without producing or selling the product. This aspect could entice a
person to disregard the law and engage in sham recycling and therefore,
this commenter believed it is important for the overseeing agency to be
aware of the recycling facilities in its state to protect against sham
recycling. This can be accomplished by having the generator provide the
name and address of his recycler. Another commenter believed that
additional notification elements are necessary in order to verify
compliance and to help identify potential liable persons who generate
and/or accept for recycling hazardous secondary materials and have
released these materials into the environment. One commenter believed
that additional information would also provide a cursory check on
whether the generator conducted the required due diligence audit of the
reclaimer, since the information should be readily available from that
audit. If the notification appears to have incomplete or suspect
information on the recycling process, EPA and the state would have an
early warning and could prioritize the generator for inspection.
Commenters also argued that additional information should be readily
available from routine business records, Material Safety Data Sheets
(MSDS) and provisions of the OSHA Hazard Communication Standard. [0043,
0065, 0067, 0068, 0069, 0076, 0092, 0095, 0098, 0104, 0110, 0119, 0140,
0148, 0153, 0165, 0177, 0178, 0182, 0185, 0207, 0217, 0219, 0231, 0457,
0460, 0462, 0470, 0475, 0482, 0489, 0495, 0507, 0516, 0527, 0530, 0531,
0538, 0543, 0544, 0548, 0558, 0559, 0563]

ADDITIONAL DATA ELEMENTS: In addition to those data elements that EPA
proposed to be included in the notification, commenters supported adding
the following data elements to the notification:

Quantity/volume of each hazardous secondary material generated and
reclaimed [0067, 0095, 0110, 0119, 0153, 0185, 0231, 0482, 0489, 0527,
0530, 0543, 0558, 0559, 0563]

Industry that generated/reclaimed the material (applicable 4-digit
NAICS) [0065, 0067, 0068, 0069, 0092]

Destinations of shipments; name, address, and EPA ID number of all
reclamation facilities; commenters argued that EPA and the states must
be able to connect the generator's excluded materials with the
reclamation facility. [0065, 0067, 0068,  0069, 0092, 0095, 0098, 0104,
0119, 0140, 0182, 0185, 0217, 0219, 0231, 0458, 0462, 0470, 0472, 0475,
0482, 0486, 0489, 0495, 0516, 0530, 0543, 0558, 0559, 0563]

Description of reclamation processes and equipment used; some commenters
believed this was important to allow authorities to determine whether
the recycling activity is a sham. A basic description could include the
thermal, chemical and/or physical process steps and the type of
equipment used for processing. [0065, 0067, 0068, 0110, 0119, 0153,
0178, 0457, 0462, 0470, 0482, 0489, 0538, 0543, 0558, 0559]

Intended use and products produced from the hazardous secondary material
[0065, 0095, 0119, 0470, 0475, 0482, 0530, 0558, 0563]

Nature of the hazardous constituents in the material [0119, 0475, 0527]

When the reclamation was completed [0119]

Amount of residuals generated and how these were managed [0119, 0543]

Storage times, storage units and management of hazardous secondary
materials (e.g., container, tanks, land-based units); commenters
believed this would allow EPA and states to properly identify the
relevant storage units when overseeing compliance. [0231, 0462, 0470,
0482, 0489, 0507, 0558, 0559, 0563]

Description of hazardous secondary materials [0217, 0460, 0475, 0482,
0516, 0527, 0558]

Process that generated hazardous secondary materials [0470, 0558]

Detailed characterization of the material, waste codes that would be
apply in absence of the exclusion; one commenter argued this information
is needed to ensure proper disposal of any residuals generated in order
to comply with land disposal regulations. [0119, 0460, 0495, 0543, 0559,
0563]

Closure plan and cost estimates for closure (for reclaimers) [0470,
0543]

Financial assurance documentation (for reclaimers) [0462, 0470]

Test data/process knowledge/MSDS data [0043]

Documentation of how the material qualifies for the exclusion [0076,
0119, 0482, 0495]

What exclusion the facility is claiming [0471.2]

Use of a broker/middleman [0104]

Owner/operator [0110]

Detailed information/certification that hazardous secondary materials
meet legitimacy criteria; one commenter said this requirement should be
self-implementing whereby EPA would have a reasonable period of time to
review the notification documentation for sufficiency. Other commenters
said this would ensure the generator, regulators and the public can
review this critical condition of the exclusion and the analysis
performed. [0065, 0119, 0148, 0207, 0475, 0507, 0544]

Acknowledgement of consent from receiving party; one commenter argued
that this is necessary because the receiving party must bear some
responsibility to properly reuse or reclaim the waste. [0119]

Universal ID number used to uniquely identify corporate entities [0231]

Shipping information/DOT placards [0475, 0558]

Reasonable efforts questions [0531]

ADDITIONAL COMMENTS ON NOTIFICATION: Commenters submitted the following
additional comments regarding notification.

1.	Notification should not be submitted for each specific type of
material being recycled and a single notification would suffice. One
commenter said it is not clear whether a reclamation facility must make
(a) one notification for the facility; (b) notification for each
generator which sends material to the facility; or (c) notification for
each waste stream received from a generator. This commenter argued that
multiple notifications for each generator or waste stream would be
extremely onerous and inconsistent with the objective of streamlining
the regulatory process to encourage additional reclamation and thus
requested the rule expressly state that a reclamation facility must
submit one notification on behalf of the facility. Another commenter
argued that separate forms are necessary so that the primary
representations made about each party are the responsibility of each
party. Another commenter said one notification should be able to be
utilized for multiple generators. [0069, 0070, 0093, 0441, 0507]

2.	Notification should be submitted to the administering agency of both
the generator's and the reclaimer's states. This would help inspectors
determine whether the excluded hazardous secondary materials were sent
off-site for legitimate recycling and would be valuable to generators
that want to confirm their own compliance with the exclusion. [0140,
0210, 0530]

3.	The reclamation facility should notify the regulatory agency when the
recycling ceases to allow the agency to inspect the facility in a timely
manner to ensure that all secondary materials have been either recycled
or removed from the location. This will allow the regulatory agency to
take advantage of any financial assurance mechanism that the facility
may have in place if any remediation is required. [0531, 0543]

4.	Require notification for reclaimers and generators. To monitor this
exclusion, the regulatory agency needs to be informed of the entire
recycling process, not just the generator's half. [0065, 0068, 0069,
0153, 0475, 0543]

5.	Require notification each time a new hazardous secondary material is
to be recycled. [0177]

6.	Require a time limit to submit notifications. [0470]

7.	In the March 2007 supplemental proposal, 40 CFR 260.42 reads "…A
revised notice must be sent…or change in the type of material
generated…," one commenter believed "generated" should be replaced
with the term "recycled" to better reflect the intent of the proposal.
[0491]

8.	One commenter recommends deleting the language "that has previously
been subject to regulation as hazardous wastes" from the proposed 40 CFR
260.42, 40 CFR 261.4(a)(23)(iv) and (a)(24)(iii) because this commenter
expects that regulatory agencies would like to receive notification with
regard to wastes that may be generated in the future and that have never
been subject to regulation as hazardous wastes. [0491]

9.	One commenter requested clarification of the portion of the text
where EPA states that if the hazardous secondary materials "were not
managed pursuant to these restrictions, they would not be excluded [and
they would] be considered solid and hazardous wastes…from the time
they were generated." This commenter requested clarification whether
notification as a requirement was considered a "restriction" as used in
the sentence above. [0491]

10.	One commenter further argued that the notification is extremely
general and broad in nature, requiring only a description of the "types"
of secondary materials that would be subject to the exclusion. The
notification is not specific to each hazardous waste stream and is not
required when a new hazardous waste is generated, therefore, the
generator can simply argue that the new hazardous waste conforms to the
same general "type" and therefore notice was not required. [0119]

5.2.1 - Response

MAINTAIN/EXPAND NOTIFICATION REQUIREMENTS: In EPA's October 2003
proposal and March 2007 supplemental proposal, the notification
requirement contained basically the same data elements: name, address
and EPA ID number of the facility, name and number of a contact person,
type of hazardous secondary materials managed under the exclusion and
when the hazardous secondary material would begin to be managed (EPA
proposed including NAICS code in 2003). However, we recognize
commenter's concerns that these elements may be inadequate for
monitoring compliance with the exclusions. We also recognize that
regulatory authorities have limited resources to expend on compliance
monitoring and that the limited data elements in the proposed
notification would not allow EPA and states to determine inspection
priorities. Therefore, after carefully considering these comments, we
believe the notification requirement reflects the minimum amount of
information needed to identify which facilities will be managing
hazardous secondary materials under the final rule in order to enable
regulatory agencies to administer oversight to ensure that hazardous
secondary materials are reclaimed and not discarded. We also intend to
use this information to meet other objectives, such as assisting
generators with performing reasonable efforts, targeting state and
government programs to achieve further increases in safe hazardous waste
recycling, compiling credible information about hazardous waste
recycling, measuring impacts of the rulemaking, and identifying
necessary changes to the final regulations to improve effectiveness. We
consider the information we are requiring in the notification under the
final rule to reflect what responsible companies would routinely collect
as part of their normal business operations. For example, responsible
companies track quantities of valuable commodities that are managed
on-site or shipped off-site and, thus, we believe reporting quantities
of hazardous secondary materials managed in the notification will not
present an undue burden. We also note that under the final rule, we are
requiring facilities to use the Subtitle C Site Identification Form,
which is already familiar to the regulated community and will enable
electronic reporting and, thus, will keep additional burden to a
minimum.

ADDITIONAL DATA ELEMENTS: Several commenters supported requiring
additional data elements, the result of which is a long list of
suggested notification requirements, as documented above. In addition,
other commenters opposed including certain elements. After carefully
considering the comments, we believe the notification requirement
reflects the minimum amount of information needed to identify which
facilities will be managing hazardous secondary materials under the
final rule in order to enable regulatory agencies to administer
oversight to ensure that hazardous secondary materials are reclaimed and
not discarded. The table below includes what data elements we are
requiring in the notification and how each will be used:

EPA Rationale for Notification Requirements

We are requiring…	This will be used to…

Name, address or EPA ID number (if applicable)	Ensure that states know
which facilities are operating under the exclusion to enable compliance
monitoring, thereby addressing a major concern discussed in comments

Identify potential reclaimers (via RCRAInfo) for generators interested
in recycling

Name and telephone number of a contact person	Contact the facility, if
needed, in regards to the notification.

NAICS code 	NAICS code coupled with the type of HSM (reported as
hazardous waste code) allows EPA and states to identify and target waste
streams for compliance monitoring.

Enables EPA and states to target specific industries for future
programmatic efforts (e.g., compliance assistance, training, guidance).

Whether the HSM will be managed under the transfer-based or
generator-controlled exclusion	Alert EPA and the states to what
exclusion, and thus what conditions, a facility is complying with in
order to enable compliance monitoring.

Whether the reclaimer or intermediate facility has financial assurance
Support generators’ reasonable efforts inquiries (via RCRA Info) of
whether reclaimers have notified EPA of their excluded status and if
they have financial assurance

When the facility expects to begin managing HSM	Provide flexibility to
facilities submitting notification while allowing regulatory authorities
to determine, at any given time, which facilities are actually managing
HSM and therefore warrant compliance monitoring.

A list of hazardous secondary materials (HSM) that will be managed
according to the exclusion	Allow for prioritizing compliance monitoring
based on type and diversity of hazardous secondary material (e.g., a
facility managing 10 different HSM may warrant greater oversight than a
facility managing 1 type of HSM).

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Whether the HSM will be managed in a land-based unit	Allow for
prioritizing compliance monitoring based on use of land-based units
since they inherently pose more risk than non-land based units.

The quantity of HSM to be managed annually	Allow for prioritizing
compliance monitoring based on quantity of HSM managed (e.g., a facility
managing 10,000 tons of HSM may warrant greater oversight than a
facility managing 10 tons of HSM)

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Certification signed and dated by an authorized representative of the
facility	Ensure accountability for accuracy of notification data.

Provide adequate assurance for generators who must rely on notification
data to perform reasonable efforts

We did not include many of the additional data elements suggested by
commenters for the following reasons:

Some commenters' suggestions were inconsistent with the basic intent of
the notification to identify who is managing hazardous secondary
materials under the exclusion. Notification is not intended to allow
regulatory authorities to directly determine discard, but rather
identify facilities that require compliance monitoring to ensure
hazardous secondary materials are not discarded.  Furthermore, some data
elements are inconsistent with the principle of self-implementation of
the exclusions; for example, generators are not required to obtain
'approval' from the regulatory authority prior to operating under the
exclusion and thus submission of detailed paperwork, such as description
of reclamation process, legitimacy determinations or documentation of
reasonable efforts, is unwarranted.

Some suggestions related to conditions that were not necessary to define
discard of hazardous secondary materials. For example, we are not
requiring waste characterization or waste analysis plans under the final
rule. We agree that most responsible reclaimers likely test shipments of
hazardous secondary materials in order to maintain integrity of the
reclamation process; however, universally requiring all reclaimers to
systematically characterize hazardous secondary materials is not
necessary to defining discard under the final rule.

Some information we believe is more appropriately documented and
maintained at the facility. For example, some commenters suggested
adding a requirement that generators indicate the identity of the
reclaimer receiving their hazardous secondary materials for reclamation;
however, under the transfer-based exclusion, this information is already
documented as part of the requirement for hazardous secondary material
generators to keep records of all off-site shipments. Furthermore,
requiring facilities to identify their reclamation facility would
increase reporting burden as facilities would have to submit another
notification each time a new reclaimer is selected.

Some information could be considered sensitive or confidential business
information (such as description of reclamation process, products
produced or storage times) as this type of information would
unnecessarily complicate, and increase the burden for, the notification
requirement.

Some information could be leveraged from other elements in the
notification, for example, description of the hazardous secondary
material and nature of the constituents can be inferred from the type of
hazardous secondary material (reported as the hazardous waste codes that
would apply if the material was managed as hazardous waste) and the
industry that generated the material (reported as NAICS code).

Other information was considered too difficult to implement, such as
when the reclamation was completed. Since many reclaimers would process
hazardous secondary materials from multiple hazardous secondary material
generators, it would be unreasonable to request an exact date when a
certain material from a certain generator was reclaimed.

Some data elements would be captured under RCRA Subtitle C. For example,
if the residuals from reclamation were solid and hazardous wastes,
facilities would have to comply with applicable reporting and
recordkeeping requirements under the hazardous waste regulations.

ADDITIONAL COMMENTS ON NOTIFICATION:

1.	Generators, reclaimers and intermediate facilities are required to
notify on a per facility basis. In other words, facilities managing
hazardous secondary materials will need to submit a notification in
accordance with the exclusion. One notification cannot cover two or more
facilities. Furthermore, each facility need only use one notification to
list all of the hazardous secondary materials to be managed under the
exclusion (i.e., facilities need not file separate notifications for
each hazardous secondary material). Generators are not required to list
the receiving facility and reclaimers are not required to list the
generating facility, thus there is no need to file separate notification
for each facility which hazardous secondary material was either sent to
or received from.

2.	EPA is requiring notifications to be submitted using EPA Form
8700-12, which will enable all notification information to be stored in
EPA's RCRAInfo database and all state agencies to have access to
notifications from facilities across the country.

3.	We agree with commenters who believed the reclamation facility should
notify the regulatory agency when recycling ceases. We are therefore
requiring facilities that stop managing hazardous secondary materials in
accordance with the exclusion, to notify the Regional Administrator
using the same EPA Form 8700-12. Notification in this instance serves
two objectives: (1) it allows states to follow up with the facility to
verify that the hazardous secondary material has not been discarded; and
(2) it maintains the usability of the database to enable states to
monitor compliance and, for the transfer-based exclusion, to assist
generators with performing reasonable efforts on potential reclaimers.
We consider a facility to have ‘stopped’ managing hazardous
secondary materials when a facility no longer generates, manages and/or
reclaims hazardous secondary materials under the exclusion and does not
expect to manage any amount of hazardous secondary material under the
exclusion for at least one year. This includes if the facility chooses
to manage the hazardous secondary materials as hazardous waste or the
facility chooses to temporarily suspend management of hazardous
secondary materials and does not expect to manage any amount of
hazardous secondary materials for at least one year. For example, a
facility that has previously notified it is managing hazardous secondary
materials under the exclusion, but then subsequently chooses to stop
managing all hazardous secondary materials for a period of at least one
year, must notify the Regional Administrator. However, if this same
facility only stopped managing one type of hazardous secondary material
(but continued to manage another type of hazardous secondary material
under the exclusion) it would not need to notify, and could just update
its list of hazardous secondary materials during the next periodic
renotification submitted every two years. Additionally, if a reclaimer
or intermediate facility managing hazardous secondary materials under
the transfer-based exclusion requests release of financial assurance
under 40 CFR 261 Subpart H, it is clear the facility has ‘stopped’
managing hazardous secondary materials. The facility must, therefore,
notify the Regional Administrator (for additional clarification,
notification does not ‘trigger’ the process for releasing financial
assurance; instead, a facility wishing to be released from financial
assurance obligations must notify it has ‘stopped’ managing
hazardous secondary materials). Of course, a facility could certainly
choose to begin managing hazardous secondary materials again and would
simply have to submit a notification in compliance with 40 CFR 260.42.

4.	All facilities managing hazardous secondary materials under the final
rule, including generators and reclaimers, are required to submit a
notification pursuant to 40 CFR 260.42.

5.	We require facilities to re-notify every two years and thus, EPA and
the states will receive periodic updates on the types of hazardous
secondary material, including new types of material, to be managed under
the exclusions.

6.	We are requiring time limits for submitting notifications in order to
reduce regulatory uncertainty. A facility must: 1) submit an initial
notification prior to operating under the exclusion; 2) submit a
renotification by March 1 of each even numbered year; and 3) submit a
renotification within 30 days of ceasing management of hazardous
secondary materials.

7.	We have modified the language in 40 CFR 260.42 to require
notification for "hazardous secondary materials that will be managed
according to the exclusion."

8.	We have deleted the language "that has previously been subject to
regulation as hazardous wastes" from the final rule in order to clarify
that all facilities managing excluded hazardous secondary material must
submit a notification.

9.	We clarify that facilities managing hazardous secondary materials
must submit a notification under the final rule. We note that the
requirement to provide this notification is not a condition of the
exclusion. Thus, failure to comply with the requirement constitutes a
violation of RCRA, but does not affect the excluded status of the
hazardous secondary materials.

10.	We have further defined "type" of hazardous secondary material in
the final rule to mean the hazardous waste code that would apply if the
materials were managed as hazardous wastes. We believe this
clarification will reduce regulatory uncertainty, ensure consistent and
standardized reporting, and reduce overall burden on facilities, since
this better aligns with how hazardous wastes are currently reported.

5.2.2 - Format of notification and use of Subtitle C Site Identification
form

5.2.2 - Summary

GENERAL SUPPORT FOR USING SITE ID FORM: Several commenters supported
using the Subtitle C Site Identification Form for the notification
requirement. Additionally, one commenter said all of the states
responding to their survey responded positively to using the Site ID
form for the notification. [0447, 0457, 0460, 0461, 0463, 0470, 0471.2,
0472, 0476, 0486, 0489, 0491, 0507, 0509, 0515, 0521, 0527, 0529, 0530,
0538, 0539, 0543, 0549, 0558, 0559, 0563]

USING SITE ID FORM REDUCES BURDEN: A few commenters supported using the
existing Site ID Form because it is already very familiar to the
regulated community. Some of the notification elements (e.g., name,
address, and certification) already exist on the form and thus will
reduce the incremental recordkeeping burden associated with this
requirement. Furthermore, this form is available on-line and can be
filled out on-line as well. One commenter noted that in addition to
already containing much of the information requested as part of the
proposed one-time notification, mechanisms for addressing any potential
claims of confidentiality (CBI), the need for any subsequent
renotification, and signatory requirements are already addressed in the
form and its instructions. One commenter noted that developing a new
form would require taxpayer dollars for a form that captures the same
information as the existing Site ID form. One commenter said EPA should
add the notification requirements to existing recordkeeping mandates
such as the Site ID form, or as a supplement to Biennial/Annual
Hazardous Waste reporting requirements that apply to large quantity
generators. [0447, 0467, 0471.2, 0476, 0479, 0491, 0515, 0539, 0543]

SITE ID FORM PROVIDES CONSISTENT DATA: Some commenters believed the use
of the Site ID form will also allow EPA to more easily retrieve the
information, since it will reside in a data management system and is
available to all of the states and EPA. One commenter strongly supported
using the Site ID form because it would establish a uniform basis for
collection of this information and would also enable EPA and the states
to enter this information into the RCRAInfo data management system, so
that it would be readily available and would not be submitted on a form
that would end up collecting dust in file cabinet. Moreover, one
commenter said that standardized forms need to be adopted rather than
allow submission of a letter in order to assure that all required
information is provided in a format that provides national consistency
and lends itself to analysis. Another commenter said use of data
management systems is absolutely necessary for EPA and state regulatory
agencies to adequately monitor the recycling efforts and results (or
lack thereof) at commercial recycling facilities. One commenter said it
was critical that data be easily accessible to the public and that use
of electronic reporting and standardized forms must be mandated to
permit the data to be made available to the public via the internet.
Other commenters stated that interstate transfers of potential hazardous
secondary materials are very common and that standardized notification
information would facilitate data management and make the data easier to
share between states for compliance evaluation. Some commenters believed
the form would be an appropriate document for notifying the Agency since
it is already used for various other excluded materials such as used oil
and universal waste. Another commenter believed the Site ID form is
appropriate, especially in anticipation of the change in generator
status that may result from the use of the exclusions. [0457, 0460,
0471.2, 0515, 0521, 0527, 0559]

SITE ID FORM MUST BE REVISED: Some commenters supported revising and
reissuing the Site ID form. One commenter recommended EPA revise the
form by adding a box to be checked by the facility that would indicate
that the facility is relying on one of the "under the control of the
generator" exemptions for generation and management of excluded
secondary materials. Other commenters stated the form should be modified
to make clear that the material is a "hazardous secondary material,"
rather than a solid or hazardous waste. This section could be added to
expand the Waste Activity portion of the form, which beings on the
second page. One commenter said the Site ID form would capture the name,
address, and EPA ID number of the generator or reclaimer and the name
and phone number of a contact person on the first page of the form. The
last page of the form currently includes a certification statement and
signatory opportunity that encompasses all of the information provided
within the form and thus, this commenter did not recommend any
additional special requirement regarding authorized representative
signature. One commenter urged EPA to work with state agencies to
develop a standard revision that will be used by all regulatory
authorities, thus significantly reducing the burdens on generators with
facilities in multiple states. Another commenter cautioned EPA that
there is a clear delineation between what is appropriate to be collected
on the Site ID form versus what is collected on a report. The Site ID
form is a mechanism for facilities to indicate what activities they
conduct and what materials they are managing, not a narrative of
management practices or collection of numeric data. Some commenters also
noted that EPA would have to revise the RCRAInfo system to collect the
notification data. One commenter requested EPA include "HSM
Recycler/Reclaimer" as a universe-type in the database so that once
notification is made, there is record of these facilities. One commenter
also proposed that the hazardous secondary material activity section
include the following fields:

-	Use the same check box format used in the other sections to capture
hazardous secondary material activity (e.g., generator, recycler);

-	Start and end dates of the hazardous secondary material management.
End date would be supplied in subsequent notifications when the facility
notifies they have changed the type of hazardous secondary material that
is managed or when they cease to manage hazardous secondary material;

-	A field or fields to identify the types of hazardous secondary
materials being managed, which this commenter suggested to categorize in
a manner similar to how hazardous wastes are categorized by form codes
and coded in the RCRA Biennial Report. This could be reported using
check boxes or having the facility fill in the appropriate code.

Furthermore, if a facility does not have an EPA ID number, completing
and submitting the Site ID form would accomplish this task. The EPA ID
number is the key field in RCRAInfo that links all data and assignment
is required before any information about a facility can be entered.

[0463, 0471.2, 0472, 0476, 0486, 0489, 0515, 0559]

SUPPORT ELECTRONIC SUBMISSION: Commenters believed that electronic
submission should be allowed if EPA/state is equipped and some
commenters suggested filing electronically through the Central Data
Exchange (CDX) that EPA has already established for such environmental
reports. States could then pull the information from the CDX for their
data management systems. Another commenter supported the option of
electronic notification which is more efficient and cost effective for
both the facilities and the receiving agency; however, this commenter
reminded EPA that many small facilities lack sophisticated electronic
communication systems and thus EPA should retain the option to provide
paper notifications. Still another commenter stated that the
notification should be incorporated into both EPA's ECHO reporting
system for each and every generator, otherwise notification to the
public will be useless. [0068, 0098, 0153, 0185, 0458, 0470, 0471.2,
0512, 0515, 0558, 0564]

2003 COMMENTS: To reduce burden of the notification, some commenters
recommended that EPA develop a standardized, on-line form to ensure
uniform receipt of information by the states. Upon completion, the form
would be printed out, signed and mailed, or EPA could institute an
electronic signature protocol, allowing submission online. EPA should
also establish an electronic national database of hazardous secondary
material reclaimers pursuant to the exclusion. One commenter noted that
if EPA were to implement a simple form, the paperwork burden could be
kept to a minimum; this commenter presently requires a one-page
notification for generators that treat their own waste on-site and has
received very little negative feedback on this issue. Another commenter
said that separate forms are necessary so that the primary
representations made about each party are the responsibility of each
party. In order to document that this requirement is fulfilled, one
commenter said it would be appropriate to require that such
notifications be sent by certified mail or some other mode of delivery
that provides return documentation of receipt. [0068, 0069, 0077, 0098,
0131, 0153, 0177, 0185, 0222]

OPPOSE USING SITE ID FORM: A few commenters opposed using the Site ID
form for the notification. One commenter did not believe the Site ID
form should be used for the one-time notification because the form was
specifically designed for hazardous wastes and therefore is not
appropriate for hazardous secondary materials. This commenter wanted to
emphasize the importance of establishing clear separation between the
hazardous waste regulatory program and excluded secondary materials. One
commenter believed EPA would have to revise the form and therefore use
of the form should not be required. This commenter argued that the more
prescriptive the requirement, the farther the rule would move away from
serving to define discard (or its absence) and the closer it would move
toward becoming modified RCRA regulatory standards. One commenter
supported the idea of a new and distinct form developed specifically for
recycling notification requirements because this would allow all
generator and recycler information to be on one form and in one
location. This commenter noted that the Site ID form is used in many
situations involving minor changes to facility information and that the
number of routinely submitted Site ID forms is somewhat overwhelming;
recycling notifications could be easily missed by the Agency.
Additionally, the existing form does not provide for information from
two different facilities, in this case, the generator and the reclaimer,
on the same form. [0458, 0473, 0492, 0531]

5.2.2 - Response

In our October 2003 proposal, EPA included in the docket a simple
example form that could be used for collecting notification data. Based
on comments received on the 2003 proposal, EPA, in its March 2007
supplemental proposal, asked for comment on potentially using the
Subtitle C Site Identification Form for the notification.

EPA agrees with the vast majority of commenters who support use of the
Site ID form and is, therefore, requiring hazardous secondary material
generators, tolling contractors, toll manufacturers, reclaimers and
intermediate facilities managing hazardous secondary materials to use
the Site ID form (EPA Form 8700-12) when notifying in accordance with
the final rule. We believe that the Site ID form will provide
standardized, electronically-accessible data, while minimizing the
collection burden because many facilities notifying under the final rule
are already familiar with the form and will not need to invest resources
in learning a new form and process. EPA also agrees with commenters who
stated that the form is appropriate for the final rule, since it already
collects information on other types of exempt recycling activities.

We plan to work with states to modify the current Site ID form in order
to accommodate the notification requirement for the final rule. The
specific changes will be vetted and reviewed through the Information
Collection Request (ICR) process for revising the form.

EPA encourages electronic submission of the form if the facility and
state can support the ability to do so. We also note that EPA's ECHO
reporting system uses data from EPA's RCRAInfo system, which will be the
national repository for the notification data.

Commenters who opposed use of the Site ID form argued two main points:
1) that the form traditionally captures hazardous waste activities and
thus was not appropriate for hazardous secondary materials; 2) revisions
to the form would be necessary and thus would impact the current Site ID
form and process. For the first argument, EPA will consider how to
clearly label and separate hazardous secondary material activity on the
Site ID form so as not to be confused with hazardous waste activity. For
the second argument, we believe the costs of revising the existing Site
ID form and process to incorporate the notification for hazardous
secondary materials are far less than the costs of creating a new form
and process that the regulated community and states would need to adopt.
We also believe it will be less burdensome for states to process one
type of form (the Site ID form) than to have to process two different
forms.

5.2.3 - Requirement that the notification be signed by an authorized
representative

5.2.3 - Summary

SUPPORT SIGNATURE REQUIREMENT FOR NOTIFICATION: Several commenters
supported a requirement for the notification to be signed and certified
by an authorized official. Some commenters said this would serve to
ensure accuracy and accountability of the notification. Commenters also
argued that signature by a responsible corporate official at both the
generating and receiving facilities would provide documentation that
both parties accept and understand their responsibility under penalty of
law. One commenter said the notifications should be signed by a company
officer who has been authorized by the company to sign such documents
and under a statement that references penalties for making false
statements. This commenter also argued the notification must be
resubmitted upon any change in ownership to ensure that, if enforcement
is necessary, the responsible party cannot claim it was unaware of the
hazardous waste status of the original generated material, or the
conditions under which the exclusion applies. Some commenters did not
object to having an authorized representative sign the notification, as
long as EPA is clear that the identity of the appropriate representative
should be decided by the generator, and should generally be the person
at the facility that is most familiar with the material being
transferred. One commenter argued that EPA should require that the
notification be signed by an official company representative stating
that they have audited the reclamation facility and made reasonable
efforts to ensure the reclaimer is handling the material in a manner
that is protective of human health and the environment and meets the
legitimacy requirements. Still another commenter argued that reclaimers
need to sign and certify that the hazardous secondary material, once
reclaimed, will meet the legitimacy criteria, be stored in a sound
manner and will not be speculatively accumulated. This commenter also
supported incorporating the certification into EPA Form 8700-12. [0061,
0068, 0092, 0098, 0119, 0148, 0153, 0182, 0185, 0210, 0231, 0460, 0462,
0470, 0472, 0475, 0485, 0486, 0495, 0507, 0527, 0538, 0543, 0549, 0559]

OPPOSE SIGNATURE REQUIREMENT FOR NOTIFICATION: Some commenters did not
support requiring a responsible official to sign the notification. A few
commenters argued that this requirement is unnecessary, burdensome and
would be administrative overkill. Another commenter saw no reason to go
beyond the facility staff level to an upper management person and that
this was yet another example of how there is never enough assurance.
Some commenters noted that this is not required for other conditional
exclusions. One commenter noted that this is not required if other
conditional exclusion unnecessarily involve corporate resources in
routine operations. [0070, 0093, 0102, 0138, 0506]

5.2.3 - Response

EPA agrees with the majority of commenters and, in the final rule, is
requiring the certification in the notification to be signed and dated
by an authorized representative of the facility. Since we are also
requiring use of the RCRA Subtitle C Site Identification Form for the
notification, we have chosen to require the certification already
contained in this form.

We believe it is important that an authorized representative certify to
the notification's accuracy because the data contained in the
notification will be used for a variety of uses, such as to prioritize
compliance monitoring, to assist generators with performing reasonable
efforts, and to compile information on hazardous secondary materials
recycled under the rule. Since this information will be
electronically-accessed and used by EPA, states, the regulated
community, and the public, we believe requiring an authorized
representative to sign the notification will provide adequate assurance
of the validity of the data. We note that EPA has traditionally required
certifications for reports submitted to regulatory authorities, such as
is currently required for biennial reporting and annual reports for
exporters.

We are not requiring notifications to be submitted in the event of a
change in ownership because we do not require facilities to identify
ownership under the notification requirement. We also note that under
the final rule, notifications must be submitted every two years and,
thus, certifications will be renewed every two years as well.

We are also not further defining "authorized representative" so as to
allow facilities the flexibility to determine the appropriate staff
level for signing and certifying the notification form.

Some commenters suggested we require generators and reclaimers to
certify they have met certain conditions, such as reasonable efforts;
however, we believe this would be unnecessary, since any facility that
notifies it is managing hazardous secondary materials is in fact
notifying it is complying, or will comply, with the conditions of the
exclusions. Additionally, we decided not to combine the reasonable
efforts certification requirement with the notification certification
because the consequences for failing to certify reasonable efforts (as a
condition of the exclusion) and failing to submit notification (as a
requirement of the exclusion) are not the same. If a facility fails to
certify reasonable efforts, the excluded status of its materials may
potentially be lost; however, if a facility fails to submit a
notification, although in violation of the notification requirement, the
excluded status of its materials would not be lost provided it is
complying with the conditions of the exclusion. Therefore, to avoid
potential ambiguities with enforcement when a facility fails to notify,
we determined it was best not to include the reasonable efforts
certification as part of the notification. Furthermore, since we are
requiring use of the existing Site ID form and the form's existing
certification language, we believed it would be easier to adopt the
certification as is, without modifications, in order to reduce confusion
for the regulated community already familiar with the certification
language.

5.2.4 - Maintain notification at facility rather than submitting to
regulatory authority

5.2.4 - Summary

Summary of comments that supported maintaining notification at facility
rather than submitting to the implementing agency:

Only a few commenters specifically commented on this issue, with some in
favor of requiring facilities to maintain the notification on-site in
order to reduce paperwork burden, particularly for generators with small
volume streams, and to remain consistent with the Paperwork Reduction
Act. One commenter noted that maintaining notification at the facility
would eliminate the need for the overseeing agency to establish special
controls regarding the submission, maintenance and public distribution
of such information, particularly that which is confidential. These
commenters argued that the notification could be available for
inspection or review upon request by the implementing authority. [0061,
0062, 0442, 0492, 0523]

Some commenters further argued that under the current RCRA regulations,
no overseeing agency notification, review or approval is required in
order to claim a self-implementing exclusion. Furthermore, one commenter
noted that one-time land disposal restriction notices under 40 CFR
268.7(a)(7) are kept on file by the generator and not submitted to the
regulatory authority and another commenter believed that this
268.7(a)(7) requirement would already apply to facilities claiming the
proposed exclusions. Some commenters argued that, pursuant to 40 CFR
261.2(f), the burden of proof has always been on the facility to
demonstrate that a material is excluded (e.g., facilities claiming the
closed loop exclusion must maintain documentation showing that only tank
storage was involved and the entire process was closed). Therefore,
these commenters believed there is already sufficient incentive to
document the exclusion under the current regulatory structure. [0199,
0439, 0442, 0471.2, 0523]

Summary of comments that opposed maintaining notification at facility
rather than submitting to the implementing agency:

Many commenters supported a requirement that facilities submit a
notification to the regulatory authorities rather than maintaining the
notification at the facility. These commenters argued that submitting
the notification would enable EPA and state officials to monitor
compliance with the exclusions and to make publicly available
information about the materials and quantity of materials being managed.
A few commenters believed that public disclosure is an important part of
ensuring that generators and reclaimers are meeting the requirements of
the exclusions and to ensure a mechanism for the regulatory agencies and
the public to review activities on a regular basis. One state commenter
argued the importance of submitting a notification so that agencies have
access to information provided by out-of-state generators or reclaimers
that are sending to or receiving hazardous secondary material from
facilities in their own state. [0231, 0470, 0475, see also commenters
who supported notification in section 5.2].

In addition to submitting a notification to the implementing agency, a
couple of commenters supported an additional requirement to retain a
copy of the notification at the facility site in order to assist RCRA
inspectors in verifying that the materials are excluded. [0182, 0231]

5.2.4 - Response

We agree with commenters who support notification in order to provide
basic information to regulators about who will be managing hazardous
secondary materials under the exclusion. We believe notification is
necessary to enable regulatory authorities to monitor compliance with
the conditions of the exclusion and thus reduce risk of environmental
damage resulting from abuse of the final rule. Conversely, a requirement
to maintain notification at the facility would preclude regulatory
authorities from easily identifying which facilities are operating under
the exclusion. Without this information, regulatory authorities would be
severely limited in their ability to oversee and monitor compliance with
the exclusions, which could result in adverse impacts to human health
and the environment from mismanagement of hazardous secondary materials.
Therefore, we are retaining the requirement that the notification be
submitted to the regulatory authority.

However, we are not adding a requirement for the notification to be
maintained at the generating facility. Although many facilities may
choose to maintain copies of their notification, such as in support of
40 CFR 261.2(f), we feel a regulatory requirement is unnecessary since
the facility is already required to submit the information to the
regulatory authority.

We are also not convinced by arguments that maintaining notification at
the facility will reduce burden for facilities because, whether the
notice is kept in the facility's files or submitted to the regulatory
authority, the facility would still need to document the information
required in the notification. Furthermore, we believe that by leveraging
the existing RCRA Subtitle C Site Identification Form and process for
the notification we have kept additional burden to a minimum.

Additionally, we note that EPA currently requires notification under
some 261.4 exclusions, such as for spent materials generated and
recovered within the primary mineral processing industry (261.4(a)(17))
and for hazardous secondary materials used to make zinc micronutrient
fertilizers (261.4(a)(20)) and thus we do not agree with commenters who
feel the notification requirement is inconsistent with existing solid
waste exclusion requirements.

5.2.5 - Require renotification if any of the information in the original
notice changes

5.2.5 - Summary

Summary of comments that supported requiring renotification in the event
of a change:

GENERAL SUPPORT: Of those who commented on this issue, a large majority
of commenters (including over 13 states) supported requiring
renotification in the event of a change to the information included in
the original notice. A couple of commenters further argued for
renotification whenever a change occurs to the recycling process or to
the hazardous secondary materials being recycled. Moreover, a few
commenters supported renotification in the event of changes to the
facility name, address or ownership, each time a new hazardous secondary
material is reclaimed under the exclusion, when such a material is no
longer recycled, or changes in recycler. Additionally, one commenter
believed that generators claiming the exclusion should be required to
notify implementer agencies of their change in generator status as a
result of the exclusion. One commenter also supported requiring revised
notification for changes in generator ownership or description of
excluded material being reclaimed. [0068, 0069, 0092, 0095, 0098, 0104,
0110, 0119, 0140, 0153, 0161, 0177, 0182, 0185, 0217, 0219, 0231, 0470,
0495, 0515, 0530, 0538, 0543, 0559]

ENSURES INFORMATION REMAINS MEANINGFUL: Some commenters argued that
renotification is important because it ensures that the information the
overseeing agency maintains, compiles, and utilizes remains meaningful,
therefore allowing state agencies to better monitor excluded activities
and verify compliance of those who generate and/or accept excluded
hazardous secondary materials within the terms of the exclusion.
Furthermore, one commenter believed that in most cases the generators
would normally keep this type of information as part of its operation
and, therefore, does not believe additional notification requirements,
such as revised notices in the event of a change, would create an
unreasonable burden. [0104, 0140, 0185, 0219]

NEED PERIODIC RENOTIFICATION: Furthermore, one commenter argued that
despite (other existing regulatory) requirements to re-notify upon
process changes, many generators fail to re-notify and that this would
be remedied by requiring annual notification. Related to this point, one
commenter felt the requirement to update notifications in the event of a
change actually creates some uncertainty when generators have to
determine, for example, whether their hazardous secondary material has
changed enough to warrant a revised notice, as well as problems with
missed filings and outdated information. Instead, this commenter
believed that generators would benefit from a clear requirement to file
an annual report. [0521, 0558, see also commenters who supported
periodic reports in section 7.6.3]

TIMEFRAME FOR RENOTIFICATION: One commenter said that the generator
needs to submit the renotification to the overseeing agency within
thirty days of changing certain information. [0104]

Summary of comments that opposed requiring renotification in the event
of a change:

GENERAL OPPOSITION: A few commenters opposed requiring renotification in
the event of a change to the information included in the original
notice. [0061, 0199, 0222, 0471.2]

EPA LACKS AUTHORITY: Some commenters believed that EPA lacked authority
under RCRA to require this level of reporting for hazardous secondary
materials because they are not solid wastes, and are thus exempted from
regulation. One commenter noted that EPA has repeatedly confirmed that
it does not have jurisdiction over recycling activities and that, in the
proposal, does not offer rationale for changing that position. Some
commenters further argued that renotification seemed inconsistent with
the existing self-implementing exclusions under 40 CFR 261.4 (which
these commenters noted do not require notification) and with the
comparable fuels exemption (which requires one-time notification only).
[0070, 0102, 0222, 0471.2, see also commenters who opposed notification
in section 5.2]

INCREASES BURDEN: Commenters also argued that requiring renotification
ran contrary to the RCRA burden reduction rulemaking (which eliminates
several existing RCRA reporting and recordkeeping requirements that were
deemed unnecessary, burdensome and duplicative). Some of these
commenters argued that renotification would increase burden over the
one-time notification and may "[trigger] a level of paperwork
requirements that actually exceeded those presently required for
off-site hazardous waste shipments," and would, therefore, act as a
disincentive for facilities to utilize the exclusion. A few commenters
believed there was no value in requiring renotification and that EPA did
not provide any specific rationale for how this information is necessary
and appropriate from an administrative perspective. [0061, 0199, 0222,
0471.2]

DIFFICULTY WITH SPECIFIC DATA ELEMENTS: Additionally, one commenter
argued that, since the notifications will be facility-specific and
site-specific, it is hard to understand how a revised notice would be
appropriate if the "location" of the generating facility changed. If an
exemption is to be claimed for the first time at a new location, then
that submission is an original notification. This commenter also argued
that submission of information on a change in ownership of the facility
for this particular purpose is not relevant to the terms for claiming
the exemption and would be redundant with the submission of that
information on multiple other forms that these facilities ordinarily
file with EPA and authorized states. [0222]

One commenter argued that requiring renotification "if the type of
excluded material were to change" would place an unjustified and
disproportionate burden on specialty batch chemical manufacturers since
these manufacturers routinely make multiple products at a time in small
batches which change frequently in response to customer demands. In many
instances, these same manufacturers would also be precluded from
providing the level of detail discussed in the proposal due to
confidentiality agreements with their customers and, even in instances
where they are not affirmatively bound by a confidentiality agreement,
the highly competitive nature of the specialty batch chemical
manufacturing industry is likely to cause companies to conclude that it
is preferable to forgo the recycling opportunity than to publicly make
available to their competitors highly sensitive information that
effectively identifies their routine products, frequency and level of
production, customer relationships, as well as new product lines.
Another commenter requested that EPA not require updates any time a new
secondary material or waste stream is generated or recycled at the same
facility. [0222, 0447, 0471.2]

MAINTAIN DOCUMENTATION ON-SITE: One commenter believed that a facility
would maintain this documentation on-site as standard practice and
therefore could provide the information upon request without incurring
additional reporting burden [0061]

5.2.5 - Response

SUPPORT RENOTIFICATION: We agree with the majority of commenters who
supported renotification in order to provide regulatory authorities with
meaningful information that is critical to adequately monitor compliance
with the exclusions. We have therefore finalized a requirement under 40
CFR 260.42 that requires hazardous secondary material generators,
reclaimers and intermediate facilities to re-notify by March 1st of each
even numbered year (see section 7.6.3 for more information).

As summarized above, some commenters argued that facilities should
re-notify whenever a change occurs to the recycling process, identity of
reclaimer, or ownership; each time a new hazardous secondary material is
reclaimed under the exclusion; when such a material is no longer
recycled; and, for changes in generator status as a result of our
exclusion. Since we are not requiring detailed process information,
identity of reclaimer and ownership information in our notification (see
section 5.2.1 for more information), we are therefore not requiring this
information to be updated. We agree with commenters who believe that
facilities should re-notify when they are no longer reclaiming any
amount of hazardous secondary material because this will enable
regulatory authorities to follow-up and ensure that hazardous secondary
materials were not discarded. We are not, however, requiring facilities
to re-notify if their generator status changes as a result of our
exclusion because we believe this requirement to be specific to
hazardous waste generation and thus outside the scope of our rulemaking.

We understand commenters who argued that often times facilities fail to
re-notify in the event of a change (even when required to do so) and
that this may be a result of uncertainty of 'how much of a change'
requires renotification. We believe we have resolved this issue with the
requirement to re-notify every two years. We believe this approach will
ensure the information provided to and used by regulatory authorities
remains meaningful and enables them to adequately monitor compliance of
the facilities with the exclusion. For example, a regulatory authority
will be alerted to potential 'outdated' information by simply noting if
the facility submitted a notification on-time or not.

TIMEFRAME FOR RENOTIFICATION: We are requiring time limits for
submitting notifications in order to reduce regulatory uncertainty. A
facility must: 1) submit an initial notification prior to operating
under the exclusion; 2) submit a renotification by March 1 of each even
numbered year; and 3) submit a renotification within 30 days of ceasing
management of hazardous secondary materials.

EPA'S AUTHORITY: We disagree with commenters who argue that EPA lacks
authority to require "this level of reporting for hazardous secondary
materials." We believe our authority to request such information is
inherent in our authority to determine whether a material is discarded.
We consider the notification to contain the minimum information needed
to enable credible evaluation of the status of hazardous secondary
materials under section 3007 of RCRA and to ensure the terms of the
exclusions are being met by generators and reclaimers. Furthermore, we
believe it is appropriate to place the responsibility for submitting and
maintaining updated information with the hazardous secondary material
generators, reclaimers, and intermediate facilities that use the
exclusions.

We also strongly disagree with the commenter who notes that EPA has
"repeatedly confirmed that it does not have jurisdiction over recycling
activities." EPA not only maintains authority over, but currently
regulates as solid and hazardous waste, certain types of recycling
involving reclamation, use constituting disposal, burning for energy
recovery and recycling of inherently-waste like materials. Furthermore,
our rulemaking defines discard in terms of certain restrictions and
conditions that a facility chooses to meet; in no way does this
rulemaking automatically exclude all reclamation activities. We have
been clear that we consider reclaimed hazardous secondary materials that
do not meet the terms of the exclusions to be solid and hazardous waste
and therefore subject to hazardous waste regulation.

We also disagree with commenters who argue that notification is
inconsistent with the existing exclusions of 261.4. Currently, we
require persons to submit notice when claiming the exclusion for spent
materials generated and recovered within the primary mineral processing
industry (261.4(a)(17)) and for hazardous secondary materials used to
make zinc micronutrient fertilizers (261.4(a)(20)). Furthermore, we
disagree with commenters who feel we should maintain consistency with
past rulemakings despite awareness of more effective courses of action.

ADDITIONAL BURDEN: We do not believe the validity of arguments that
renotification would increase burden to the point of discouraging
facilities from using the exclusions. EPA has chosen to use the Site ID
form for the notification because it is standardized,
electronically-accessible, and familiar to the regulated community and,
therefore, will assist facilities by reducing the overall time and
effort required to report the information. Currently, large quantity
generators on average spend $485 a year on biennial reporting under full
Subtitle C regulation, whereas under the final rule, an initial
notification is estimated to be less than a third of that cost, with
subsequent notifications costing even less.

DIFFICULTY WITH SPECIFIC DATA ELEMENTS: We agree with the commenter who
noted that if the "location" of the generating facility changed, it
would require a separate notification specific to the new site. We are,
therefore, requiring a facility's "address" (which could change in terms
of street name, but not necessarily 'location'). We are also not
requiring ownership information to be provided in the notification and,
thus, are not requiring renotification of this information.

Regarding comments specific to batch chemical manufacturers, we have
further clarified in our rulemaking that "type of excluded material" is
reported as the EPA hazardous waste code that would apply if the
hazardous secondary materials were managed as hazardous waste. We
believe this approach will succeed in capturing a reasonable amount of
detail on the hazardous secondary materials that we wouldn't necessarily
expect to change month-to-month (e.g., we believe that hazardous
secondary materials reported as hazardous waste codes are likely to
change less frequently than if we required facilities to report a
narrative description or a list of concentrations of hazardous
constituents). We also believe the information we are requiring in the
notification would not, on the whole, be considered confidential
business information, or at least would not cause any facility,
including batch chemical manufacturers, more difficulty than they
already face when providing similar biennial report information under
the current hazardous waste regulations.

MAINTAIN DOCUMENTATION ON-SITE: We do agree with the commenter who
believed that facilities would maintain this documentation on-site as
standard practice, but we do not agree that simply providing the
information upon request is sufficient. The information in the
notification is critical for regulatory authorities to monitor
compliance to ensure hazardous secondary materials are not discarded and
renotification is the only way to maintain the credibility of that
information so it can serve its purpose.

5.3 - Definitions of terms

5.3 - Summary

Some commenters asked that EPA provide a definition of "hazardous
secondary materials" or "secondary materials" to clarify which materials
are eligible for the exclusions in this rule (0083-12, 0083-24, 0083-25,
0442-2, 0488-9, 0492-16, 0500-3, 0506-6, 0506-19, 0557-2, 0557-3 ). Some
commenters expressed concern that characteristic sludges and by-products
or Bevill-exempt wastes might be considered hazardous secondary
materials (0442-2, 0506-19, 0557-3). One commenter preferred the term
"material" (0492-16).  Another commenter suggested a definition that
read "materials that are managed in a protective manner and that are
legitimately reclaimed, including spent solvents” (0550-3).

Some commenters objected to the Agency's use of the phrase "hazardous"
to describe the materials excluded in this rule (0481-55, 0492-16). One
commenter said that only listed or characteristic wastes can be
"hazardous" under RCRA, so EPA's terminology is confusing (0492-16).
Another commenter suggested deleting this phrase from the entire
preamble and rule, because these materials are not wastes, hence they
cannot be "hazardous" (0481-55).

Some commenters also asked that we provide a definition of "recycled"
and "reclaimed" (0488-11, 0500-3).

One commenter said that EPA should better define the phrase "under the
control of the generator". This phrase parallels one in the definition
of satellite accumulation units at 40 CFR 262.34(c), where such units
are defined to be "under the control of the operator of the process
generating the waste.”  This definition, according to the commenter,
has led to varying state interpretations (0525-2).

Another commenter said that our definition of "generator" was too broad
because it could include "co-generators" (0543-63).

5.3 - Response

EPA agrees that its terminology in the proposed preamble and rule may
have been somewhat confusing, and that a definition of "hazardous
secondary material" would add clarity.  For this reason, we have added
such a definition to 40 CFR 260.10 in this final rule.  Pursuant to this
definition, "hazardous secondary material means a secondary material
(e.g., spent material, by-product, or sludge) that, when discarded,
would be identified as hazardous waste under 40 CFR Part 261.” We
believe that this definition will best avoid confusion about possible
alternative meanings of "hazardous".  We note that our definition is
intentionally broad to capture the appropriate universe of materials.
However, the term is only used in the RCRA regulations in today’s
exclusions, together with other defining terms and provisions that
identify what materials are covered by the exclusions. Other provisions
that do not use the term are not affected. The regulatory status of
these materials is clearly explained in Section XI of the preamble to
this final rule. We also are not adopting the suggestion that the phrase
"hazardous secondary materials" should include any materials that are
protectively managed and legitimately reclaimed. This definition would
broaden the scope of the exclusions beyond what we proposed, for
example, to include burning for energy recovery and use constituting
disposal. Also the terms of the exclusions include these concepts but
define them more explicitly so that they are usable and implementable.

In response to those commenters who suggested adding definitions of
"recycled" and "reclaimed,” we note that "reclamation" (a subset of
"recycling") is already defined at 40 CFR 261.1(c)(4), and further
discussed in the preamble to the March 26, 2007 supplemental proposal
(see 57 FR  14173).  We believe that these terms are sufficiently
defined here, and that regulatory authorities and the regulated
community are sufficiently familiar with these concepts. Therefore, we
are not adding additional definitions.

In response to the commenter who compared our definition of "under the
control of the generator" with that used in the definition of satellite
accumulation units, EPA does not see these two definitions as analogous.
 The phrase "under the control of the generator" is defined in a highly
specific manner in 40 CFR 260.10, with descriptions of the three
subcategories of the exclusion. We believe that this definition is
sufficiently specific and clear so as not to result in the kind of
variable interpretations the commenter fears. However, we also note that
some authorized states have RCRA requirements that are more stringent
than the corresponding federal requirements. Therefore, the possibility
of varying state requirements cannot be entirely avoided.

In response to the commenter who expressed concern about co-generators,
we note that this final rule contains a definition of "hazardous
secondary material generator" in §260.10. "Hazardous secondary material
generator means any person whose act or process produces hazardous
secondary material at the generating facility. A facility that collects
hazardous secondary materials that has been discarded by other persons
is not the hazardous secondary material generator."  These definitions
apply to all of the exclusions promulgated today. We note that in the
typical "co-generator" situation, generators may contract with a second
company to collect hazardous secondary materials at the generating
facility, after which the hazardous secondary materials are subsequently
reclaimed at the facility of the second company. In that situation, the
hazardous secondary materials would no longer be considered "under the
control of the generator" because the materials are not reclaimed at the
generating facility, by the generating company, or under a tolling
contract. The materials should instead be managed under the exclusion
for materials transferred for reclamation.

We have also amended the existing definition of "facility" in §260.10
to include a reference to management of hazardous secondary materials.
Therefore, any references to "facilities" or "units"  in today's rule
also refers to facilities or units managing hazardous secondary
materials excluded under this rule.

6 - Exclusion for hazardous secondary materials that are legitimately
reclaimed under the control of the generator: general support or
opposition

6 - Summary

Many commenters who addressed this issue generally supported the
exclusion proposed in our March 26, 2007 proposal (0092-8, 0471.1-2,
0471.2-2, 0471.2-5, 0471.2-7, 0471.2-11, 0471.2-12, 0471.2-15, 0467-2,
0472-9, 0472-19, 0476-18, 0485-3, 0486-20, 0487-4, 0534-9, 0555.-9).

Some commenters did not support the proposed exclusion (0558-1, 0480-3).

6 - Response

For the reasons explained in the preamble of this final rule, the Agency
is finalizing its exclusion as proposed on March 26, 2007, with certain
modifications.

6.1 - Hazardous secondary materials generated and reclaimed at the
generating facility

6.1 - Summary

Commenters who addressed this exclusion generally supported it (0048-6,
0058-1, 0065-5, 0067-8, 0067-10, 0068-19, 0068-25, 0072-12, 0074-7,
0074-18, 0076-4, 0076-5, 0083-6, 0084-7, 0091-20, 0093-27, 0095-6,
0095-24, 0097-9, 0098-19, 0101-11, 0104-20, 0110-24, 0119-16, 0122-14,
0124-7, 0129-19, 0130-3, 0130-12, 0131-3, 0135-4, 0138-10, 0140-7,
0144-5, 0147-3, 0147-8, 0148-5, 0152-6, 0152-12, 0153-4, 0158-5, 0162-1,
0164-2, 0167-4, 0173-5, 0177-7, 0179-15, 0180-6, 0181-7, 0182-11,
0185-5, 0194-8, 0199-22, 0203-9, 0205-3, 0210-12,  0210-3, 0217-14,
0219-6, 0222-39, 0225-5, 0225-15, 0225-35, 0452-7, 0468-4, 0468-22,
0470-4, 0470-8, 0471.1-4, 0471.2-10, 0471.2-29, 0471.2-30, 0475-14,
0475-16, 0478-9, 0489-1, 0495-2, 0518-5, 0528-13, 0536-8, 0537-13,
0538-13, 0541-1, 0543-2, 0563-2). They agreed with EPA that hazardous
secondary materials reclaimed by a generator at its facility are
unlikely to be discarded because the materials will be managed and
monitored by a single entity who is familiar with both the generation
and recycling of the hazardous secondary materials (0043-1, 0093-27,
0104-20, 0130-3, 0140-7, 0152-6, 0153-5, 0153-10, 0153-12, 0180-6,
0210-1, 0219-6).  Several commenters also agreed with EPA that
environmental risks were lessened if the hazardous secondary materials
were not transported off-site (0153-12, 0177-7, 0180-6, 0210-1, 0219-6),
 and that fewer liability questions would arise in the case of accidents
or mismanagement (0043-1, 0093-27, 0104-20, 0130-3, 0152-6, 0210-1,
0219-6).

A few commenters did not support this exclusion (0153-13, 0231-51,
0558-5). One of these commenters believed that on-site recycling was no
less damaging to the environment than off-site recycling (0153-13).
Another said that EPA had failed to provide any data that supported its
assumptions about the benefits of an exclusion for on-site recycling,
and that such an exclusion could create large, unregulated facilities
that threaten the environment. The increased likelihood of mixing
different waste streams would also increase the risks involved,
according to this commenter (0231-51).

Another commenter said that EPA should only allow the on-site exclusion
for hazardous secondary materials that are directly reused in the
generator's ongoing production process (e.g., reclamation of
lead-containing slag in a mineral processing operation). However, an
on-site exclusion should not be allowed for hazardous secondary
materials that are reclaimed in a unit that is separate and distinct
from the generator's production activities (e.g., reclamation of spent
solvents from equipment cleaning). This commenter believed that in the
direct reuse scenario, the generator would be more likely to recycle the
materials in a manner that did not contaminate its own production
processes.  In the solvent reclamation scenario, discard would be more
likely, especially when the generator would thereby avoid the cost of
proper recycling or disposal (0558-5).

One commenter said that the Agency should not allow on-site recyclers to
sell reclaimed material to off-site users, because generators would be
more sensitive about how much hazardous material they purchased if their
disposal options were limited (0210-11).

6.1 - Response

After evaluating these comments, the Agency has decided to retain an
exclusion for hazardous secondary materials that are generated and
reclaimed at the generating facility, with the requirements specified in
this final rule (prohibition of speculative accumulation, notification,
containment, and legitimacy ). Since the October 2003 proposal, we have
conducted a study entitled Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials.    EPA does
not agree with the commenters who said that that on-site recycling is no
less damaging to the environment than off-site recycling, or that an
exclusion for on-site recycling will lead to damage to the environment.
In general, environmental risks may be lessened when hazardous secondary
materials are not transported off-site.

In our March 26, 2007 proposal, we noted that only 6% of the cases
examined in our Assessment of Environmental Problems were determined to
be from on-site recycling. The Agency solicited comment on whether this
small percentage was due to on-site recycling occurring at fewer
facilities or whether environmental problems from on-site recycling were
not as well documented or were more difficult to identify given the
scope and methodology of the study.  EPA is aware that environmental
damage can occur as a result of on-site recycling. However, in response
to our solicitation of comment, we received no information indicating
that on-site recycling is inherently as likely to cause environmental
damage as other kinds of recycling. Nor does the Agency have data that
would lead us to conclude that an exclusion for on-site recycling would
lead to increased mixing of different waste streams.  We also do not
have information that would justify granting an exclusion only for
on-site recycling that involves reuse or reclamation in the production
process.  The cases in our Assessment of Environmental Problems do not
lead to the conclusion that discard is more likely if hazardous
secondary materials are reclaimed in a unit that is separate from the
generator's production activities.

The Agency also does not agree that generators of hazardous secondary
materials that are reclaimed on-site should be prohibited from
subsequently  selling the reclaimed materials to off-site users. There
is no reason to believe that sales of such products would generally
involve discard, unless the recycling was not legitimate or unless the
products were used in a manner constituting disposal or burned for
energy recovery. Under these scenarios, the materials would not be
eligible for the generator-controlled exclusion; thus it is not
necessary to further limit the exclusion in this way.  However, if
reclaimed hazardous secondary material is sent off-site for further
reclamation, it would normally have to be managed according to the
conditions of the transfer-based exclusion in 40 CFR 261.4(a)(24),
unless it were eligible for the same-company or tolling exclusion.

6.1.1 - Should facilities under separate ownership but located at the
same site be included within this proposed exclusion?

6.1.1 - Summary

INDUSTRIAL PARKS

Commenter reaction was mixed concerning an exclusion for facilities
located at the same site, but under separate ownership (i.e., co-located
facilities where the generator does not own all the contiguous
property).   Some commenters opposed such an exclusion because they
believed that this scenario is not compatible with generator control
(0457-2, 0470-10, 0475-14 , 0475-16, 0539-5, 0563-2). They argued that
unrelated companies would not be as likely to have knowledge of each
other's operations and hazardous secondary materials. One commenter
argued that additional controls were necessary, such as financial
assurance for the reclaimer and reasonable efforts on the part of the
generator (conditions that EPA had proposed for the transfer-based
exclusion).  An example of on-site recycling which this  commenter
believed should be subject to additional controls was a reclaimer owning
1 acre of land at a refinery and processing spent catalyst at the site
(0475-15).  Another commenter said that facilities under separate
ownership should be included within the proposed exclusion only if they
utilize a common accounting and inventory system and if a single point
of control is designated (0479-18).

Other commenters supported an exclusion for such facilities (0461-1,
0463-3, 0468-5, 0468-22, 0471.2-33, 0472-12, 0474-1, 0476-3, 0476-19,
0481-7, 0481-53, 0485-6, 0486-22, 0491-17, 0507-6, 0511-3, 0535-6,
0549-2). These commenters generally said that the exclusion should be
allowed if different companies are co-located, even if the generator
does not own the all of the  contiguous property, and that such an
exclusion would encourage recycling.  One commenter said that even under
our proposal, facilities under separate ownership, but located at the
same site, would be eligible for the exclusion if the generator owned
the entire site. This exclusion would be convenient for automotive
suppliers and vendors who are sometimes located on the property of
automotive manufacturers (0476-3).  Other commenters mentioned a
variety of scenarios which they argued should be eligible for the
exclusion. Some commenters described integrated chemical manufacturing
operations with co-located facilities that are owned by different
entities because of corporate sales, mergers and acquisitions (0472-12,
0485-6, 0486-22). Other commenters mentioned situations where a tenant
generates hazardous secondary materials which are then recycled on-site
by another company who is the landlord, or vice versa (0481-53, 0535-6).
Similarly, coke and tar plants at iron and steel facilities are
sometimes owned by electric utilities (0463-3). Some operations
mentioned by commenters may have been prospective rather than actual.

One commenter said that whether reclamation occurred "under the control
of the generator" should not matter if the material was not discarded
(0549-2).

ON-SITE CONTRACTORS

Some commenters supported our statement that "under the control of the
generator" should include situations where a generator contracts with a
different company to reclaim hazardous secondary materials at the
generator's facility.  These commenters said that the generator in this
scenario retains effective control or the contractor often has special
expertise in recycling (0468-5, 0471.2-33, 0558-18). Another commenter
supported such an exclusion because government agencies may generate
hazardous secondary materials that are then reclaimed on-site by
contractors (0461-1).  Still another commenter noted that at some steel
plants, spent pickle liquor is reclaimed on-site by a company that is
different from the company operating the steel plant. Sometimes the
company recycling the spent pickle liquor receives materials from
off-site companies as well.

However, another commenter suggested that if a contractor enters a site
to reclaim hazardous secondary materials generated at that site, he
should meet standards for recordkeeping, storage, trained personnel,
disposal of residuals, and should have financial assurance for
facilities and equipment at the site. The generator should also conduct
reasonable efforts on the contractor, who should be audited (0507-6,
0507-12).

6.1.1 - Response

INDUSTRIAL PARKS

After evaluating these comments, EPA has decided to finalize this
provision essentially as proposed and to limit the exclusion to
hazardous secondary materials that are generated and legitimately
reclaimed by the hazardous secondary material generator at the
generating facility (i.e., all contiguous property owned, leased, or
otherwise controlled by the hazardous secondary material generator). The
exclusion would thus not cover "industrial parks" where the hazardous
secondary material generator does not own or operate the contiguous
property. With respect to particular situations described by the
commenters, we agree that at least some of these situations are not
necessarily incompatible with generator control.  In addition, the
commenter is correct who said that facilities under separate ownership,
but located at the same site, would be eligible for the exclusion if the
generator owned the entire site.  However, the commenters generally did
not specifically state whether the generator or the reclaimer owned the
site or describe the kinds of recycling that are conducted in these
situations (e.g., facilities located at automotive sites, integrated
chemical manufacturing operations, coke or tar plants at steel mills,
land-lord-tenant relationships). For this reason, the Agency does not
have sufficient information about these situations to determine if there
is a single entity who remains in control of the hazardous secondary
material throughout the reclamation process. Therefore, EPA believes
that such situations may be more appropriately addressed under the
exclusion for hazardous secondary materials transferred for reclamation
(40 CFR 261.4(a)(24)) or under the case-by-case non-waste determination
procedures finalized today in §260.30.  In any event, facilities that
are uncertain about their eligibility for the generator-controlled
exclusion should contact the appropriate regulatory authorities for
assistance.

Although we agree with the commenter who said that hazardous secondary
materials are not necessarily discarded when they leave the control of
the generator, we believe that the conditions of the transfer-based
exclusion are necessary to determine that such materials have not in
fact been discarded.  Additional conditions such as a common inventory
and accounting system were not proposed under either the
generator-controlled or the transfer-based exclusion and the Agency does
not believe they are essential to determine whether hazardous secondary
materials have been discarded.

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

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

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

ON-SITE CONTRACTORS

Hazardous secondary materials are eligible for the generator-controlled
exclusion if the generator contracts with a different company to recycle
the hazardous secondary material at the generator’s site. Thus, if a
government agency generated hazardous secondary materials that were
subsequently reclaimed at its facility by a contractor, the materials
would be eligible for the generator-controlled exclusion.  Similarly,
spent pickle liquor recycled at a steel mill is eligible for the
generator-controlled exclusion when the generator (the steel mill) has
contracted with another company to reclaim this material at the
generator's facility.  However, spent pickle liquor that was received
from an off-site steel mill and then recycled by this company would be
eligible only for the transfer-based exclusion.

The Agency does not believe that additional conditions (such as those
required under the transfer-based exclusion) are necessary when a
hazardous secondary materials generator contracts with another company
to recycle the materials at the generator's facility. In this situation,
the materials are unlikely to be discarded because the generator will be
able to control the materials, monitor the recycling at the site and
will be familiar with the materials and the reclamation process. In
addition, liability will be maintained and is clearly identifiable in
the case of accident or mismanagement.  The requirements for containment
and notification, as well as the prohibition on speculative
accumulation, are sufficient to show that the hazardous secondary
materials have not been discarded.

6.1.2 - Other definitions which might be equally compatible with
generator control as the definitions proposed in today's notice

6.1.2 - Summary

OWNED OR OPERATED

Some commenters pointed out that a facility that generates hazardous
secondary materials may lease or operate, rather than own, the property
where it conducts operations. In those instances, our proposed
definition of "generating facility" would not cover such arrangements
(0471.2-32, 0481-6, 0481-52, 0491-16, 0516-5).  One of these commenters
suggested that the Agency revise its definition of "generating facility"
to include all contiguous property "owned or operated" by the generator
(0481-52).

One commenter stated that facilities under separate ownership cannot be
"located at the same site," since the facilities would be separate
"persons," and thereby separate generators, and as such must be regarded
as separate sites. (0516-4)

6.1.2 - Response

OWNED OR OPERATED

EPA agrees with the commenters who said that a facility generating
hazardous secondary materials may lease rather than own the property
where it conducts operations, and that our proposed definition of
"generating facility" would not cover such arrangements.  Under these
arrangements, hazardous secondary materials will be controlled, managed,
and monitored by a single entity who is familiar with the materials.  In
addition, liability will be maintained and is clearly identifiable in
the case of accident or mismanagement.  The Agency agrees that such
arrangements should be eligible for the generator-controlled exclusion.
EPA has therefore changed the definition of "generating facility" in 40
CFR 260.10 to read "all contiguous property owned, leased, or otherwise
controlled by the hazardous secondary material generator."

EPA does not entirely understand the commenter who said that separate
generators (i.e., different companies) cannot be located on the same
site; our  proposed rule did not contain a definition of "site."
Presumably the commenter meant that the current definition of "on-site"
in 40 CFR 260.10  implies that the entire site must be owned by the same
person.  However, our proposed definition did not contain the phrase
"on-site." In any event, this final rule contains a definition in 40 CFR
260.10 of "generating facility," which is "all contiguous property
owned, leased, or otherwise controlled by the hazardous secondary
material generator." "Hazardous secondary material generator" (also
contained in the above definition) means “any person whose act or
process produces hazardous secondary material at the generating
facility. A facility that collects hazardous secondary materials that
has been discarded by other persons is not the hazardous secondary
material generator.” This definition applies to all of the exclusions
promulgated in this rule. We note that generators sometimes contract
with a second company to collect hazardous secondary materials at the
generating facility, after which the hazardous secondary materials are
subsequently reclaimed at the facility of the second company. In that
situation, the hazardous secondary materials would no longer be
considered "under the control of the generator" because the materials
are not reclaimed at the generating facility. The materials should
instead be managed under the exclusion for materials transferred for
reclamation.

We have also amended the existing definition of "facility" in §260.10
to include a reference to management of hazardous secondary materials.
Therefore, any references to "facilities" or "units" of a facility in
this rule also refers to facilities or units managing hazardous
secondary materials excluded under this rule.

6.2 - Hazardous secondary materials generated and reclaimed by the same
company

6.2 - Summary

GENERAL SUPPORT OR OPPOSITION

Many commenters supported this exclusion.  These commenters generally
said that hazardous secondary materials sent from one company's facility
to another facility owned by the same company remained under the control
of the generating company (0043-2, 0044-6, 0055-3, 0064-8, 0064-9,
0064-10, 0067-3, 0067-8, 0067-10, 0068-25, 0074-9, 0074-19, 0083-6,
0093-27, 0101-5, 0152-2, 0152-5, 0152-6, 0152-7, 0152-12, 0153-5,
0153-9, 0158-2, 0203-9, 0225-15, 0225-36, 0452-7, 0468-4, 0468-22,
0471.1-4, 0471.2-29, 0471.2-34, 0478-9, 0481-8, , 0485-5, 0481-55,
0511-4, 0535-7, 0563-2). According to many of these commenters, if a
generator sends materials to a reclaimer that is part of the same
corporate structure, the generator is likely to be familiar with the
recycling and materials management processes employed by the reclaimer.
In addition, questions regarding liability and responsibility for such
hazardous secondary materials are likely to be clearer.

One commenter asked the Agency to broaden this exclusion to include
material generated and reclaimed by the same generator at non-contiguous
facilities owned by the generator and transported between the facilities
by either the generator or a contract carrier (0535-7). This commenter
may also have been referring to the exclusion for hazardous secondary
materials generated and reclaimed at the generating facility.

Other commenters stated that when hazardous secondary materials are
generated and transported off-site for reclamation, additional controls
were needed to avoid discard and protect human health and the
environment even in the case of intra-company recycling (0538-13,
0541-2, 0558-19, 0559-37, 0559-41, 0559-100).  One commenter suggested
additional tracking, notification and recordkeeping requirements for any
hazardous secondary materials transported off-site (0541-2).

CERTIFICATION

Some commenters argued that no certification should be necessary when
hazardous secondary materials are sent between the same or related
companies because generator knowledge of the materials or the potential
CERCLA liability should suffice to ensure safe and legitimate recycling
(0467-3, 0476-4, 0496-1, 0526-8, 0526-9, 0528-13). One commenter said
that a certification requirement was redundant because under 40 CFR
261.2(f), the generator already has the burden of proof for documenting
that material is not regulated (0491-17).  One commenter argued that all
qualifying hazardous secondary materials should be eligible for the
exclusion even if the generator did not retain ownership of the
materials (0463-4).

Still other commenters disagreed with our proposed requirement for
certifying that the generator and reclaimer of hazardous secondary
materials were under the same ownership and that the owner corporation
must acknowledge responsibility for the safe management of the hazardous
secondary materials.  Some of these commenters said that under existing
corporate law, parent companies do not (and sometimes cannot) assume
legal liability for their subsidiaries (0471.2-36, 0472-14, 0476-4,
0481-57, 0496-2, 0537-16). EPA's proposed certification requirement
regarding the owner company would therefore have little legal effect and
could actually discourage same-company recycling (0535-8).  Some
commenters said that the proposed requirement that the hazardous
secondary materials be generated and reclaimed by the same "person"
under 40 CFR 260.10 was not appropriate because a corporation and its
affiliates or subsidiaries are legally distinct and not the same "person
(0471.2-36, 0476-4, 0472-13, 0472-15, 0486-6, 0486-23, 0486-25, 0496-1).

Some of these commenters suggested that either the generator or the
reclaimer should acknowledge responsibility for properly managing the
hazardous secondary material, not a third-party owner corporation
(0471.2-36, 0476-4, 0481-9, 0496-2, 0535-8).

Some commenters  suggested that the Agency require that the hazardous
secondary material be generated and reclaimed by the same "person,” a
"related party,” a subsidiary,  or by an "affiliated company" (0476-4,
0481-56, 0481-58, 0485-5,) ;  "related party" would be defined as in
terms of majority ownership or a joint venture (0476-4). Other
commenters suggested that we refer to "related facilities"(0492-17) or
"entities" (0442-3, 0442-11) rather than "companies.” Some other
commenters suggested that we focus on the concept of "common control" or
"common ownership" (0471.2-35, 0472-15, 0482-10, 0486-6, 0471.2-35,
0492-17, 0496-1, 0496-3, ) or that we include a definition of
"same-company" (0457-3).

Other commenters supported a certification provision, but suggested
alternative or additional provisions.  Some commenters suggested that
the certification should be submitted to a regulatory agency (0470-11,
0543-59), or that it should include the addresses of the companies whose
names are inserted (0470-11) or more information about the reclamation
facility(0543-2).   Another commenter said that the generator
certification should be codified in the regulations and signed by a
responsible official of the recycling company (0457-3). One commenter
stated that reclamation companies should be required to be United States
corporations (0543-2).

One commenter said that the regulation should allow a one-time
certification to be stored electronically by the generator ((0486-24).
Another commenter was concerned about situations where the generator and
recycler are located in different states, stating that states might not
be able to determine if the materials were handled as commodities in
those situations (0489-2).

Some commenters appeared to  believe that the "same-company"
certification must be performed each time a shipment of excluded
hazardous secondary material occurred (0471.2 36, 0472-14, 0486-24,
0492-18).

GOVERNMENT AGENCIES AND UNIVERSITIES

Some commenters requested that EPA clarify whether two government
agencies (such as the Department of Defense and the Department of
Energy) would be considered the same "person" under 40 CFR 260.10,
especially if hazardous secondary materials are generated by one agency
and reclaimed by another (0461-2, 0466-1, 0466-2).  In response, we note
that for purposes of RCRA, the federal government is not a single
"person"; rather, each agency or department would be considered a
separate "person." We also note that under today's final rule, a federal
agency that is a generating facility does not normally have the power to
direct the policies of another federal agency that is a reclaiming
facility, nor is there a "person" under §260.10 who directs the routine
policies of both facilities. In certain situations, the parties involved
may wish to apply for a case-by-case non-waste determination under 40
CFR 260.30, as appropriate, or use the transfer-based exclusion.

Other commenters requested that EPA clarify whether the same-company
exclusion extends to hazardous secondary materials that are generated
and reclaimed at different facilities, when both facilities are owned by
the same government agency or university, but may be operated by a
contractor (0442-3, 0466-1, 0466-2). In some of these situations, the
same contractor operates both the generating facility and the recycling
facility, but, in other situations, the generating facility and the
reclaiming facility are operated by different contractors.

One commenter said that the potential for Superfund liability was not an
incentive for government agencies to handle their hazardous secondary
materials appropriately, because EPA does not effectively enforce
Superfund against other federal agencies.  This commenter said that DOD
and DOE should therefore not be eligible for the same-company exclusion
(0559-100).

6.2 - Response

GENERAL SUPPORT OR OPPOSITION

For the reasons explained in the preamble to today's rule, the Agency
has decided to retain "same-company" recycling under the exclusion for
hazardous secondary materials legitimately reclaimed under the control
of the generator.  In response to commenters who suggested additional
notification and recordkeeping requirements, we note that the Agency has
revised our proposed requirements for notification for all exclusions
promulgated in this rule, as well as adding certification requirements.
These revisions are discussed in the preamble to this rule. Our response
to other suggestions for additional requirements for this exclusion is
found in this section of the response to comments document or in section
6.6. However, in general, after reviewing comments, we find that our
proposed rationale for the “same-company” exclusion still holds.

In response to the commenter who suggested broadening the exclusion to
non-contiguous facilities owned by the generator, we note that under the
proposal and today's rule, hazardous secondary materials that are
generated and reclaimed by the same company would be excluded even when
generated and reclaimed at different locations.

CERTIFICATION

After evaluating these comments, EPA does not agree with the commenters
who argued that a certification requirement is not needed. We note that
the purpose of the certification is not to directly ensure proper and
legitimate recycling (as many of these commenters believed) but to
clarify responsibility for the hazardous secondary materials and to
ensure and demonstrate that the hazardous secondary materials are not
discarded and are within the terms of the generator-controlled
exclusion. In response to the commenter who said that the burden of
proof under 40 CFR 261.2(f) was sufficient, we note that regulatory
authorities will sometimes wish to ascertain whether a facility is
operating within the exclusion even in the absence of an enforcement
context. In addition, certification provides a measure of accountability
by the company and ensures that the parameters of the exclusion are
known and understood.

We also do not agree with the commenter who suggested that any hazardous
secondary material being recycled should be eligible for this exclusion,
even if the generator does not retain ownership or control.  In those
situations, we believe the conditions of the transfer-based exclusion
are necessary to demonstrate that the material has not been discarded.

For the reasons stated above, we are retaining a certification
requirement for this exclusion.  However, the Agency has also decided
that its proposed certification language should be revised to avoid
confusion and to ensure more effective generator control. We have
therefore revised our proposed regulatory definition for this exclusion
to refer to "facilities" rather than companies. Under the definition
finalized today at 40 CFR 260.10, the reclaiming facility must be
"controlled" by the generating facility or by a person (under §260.10)
who controls both the generating facility and the reclaiming facility.
"Control," for purposes of this exclusion, means "the power to direct
the policies of the facility, whether by the ownership of stock, voting
rights, or otherwise, except that contractors who operate facilities on
behalf of a different person shall not be deemed to "control" such
facilities (see §260.10). Our final certification language requires the
generating facility to certify that it controls the reclaiming facility,
or that the generating facility and the reclaiming facility are under
common control. In addition, the generator must certify that either the
generating facility or the reclaiming facility acknowledges full
responsibility for the proper management of the hazardous secondary
materials. To avoid confusion, we have also amended the definition of
"facility" at 40 CFR 260.10 to include facilities which manage hazardous
secondary materials. Therefore, any reference to "facilities" in this
rule also includes facilities which manage materials excluded under the
regulations promulgated today.

EPA believes that this revised language more appropriately reflects the
concept of "generator control" that underlies the exclusions at 40 CFR
261.2(a)(ii) and 261.4(a)(23). Requiring that a generating facility
control the reclaiming facility, or that both be under common control,
ensures that there is a close ongoing relationship between the generator
and reclaimer and that the two facilities are more likely to be familiar
with each others' waste management practices, thereby minimizing the
possibility of discard. In addition, common liability is clear. If there
is no such relationship, the two facilities should not be eligible for
this exclusion and the use of the transfer-based exclusion would be more
appropriate. In addition, requiring the hazardous secondary material
generator to certify that either the generating facility or the
reclaiming facility acknowledges responsibility for the safe management
of hazardous secondary materials ensures that the responsibility rests
with the party most capable of assuming such responsibility.

We do not agree with those commenters who suggested that this exclusion
be allowed when the generator and reclaimer are "related" or
"affiliated" because these terms are not sufficiently precise to provide
guidance to the regulated community. They do not appropriately identify
facilities with the kind of relationship that we consider to be
“generator-controlled.” We also do not agree that the exclusion
should depend on ownership or the presence of a joint venture, rather
than "control." We believe that “control” is the important
characteristic of the relationship that we are defining and is more
likely to minimize the possibility of discard.

For the commenter who had concerns about situations where the generating
facility and the reclaiming facility are located in different states,
the Agency anticipates that regulatory authorities will consult
notifications and renotifications if they have concerns about whether a
facility is entitled to an exclusion. The regulatory authority would
then examine the addresses contained in the notification, after which it
would request further information from the facility about any other
facilities involved in the relevant transaction.  If this inquiry does
not satisfy the concern, the state could request additional information
from the state in which the other facility is located.  The state could
also consult any certifications located in the facility’s business
records.  These measures will enable states to keep track of situations
where facilities are located in different states.

We are not requiring the certification to be submitted to a regulatory
agency because the  notification for this exclusion (which must be
submitted already) includes the exclusion applicable to the facility.
The regulatory authority may then, if appropriate, investigate further
(as described above) if it wishes to evaluate whether a particular
generator and reclaimer are under common control.  Similarly, the
notifications contain contact information about generators and
reclaimers, so that neither addresses or additional information about
reclaimers is necessary for the certification; again, regulatory
authorities may follow up with a particular facility if they have
concerns.  We expect that the certifications will be signed by staff who
are familiar with whether the generator and reclaimer are under common
control.  However, since the certification need not be submitted to
regulatory authorities and is not subject to routine evaluation by
multiple personnel, there is no need for the degree of quality assurance
implied by requiring the certification to be signed by officials of a
particular level.

In response to the commenter who mentioned electronic storage of the
certifications, we note that nothing in the regulations (in which the
certification requirement is already codified) prohibits such storage.
It is not necessary to state specifically in the regulations that
electronic storage is allowed.

In response to the commenter who said that reclaimers should be required
to be United States corporations, we note that the generator-controlled
exclusion is not available if hazardous secondary materials are exported
for reclamation;  in these situations the transfer-based exclusion must
be used, with its requirements for export notice and consent. However,
foreign-owned corporations are eligible for the generator-controlled
exclusion if they meet the criteria specified in 40 CFR 260.10.  There
is no reason to distinguish between United States corporations and
foreign-owned corporations if the latter are eligible for the on-site,
same-company, or tolling  exclusion and are subject to U.S. laws and
regulations for their activities.

We also note that the certification is not required to be performed
every time a shipment of hazardous secondary material occurs.  Instead,
we anticipate that the certification will be performed when a hazardous
secondary material begins to be managed under this exclusion, after
which it will be retained at the generator's facility.

GOVERNMENT AGENCIES AND UNIVERSITIES

In those situations where the generating facility and the reclaiming
facility are both owned by the same government agency or university, the
two facilities would be under common control because the agency or
university in question has the power to direct the policies of both the
generating facility and the reclaiming facility. Under this scenario,
both facilities would therefore be eligible for the same-company
exclusion, even if operated by different contractors. However, if the
generating facility and the reclaiming facility were each owned by a
separate government agency or university, they would not be eligible for
this exclusion even if both facilities were operated by the same
contractor, because the element of common control would be lacking. We
have revised the certification language of 40 CFR 260.10 to reflect this
approach. The parties involved may apply for a case-by-case non-waste
determination under 40 CFR 260.30, as appropriate, or use the
transfer-based exclusion.

In response to the comment concerning EPA enforcement of Superfund
against federal agencies, we note that under CERCLA section 120, "each
department, agency and instrumentality of the United States … shall be
subject to, and comply with, this chapter in the same manner and to the
same extent, both procedurally and substantively, as any nongovernmental
entity…" Thus, there is no difference between federal agencies and
private entities with respect to the incentives provided by Superfund to
comply with the provisions of this rule.

6.3 - Hazardous secondary materials generated and reclaimed under a
tolling contract

6.3 - Summary

GENERAL SUPPORT/EXPAND TOLLING EXCLUSION

Many commenters supported the general concept of an exclusion for
hazardous secondary materials generated pursuant to tolling contracts
(0065-11, 0090-3, 0090-4, 0096-2, 0096-3, 0222-3, 0222-17, 0222-18,
0222-19, 0222-20, 0222-21, 0222-22, 0222-30, 0222-36, 0222-37, 0222-38,
0222-39, 0349-2, 0451-2, 0452-8, 0467-4, 0468-4, 0468-22, 0471.1-3,
0471.2-3, 0471.2-9, 0471.2-13, 0471.2-17, 0471.2-18, 0471.2-20,
0471.2-22, 0471.2-23, 0471.2-24, 0471.2-28, 0478-9, 0485-7, 0523-2,
0529-7, 0555-10).

Some commenters urged EPA to expand the tolling exclusion to other types
of contractual arrangements (0452-6, 0452-29, 0458-11, 0461-6, 0492-20,
0493-11, 0553-3).  A few commenters said that the exclusion should be
allowed for any contract between a generator and a reclaimer where the
generator was willing to retain ownership of and/or responsibility for
the hazardous secondary materials (0491-15, 0491-20, 0500-2, 0529-9).
Other commenters mentioned specific contractual situations in which they
argued the hazardous secondary materials in question were clearly
handled as a commodity and discard was therefore highly unlikely. One
example given was a facility that reclaims metals from electric arc
furnace dust and then sends the metals back to steel mills to be reused
(0452-9, 0529-8). Other examples were a facility that takes spent copper
etchant from manufacturers of printed wiring boards and uses the
material to make new copper compounds, or returns of solder dross as for
reclamation (0458-11). Another example provided was a cooperative
recycling venture supported by similar entities that reclaimed virtually
identical materials such as paints or solvents (0523-3). Still another
example was a facility that collects used paint purge solvent from auto
body paint operations, reclaims it, and sells regenerated solvent back
to the auto body facility (0549-3, 0555-5).  A final example was use and
reuse of shop towels (0493-11, 0493-15).

Other commenters said that the Agency should not expand the proposed
tolling exclusion because in other situations, the generator could not
ensure that the hazardous secondary material was not discarded (0470-13,
0495-17, 0516-6, 0543-4).

One commenter suggested that the Agency should allow transfer and
consolidation points under the tolling exclusion, while requiring that
this activity be performed by registered waste transporters and for no
longer than 10 days (0553-11).

OPPOSE/ADDITIONAL CONDITIONS

Some commenters stated that tolling arrangements are incompatible with
"generator control" and are best regulated under additional conditions
or under the proposed exclusion for materials that were transferred for
legitimate reclamation (0457-4, 0457-12, 0462-28, 0470-13, 0475-16,
0479-8, 0495-17, 0495-4, 0509-2, 0509-21, 0516-6, 0530-5, 0538-15,
0539-6, 0541-2, 0543-3, 0548-12, 0548-23, 0548-24, 0558-20, 0558-21,
0558-22, 0559-44, 0559-45, 0559-46).  They argued that requirements such
as notification, certification, reasonable efforts (by generators) or
financial assurance (for reclaimers) were necessary to avoid discard in
the case of off-site reclamation.  One commenter suggested that tolling
contractors should be required to submit contemporaneous records and
reports to the regulatory authorities, along with a description of the
hazardous secondary material to be recycled (0559-70).

Some of the commenters argued that the physical generator of the
hazardous secondary material (in this case, the toll manufacturer)
retains legal liability for the material (0482-13, 0548-24, 0558-21,
0559-44).  Some commenters said that if the toll manufacturer improperly
disposed of the waste, the tolling contractor would likely argue that
the toll manufacturer acted outside the scope of the agreement and that
liability stays solely with the toll manufacturer (0558-21, 0559-44).
Alternatively, tolling contracts could contain special clauses that
effectively nullified control by the tolling contractor (0558-21). One
commenter said that the tolling exclusion could encourage sham recycling
when the hazardous secondary material only had value to the tolling
contractor for energy recovery (0558-22).  This commenter suggested that
a standard tolling contract should be developed by trade associations
and submitted to EPA for review through a petition process (0558-23).
One commenter said that tolling agreements should be exempted from
regulation for a term of three years, after which the exemption must  be
renewed (0470-13). Another commenter said that tolling contracts should
not be eligible for an exclusion because the tolling contractor might
employ such contracts to lower costs, and he will not be able to ensure
that the toll manufacturer can properly manage the hazardous secondary
material.  This commenter also said that allowing exclusions for tolling
arrangements could discourage on-site recycling (0509-21, 0509-2).
However, another commenter said that tolling would not offer financial
benefits to generators because on-site reclamation was less expensive,
and that such an exclusion could discourage attempts to reduce costs of
product and waste management (0536-6, 0536-9).

Some commenters expressed concern about situations in which the tolling
contractor was unable or unwilling to recycle the hazardous secondary
material received from the toll manufacturer (0482-10, 0482-13, 0479-8,
0516-6).  Another commenter said that states would not be able to
determine whether the generator or recycler was managing the material as
a valuable commodity when the other party to the transaction was located
in another state (0489-3).

One commenter said that sometimes the toll manufacturer makes the
product specified in the contract by using ingredients bought on the
market, rather than ingredients obtained from the tolling contractor.
According to this commenter, there would therefore be no legitimate
interest in recycling the hazardous secondary materials generated by the
production of the specialty chemical. This commenter also stated that if
the tolling contractor did not have the capacity to manufacture the
specified product itself, it would be unlikely to have the capacity to
reclaim the hazardous secondary material generated from the manufacture
(0482-13).

One commenter (0479-8, 0479-17) stated that our proposed tolling
exclusion was ill-conceived and that EPA should provide more flexibility
between the generator and reclaimer in deciding who controls different
aspects of the disposition of the excluded material after the production
of the recycled (sic) product has taken place.  The commenter then asked
a series of questions about various hypothetical situations which could
arise under a tolling arrangement.  These questions were difficult to
interpret because the commenter used different terms ("first
generator,” "generator,” and "reclaimer") than those used in our
proposal (toll contractor" and "batch manufacturer"). The commenter also
referred to the "recycled product,” when the product manufactured
pursuant to a tolling contract is not "recycled"; it is  made from
virgin materials, not secondary materials. Following is our best
interpretation of this commenters' questions:

The proposed exclusion appears to address only the product. Could all
the by-products and residuals be returned to the tolling contractor,
assuming he were to recycle them? What if the toll manufacturer
purchases the recycled material for resale, or reclaims it himself?
What if the toll manufacturer is operating under a variance from the
definition of solid waste? Can the tolling contractor then assign his
generator status to the toll manufacturer? If he does, would he need to
audit the toll manufacturer? Would not a variance procedure be a better
solution than our tolling exclusion? What if the tolling contractor
recycles hazardous secondary materials and then accumulates waste
residuals for disposal? Would it need a RCRA storage permit after 90
days?  What if the tolling contractor stored excluded materials for
longer than the speculative accumulation period?  What would be the date
of generation? After one year, would the toll manufacturer have an
additional 90 days to dispose of the material?  What if the toll
manufacturer had a RCRA storage permit?

One commenter enquired whether a tolling contractor which ordinarily
recycled spent solvent on-site pursuant to a closed-loop exclusion under
40 CFR 261.4(a)(8) would lose that exclusion if it recycled spent
solvent received from a toll manufacturer located off-site (0516-3).

TERMS USED IN TOLLING EXCLUSION

A few commenters said that the term "tolling contractor" was confusing
and that we should clarify whether it referred to the entity contracting
for the tolling or to the entity actually performing the recycling under
contract (0472-16, 0486-26).  Another commenter suggested replacing the
term "tolling contractor" with "generator" (0492-19).  Another commenter
suggested that we replace the term "batch manufacturer" with "toll
manufacturer." This commenter stated that "batch manufacturer" was too
broad and generally referred to a facility which engages in a distinct,
short production campaign, not necessarily tied to a two-party
contractual agreement. "Toll manufacturer," this commenter stated, is a
subset of batch manufacturers and generally refers to a party which
undertakes manufacturing pursuant to a contract with a tolling
contractor, such as the arrangement we proposed. This commenter also
requested that EPA clarify that the "product" required to be produced
under a tolling contract can include intermediates, as well as final
products, and that materials used in toll manufacturing were sometimes
specialty chemicals or intermediates that could not be described as "raw
materials," as would be required under our proposal. They suggested that
we use the term "specified materials" instead (0471.2-13, 0471.2-21).

6.3 - Response

GENERAL SUPPORT/EXPAND TOLLING EXCLUSION

After considering these comments, the Agency has decided to retain the
tolling exclusion, but not to broaden its scope. The exclusion will
therefore be limited to situations where a tolling contractor contracts
with a toll manufacturer to make a product from specified virgin
materials.  The Agency does not agree with those commenters who urged
that we should allow the generator-controlled exclusion for any
hazardous secondary materials generated under a contract between a
generator and a reclaimer. We believe that the exclusion should be
limited to the types of tolling arrangements specified in 40 CFR 260.10.
When hazardous secondary materials are transferred off-site for
reclamation in the absence of these arrangements, there is, in general,
less likelihood of generator control and  more likelihood of discard, in
the absence of conditions that ensure the hazardous secondary materials
will be handled as valuable products. In these situations, additional
requirements are needed for the Agency to determine that no discard has
occurred. Conversely, in the specific situations included in the
generator-controlled exclusion (on-site, same-company, and tolling
reclamation), we believe that the generator is much more likely to be
familiar with the reclaimer and to have powerful incentives to see that
the hazardous secondary materials are reclaimed properly and
legitimately. In these cases, the requirements that we have finalized
today (notification, compliance with speculative accumulation limits,
containment, and legitimacy) are sufficient for the Agency to determine
that such hazardous secondary materials are not discarded. These
requirements may not be sufficient in the case of unrelated generators
and reclaimers who have a non-tolling type of contract.

In response to those commenters who described specific types of
contractual arrangements that should be eligible for the
generator-controlled exclusion, we note that facilities operating under
such arrangements may apply for a non-waste determination under
§260.30, as appropriate. In some cases, commenters did not include
enough detail about the contracts to enable the Agency to draft
appropriate regulatory language. In other cases, the arrangement
suggested was industry-specific and the conditions or requirements
suggested by the commenters were not appropriate for an exclusion
covering many different types of facilities. We believe that such
arrangements are best evaluated on a case-by-case basis by the
regulatory authority, possibly under 40 CFR 260.30, to determine their
eligibility for exclusion. Alternatively, they may be managed under the
transfer-based exclusion in this final rule.

In response to the commenter who suggested allowing 10-day storage at
transfer and consolidation points under the tolling exclusion, as well
as requiring waste transporters to be registered, we note that this
final rule does not prohibit such storage of hazardous secondary
materials managed under the generator-controlled exclusion.  With
respect to registration of transporters (which we did not propose) we
note that all transporters must comply with applicable DOT requirements.

OPPOSE/ADDITIONAL CONDITIONS

We do not agree with those commenters who said that tolling contracts
are not compatible with "generator control." The typical tolling
contract contains detailed specifications about the product to be
manufactured, including the management of any hazardous secondary
materials that are generated and returned to the tolling contractor for
reclamation. In addition, the tolling contractor will enter into a
tolling contract with such requirements only if it has decided that the
economic benefit from such recycling is justified. For these reasons, we
do not believe that tolling arrangements should be subject to the
conditions applicable to the transfer-based exclusion, other than the
notification requirement.

However, to clarify the requirements for tolling contracts under today's
rule, and to assist regulatory authorities in determining whether a
facility is eligible for an exclusion under a tolling contract, EPA has
added a certification requirement to the definition of hazardous
secondary material generated and reclaimed under the control of the
generator in §260.10 of the final rule. This provision would require
the tolling contractor to certify that it has a written contract with
the toll manufacturer to manufacture a product or intermediate which is
made from virgin materials specified by the tolling contractor, and that
the tolling contractor will reclaim the hazardous secondary materials
generated during the course of this manufacture. The tolling contractor
must also certify that it retains ownership of, and responsibility for,
the hazardous secondary materials that are generated during the course
of the manufacture, including any releases of hazardous secondary
materials that occur during the manufacturing process.

In response to the commenter who suggested submission of contemporaneous
records and a description of recycled materials to the regulatory
authorities, we note that under this rule, tolling contractors and  toll
manufacturers must submit notifications and renotifications to such
authorities under 40 CFR 260.42.  These notifications contain
information about the hazardous secondary materials to be recycled,
along with contact information.  The notifications allow the regulatory
authority to investigate further if appropriate to evaluate whether the
facility in question complying with the exclusion.  Therefore, we
believe that additional reporting is unnecessary.

Concerning the comments about legal liability for releases at the toll
manufacturer facility, we note that we have added a certification
requirement for the tolling contractor, as described above, including a
certification that the tolling contractor retains responsibility for any
releases of hazardous secondary materials that occur during the
manufacturing process.  It is correct that the toll manufacturer rather
than the toll contractor is the actual physical generator of the
hazardous secondary material to be recycled.  However, the Agency does
not believe that indemnification agreements between the toll contractor
and the toll manufacturer are inconsistent with the concept of generator
control, as long as the toll contractor arranges for appropriate
management of the hazardous secondary materials that are generated.
Also, in order to be eligible, any indemnification agreements may not
contradict the terms of the certification that specify responsibility.

Nor does the Agency agree that the tolling exclusion could encourage
sham recycling when the hazardous secondary material only had value to