulated community, state and 
local governments, and the public. Moreover, the Agency believes that 
delaying the effectiveness of this rule would not offer any benefits. 
As a result, EPA is making this rule immediately effective.

II. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste 
Disposal Act of 1965, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA) This statute is commonly referred to as 
``RCRA.''

III. Which regulations is EPA removing and replacing?

A. Removal of the 2015 Verified Recycler Exclusion and Reinstatement of 
the 2008 Transfer-Based Exclusion, With Modifications

    In the 2015 DSW rule, EPA replaced the 2008 DSW rule transfer-based 
exclusion found at 40 CFR 261.4(a)(24)-(25) with the verified recycler 
exclusion, found at 40 CFR 261.4(a)(24).\3\ (The goal of both 
exclusions was to exempt from regulation off-site recycling of 
hazardous waste when certain conditions are met). In promulgating the 
2015 verified recycler exclusion EPA made four key changes to the 
language of the 2008 transfer-based exclusion: (1) Removed a 
prohibition that had made certain spent petroleum catalysts (hazardous 
waste codes K171 and K172) ineligible for the new recycling exclusions 
(i.e., these materials became eligible under the 2015 exclusion); (2) 
added a specific ``contained'' standard for the management of the 
materials prior to being recycled; (3) added emergency preparedness and 
response requirements; and (4) replaced a requirement for generators to 
make a ``reasonable effort'' to audit the recycling facility prior to 
sending their material to be recycled with a requirement that the 
recycling facility obtain a variance from the regulations prior to 
accepting the recyclable materials.
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    \3\ The Federal Register citation for the ``2015 DSW rule'' is 
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR 
64668, October 30, 2008.
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    In its decisions vacating the 2015 verified recycler exclusion and 
ordering the reinstatement of the 2008 transfer-based exclusion, the 
court found that the first three provisions noted above were severable 
from the rest of the verified recycler exclusion and would not be 
affected by the vacatur. Instead, these provisions are retained in the 
reinstated transfer-based exclusion found in the revised version of 40 
CFR 261.4(a)(24) being finalized with this action. In addition, the 
export requirements for the transfer-based exclusion found at 40 CFR 
261.4(a)(25) are also reinstated.\4\ Finally, the following conforming 
changes are made in response to the vacatur of the verified recycler 
exclusion and reinstatement of the transfer-based exclusion (1) 
references to the verified recycler variance process are removed from 
40 CFR 260.30 and 40 CFR 260.31, (2) the reference to the financial 
assurance notification requirement reinstated under the transfer-based 
exclusion is added back into 40 CFR 260.42(a)(5), and (3) the language 
in 40 CFR 261.4(a)(25) is updated to reflect the fact that subsequent 
to the 2015 withdrawal of the transfer-based exclusion, the applicable 
export definitions were moved to 40 CFR 262.81, and the paper submittal 
of RCRA export notices and export annual reports was replaced with 
electronic submittal via EPA's Waste Import Export Tracking System 
(WIETS). (81 FR 85696, November 28, 2016; 82 FR 41015, August 29, 
2017).
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    \4\ The court characterized the 2008 transfer-based exclusion 
this way: ``EPA adopted the first edition, the Transfer-Based 
Exclusion, as part of its 2008 Rule . . . previously codified at 40 
CFR 261.4(a)(24)-(25) (2014).'' API, 862 F.3d at 64. The court's 
citation encompasses both the domestic (i.e., paragraph (a)(24) and 
export (i.e., paragraph (a)(25)) parts of the exclusion. The court 
then concluded that ``the [2008] Transfer-Based Exclusion is 
reinstated.'' Id. at 75. Consequently, this action includes both 
paragraphs (a)(24) and (25).
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B. Removal of the 2015 Factor Four in the Definition of Legitimate 
Recycling and Reinstatement of the 2008 Factor Four

    In the 2015 DSW rule, EPA revised the definition of legitimate 
recycling found at 40 CFR 260.43, which was originally promulgated in 
the 2008 DSW rule. In both the 2008 and 2015 versions of the 
regulation, the legitimacy provision was 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 represented the codification of a long-standing 
policy prohibiting sham recycling which had previously been applied via 
Federal Register preamble and guidance documents, most notably through 
the 1989 ``Lowrance memo'' which discussed over a dozen factors to be 
considered.
    The existing policy in that 1998 memo was condensed and codified 
into regulation in 2008 as four separate factors, summarized as 
follows. Factor 1 addresses the concept that legitimate recycling 
involves a hazardous secondary material that provides a useful 
contribution to the recycling process, or to a product or intermediate 
of the recycling process. Factor 2 addresses the concept that the 
legitimate recycling process produces a valuable product or 
intermediate. Factor 3 addresses the concept that under legitimate 
recycling, the generator and the recycler manages the hazardous 
secondary material as a valuable commodity when it is under their 
control. Factor 4 addresses the concept that the product of the 
recycling process is comparable to a legitimate product or intermediate 
in terms of hazardous constituents or characteristics. Under the 2008 
rule, the first two factors had to be satisfied while the latter two 
factors had to be considered. In addition, the codified legitimacy test 
only applied to the then-new Generator-Controlled and Transfer-based 
exclusions, and to non-waste determinations under 260.34. See 40 CFR 
260.43(b), (c) (2008).
    The 2015 revisions made the following changes to the four 
legitimacy factors: (1) All four factors were made to apply to all 
excluded recycling, including recycling exclusions that predated the 
2008 rule (2) Factors 3 and 4 became mandatory factors (in the 2008 
rule, they were merely factors to be ``considered''), and (3) the 
substance of Factors 3 and 4 changed to add flexibility since the 
factors had become mandatory.
    In its decisions, the Court vacated Factor 4, but left in place all 
other 2015 changes to the legitimacy factors. The net result is as 
follows: (1) The 2015 version of Factor 4 is vacated in its entirety; 
(2) the 2015 change making the legitimacy factors applicable to all 
exclusions remains; (3) Factor 3 remains mandatory per the 2015 
changes; and (4) the 2008 version of Factor 4 (which

[[Page 24666]]

requires only that the factor be ``considered'') replaces the now-
vacated 2015 version. In addition, a reference in 40 CFR 
261.4(a)(23)(ii)(E) requiring documentation of how ``all four factors 
in 40 CFR 260.43(a) are met'' has been revised to conform with the 
court decisions.

IV. When will the final rule become effective?

    The revisions to 40 CFR 260.42, 40 CFR 260.43, 40 CFR 261.4(a)(23) 
and 40 CFR 261.4(a)(24); the reinstatement of 261.4(a)(25), and the 
removal of 40 CFR 260.30(f) and 260.31(d) are effective immediately.

V. 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 and prohibitions 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 under HSWA provisions take effect in authorized states at 
the same time that they take effect in unauthorized states. As such, 
EPA carries out the HSWA requirements and prohibitions in authorized 
states, including the issuance of new permits implementing those 
requirements, until EPA authorizes the state to do so.
    Authorized states are required to modify their programs only when 
EPA enacts federal requirements that are more stringent or broader in 
scope than existing federal requirements. Under RCRA section 3009, 
states may impose standards that are more stringent than those in the 
federal program (see also 40 CFR 271.1(i)). Therefore, authorized 
states are not required to adopt new federal regulations that are 
considered less stringent than previous federal regulations or that 
narrow the scope of the RCRA program. Previously authorized hazardous 
waste regulations would continue to apply in those states that do not 
adopt ``deregulatory'' rules.

B. Effect on State Authorization of D.C. Circuit Court Vacaturs

    On March 14, 2018, the D.C. Circuit Court issued its mandate, 
effectuating the vacaturs as described earlier in this document. The 
court's vacaturs mean that the vacated provisions of these federal 
rules are legally null and void and the corresponding regulatory 
requirements that were previously in effect are reinstated as if the 
vacated parts of the rules never existed. At the federal level, because 
the effect of the vacaturs means, in essence, that the vacated 
provisions of these rules should not have been promulgated, this 
Federal Register action serves to remove the vacated provisions from 
the federal regulations and replaces them with the regulations that 
were previously in effect. At the state level, because no state rules 
were challenged in the litigation, the court decision does not directly 
affect any state regulations. However, the vacaturs do have an impact 
on the authorization status of state regulations. The multiple 
scenarios that exist in the states are discussed below.
1. States Without Final RCRA Authorization
    For states and territories that have no RCRA authorization, the 
vacaturs mean that the reinstated federal rules are now effect in those 
states and this Federal Register action alerts interested parties of 
the removal of the vacated parts of the rules from the Code of Federal 
Regulations and their replacement with the previously promulgated 
provisions.
2. States That Have Final Authorization But Did Not Promulgate Similar 
Rules
    For states and territories that have RCRA authorization but did not 
adopt the 2015 verified recycler exclusion (and therefore were not 
authorized for the exclusion), these states are not required to adopt 
or become authorized for the transfer-based exclusion being reinstated 
today because the transfer-based exclusion is less stringent than full 
Subtitle C hazardous waste regulation.
    However, states and territories that have RCRA authorization but 
have not adopted the 2015 definition of legitimate recycling at 40 CFR 
260.43 are required to adopt and become authorized for a definition of 
legitimate recycling that is equivalent to and at least as stringent as 
the definition being promulgated today.
3. States That Adopted Similar Rules But Are Not Yet Authorized for 
Them
    For states that have adopted rules similar to the verified recycler 
exclusion and the 2015 definition of legitimate recycling, but have not 
yet been authorized for them, the vacatur of the federal rules will not 
change the authorization status of the state programs. The 
authorization status that was established prior to the adoption of the 
state counterpart rules remains in effect. The vacaturs and subsequent 
reinstatement of various provisions of the prior federal rules will 
result in state provisions that are broader in scope than the federal 
program as it pertains to the specific vacated provisions.
4. States That Adopted Similar Rules and Have Been Authorized for Them
    For states that have previously been authorized for rules similar 
to the verified recycler exclusion and the 2015 definition of 
legitimate recycling, and have been authorized for them, the effect of 
the vacaturs is that those previously-authorized state provisions will 
be considered broader in scope than the federally program as it 
pertains to the specific vacated provisions.

VI. Statutory and Executive Order (E.O.) Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), the Office of 
Management and Budget (OMB) waived review of this action. Because this 
action is not subject to notice and comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or Sections 202 
and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 
104-4). In addition, this action does not significantly or uniquely 
affect small governments. This action does not create new binding legal 
requirements that substantially and directly affect Tribes under 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does 
not have significant Federalism implications under Executive Order 
13132 (64 FR 43255, August 10, 1999). Because this final rule is not a 
significant regulatory action under Executive Order 12866, this final 
rule is not subject to Executive Order 13771, entitled Reducing 
Regulations and Controlling Regulatory Costs; Executive Order 13211, 
entitled Actions Concerning Regulations That

[[Page 24667]]

Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001); or Executive Order 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997). This action does not require any special 
considerations under Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.

A. Paperwork Reduction Act (PRA)

    To implement the court vacatur, EPA submitted an emergency ICR 
amendment to OMB with OMB control number 2050-0202 (EPA ICR Number 
2310.05). You can find a copy of the ICR amendment in the docket for 
this rule. The ICR amendment reflects changes due to the vacatur, which 
are expected to affect a total of 105 facilities, resulting in a total 
net burden reduction of 2,122 hours and $26,132.21 per year. 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.

B. Congressional Review Act (CRA)

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. Because this final action only implements 
the court vacatur, and the Agency has made a good cause finding that 
notice and comment is unnecessary, it is not subject to the 
Congressional Review Act.

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, Recycling, Solid waste.

    Dated: May 23, 2018.
E. Scott Pruitt,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.


Sec.  260.30  [Amended]

0
2. Section 260.30 is amended by removing paragraph (f).


Sec.  260.31  [Amended]

0
3. Section 260.31 is amended by removing paragraph (d).

0
4. Section 260.42 is amended by revising paragraph (a) to read as 
follows:


Sec.  260.42  Notification requirement for hazardous secondary 
materials.

    (a) Facilities managing hazardous secondary materials under 
Sec. Sec.  260.30, 261.4(a)(23), 261.4(a)(24), 261.4(a)(25), or 
261.4(a)(27) 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 (if applicable) of the 
facility;
    (2) The name and telephone number of a contact person;
    (3) The NAICS code of the facility;
    (4) The regulation under which the hazardous secondary materials 
will be managed;
    (5) For reclaimers and intermediate facilities managing hazardous 
secondary materials in accordance with Sec.  261.4(a)(24) or (25), 
whether the reclaimer or intermediate facility has financial assurance 
(not applicable for persons managing hazardous secondary materials 
generated and reclaimed under the control of the generator);
    (6) When the facility began or expects to begin managing the 
hazardous secondary materials in accordance with the regulation;
    (7) A list of hazardous secondary materials that will be managed 
according to the regulation (reported as the EPA hazardous waste 
numbers that would apply if the hazardous secondary materials were 
managed as hazardous wastes);
    (8) For each hazardous secondary material, whether the hazardous 
secondary material, or any portion thereof, will be managed in a land-
based unit;
    (9) The quantity of each hazardous secondary material to be managed 
annually; and
    (10) The certification (included in EPA Form 8700-12) signed and 
dated by an authorized representative of the facility.

0
5. Section 260.43 is amended by revising paragraph (a) and adding 
paragraph (b) to read as follows:


Sec.  260.43  Legitimate recycling of hazardous secondary materials.

    (a) Recycling of hazardous secondary materials for the purpose of 
the exclusions or exemptions from the hazardous waste regulations must 
be legitimate. Hazardous secondary material that is not legitimately 
recycled is discarded material and is a solid waste. In determining if 
their recycling is legitimate, persons must address all the 
requirements of this paragraph and must consider the requirements of 
paragraph (b) of this section.
    (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 when it is under their 
control. 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.
    (b) The following factor must be considered in making a 
determination as to the overall legitimacy of a specific recycling 
activity.

[[Page 24668]]

    (1) 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 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.
    (2) In making a determination that a hazardous secondary material 
is legitimately recycled, persons must evaluate all factors and 
consider legitimacy as a whole. If, after careful evaluation of these 
considerations, the factor in this paragraph is not met, then this fact 
may be an indication that the material is not legitimately recycled. 
However, the factor in this paragraph does not have to be met for the 
recycling to be considered legitimate. In evaluating the extent to 
which this factor is met and in determining whether a process that does 
not meet this factor is still legitimate, persons can consider exposure 
from toxics in the product, the bioavailability of the toxics in the 
product and other relevant considerations.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
6. 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

0
7. Section 261.4 is amended as follows:
0
a. Republish paragraph (a) introductory text;
0
b. Revise paragraphs (a)(23) introductory text, (a)(23)(ii), and 
(a)(24); and
0
c. Add paragraph (a)(25).
    The revisions and additions read as follows:


Sec.  261.4  Exclusions.

    (a) Materials which are not solid wastes. The following materials 
are not solid wastes for the purpose of this part:
* * * * *
    (23) Hazardous secondary material generated and legitimately 
reclaimed within the United States or its territories and under the 
control of the generator, provided that the material complies with 
paragraphs (a)(23)(i) and (ii) of this section:
* * * * *
    (ii)(A) The hazardous secondary material is contained as defined in 
Sec.  260.10 of this chapter. A hazardous secondary material released 
to the environment is discarded and a solid waste unless it is 
immediately recovered for the purpose of reclamation. Hazardous 
secondary material managed in a unit with leaks or other continuing or 
intermittent unpermitted releases is discarded and a solid waste.
    (B) The hazardous secondary material is not speculatively 
accumulated, as defined in Sec.  261.1(c)(8).
    (C) Notice is provided as required by Sec.  260.42 of this chapter.
    (D) The material is not otherwise subject to material-specific 
management conditions under paragraph (a) of this section when 
reclaimed, and it is not a spent lead-acid battery (see Sec. Sec.  
266.80 and 273.2 of this chapter).
    (E) Persons performing the recycling of hazardous secondary 
materials under this exclusion must maintain documentation of their 
legitimacy determination on-site. Documentation must be a written 
description of how the recycling meets all three factors in Sec.  
260.43(a) and how the factor in Sec.  260.43(b) was considered. 
Documentation must be maintained for three years after the recycling 
operation has ceased.
    (F) The emergency preparedness and response requirements found in 
subpart M of this part are met.
    (24) Hazardous secondary material that is generated and then 
transferred to another person for the purpose of reclamation is not a 
solid waste, provided that:
    (i) The material is not speculatively accumulated, as defined in 
Sec.  261.1(c)(8);
    (ii) The material is not handled by any person or facility other 
than the hazardous secondary material generator, the transporter, an 
intermediate facility or a reclaimer, and, while in transport, is not 
stored for more than 10 days at a transfer facility, as defined in 
Sec.  260.10 of this chapter, and is packaged according to applicable 
Department of Transportation regulations at 49 CFR parts 173, 178, and 
179 while in transport;
    (iii) The material is not otherwise subject to material-specific 
management conditions under paragraph (a) of this section when 
reclaimed, and it is not a spent lead-acid battery (see Sec. Sec.  
266.80 and 273.2 of this chapter);
    (iv) The reclamation of the material is legitimate, as specified 
under Sec.  260.43 of this chapter;
    (v) The hazardous secondary material generator satisfies all of the 
following conditions:
    (A) The material must be contained as defined in Sec.  260.10. 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 is discarded and a solid waste.
    (B) Prior to arranging for transport of hazardous secondary 
materials to a reclamation facility (or facilities) where the 
management of the hazardous secondary materials is not addressed under 
a RCRA part B permit or interim status standards, the hazardous 
secondary material generator must make reasonable efforts to ensure 
that each reclaimer intends to properly and legitimately reclaim the 
hazardous secondary material and not discard it, and that each 
reclaimer will manage the hazardous secondary material in a manner that 
is protective of human health and the environment. If the hazardous 
secondary material will be passing through an intermediate facility 
where the management of the hazardous secondary materials is not 
addressed under a RCRA part B permit or interim status standards, the 
hazardous secondary material generator must make contractual 
arrangements with the intermediate facility to ensure that the 
hazardous secondary material is sent to the reclamation facility 
identified by the hazardous secondary material generator, and the 
hazardous secondary material generator must perform reasonable efforts 
to ensure that the intermediate facility will manage the hazardous 
secondary material in a manner that is protective of human health and 
the environment. Reasonable efforts must be repeated at a minimum of 
every three years for the hazardous secondary material generator to 
claim the exclusion and to send the hazardous secondary materials to 
each reclaimer and any intermediate facility. In making these 
reasonable efforts, the generator may use any credible evidence 
available, including information gathered by the hazardous secondary 
material generator, provided by the reclaimer or intermediate facility, 
and/or provided by a third party. The hazardous secondary material 
generator must affirmatively answer all of the following questions for 
each reclamation facility and any intermediate facility:
    (1) Does the available information indicate that the reclamation 
process is legitimate pursuant to Sec.  260.43 of this chapter? In 
answering this question, the

[[Page 24669]]

hazardous secondary material generator can rely on their existing 
knowledge of the physical and chemical properties of the hazardous 
secondary material, as well as information from other sources (e.g., 
the reclamation facility, audit reports, etc.) about the reclamation 
process.
    (2) Does the publicly available information indicate that the 
reclamation facility and any intermediate facility that is used by the 
hazardous secondary material generator notified the appropriate 
authorities of hazardous secondary materials reclamation activities 
pursuant to Sec.  260.42 of this chapter and have they notified the 
appropriate authorities that the financial assurance condition is 
satisfied per paragraph (a)(24)(vi)(F) of this section? In answering 
these questions, the hazardous secondary material generator can rely on 
the available information documenting the reclamation facility's and 
any intermediate facility's compliance with the notification 
requirements per Sec.  260.42 of this chapter, including the 
requirement in Sec.  260.42(a)(5) to notify EPA whether the reclaimer 
or intermediate facility has financial assurance.
    (3) Does publicly available information indicate that the 
reclamation facility or any intermediate facility that is used by the 
hazardous secondary material generator has not had any formal 
enforcement actions taken against the facility in the previous three 
years for violations of the RCRA hazardous waste regulations and has 
not been classified as a significant non-complier with RCRA Subtitle C? 
In answering this question, the hazardous secondary material generator 
can rely on the publicly available information from EPA or the state. 
If the reclamation facility or any intermediate facility that is used 
by the hazardous secondary material generator has had a formal 
enforcement action taken against the facility in the previous three 
years for violations of the RCRA hazardous waste regulations and has 
been classified as a significant non-complier with RCRA Subtitle C, 
does the hazardous secondary material generator have credible evidence 
that the facilities will manage the hazardous secondary materials 
properly? In answering this question, the hazardous secondary material 
generator can obtain additional information from EPA, the state, or the 
facility itself that the facility has addressed the violations, taken 
remedial steps to address the violations and prevent future violations, 
or that the violations are not relevant to the proper management of the 
hazardous secondary materials.
    (4) Does the available information indicate that the reclamation 
facility and any intermediate facility that is used by the hazardous 
secondary material generator have the equipment and trained personnel 
to safely recycle the hazardous secondary material? In answering this 
question, the generator may rely on a description by the reclamation 
facility or by an independent third party of the equipment and trained 
personnel to be used to recycle the generator's hazardous secondary 
material.
    (5) If residuals are generated from the reclamation of the excluded 
hazardous secondary materials, does the reclamation facility have the 
permits required (if any) to manage the residuals? If not, does the 
reclamation facility have a contract with an appropriately permitted 
facility to dispose of the residuals? If not, does the hazardous 
secondary material generator have credible evidence that the residuals 
will be managed in a manner that is protective of human health and the 
environment? In answering these questions, the hazardous secondary 
material generator can rely on publicly available information from EPA 
or the state, or information provided by the facility itself.
    (C) The hazardous secondary material generator must maintain for a 
minimum of three years documentation and certification that reasonable 
efforts were made for each reclamation facility and, if applicable, 
intermediate facility where the management of the hazardous secondary 
materials is not addressed under a RCRA part B permit or interim status 
standards prior to transferring hazardous secondary material. 
Documentation and certification must be made available upon request by 
a regulatory authority within 72 hours, or within a longer period of 
time as specified by the regulatory authority. The certification 
statement must:
    (1) Include the printed name and official title of an authorized 
representative of the hazardous secondary material generator company, 
the authorized representative's signature, and the date signed;
    (2) Incorporate the following language: ``I hereby certify in good 
faith and to the best of my knowledge that, prior to arranging for 
transport of excluded hazardous secondary materials to [insert name(s) 
of reclamation facility and any intermediate facility], reasonable 
efforts were made in accordance with Sec.  261.4(a)(24)(v)(B) to ensure 
that the hazardous secondary materials would be recycled legitimately, 
and otherwise managed in a manner that is protective of human health 
and the environment, and that such efforts were based on current and 
accurate information.''
    (D) The hazardous secondary material generator must maintain at the 
generating facility for no less than three (3) years records of all 
off-site shipments of hazardous secondary materials. For each shipment, 
these records must, at a minimum, contain the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of each reclaimer and, if applicable, the name 
and address of each intermediate facility to which the hazardous 
secondary material was sent;
    (3) The type and quantity of hazardous secondary material in the 
shipment.
    (E) The hazardous secondary material generator must maintain at the 
generating facility for no less than three (3) years confirmations of 
receipt from each reclaimer and, if applicable, each intermediate 
facility for all off-site shipments of hazardous secondary materials. 
Confirmations of receipt must include the name and address of the 
reclaimer (or intermediate facility), the type and quantity of the 
hazardous secondary materials received and the date which the hazardous 
secondary materials were received. This requirement may be satisfied by 
routine business records (e.g., financial records, bills of lading, 
copies of DOT shipping papers, or electronic confirmations of receipt);
    (F) The hazardous secondary material generator must comply with the 
emergency preparedness and response conditions in subpart M of this 
part.
    (vi) Reclaimers of hazardous secondary material excluded from 
regulation under this exclusion and intermediate facilities as defined 
in Sec.  260.10 of this chapter satisfy all of the following 
conditions:
    (A) The reclaimer and intermediate facility must maintain at its 
facility for no less than three (3) years records of all shipments of 
hazardous secondary material that were received at the facility and, if 
applicable, for all shipments of hazardous secondary materials that 
were received and subsequently sent off-site from the facility for 
further reclamation. For each shipment, these records must at a minimum 
contain the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of the hazardous secondary material generator

[[Page 24670]]

and, if applicable, the name and address of the reclaimer or 
intermediate facility which the hazardous secondary materials were 
received from;
    (3) The type and quantity of hazardous secondary material in the 
shipment; and
    (4) For hazardous secondary materials that, after being received by 
the reclaimer or intermediate facility, were subsequently transferred 
off-site for further reclamation, the name and address of the 
(subsequent) reclaimer and, if applicable, the name and address of each 
intermediate facility to which the hazardous secondary material was 
sent.
    (B) The intermediate facility must send the hazardous secondary 
material to the reclaimer(s) designated by the hazardous secondary 
materials generator.
    (C) The reclaimer and intermediate facility must send to the 
hazardous secondary material generator confirmations of receipt for all 
off-site shipments of hazardous secondary materials. Confirmations of 
receipt must include the name and address of the reclaimer (or 
intermediate facility), the type and quantity of the hazardous 
secondary materials received and the date which the hazardous secondary 
materials were received. This requirement may be satisfied by routine 
business records (e.g., financial records, bills of lading, copies of 
DOT shipping papers, or electronic confirmations of receipt).
    (D) The reclaimer and intermediate facility must manage the 
hazardous secondary material in a manner that is at least as protective 
as that employed for analogous raw material and must be contained. An 
``analogous raw material'' is a raw material for which a hazardous 
secondary material is a substitute and serves the same function and has 
similar physical and chemical properties as the hazardous secondary 
material.
    (E) Any residuals that are generated from reclamation processes 
will be managed in a manner that is protective of human health and the 
environment. If any residuals exhibit a hazardous characteristic 
according to subpart C of 40 CFR part 261, or if they themselves are 
specifically listed in subpart D of 40 CFR part 261, such residuals are 
hazardous wastes and must be managed in accordance with the applicable 
requirements of 40 CFR parts 260 through 272.
    (F) The reclaimer and intermediate facility have financial 
assurance as required under subpart H of 40 CFR part 261,
    (vii) In addition, all persons claiming the exclusion under this 
paragraph (a)(24) of this section must provide notification as required 
under Sec.  260.42 of this chapter.
    (25) Hazardous secondary material that is exported from the United 
States and reclaimed at a reclamation facility located in a foreign 
country is not a solid waste, provided that the hazardous secondary 
material generator complies with the applicable requirements of 
paragraph (a)(24)(i)-(v) of this section (excepting paragraph 
(a)(24)(v)(B)(2) of this section for foreign reclaimers and foreign 
intermediate facilities), and that the hazardous secondary material 
generator also complies with the following requirements:
    (i) Notify EPA of an intended export before the hazardous secondary 
material is scheduled to leave the United States. A complete 
notification must be submitted at least sixty (60) days before the 
initial shipment is intended to be shipped off-site. This notification 
may cover export activities extending over a twelve (12) month or 
lesser period. The notification must be in writing, signed by the 
hazardous secondary material generator, and include the following 
information:
    (A) Name, mailing address, telephone number and EPA ID number (if 
applicable) of the hazardous secondary material generator;
    (B) A description of the hazardous secondary material and the EPA 
hazardous waste number that would apply if the hazardous secondary 
material was managed as hazardous waste and the U.S. DOT proper 
shipping name, hazard class and ID number (UN/NA) for each hazardous 
secondary material as identified in 49 CFR parts 171 through 177;
    (C) The estimated frequency or rate at which the hazardous 
secondary material is to be exported and the period of time over which 
the hazardous secondary material is to be exported;
    (D) The estimated total quantity of hazardous secondary material;
    (E) All points of entry to and departure from each foreign country 
through which the hazardous secondary material will pass;
    (F) A description of the means by which each shipment of the 
hazardous secondary material will be transported (e.g., mode of 
transportation vehicle (air, highway, rail, water, etc.), type(s) of 
container (drums, boxes, tanks, etc.));
    (G) A description of the manner in which the hazardous secondary 
material will be reclaimed in the country of import;
    (H) The name and address of the reclaimer, any intermediate 
facility and any alternate reclaimer and intermediate facilities; and
    (I) The name of any countries of transit through which the 
hazardous secondary material will be sent and a description of the 
approximate length of time it will remain in such countries and the 
nature of its handling while there (for purposes of this section, the 
terms ``EPA Acknowledgement of Consent'', ``country of import'' and 
``country of transit'' are used as defined in 40 CFR 262.81 with the 
exception that the terms in this section refer to hazardous secondary 
materials, rather than hazardous waste):
    (ii) Notifications must be submitted electronically using EPA's 
Waste Import Export Tracking System (WIETS), or its successor system.
    (iii) Except for changes to the telephone number in paragraph 
(a)(25)(i)(A) of this section and decreases in the quantity of 
hazardous secondary material indicated pursuant to paragraph 
(a)(25)(i)(D) of this section, when the conditions specified on the 
original notification change (including any exceedance of the estimate 
of the quantity of hazardous secondary material specified in the 
original notification), the hazardous secondary material generator must 
provide EPA with a written renotification of the change. The shipment 
cannot take place until consent of the country of import to the changes 
(except for changes to paragraph (a)(25)(i)(I) of this section and in 
the ports of entry to and departure from countries of transit pursuant 
to paragraphs (a)(25)(i)(E) of this section) has been obtained and the 
hazardous secondary material generator receives from EPA an EPA 
Acknowledgment of Consent reflecting the country of import's consent to 
the changes.
    (iv) Upon request by EPA, the hazardous secondary material 
generator shall furnish to EPA any additional information which a 
country of import requests in order to respond to a notification.
    (v) EPA will provide a complete notification to the country of 
import and any countries of transit. A notification is complete when 
EPA receives a notification which EPA determines satisfies the 
requirements of paragraph (a)(25)(i) of this section. Where a claim of 
confidentiality is asserted with respect to any notification 
information required by paragraph (a)(25)(i) of this section, EPA may 
find the notification not complete until any such claim is resolved in 
accordance with 40 CFR 260.2.
    (vi) The export of hazardous secondary material under this 
paragraph (a)(25) is prohibited unless the country of import consents 
to the intended export. When the country of import

[[Page 24671]]

consents in writing to the receipt of the hazardous secondary material, 
EPA will send an EPA Acknowledgment of Consent to the hazardous 
secondary material generator. Where the country of import objects to 
receipt of the hazardous secondary material or withdraws a prior 
consent, EPA will notify the hazardous secondary material generator in 
writing. EPA will also notify the hazardous secondary material 
generator of any responses from countries of transit.
    (vii) For exports to OECD Member countries, the receiving country 
may respond to the notification using tacit consent. If no objection 
has been lodged by any country of import or countries of transit to a 
notification provided pursuant to paragraph (a)(25)(i) of this section 
within thirty (30) days after the date of issuance of the 
acknowledgement of receipt of notification by the competent authority 
of the country of import, the transboundary movement may commence. In 
such cases, EPA will send an EPA Acknowledgment of Consent to inform 
the hazardous secondary material generator that the country of import 
and any relevant countries of transit have not objected to the 
shipment, and are thus presumed to have consented tacitly. Tacit 
consent expires one (1) calendar year after the close of the thirty 
(30) day period; renotification and renewal of all consents is required 
for exports after that date.
    (viii) A copy of the EPA Acknowledgment of Consent must accompany 
the shipment. The shipment must conform to the terms of the EPA 
Acknowledgment of Consent.
    (ix) If a shipment cannot be delivered for any reason to the 
reclaimer, intermediate facility or the alternate reclaimer or 
alternate intermediate facility, the hazardous secondary material 
generator must re-notify EPA of a change in the conditions of the 
original notification to allow shipment to a new reclaimer in 
accordance with paragraph (iii) of this section and obtain another EPA 
Acknowledgment of Consent.
    (x) Hazardous secondary material generators must keep a copy of 
each notification of intent to export and each EPA Acknowledgment of 
Consent for a period of three years following receipt of the EPA 
Acknowledgment of Consent. They may satisfy this recordkeeping 
requirement by retaining electronically submitted notifications or 
electronically generated Acknowledgements in their account on EPA's 
Waste Import Export Tracking System (WIETS), or its successor system, 
provided that such copies are readily available for viewing and 
production if requested by any EPA or authorized state inspector. No 
hazardous secondary material generator may be held liable for the 
inability to produce a notification or Acknowledgement for inspection 
under this section if they can demonstrate that the inability to 
produce such copies are due exclusively to technical difficulty with 
EPA's Waste Import Export Tracking System (WIETS), or its successor 
system for which the hazardous secondary material generator bears no 
responsibility.
    (xi) Hazardous secondary material generators must file with the 
Administrator no later than March 1 of each year, a report summarizing 
the types, quantities, frequency and ultimate destination of all 
hazardous secondary materials exported during the previous calendar 
year. Annual reports must be submitted electronically using EPA's Waste 
Import Export Tracking System (WIETS), or its successor system. Such 
reports must include the following information:
    (A) Name, mailing and site address, and EPA ID number (if 
applicable) of the hazardous secondary material generator;
    (B) The calendar year covered by the report;
    (C) The name and site address of each reclaimer and intermediate 
facility;
    (D) By reclaimer and intermediate facility, for each hazardous 
secondary material exported, a description of the hazardous secondary 
material and the EPA hazardous waste number that would apply if the 
hazardous secondary material was managed as hazardous waste, the DOT 
hazard class, the name and U.S. EPA ID number (where applicable) for 
each transporter used, the total amount of hazardous secondary material 
shipped and the number of shipments pursuant to each notification;
    (E) A certification signed by the hazardous secondary material 
generator which states: ``I certify under penalty of law that I have 
personally examined and am familiar with the information submitted in 
this and all attached documents, and that based on my inquiry of those 
individuals immediately responsible for obtaining the information, I 
believe that the submitted information is true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
information including the possibility of fine and imprisonment.''
    (xii) All persons claiming an exclusion under this paragraph 
(a)(25) must provide notification as required by Sec.  260.42 of this 
chapter.
* * * * *
[FR Doc. 2018-11578 Filed 5-29-18; 8:45 am]
BILLING CODE 6560-50-P