Revisions to the Definition of Solid Waste Final Rule

Response to Comments Document

Summaries and Responses

October 1, 2008

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

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

Table of Contents

Section Number	Section Title						Page

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

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

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

2.1.1.			Secondary materials that are legitimately

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

General comments that recycling cannot be

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

<IP_ADDRESS>.		Implications of the AMC I court case……………………..
22

<IP_ADDRESS>.		Implications of the ABR court
case………………………..	24

<IP_ADDRESS>.		Implications of the Safe Food
case………………………..	26 <IP_ADDRESS>.		Recycled "scrap" is not
discarded…………………………	29

<IP_ADDRESS>.		Secondary materials that are recycled are only solid

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

<IP_ADDRESS>.		Materials transferred for recycling are not abandoned…….
32

<IP_ADDRESS>.		EPA needs to address when materials become solid waste..	34

<IP_ADDRESS>.		Congressional report
language…………………………….	35

<IP_ADDRESS>.		Other laws address recycled
materials…………………….	36

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

ongoing production process are not discarded and should

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

2.1.3.			EPA's proposed exclusions inappropriately deregulate

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

<IP_ADDRESS>.		Proposed exclusion for hazardous secondary materials

recycled under the control of the generator is unrelated

to discard………………………………………………….	54

<IP_ADDRESS>.		EPA should evaluate each type of hazardous secondary

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

<IP_ADDRESS>.		2003 proposal lacks data to support the exclusion………..
64

2.1.4.			EPA's 2007 proposed exclusions have appropriately

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

2.1.5.			EPA inappropriately imposes conditions on materials

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

<IP_ADDRESS>.		“Contained” and
discard…………………………………..	71

<IP_ADDRESS>.		Reasonable efforts and
discard……………………………	76

<IP_ADDRESS>.		Financial assurance and
discard…………………………..	82

<IP_ADDRESS>.		“Generator-controlled” and
discard……………………….	83

<IP_ADDRESS>.		Speculative accumulation and discard…………………….
85

2.1.6.			Conditions in the proposal are not sufficient to protect

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

2.2.			Other matters of consistency of regulation with court

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

2.2.1.			2003 proposal inappropriately "parses" the court decision

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

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

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

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

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

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

3.1.4.			Additional information not included in successful

recycling study…………………………………………….	105

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

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

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

3.2.3.			Additional information for the environmental problems

study………………………………………………………	114

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

4.			General comments on the 2003 proposal and comparison

with the 2007 proposal, including use of NAICS to define

“same industry”…………….………………………………
119

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

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

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

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

5.2.2. 			Format of notification and use of Subtitle C Site

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

5.2.3.			Requirement that the notification be signed by an

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

5.2.4.			Maintain notification at facility rather than submitting to

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

5.2.5.			Require renotification if any of the information in the

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

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

6.			Exclusion for hazardous secondary materials that are

legitimately reclaimed under the control of the generator:

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

6.1.			Hazardous secondary materials generated and reclaimed

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

6.1.1.			Should facilities under separate ownership but located at

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

6.1.2.			Other definitions which might be equally compatible

with generator control as the definitions proposed in

today's notice……………………………………………….
164

6.2.			Hazardous secondary materials generated and reclaimed

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

6.3.			Hazardous secondary materials generated and reclaimed

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

6.4.			Management requirements for hazardous secondary

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

6.5.			Enforcement of the exclusion for hazardous secondary

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

7.			Conditional exclusion for hazardous secondary materials

that are transferred for the purpose of reclamation

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

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

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

<IP_ADDRESS>. 		Additional conditions needed to support the broad

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

<IP_ADDRESS>.		Additional conditions are not needed for broader

exclusion…………………………………………………..	196

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

<IP_ADDRESS>.		Additional information needed to evaluate broader

exclusion…………………………………………………..	201

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

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

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

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

<IP_ADDRESS>.		Questions that reasonable efforts must address at a

minimum…………………………………………………..	221

<IP_ADDRESS>.1.		Question (A) notification and financial assurance………..
229

<IP_ADDRESS>.2.		Question (B) equipment and trained personnel for safe

recycling………………………………………………….	231

<IP_ADDRESS>.3.		Question (C) compliance
history………………………….	233

<IP_ADDRESS>.4.		Question (D) recyclable material providing useful

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

<IP_ADDRESS>.5.		Question (E) recycled product generally traded commodity.
237

<IP_ADDRESS>.6.		Question (F) residuals
management……………………….	239

<IP_ADDRESS>.		Reasonable efforts applies only to non-permitted facilities..
241

<IP_ADDRESS>.		Reasonable efforts to include only questions (A) and (F)…
244

<IP_ADDRESS>.		Relationship between reasonable efforts and legitimacy ….
244

<IP_ADDRESS>.		Scope of a typical
audit……………………………………	249

<IP_ADDRESS>.		Frequency of periodically updating reasonable efforts……
253

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

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

<IP_ADDRESS>.		Requirement to manage materials in same manner as

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

<IP_ADDRESS>.		Alternatives to proposed storage condition, including

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

<IP_ADDRESS>.		No storage condition
needed………………………………	260

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

<IP_ADDRESS>.		Manage any residuals that are generated from reclamation

 			processes in a manner protective of human health and

the environment……………………………………………	261

<IP_ADDRESS>.		Whether “derived from” principle should be used to

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

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

<IP_ADDRESS>.		Support for financial assurance condition…………………
269

<IP_ADDRESS>.		Opposition to financial assurance condition………………
270

<IP_ADDRESS>.		Suggested changes to financial assurance condition………
272

<IP_ADDRESS>.1.		Adjust language of Subpart H for exempt facilities………
272

<IP_ADDRESS>.2.		Closure plan needed to document costs…………………..
273

<IP_ADDRESS>.3.		Require copies of financial assurance documents to be

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

<IP_ADDRESS>.4.		Set minimum standards for financial assurance…………..
273

<IP_ADDRESS>.5.		Less stringent financial assurance requirements for

reclaimers……………….………………………………..	274

<IP_ADDRESS>.6.		Study the availability of financial assurance coverage…..
274

<IP_ADDRESS>.7.		Provide cost estimate
guidance…………………………..	275

<IP_ADDRESS>.		Alternative approaches to 40 CFR Part 265 Subpart H.....	275

7.5.4.			Provisions allowing reclamation facilities to claim

conditional exclusion even if generator chooses to

manage secondary materials as hazardous waste…………	276

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8.2.			Non-waste determination for hazardous secondary

material reclaimed in a continual industrial process………	357

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

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

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

8.2.3.			Whether the hazardous constituents in the secondary

material are reclaimed rather than released to air, land,

or water at significantly higher concentrations than

would otherwise be released by the production process….	366

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

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

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

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

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

9.1.1.			The 2007 proposed structure for legitimacy is

appropriate….……………………………………………..	379

9.1.2.			The 2007 proposed structure for legitimacy is

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

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

<IP_ADDRESS>.		Make all legitimacy factors mandatory……………………
384

<IP_ADDRESS>.		Make all legitimacy factors non-mandatory……………….
386

<IP_ADDRESS>.		Clarify legitimacy
structure……………………………….	388

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

<IP_ADDRESS>.		Codify the legitimacy
factors……………………………..	392

<IP_ADDRESS>.		Do not codify the legitimacy
factors………………………	394

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

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

<IP_ADDRESS>.		General comments on Legitimacy Factor 1:

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

<IP_ADDRESS>.1.		Support for Factor
1….………………………………...….	402

<IP_ADDRESS>.2.		Opposition to Factor
1……………………………………..	403

<IP_ADDRESS>.3.		Consideration of economics for useful contribution

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

<IP_ADDRESS>.4.
Other………………………………………………………	407

<IP_ADDRESS>.4.1.		Factor 1: Contribution to the
process……….……………..	407

<IP_ADDRESS>.4.2.		Factor 1: Efficiency of the
process………….…………….	408

<IP_ADDRESS>.4.3.		Factor 1:
Residuals………………………………………..	410

<IP_ADDRESS>.4.4.		Implementation of Factor
1……………………………….	411

<IP_ADDRESS>.4.5.		Factor 1: Miscellaneous
comments……………………….	411

<IP_ADDRESS>.		General comments on legitimacy Factor 2: Valuable

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

<IP_ADDRESS>.1.		Support for Factor
2……………………………………….	413

<IP_ADDRESS>.2.		Opposition to Factor
2…………………………………….	414

<IP_ADDRESS>.3.		Factor 2: Definition of
“valuable”………………………..	415

<IP_ADDRESS>.4.		Factor 2: Miscellaneous comments……………………….
419

9.2.2.			General comments on the factors to be considered in

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

<IP_ADDRESS>.		General comments on Legitimacy Factor 3: Managed

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

<IP_ADDRESS>.1.		Support for Factor
3……………………………………….	424

<IP_ADDRESS>.2.		Opposition to Factor
3……………………………………..	424

<IP_ADDRESS>.3.		Factor 3: Management
standards…………………………..	431

<IP_ADDRESS>.4.		Factor 3: Definition of
“valuable”…………………………	438

<IP_ADDRESS>.5.		Factor 3: Definition of
“analogous”…….…………………	439

<IP_ADDRESS>.6.		Factor 3: Standard to minimize the potential for releases…
441

<IP_ADDRESS>.7.		Factor 3: The effect on existing
exclusions……………….	442

<IP_ADDRESS>.8.		Factor 3: Miscellaneous comments……………………….
443

<IP_ADDRESS>.		General comments on Legitimacy Factor 4: Toxics

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

<IP_ADDRESS>.1.		Support for Factor
4……………………………………….	446

<IP_ADDRESS>.2.		Opposition to Factor
4…………………………………….	447

<IP_ADDRESS>.3.		Factor 4: Definition of
“significance”…………………….	451

<IP_ADDRESS>.4.		Factor 4: Evaluate toxics in the secondary material

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

<IP_ADDRESS>.5.		Factor 4: Comments on regulating products of recycling…
458

<IP_ADDRESS>.6.		Factor 4: Products that exhibit a hazardous
characteristic…	460

<IP_ADDRESS>.7.		Factor 4: Bright line
approach……………………………..	462

<IP_ADDRESS>.8.		Factor 4: Risk-based
approach…………………………….	465 <IP_ADDRESS>.9.		Factor 4:
Miscellaneous comments………………………..	467

<IP_ADDRESS>.10.		Implementation concerns regarding Factor
4……………...	469

<IP_ADDRESS>.11.		Factor 4:
Scope…………………………………………….	472

<IP_ADDRESS>.12.		Factor 4: Relevance of TARs to
legitimacy……………….	474

<IP_ADDRESS>.13.		Factor 4: Risk
concerns…………………………………….	476

<IP_ADDRESS>.14.		Factor 4: Application of factor on a case-by-case
basis……	478

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

<IP_ADDRESS>.		Preamble discussion about consideration of economics

for legitimacy………………………………………………	478

<IP_ADDRESS>.		Regulatory requirement for consideration of economics

for legitimacy………………………………………………	480

9.2.4.			Additional legitimacy criteria/factors that should be

considered……….…………………………………………	482

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

9.3.1.			How legitimacy factors compare to the guidance on

legitimacy………………………………………...………..
488

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

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

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

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

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

9.4.1.			Examples of cases where the legitimacy factors are

not relevant………………………………………………...
493

9.4.2.			Examples where legitimacy factors are not met, but

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

9.5.			Enforcement and documentation/ demonstration

of legitimacy……………………………………………….	496

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

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

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

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

10.1.2.			Should a regulated entity be allowed to choose which

exclusion to follow in those cases where more than one

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

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

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

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

without physically removing the now-excluded materials

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

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

<IP_ADDRESS>.		Should EPA allow financial assurances obtained for closure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13.1.3.			Regulatory interpretations for specific hazardous

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

13.2.			Burning for energy recovery and use constituting

disposal are outside the scope of the proposed

regulations…………………………………………………	577

Index of Commenters to the October 2003 Proposed

Rule and the March 2007 Supplemental Proposal …….	581

1 - Overall Scope of Supplemental Proposal

1 - Summary

General Support

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

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

Opposition

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

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

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

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

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

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

[0480, 0502, 0559, 0564]

1 - Response

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

2 - EPA's Authority to Regulate Recycling

2.1 - Specific to the concept of "discard"

2.1.1 - Secondary materials that are legitimately recycled are not
discarded

<IP_ADDRESS> - General comments that recycling cannot be considered discard

<IP_ADDRESS> - Summary

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

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

<IP_ADDRESS> - Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

<IP_ADDRESS> - Implications of AMC I court case

<IP_ADDRESS> - Summary

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

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

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

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

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

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

<IP_ADDRESS> - Response

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

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

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

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

Returning to the specifics of the AMC I decision as noted by the
comments, in that case trade associations representing mining and oil
refining interests challenged EPA's 1985 regulatory definition of solid
waste. In 1987, the D.C. Circuit held that EPA exceeded its authority
"in seeking to bring materials that are not discarded or otherwise
disposed of within the compass of 'waste'" (American Mining Congress v.
EPA ("AMC I"), 824 F.2d 1177, 1178 (D.C. Cir. 1987)).  The Court held
that certain of the materials EPA was seeking to regulate were not
"discarded materials" under RCRA section 1004(27). The Court also held
that Congress used the term "discarded" in its ordinary sense, to mean
"disposed of" or "abandoned" (824 F.2d at 1188-89). The Court further
held that the term "discarded materials" could not include materials
"...destined for beneficial reuse or recycling in a continuous process
by the generating industry itself (because they) are not yet part of the
waste disposal problem" (824 F.2d at 1190). The Court held that Congress
had directly spoken to this issue, so that EPA's definition was not
entitled to deference under Chevron U.S.A., Inc. v. NRDC , 467 U.S. 837
(1984) (824 F.2d at 1183, 1189-90, 1193).

At the same time, the Court did not hold that recycled materials could
not be discarded. Commenters are incorrect in characterizing the holding
in AMC I as defining "materials in a continuous process remaining within
the generating industry" equivalent to "legitimate recycling."  As
discussed earlier, both materials that have been discarded and materials
that have not been discarded may be legitimately recycled.  The Court
mentioned at least two examples of recycled materials that EPA properly
considered within its statutory jurisdiction, noting that used oil can
be considered a solid waste (824 F.3d at 1187 (fn 14)). Also, the Court
suggested that materials disposed of and recycled as part of a waste
management program are within EPA's jurisdiction (824 F. 2d at 1179).

Subsequent decisions by the D.C. Circuit also indicate that some
materials destined for recycling are "discarded" and therefore within
EPA's jurisdiction. In particular, the Court held that emission control
dust from steelmaking operations listed as hazardous waste "K061" is a
solid waste, even when sent to a metals reclamation facility, at least
where that is the treatment method required under EPA's land disposal
restrictions program (American Petroleum Institute v. EPA ("API I"), 906
F.2d 729 (D.C. Cir. 1990)). In addition, the Court held that it is
reasonable for EPA to consider as discarded (and solid wastes) listed
wastes managed in units that are in part wastewater treatment units,
especially where it is not clear that the industry actually reuses the
materials (AMC II, 907 F. 2d 1179 (D.C. Cir. 1990)).

It also is worth noting that two other Circuits also have held that EPA
has authority over at least some materials destined for reclamation
rather than final discard. The U.S. Court of Appeals for the 11th
Circuit found that "[i]t is unnecessary to read into the term
'discarded' a congressional intent that the waste in question must
finally and forever be discarded" (U.S. v. ILCO, 996 F.2d 1126, 1132
(11th Cir. 1993) (finding that used lead batteries sent to a reclaimer
have been "discarded once" by the entity that sent the battery to the
reclaimer)). In addition, the Fourth Circuit found that slag held on the
ground untouched for six months before sale for use as road bed could be
a solid waste (Owen Electric Steel Co. v. EPA, 37 F.3d 146, 150 (4th
Cir. 1994)).

<IP_ADDRESS> - Implications of ABR court case

<IP_ADDRESS> - Summary

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

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

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

<IP_ADDRESS> - Response

In 1998, EPA promulgated a rule in which EPA claimed Subtitle C
jurisdiction over hazardous secondary materials recycled by reclamation
within the mineral processing industry, the "LDR Phase IV rule" (63 FR
28556, May 26, 1998). In that rule, EPA promulgated a conditional
exclusion for all types of mineral processing hazardous secondary
materials destined for reclamation. EPA imposed a condition prohibiting
land-based storage prior to reclamation because it considered hazardous
secondary materials from the mineral processing industry that were
stored on the land to be part of the waste disposal problem (63 FR
28581).

The conditional exclusion decreased regulation over spent materials
stored prior to reclamation, but increased regulation over by-products
and sludges that exhibit a hazardous characteristic, and that are stored
prior to reclamation. EPA noted that the statute does not authorize it
to regulate "materials that are destined for immediate reuse in another
phase of the industry's ongoing production process." EPA, however, took
the position that materials that are removed from a production process
for storage are not "immediately reused," and therefore are "discarded"
(63 FR 28580).

The mining industry challenged the rule, and the D.C. Circuit vacated
the provisions that expanded jurisdiction over characteristic
by-products and sludges destined for reclamation (Association of Battery
Recyclers v. EPA ("ABR"), 208 F.3d 1047 (D.C. Cir. 2000)).

The Court held that it had already resolved the issue presented in ABR
in its opinion in AMC I, where it found that "...Congress unambiguously
expressed its intent that 'solid waste' (and therefore EPA's regulatory
authority) be limited to materials that are 'discarded' by virtue of
being disposed of, abandoned, or thrown away" (208 F.2d at 1051). It
repeated that materials reused within an ongoing industrial process are
neither disposed of nor abandoned (208 F.3d at 1051-52). It explained
that the intervening API I and AMC II decisions had not narrowed the
holding in AMC I (208 F.3d at 1054-1056).

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

<IP_ADDRESS> - Implications of Safe Food court case

<IP_ADDRESS> - Summary

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

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

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

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

Specific Implications of Safe Food

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

Safe Food and Department of Commerce Statement

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

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

[0168-9]

<IP_ADDRESS> - Response

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

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

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

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

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

Specific Implications of Safe Food

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

Safe Food and Department of Commerce Statement

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

<IP_ADDRESS> - Recycled "scrap" is not discarded

<IP_ADDRESS> - Summary

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

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

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

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

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

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

<IP_ADDRESS> - Response

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

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

<IP_ADDRESS> - Secondary materials that are recycled are only solid wastes if
shown to be discarded

<IP_ADDRESS> - Summary

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

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

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

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

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

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

<IP_ADDRESS> - Response

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

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

<IP_ADDRESS> - Materials transferred for recycling are not abandoned

<IP_ADDRESS> - Summary

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

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

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

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

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

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

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

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

<IP_ADDRESS> - Response

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

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

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

<IP_ADDRESS> - EPA needs to address when materials become solid waste

<IP_ADDRESS> - Summary

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

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

<IP_ADDRESS> - Response

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

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

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

<IP_ADDRESS> - Congressional report language

<IP_ADDRESS> - Summary

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

<IP_ADDRESS> - Response

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

<IP_ADDRESS> - Other laws address recycled materials

<IP_ADDRESS> - Summary

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

<IP_ADDRESS> - Response

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

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

2.1.2 - Summary

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

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

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

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

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

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

Commenters offered specific examples of spent materials for which the
current requirements are of particular concern because they are
unnecessarily burdensome and may not be practical, including refractory
bricks from smelting, used reverts (both "large" and "fine," flue dust,
used copper furnace brick, acidic mineral processing solutions, vanadium