experience with it. This commenter also said that the three types of
non-waste determinations are broadly encompassing and should be
workable; these petitions will also provide EPA with example situations
that may call for modifications or improvements to the rules. [0448,
0453, 0454, 0456, 0457, 0464, 0467, 0468, 0470, 0471.2, 0472, 0473,
0476, 0481, 0486, 0488, 0492, 0494, 0505, 0507, 0511, 0517, 0519, 0526,
0528, 0529, 0531, 0534, 0535, 0536, 0544, 0549, 0553, 0558]

OPPOSE NON-WASTE DETERMINATIONS:  Some commenters opposed the non-waste
determination process. Some commenters argued that the case-by-case
regulation is inherently resource intensive, time-consuming and
inefficient and would strain state resources. One state commenter said
the current process for requesting a variance (40 CFR Part 260) is
sufficient for accomplishing the same objective. Another state commenter
respectfully submits that the formal process for evaluating petitions
for non-waste determinations is not necessary because the state's own
"informal" process currently being employed works well as it provides
sufficient flexibility to consider special or unique circumstances that
a formal process may not. Commenters viewed the non-waste determination
process as far too open-ended and were convinced that it would result in
sharp state-to-state inconsistency. Some commenters believed that many
generators would try to take advantage of the non-waste determination in
order to avoid regulation and generator fees, thus burdening the agency.
One commenter said EPA and the states should continue to rely on the
requirement in 40 CFR 262.11 for generators to make adequate hazardous
waste determinations; in 262.40 for keeping records of determinations
on-site; and in 261.2(f) for waste handlers to maintain documentation to
support claims that a material is excluded or conditionally exempt from
regulation. Regulatory authorities can then review these records on-site
to verify the waste is properly excluded. Another commenter argued that
definition of solid waste issues should-to the greatest extent
possible-be addressed through self-implementing regulations. This
commenter also believed that the larger problem is that it would make
non-waste determinations available only in certain unnecessarily narrow
circumstances delineated in the proposed rule. This commenter argued
that the RCRA definition of solid waste turns on whether a material is
discarded, and there is no reason why petitions should turn on markedly
narrower criteria. Some commenters did not support the non-waste
determination process because it: 1) undermines the generator-controlled
and transfer-based exclusions; 2) does not require generators to perform
reasonable efforts, potentially leading to discard and mismanagement of
hazardous secondary material; 3) does not require any conditions, such
as management restrictions, to protect the environment; and 4) would
result in a significant administrative burden, likely unfunded, on the
states to review the petitions that would be submitted. One commenter
argued that the petition process is inconsistent with Section 3009 of
RCRA and is therefore contrary to law. By deregulating wastes, states
can create a system in which state law is less stringent than the
federal rules, which is clearly impermissible under RCRA. Thus, EPA must
withdraw the proposed petition process. One commenter did not anticipate
using the non-waste determination process. [0447, 0489, 0490, 0495,
0516, 0521, 0537, 0538, 0541, 0543, 0559, 0562, 0564]

EXPAND SCOPE OF NON-WASTE DETERMINATION: Commenters believed that EPA
should expand the scope of non-waste determinations to allow all
recycling scenarios to be eligible, including "burning for energy
recovery (BFE)" and "use constituting disposal (UCD)."

Allow BFE and UCD:

Commenters argued that EPA has no rational basis for a general finding
that hazardous secondary materials legitimately used and produced as
fuels and produced as land-applied products are "discarded," and thus
EPA should open up the petition process to allow for consideration of
these types of recycling. One commenter said, for some valuable
products, placement on the land may be the only intended use, but it may
not pose any risk to human health and the environment. Another commenter
said that, although 40 CFR Part 266, subpart C contains regulatory
"relief" for entities wanting to engage in the legitimate recycling of
materials to produce fertilizers, such entities must obtain a hazardous
waste storage permit and the final fertilizers must meet the applicable
land disposal restriction standards. The costs and negative stigma
associated with having to obtain a hazardous waste permit discourage
fertilizer manufacturers from reusing materials generated off-site for
their mineral values. To encourage recycling, this commenter requests
the EPA expand its contemplated non-waste determination process to
include UCD scenarios. One commenter said the benefits of a variance
mechanism could significantly expand industrial ecology in the United
States, reduce the amount of material that is discarded and help move
towards a more sustainable society. This commenter suggested that the
program be resourced by a panel of experts from various stakeholders,
funded by those requesting variances and maintain credibility through
transparent and robust public participation. One commenter believed that
the pre-compliance plan case-by-case approval process developed for
compliance with the Clean Air Act Amendment Hazardous Air Pollutant
Maximum Achievable Control Technology requirements is a suitable model
for implementing a case-by-case determination for legitimate fuels.
Another commenter said expanding the scope of non-waste determinations
to encompass use as fuels would be consistent with the policy
goal-identified in a recent EPA study-of removing regulatory barriers to
broader recycling of wastes and process byproducts for energy recovery
in "US EPA, Energy Trends in Selected Manufacturing Sectors:
Opportunities and Challenges for Environmentally Preferable Energy
Outcomes" (March 2007). Still another commenter noted that the estimated
savings included in the Information Collection Request of only $1
million per year for non-waste determinations would be far exceeded if
the petition process were open to these categories of recycled
materials. [0448, 0456, 0464, 0472, 0473, 0476, 0486, 0492, 0511, 0526,
0528]

Allow additional/all recycling scenarios:

Some commenters supported broadening the scope of non-waste
determinations to include recycling scenarios beyond the three that EPA
proposed in March 2007. Some commenters supported allowing any generator
to request a non-waste determination for any hazardous secondary
material that was legitimately recycled. This extended petition
capability will allow for increased recycling and recovery of materials,
diverting them from the waste stream. Some commenters said, while EPA's
three proposed non-waste determinations may well constitute the majority
of opportunities, there may well be other categories where a non-waste
determination is appropriate. For example, a perfectly legitimate
recycling activity that occurs in a non-continuous or non-industrial
process and that does not satisfy either of the other two categories.
EPA should be open to considering these types of petitions because no
government agency can envision each and every method of legitimate
recycling. Commenters supported a fourth category of non-waste
determination: one that permits the petitioner to demonstrate that a
particular recycling method is legitimate and avoids improper
management, such as speculative accumulation. [0456, 0468, 0472, 0476,
0486, 0494, 0517, 0519, 0553]

Allow non-hazardous secondary materials:

One commenter said EPA should clarify that the proposed petition process
will apply to non-hazardous secondary materials, such as recycling of
recoverable paper. This commenter said that, when recoverable paper is
not defined as a solid waste, fewer state and local solid waste laws
("flow control" measures, taxes, fees, permits, operating and reporting
requirements) will apply. Hence, the recovery of fiber from recoverable
paper versus fiber from virgin forest material will be encouraged. This
commenter noted that the proposed regulatory language for 40 CFR 260.34
does not limit the petition process to hazardous secondary materials:
"an applicant may apply to the Administrator for a formal determination
that a material is clearly not discarded and therefore not a solid
waste…" This commenter acknowledges that the proposed rule amends
Subtitle C, not Subtitle D; however, surely EPA does not contend that if
it finds a certain secondary material is not a solid waste under
Subtitle C that it could be a solid waste under the federal Subtitle D.
This commenter said it was very odd that EPA would extend to hazardous
secondary materials the opportunity to obtain through the petition
process a non-waste determination, yet not allow non-hazardous secondary
materials the same opportunity. Certainly there should be greater
environmental concerns with respect to excluding hazardous secondary
materials than non-hazardous secondary materials. [0505]

LIMIT SCOPE OF NON-WASTE DETERMINATIONS: One commenter believed the
petition process for non-waste determinations should be as rigorous as
that for obtaining variances from the definition of solid waste found in
40 CFR 261.31. Excluding all hazardous secondary materials destined for
recycling would be inconsistent with the mandate to track hazardous
wastes and U.S. EPA's assertion that materials are not excluded from its
jurisdiction simply because someone claims they will be recycled. This
commenter believed that non-waste determinations should be limited to
reclamation activities, and should not apply to recycling of "inherently
waste-like" materials, "used in manner constituting disposal" and
"burning for energy recovery." One commenter said, because case-by-case
evaluations are resource-intensive and will take a good deal of staff
time away from compliance assistance, enforcement, permitting, program
development etc., the petition process should only be allowed for
processes which are not covered by any specific exclusion. [0543, 0452,
0470]

CASE-BY-CASE DETERMINATIONS IN LIEU OF BROADER EXCLUSION (2003
PROPOSAL): Some commenters, responding to EPA's October 2003 proposal,
supported a broader exclusion over a case specific petition process.

Some commenters supported both options; the broader exclusion would
provide uniformity in implementation and thus encourage increases in
resource conservation and recovery, while the case-by-case mechanism
would serve to address unforeseen scenarios. One state commenter
acknowledged that a petition process would allow enforcement agencies
closer oversight of excluded recycling; however, using a case-by-case
system in lieu of an across-the-board exemption would consume an
inordinate amount of administrative resources. [0041, 0043, 0061, 0160]

One commenter argued that the case-by-case approach would be needlessly
burdensome and would result in eliminating new initiatives designed to
foster increased recycling. This commenter also found it hard to imagine
how such a system would ensure that such standards are adhered to after
the determination is granted. Another commenter saw no need for a
case-by-case variance as a means to provide regulatory relief that would
result from a broader exclusion, since the burden of pursuing a variance
falls on the generating facility and thus presents a significant
disadvantage for small business. Another commenter said the current
variance mechanism is archaic and prohibitively difficult to conduct. In
addition, state-by-state disparities in addressing variances create an
unleveled field of hazardous waste requirements that adversely impact
the cost of business. One commenter did not believe such an approach
would be a suitable alternative to the broader exclusion because of the
administrative burden of developing, filing and processing case-by-case
determinations. Through the legitimacy criteria, other regulatory
provisions, and general oversight, EPA would have sufficient ability to
ensure protection of human health and the environment without relying
solely on a variance mechanism.[0093, 0098, 0138, 0145, 0149, 0212]

On the other hand, a few commenters supported the case-by-case
determination process in lieu of a broader exclusion. Some commenters
argued that authorized states and EPA should have the discretion to
review recycling scenarios on a case-by-case basis and the authority to
grant variances for legitimate recycling that falls outside the scope of
a specific recycling exclusion, or doesn't meet all the legitimacy
criteria. One commenter believed that the burden should be on the
generator of the material to demonstrate that its material and the
manner of recycling: 1) involves beneficial use or reuse; 2) is
legitimate; and 3) is not part of the waste disposal problem. This will
encourage legitimate recovery of hazardous secondary materials where
EPA's existing exclusions are too limited or uncertain. Another
commenter urged a cautious, case-by-case approach to reducing regulation
to avoid remediation of failed recycling operations and to maintain
environmental safety. Still another commenter suggested a certification
process be used since states already have similar processes. This would
also eliminate the "continuous process" and "speculative accumulation"
questions. [0092, 0147, 0153, 0213]

OTHER COMMENTS ON NON-WASTE DETERMINATIONS:

1.	Codify four alternatives for non-waste determinations for materials:
1) reclaimed in a continuous industrial process; 2) indistinguishable in
all relevant aspects from a product; 3) reclaimed directly under the
control of the person who physically generates the material; and 4)
reclaimed under a tolling arrangement. These four alternatives would
avoid problems resulting from the fictitious notion that the person who
physically generates the hazardous secondary materials retains ownership
of, and liability for, the material. [0452]

2.	The optional petition review should be mandatory for materials that
are recycled off-site and that, with definitive regulatory definitions
and requirements (to be developed), that all recycling proposals, with
due diligence documents, should be submitted simultaneously to EPA and
the primary affected state. [0488]

3.	The term "may" in 40 CFR 260.34 should be changed to "shall"; "an
applicant shall apply to the Regional Administrator or authorized
state." [0488]

4.	In the proposed regulatory language for 40 CFR 260.30 and 260.34,
change "reclaimed" to "recycled" to effectively open the petition
process to all types of legitimate recycling, including uses for energy
recovery and to for products applied to the land. [0492]

5.	Delete "and is not discarded" from proposed 40 CFR 260.34, because:
1) it is repetitive, since 40 CFR 260.34(a) already states that
paragraphs (b), (c), and (d) contain the criteria that will be used to
determine that a material "is clearly not discarded;" and 2) since
"discarded material" is a defined term in 40 CFR 261.2(a)(2) that
includes various recycled materials and thus removing the terminology
'and is not discarded" would avoid potential confusion with the 40 CFR
261.2 definition of the term. [0492]

6.	The petition process should not create artificial distinctions that
presume that recycling performed by the generator is to be preferred
over recycling performed by the non-generator recycler. This commenter
believes that companies that perform recycling as their exclusive
business often have recycling expertise that is not possessed by the
generator and that EPA should emphasize that the value of a recycling
scenario should be evaluated on its own merits - not whether the
petitioner is a generator or professional recycler.  Moreover, there may
be sound business reasons why a recycler, rather than the generator,
should prepare and submit the petition. For example, the generator may
not have the requisite expertise, may be reluctant to publicly identify
its secondary materials, or may be interested in recycling only if
approved by EPA - a task that only the recycler has an incentive to
undertake. [0494]

7.	Clarify that the criteria listed in proposed 40 CFR 260.34 are not a
prerequisite to being excluded from the definition of solid waste under
40 CFR 261.4(a)(24). [0500, 0535]

8.	Clarify that a non-waste determination can be granted to an industry
group. In other words, EPA should clarify that it does not intend to
limit the non-waste determination process to a specific generator or
recycler of secondary material at a specific site, or even to a single
generator or recycler at all of its sites. This would be an enormous
drain on private and Agency resources if only an individual generator or
recycler is allowed to apply for a non-waste determination; it would be
far more efficient to allow a group to present a petition to EPA. [0505]

9.	EPA should at least confirm that it would entertain petitions for a
non-waste determination in the same manner in which it addressed the
variance request from secondary lead smelters under 40 CFR 260.30(c).
EPA Headquarters addressed and decided that the reclamation of lead from
spent lead acid batteries met the first four criteria of 40 CFR
260.30(c), which EPA considered to be determinable at a national level.
EPA, however, said that individual regions would have to decide whether
the last two criteria (40 CFR 260.30(c)(5) and (6)) were met since these
needed to be addressed on a site-specific basis. At a minimum, EPA
should implement its petition process for a non-waste determination so
as to address at a national level all of the criteria that can be
addressed at such a level. [0505]

10.	If EPA were to adopt this petition process, EPA should strengthen
the petition criteria by requiring more detailed information, setting
forth additional, more detailed criteria, having a mechanism to provide
close EPA oversight of the petition process to assure consistent
determinations from state-to-state, and providing additional, new
resources for states to implement the petition process. [0534, 0543]

11.	EPA should develop a guidance document that will assist petitioners
in preparing a complete petition. [0494, 0517]

12.	The non-waste determination process should not alter prior
determinations made by authorized States. The preamble is confusing: is
EPA stating that all prior non-waste determinations by duly authorized
States must be revisited and approved by EPA under the contemplated
non-waste determination process, or only that prior non-waste
determinations in authorized States that the three proposed types of
non-waste determinations are meant to address must be revisited and
approved by EPA? EPA should also explicitly recognize all currently
approved exclusions under 40 CFR 261.4. Clarify that authorized states
do not have to submit non-waste determinations to EPA for approval.
[0481, 0528, 0529]

13.	The standards and criteria for obtaining a non-waste determination
should be the same as parameters of the solid waste exclusion for
reclamation activities to be adopted in 40 CFR 261. The entity seeking a
non-waste determination should not have to establish its entitlement by
meeting additional criteria not found in 40 CFR 261. EPA should not
impose a more stringent set of requirements for reclamation than the
existing regulatory program. [0481, 0535]

14.	Some sort of indemnification mechanism must be in place for the
generators, recyclers and regulatory agencies if a "good faith" error is
ever found in the process. [0543]

15.	The introductory text to 40 CFR 260.30 should be amended to add a
reference to the new 40 CFR 260.34 standards and criteria. [0563]

16.	One commenter would be concerned if this petition process, which is
notably lacking in any timeframes for action, were to become the routine
default mechanism for assessing the scope of the proposed exclusions and
thus believed that only unusual cases or circumstances where the stakes
are particularly high should need to be addressed through the petition
process. In particular, this commenter was concerned if the addition of
this mechanism were viewed by EPA and the states as requiring all
requests for guidance determinations to be made through this process.
This commenter strongly urged EPA to clarify that states can and should
continue to provide direct guidance and determinations to the regulated
community outside of the petition process. [0471.2]

8.1 - Response

SUPPORT/OPPOSE NON-WASTE DETERMINATIONS: EPA agrees with the majority of
commenters who support the non-waste determination process as an
alternative way for hazardous secondary material generators to seek
regulatory certainty in circumstances involving reclamation of hazardous
secondary materials which do not clearly fit under the final rule's
self-implementing exclusions. In the final rule, we are finalizing two
non-waste determinations: 1) for hazardous secondary materials reclaimed
in a continuous industrial process; and 2) for hazardous secondary
materials indistinguishable from a product or intermediate. EPA is not
finalizing the non-waste determination for materials that are reclaimed
under the control of the generator (please see section 8.4 for
additional information).

Of the commenters who opposed the non-waste determination process, many
argued that the process would be time-consuming and therefore would
strain state resources. EPA, however, does not agree that the non-waste
determination would cause significant burden to states. Instead, we
anticipate that the vast majority of persons will choose to use the
self-implementing exclusions because this would be less resource
intensive for the facility. In fact, the Agency does not envision any
person submitting such an application if they are considered "under the
control of the generator" because there are relatively few restrictions
for this exclusion, and, indeed, it would probably require less effort
than seeking a non-waste determination. In addition, the scope of
activities to which the non-waste determination process would
potentially be applicable is limited to situations which are do not
constitute discard; we do not have any evidence to suggest that there
are a large number of scenarios that would fit within the scope. Thus,
the Agency only expects a limited number of persons to submit
applications where the regulatory status is unclear under the final
rule's exclusions and a formal non-waste determination may be
appropriate. EPA further believes that, by modeling the non-waste
determination process after the current variance procedures, it has kept
the additional burden to the states at a minimum because states can
leverage their existing processes.

With respect to the comment regarding inconsistency among state
non-waste determinations, EPA notes that, by allowing states to become
authorized to conduct their own RCRA hazardous waste programs, the RCRA
statute provides states flexibility to regulate hazardous waste more
stringently than required under the federal regulations. This ultimately
leads to variations between state regulations and interpretations, which
EPA views as inherent to the RCRA structure and, thus, not a quality
unique to the non-waste determination process. Furthermore, we note that
the final rule's non-waste determination process includes a set of
standard criteria, which all applicants must demonstrate their material
meets and an opportunity for public notice. Conversely, 'informal'
determination processes, which many states use currently, do not use
nationally standardized criteria and are often made through informal,
private letters. For these reasons, we believe that the final rule's
non-waste determination process may in fact reduce state-to-state
inconsistency.

EPA believes that requiring explicit conditions, such as those required
for the final rule's self-implementing exclusions, is not warranted for
hazardous secondary materials receiving non-waste determinations because
persons are, instead, required to make specific demonstrations as to how
the hazardous secondary materials meet the eligibility criteria.
Furthermore, regulatory authorities, if they so choose, may stipulate
conditions within the non-waste determination as appropriate and
relevant on a case-by-case basis. One purpose of the non-waste
determination is to provide a measure of flexibility not provided by the
self-implementing solid waste exclusions and specifying the conditions
to be imposed would defeat this purpose.

We agree with the commenter who argued that definition of solid waste
issues should be addressed through self-implementation. We are thus
finalizing the non-waste determination in addition to two
self-implementing exclusions from the definition of solid waste. We
believed that for the vast majority of cases, self-implementation will
be the most appropriate approach. However, for cases where there is
ambiguity about whether a hazardous secondary material is a solid waste,
the formal non-waste determination process will provide regulatory
certainty for both the facility and the implementing Agency.

We do not consider the non-waste determination to "run on markedly
narrower criteria" (relative to the final rule's self-implementing
exclusions). For cases where there is uncertainty about whether a
hazardous secondary material is a solid waste under the final rule's
self-implementing exclusions, the non-waste determination provides an
alternative option: an applicant may, instead, demonstrate how his
hazardous secondary material meets a set of defined criteria. Once a
non-waste determination has been granted, the hazardous secondary
material may not be subject to the limitations and conditions discussed
elsewhere in the final rule (e.g., prohibition on speculative
accumulation, storage standard, or, for the transfer-based exclusion,
recordkeeping, reasonable efforts, financial assurance, and export
notice and consent) and thus it is appropriate and necessary to define
criteria by which to evaluate the regulatory status of a material.

We do not accept the argument that the non-waste determination process
is inconsistent with RCRA. As discussed in more detail in section XX of
the preamble to the final rule, under section 3006 of RCRA, EPA would
authorize states to administer the non-waste determinations as part of
their base RCRA program. Since 40 CFR 260.34 sets national standards by
which implementing agencies would make non-waste determinations, state
programs utilizing this provision as codified would be equivalent to the
federal program since they would be using the same or equivalent
standards as the federal program.

EXPAND/ LIMIT SCOPE OF NON-WASTE DETERMINATIONS: In the March 2007
supplemental proposal, EPA proposed that non-waste determinations would
be limited to reclamation activities and would not apply to recycling of
"inherently waste-like" materials, as defined at 40 CFR 261.2(d),
recycling of materials that are "used in a manner constituting
disposal," or "used to produce products that are placed on the land,"
(40 CFR 261.2(c)(1)), or "burning materials for energy recovery" or
"used to produce a fuel or otherwise contained in fuels" (40 CFR
261.2(c)(2)).

After considering the comments, EPA is finalizing as proposed and is
limiting eligibility for non-waste determinations to include only
reclamation activities. With respect to "burning for energy recovery"
and "use constituting disposal," we determined that the level of
complexity and number of technical issues involved in defining a set of
national criteria by which to determine when these types of recycling
are not discard would require a formidable amount of resources.
Therefore, we believe these types of recycling would best be left to
other rulemaking proceedings. Furthermore, we believe that by limiting
the scope to include only reclamation activities, we are serving to
limit burden on states who must implement the non-waste determination
process, a concern expressed by many state commenters. As one commenter
noted, we believe the petition process will provide EPA with example
situations that may call for modifications or improvements to the rules
and would be open to such change in the future.

We are not finalizing a 'general' non-waste determination for all types
of reclamation, as some commenters suggested (for example, for
reclamation that occurs in a "non-continuous or non-industrial process
and does not satisfy the other two categories").  We note that persons
who successfully obtain a non-waste determination would not be subject
to specific conditions, such as those required for the final rule's
self-implementing exclusions (unless stipulated by the regulatory
authority in the determination). We, therefore, believe the two types of
non-waste determinations set appropriate limits and criteria for
determining that discard is not occurring as an alternative to the final
rule's self-implementing exclusions. Furthermore, we disagree with those
commenters who suggest further limiting the eligibility to only those
cases where reclamation of the hazardous secondary materials would
specifically violate a condition of the final rule's self-implementing
exclusions. We believe that by modeling the non-waste determination
procedure after the existing variance procedure, we have ensured that
any additional burden to the states will be kept at a minimum and thus
further limits on eligibility are not necessary.

The final rule only applies to hazardous secondary materials; therefore,
the comment regarding non-hazardous secondary materials is outside the
scope of this rulemaking. Furthermore, this rulemaking only affects the
definition of solid waste under RCRA Subtitle C.

CASE-BY-CASE DETERMINATIONS IN LIEU OF BROADER EXCLUSION: Based on
comments received in response to EPA's October 2003 proposal, EPA issued
a supplemental proposal which included two self-implementing exclusions
as well as a process for making case-by-case non-waste determinations.
EPA believes that these options together will provide flexibility for
ensuring that hazardous secondary materials are not discarded, while
balancing the advantages and disadvantages of each approach. As stated
previously, EPA is finalizing the two self-implementing exclusions and a
process for non-waste determinations basically as proposed.

OTHER COMMENTS ON NON-WASTE DETERMINATIONS:

1.	We are not codifying the proposed non-waste determination for
materials reclaimed under the control of the generator and, thus, do not
need to separate this into two types of non-waste determinations, as
suggested by one commenter. For information regarding why EPA is not
finalizing this non-waste determination, please see section 8.4.

2.	Requiring all hazardous secondary materials transferred off-site for
reclamation to be reviewed on a case-by-case basis through a non-waste
determination process in lieu of self-implementing exclusions would
require a significant amount of resources and increase burden on both
the regulated community and the regulating agencies. EPA, therefore, is
finalizing the self-implementing exclusions along with a non-waste
determination process to provide maximum flexibility while keeping
additional burden to a minimum.

3.	Since persons have the option of applying for a non-waste
determination, we believe that "may" is used correctly in: "an applicant
may apply to the Regional Administrator."

4.	For reasons stated above, we are limiting the non-waste determination
process to consider reclamation activities only. Therefore, we are
maintaining the language as "reclaimed."

5.	We are maintaining the language "and is not discarded" in both
non-waste determinations to ensure clarity.

6.	Non-waste determinations do not limit eligibility based on whether
the petitioner is a generator or professional recycler. EPA sees no
reason to prohibit exchange of information between parties in order to
develop an application for a non-waste determination and further
believes there may be potential cost-savings by doing so.

7.	EPA confirms in the preamble to the final rule, and here as well,
that the criteria in 40 CFR 260.34 are specific to the relevant
non-waste determinations, and thus are not required for the
self-implementing exclusions or those exclusions found in 40 CFR 261.4,
unless they are specifically included under state regulations as
criteria to consider.

8.	Where multiple facilities engage in similar reclamation processes
that share the same fact pattern and are located within the same state,
or are subject to the same state regulations, EPA sees no reason to
prohibit exchange of information between parties with the objective of
developing a common application for receiving a non-waste determination.
We can see how this type of exchange would result in potential
cost-savings for both the regulated community and the regulatory
agencies. However, we note this type of approach would be subject to the
discretion and approval of the regulatory agency.

9.	EPA is open to considering non-waste determinations in the same
manner as the variance request for secondary lead smelters; we see no
reason not to consider demonstrations that some reclamation processes
may universally meet certain criteria for the non-waste determination,
and thus should be considered to 'meet' this criteria at a national or
state level.

10.	EPA is finalizing the non-waste determination process basically as
proposed, with the exception of the non-waste determination for
materials reclaimed under the control of the generator (for more
information, see section 8.4). We believe the criteria we are finalizing
strike an appropriate balance between the need to define discard while
remaining flexible so as to apply to multiple reclamation processes and
hazardous secondary materials. For reasons stated above, we do not
believe the non-waste determination process will significantly increase
burden or state-to-state inconsistency above what is implemented
currently.

11.	EPA is open to considering development of a guidance document.

12.	The Agency confirms that the process for non-waste determinations is
not intended to affect any existing exclusion under 40 CFR 261.4. The
process is also not intended to affect any variance already granted
under 40 CFR 260.30 or other EPA or authorized state determination. In
other words, generators or reclaimers operating under an existing
exclusion, variance, or other EPA, or authorized state, determination do
not need to apply for a formal non-waste determination under the final
rule. This process also does not affect the authority of EPA or an
authorized state to revisit past determinations according to appropriate
procedures, if they so choose. States authorized for the non-waste
determination provision do not have to submit non-waste determinations
to EPA for approval (except in certain circumstances discussed below).
However, because states are not required to implement federal
requirements that are less stringent or narrower in scope than the
current requirements, authorized states are not required to adopt the
non-waste determination process. Ordinarily this provision could not go
into effect in an authorized state until the state chooses to adopt it.
However, because the non-waste determination process is a formalization
of determinations that states may already perform, states that have not
formally adopted this non-waste determination process may participate if
the following conditions are met: (1) the state determines that the
hazardous secondary material meets the criteria in either paragraph (b)
or (c) of 40 CFR 260.34; (2) the state requests EPA to review its
determination; and (3) EPA approves the state determination. In
addition, of course, states may continue to make determinations
concerning the applicability of other regulatory provisions under their
authorized state regulations, as they do now.

13.	For cases where there is uncertainty about whether a hazardous
secondary material is a solid waste under the final rule's
self-implementing exclusions, the non-waste determination provides an
alternative option: an applicant may, instead, demonstrate how his
hazardous secondary material meets a set of defined criteria. Once a
non-waste determination has been granted, the hazardous secondary
material may not be subject to the limitations and conditions discussed
elsewhere in the final rule (e.g., prohibition on speculative
accumulation, storage standard, or, for the transfer-based exclusion,
recordkeeping, reasonable efforts, financial assurance, and export
notice and consent) and thus it is appropriate and necessary to define
criteria by which to evaluate the regulatory status of a material.

14.	EPA is not mandating "some sort of indemnification mechanism" as
part of a non-waste determination; however, we note that regulatory
authorities may stipulate conditions in the non-waste determination as
necessary.

15.	We have added a reference to the new 40 CFR 260.34 to the
introductory text in 40 CFR 260.30.

16.	We anticipate that the vast majority of persons will choose to use
the self-implementing exclusions, rather than the non-waste
determination process, because this would be less resource intensive for
the facility. In fact, the Agency does not envision any person
submitting such an application if they are considered "under the control
of the generator" because there are relatively few restrictions for this
exclusion, and, indeed, it would probably require less effort than
seeking a non-waste determination. In addition, the scope of activities
to which the non-waste determination process would potentially be
applicable is limited to situations which are do not constitute discard;
we do not have any evidence to suggest that there are a large number of
scenarios that would fit within the scope. Thus, the Agency only expects
a limited number of persons to submit applications where the regulatory
status is unclear under the final rule's exclusions and a formal
non-waste determination may be appropriate. We also confirm in the
preamble to the final rule and reiterate here that facilities may
continue to contact EPA or the authorized state to ask for informal
assistance in making these types of non-waste determinations.

8.2 - Non-waste determination for hazardous secondary material reclaimed
in a continuous industrial process

8.2.1 - Definition of "continuous"

8.2.1 - Summary

BACKGROUND: This section summarizes comments received mostly in response
to EPA's October 2003 proposal, which proposed to exclude hazardous
secondary materials that are generated and reclaimed in a continuous
process within the same industry. EPA originally proposed that hazardous
secondary materials were reclaimed in a "continuous process" if 1) they
were handled exclusively by facilities or entities (except for
transporters) that are within the generating industry; and, 2) they were
not speculatively accumulated as defined in 40 CFR 261.1(c)(8). EPA also
included various other options for defining "continuous process" in the
preamble to its October 2003 proposed rule.

Based on comments received on the October 2003 proposal, EPA decided to
restructure our approach to revising the definition of solid waste to
more directly consider whether particular materials are not "discarded"
and thus are not solid and hazardous wastes subject to regulation under
Subtitle C of RCRA. In March 2007, EPA proposed to exclude hazardous
secondary materials that were reclaimed under the control of the
generator and transferred off-site for reclamation, provided certain
restrictions and conditions were met. Additionally, EPA proposed to
include a non-waste determination process for hazardous secondary
materials that are: reclaimed in a continuous industrial process;
indistinguishable from a product or intermediate; and reclaimed under
the control of the generator.

Even though many of the comments on the definition of "continuous" were
in response to EPA's 2003 approach, we believe these comments are
relevant for the non-waste determination for hazardous secondary
materials that are reclaimed in a continuous industrial process because
it includes this non-waste determination includes the concept of
"continuous."

SUPPORT DEFINITION OF "CONTINUOUS": One commenter agreed with the
proposed definition of continuous as explained in the October 2003
preamble. [0175]

DO NOT FURTHER DEFINE "CONTINUOUS": Some commenters said that there
should be no further tests or testing requirements imposed to define
"continuous process" because, as one commenter believed, such additional
complexity will only lead to potential regulatory confusion and would
not result in any significant environmental benefit. One commenter
believed EPA's definition of "continuous process" should be applied as
broadly as possible. Another commenter said EPA should make no attempt
to define a "typical product" for each industry (which, the commenter
noted, the EPA termed an impracticable effort that would require a large
amount of time and resources).  [0044, 0062, 0138]

Commenters further believed EPA should not impose conditions based on
the:

-	Episodic nature of reclamation operations: Some non-Bevilled
gold-laden materials from the precious metals industry are generated and
reclaimed only episodically and not on a routine day-to-day basis. These
secondary materials are of no less value, and their management exhibits
no more element of discard, simply because they are generated
episodically. [0089]

-	Geographic proximity of the generating and reclaiming facilities: EPA
should not impose a geographic limit on the generating-reclaiming
circuit because this would discourage beneficial recycling in many
instances, particularly where technological considerations and economies
of scale dictate that numerous generators utilize a small number of
off-site facilities to reclaim their materials. [0089, 0178]

-	"Physical linkage" between the processes that generated and reclaim
the material: There is no environmental or logical reason to require
physical linkage; any attempt to impose a "physical linkage" requirement
as part of the October proposal would be in direct violation of the D.C.
Circuit's holdings, which ruled that EPA could not regulate hazardous
secondary materials as solid wastes, notwithstanding that they were
being processed for recovery in different units, or different parts of
the production process, that generated them. If a physical linkage was
required, any secondary material that is stored outside a closed loop
system before being reclaimed presumably would be a solid waste, but
that result was soundly rejected in the ABR case (where the material at
issue could be stored on the land for some time before being reclaimed)
and in the Safe Food and Fertilizer decision (where the zinc-containing
secondary material was made into fertilizer by a different entity from
the generator). Furthermore, a "physical linkage" requirement would
discourage beneficial recycling in many instances, particularly where
technological considerations and economies of scale dictate that
numerous generators utilize a small number of off-site facilities to
reclaim their materials. [0089, 0178]

-	Reclamation in the precise process that generated the secondary
material: For reasons stated above, one commenter believed that EPA
should not require that metal-bearing hazardous secondary materials be
placed back into the same production process that generated them. There
is no element of discard involved in their management, and no
environmental reason that the materials should be regulated as solid
waste. [0089]

NEED TO FURTHER DEFINE "CONTINUOUS":  Some commenters were concerned
with the lack of specifics on what constitutes a "continuous process."
[0084, 0117, 0119, 0217, 0231, 0539]

One commenter said the term "continuous process" has different meanings
depending upon who is using the term. For example, from an engineering
standpoint one can define a continuous process in terms of a series of
unit process or manufacturing steps that are assembled to perform a
specific function or produce a specific product. But from a business
standpoint, it can be used to define the interaction of several
manufacturing operations designed to achieve a certain goal. This
commenter believed that it is not clear what the Court intended in its
various decisions and believes that the Court was trying to define the
concept in terms of a technical interpretation; namely, that the
hazardous secondary materials are managed at the individual facility in
a process that is uninterrupted. Another commenter said EPA must pay
closer attention to the guidance in the court decisions; the court
sometimes used the short-hand phrase "continuous process," but more
often the court spoke of reuse in an "ongoing production process," "an
ongoing manufacturing or industrial process," "part of ongoing
industrial processes," "passing in a continuous stream or flow from one
production process to another." The key element is a firm's
"production," "manufacturing" or "industrial" process; however, EPA's
October 2003 proposal totally omits this key element. EPA proposed a
hazardous secondary material can be discarded, stored, shipped, and then
reclaimed in a separate non-production process, provided speculative
accumulation limits are met. Therefore, this commenter believed the
definition of "continuous process" is inaccurate, incomplete and fails
to distinguish between discarded and non-discarded materials. [0117,
0119]

One commenter said that, if EPA is going to propose an exclusion for
hazardous secondary materials that are recycled in a continuous process,
then EPA has the responsibility of defining a "continuous industrial
process." If this term cannot be defined by EPA, then there is no way
that the regulatory community will understand the exclusion and the
result will be arbitrary determinations by the states as to what is
meant by that terminology. This commenter believed a careful, narrow
definition of 'continuous industrial process" is exactly what the D.C.
Circuit Court of appeals called for in several opinions rejecting EPA's
existing solid waste definition as over-broad. Another commenter
believed a state regulator would have a difficult time determining
whether any particular step in a process really constitutes something
continuous without considering the entire process. Such an effort may be
beyond the resources reasonably available to a state regulatory agency.
One commenter said the rule should be modified to define continuous in
an objectively measurable fashion to ensure the rule's enforceability.
Some commenters said the definition "in a continuous process" should
embrace concepts related to material stewardship. Commenters supported
adding a requirement that there should be no third-party processing or
handling of the materials once they have been received by, or reclaimed
by, the reclamation facility because such additional processing defeats
the purpose of product stewardship and responsibility. In other words,
the reclaimed products, or new product, must go directly back from the
reclaimer to the same industry from which they were generated. One
commenter also noted that their process of waste minimization and
increasing the sustainable use of resources is basically a continuous
utilization process (i.e., cradle-to-cradle) in a closed-loop
environment. Maintaining the integrity of that process dictates that
product and material stewardship be internalized and not handed off to
third parties. One commenter said hazardous waste determination criteria
should be used. [0072, 0084, 0101, 0217, 0479, 0539]

One commenter said EPA should strengthen this requirement by integrating
the concepts of "regularity" and "predictability" of reclamation
activities. These concepts should refer to an ongoing and uninterrupted
process with physical linkages between the processes that generate
secondary materials and the processes that reclaim such material.
Inherent within the physical linkage of processes is the concept that
geographically disparate facilities are not linked. Thus, in order to
satisfy this requirement, generation and reclamation processes must
occur on the same site. This commenter believed establishing these
minimum protections is consistent with RCRA's predominate goal of
protecting public health and environmental quality. Moreover, this
uniform and protective approach would promote consistency and ease
oversight. [0231]

One commenter recommended that EPA consider a "balancing test" approach,
where the burden would be on the generator on a site-specific basis to
demonstrate, in a variance procedure, by a preponderance of the evidence
that his/her reclamation process meets the narrative test. A few
evidentiary factors might be: historic industrial practices; regularity
and predictability; amount of time between generation and reclamation
and reuse of the material with specific maxima; NAICS code; geographic
considerations; relationship between product lines; business
relationship between generator and reclaimer; fate (sale, use, reuse,
additional reclamation) of the reclaimed material; linkage between
physical processes of generation, reclamation and reuse; economic
factors; and others. [0092]

SPECULATIVE ACCUMULATION: Some commenters supported using the existing
definition of speculative accumulation as an appropriate approach for
defining continuous process and to ensure materials are reclaimed in
reasonable timeframe. One commenter believed EPA should consider how
this can be applied to recycling conducted off-site, inter-industry, and
especially, by recycling companies. One commenter said, while the use of
the speculative accumulation parameter seems valid, it seems to apply to
only a portion of the process, the period prior to reclamation. For the
process to be continuous, the materials must be used after reclamation.
If none, or only a small portion, of the reclaimed materials is used
after reclamation, the process should not be considered continuous. This
concept should be expressed in the definition of "continuous" or
"legitimate recycling." One commenter did not support using speculative
accumulation as a means of defining "continuous process." "Continuous"
means no breaks in the process, and allowing materials to remain
unregulated without being recycled for close to two years in some cases
does not coincide with the concept of continuous. Furthermore, under
speculative accumulation, some materials may never actually be
processed. Another commenter said the express prohibition on speculative
accumulation is unnecessary and unhelpful. A third commenter said,
because the (October 2003) proposed rule allows the speculative
accumulation period to begin anew each time the waste is transferred,
the rule allows for indefinite, unregulated storage of hazardous waste
at various facilities across the country. [0044, 0083, 0122, 0167, 0217,
0225, 0231]

SUPPORT PROHIBITION ON BROKERS: Some commenters supported EPA's October
2003 proposal not to allow transfer of hazardous secondary materials
through a broker or other middleman because the use of any middleman
would invalidate the concept of "continuous process with the same
generating industry." One commenter believed that the hazardous
secondary material may have an intrinsic value to companies within a
similar industrial sector and so are likely to be properly handled and
managed; however, the inclusion of a third party would make tracking
shipments more difficult and may result in releases to the environment
if the hazardous secondary materials are not properly handled. A second
commenter believed that, since a broker will have a different NAICS
industry classification code than the generator, the use of a broker
will create an additional and more significant discontinuity in the
generation, reclamation and reuse process. Additionally, one commenter
believed that such intermediaries are essentially waste management
firms, and that this approach is consistent with the provision in EPA's
October 2003 proposal which disallows waste management firms to avail
themselves of the exclusion. Commenters further believed the use of
independent transporters to ship hazardous secondary materials from the
generator to the reclaimer is within the bounds of normal commerce. One
commenter suggested, in addition to transporters, that EPA add
in-transit warehouses and distribution centers to the exception from
having to be within the same generating industry. Depending on the
distance and route involved, some materials may temporarily be stored in
a warehouse or distribution center awaiting a different transporter or
additional volumes of other materials to be shipped together to provide
a full load. Particularly in instances where materials will be
temporarily stored beyond ten (10) days, the Agency should view such
activities as within the normal course of transportation. Another
commenter urged EPA to clarify, if the prohibition on brokers was
maintained, that out-of-industry transporters include out-of-industry
loading, unloading and related operations. One commenter noted the
October 2003 proposal contains an arbitrary distinction between labeling
the use of "transporters" as part of a continuous process, while
excluding the use of middle-men from this definition and believed that
EPA failed to enunciate a rational reason for allowing transporters to
qualify as part of a continuous process. [0068, 0072, 0083, 0098, 0140,
0148, 0152, 0231]

OPPOSE PROHIBITION ON BROKERS: Some commenters disagreed with EPA's 2003
rationale that use of brokers was inconsistent with the concept of
recycling in a 'continuous process" and believed EPA should, instead,
allow the use of brokers. One commenter said, as reviewing courts have
made clear, a material is not a solid waste until it is intended to be
discarded. Handling recyclables through a broker does not inherently
suggest that the generator intends to discard them, on the contrary, it
suggest the opposite. Commenters pointed out that, as noted by EPA,
"brokers are often better able to find markets for recyclable secondary
materials, and can thus facilitate their beneficial use."  Brokers work
hard to find generators and recyclers, since a broker's business depends
on it, and would therefore facilitate recycling opportunities by
identifying and connecting the generators with recycling facilities. A
second commenter argued that brokers provide valuable services in terms
of their expertise on the RCRA requirements that must be met, such as
the criteria to comply with a RCRA recycling exclusion, as well as other
relate regulations, such as DOT regulations. Another commenter said that
most foundries, particularly non-ferrous foundries (which tend to be
smaller, privately-held and often family-run businesses), do not recycle
on-site and, more often, rely on brokers to facilitate and coordinate
economic transfer and legitimate recycling of commodities. Commenters
believed that brokers play an important part in the continuous recycling
process; typically, a broker can obtain better pricing for commodities
by aggregating materials from a number of smaller sources into a
sufficient volume to make recycling economically feasible. Small
companies, in particular, are more likely to recycle hazardous secondary
materials if an intermediary is allowed. One commenter noted that small
businesses contract with a waste management company to pick up their
waste routinely for recycling; these smaller quantities are hauled on a
"milk run" manifest. One commenter noted that, although EPA reasons that
since brokers are not in the same industry sector as the generators and
reclaimers and thus their involvement breaks the direct intra-industry
link, EPA, however, proposes to make an exception for third-party
transporters, who would not be in the same industry as the generator and
recycler. EPA's willingness to make an exception to this "linkage
principle" for transporters and not brokers shows how artificial this
principle is. Furthermore, this commenter was not aware of a statutory
reason or court dictate that requires that there be a direct link
between the generator and recycler in order for the hazardous secondary
material not to be a solid waste. Moreover, this commenter, who operates
as a "broker," describes its business operations as follows:

-	The generator, recycler and broker are contractually bound to one
another to ensure that the hazardous secondary materials are sent to the
recycler;

-	Through contracts, the generator selects the recycler (using
information that the broker provides) and knows exactly where the
hazardous secondary materials will be recycled before it is shipped;

-	The generator provides the recycler a sample of the hazardous
secondary material and/or information regarding the material to enable
the recycler to confirm that he can effectively recycle the material;

-	Generators and recyclers represent and warrant the accuracy of the
information provided;

-	The generator's materials are not allowed to be mixed or bulked with
another generator's materials and thus, the generator's materials can be
identified and confirmed upon receipt at the reclamation facility;

-	When the hazardous secondary material leaves the generator's facility,
title passes to the recycler, which gives the recycler additional legal
and economic reasons to ensure that he receives the shipment;

-	Each of the three parties indemnify each other if their actions or
omissions cause damages or additional costs for proper handling of the
material;

-	The recycler's services are extensively reviewed, including: the
recyclers operations, the recycler's compliance record, and its
financial status and terms.

Some commenters urged EPA to allow brokers in the final rule by adding a
provision that requires a contractual commitment between the generator,
recycler and broker. There is no legal or policy reason to prohibit
brokers from facilitating such carefully circumscribed recycling, and
there is every reason from a resource recovery standpoint to encourage
it. One commenter noted that their members would not use a brokering
service at all without acquiring detailed knowledge about the company
and the recycling companies to which it brokers materials. Additionally,
if EPA finalizes the prohibition on brokers, one commenter notes that
there will be several implementation issues involving what it means to
be a "transporter" (and not a broker) and to 'handle' the material
(whether that infers physically handling, or arranging the transaction
without taking possession). [0126, 0129, 0138, 0149, 0151, 0152, 0153,
0178, 0181, 0187, 0196, 0197, 0204]

CLARIFY DEFINITION OF BROKER: Some commenters believed that the
difference between brokers and transporters needs to be more clearly
defined to avoid confusion and misinterpretation. Specifically, the
Agency should distinguish between transporters, brokers, middlemen,
processors and end users. The term "broker" should be reserved for
entities which do not physically handle or transport the waste materials
but instead act as a matchmaker to pair generators with processors or
end users. "Middlemen" are entities which handle, transport and/or
stockpile materials for later use. "Processors" are parties that
physically transport and manage the residuals. "End users" are the
consumers of the recycled materials. [0067, 0138, 0231]

MULTIPLE RECLAMATION STEPS: One commenter agreed with EPA's 2003
proposal that reclamation should be allowed to occur in one or more
processing steps, at one or more sites. So long as the hazardous
secondary material is destined for legitimate reclamation, it is not
part of the nation's waste disposal problem, and there is no reason that
reclamation has to occur on the same site as generation. [0089]

8.2.1 - Response

BACKGROUND: As stated above, this section responds to comments mostly
received in response to EPA's October 2003 proposal, which proposed to
exclude hazardous secondary materials that are generated and reclaimed
in a continuous process within the same industry. EPA originally
proposed that hazardous secondary materials were reclaimed in a
"continuous process" if 1) they were handled exclusively by facilities
or entities (except for transporters) that are within the generating
industry; and, 2) they were not speculatively accumulated as defined in
40 CFR 261.1(c)(8). EPA also included various other options for defining
"continuous process" in the preamble to its October 2003 proposed rule.

Based on comments received on the October 2003 proposal, EPA decided to
restructure our approach to revising the definition of solid waste to
more directly consider whether particular materials are not "discarded"
and thus are not solid and hazardous wastes subject to regulation under
Subtitle C of RCRA. In March 2007, EPA proposed to exclude hazardous
secondary materials that were reclaimed under the control of the
generator and transferred off-site for reclamation, provided certain
restrictions and conditions were met. Additionally, EPA proposed to
include a non-waste determination process for hazardous secondary
materials that are: reclaimed in a continuous industrial process;
indistinguishable from a product or intermediate; and reclaimed under
the control of the generator.

Even though many of the comments on the definition of "continuous" were
in response to EPA's 2003 approach, we believe these comments are
relevant for the non-waste determination for hazardous secondary
materials that are reclaimed in a continuous industrial process because
it includes this non-waste determination includes the concept of
"continuous."

DEFINITION OF "CONTINUOUS": In the final rule, the self-implementing
exclusions are no longer limited to the concept of "continuous," as was
originally proposed in October 2003. Furthermore, the non-waste
determination for materials reclaimed in a continuous process is an
administrative procedure whereby applicants must demonstrate to their
regulatory authority that their hazardous secondary material meets the
criteria for this non-waste determination. Regulatory authorities, after
an opportunity for public comment, grant non-waste determinations on a
case-by-case basis.

For the non-waste determination for materials reclaimed in a continuous
process, EPA proposed, and is finalizing, four criteria for making this
determination:

-	The extent that the management of the hazardous secondary material is
part of the continuous primary production process and is not waste
treatment;

-	Whether the capacity of the production process would use the hazardous
secondary materials in a reasonable time frame and ensure that the
hazardous secondary materials will not be abandoned (for example, based
on past practices, market factors, the nature of the hazardous secondary
material, or any contractual agreements);

-	Whether the hazardous constituents in the hazardous secondary material
are reclaimed rather than released to the air, water or land at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be release by
the production process; and

-	Other relevant factors that demonstrate the hazardous secondary
material is not discarded.

EPA is not explicitly defining "continuous process" because production
processes vary widely from industry to industry and, therefore,
determining "continuous process" should be made on a case-specific
basis. At one end of the spectrum, if the hazardous secondary material
is handled in a manner identical to virgin feedstock, then it would
appear to be fully integrated into the production process. At the other
end of the spectrum, hazardous secondary materials indisputably
discarded prior to being reclaimed are not a part of the continuous
primary production process, ("AMC II"), 907 F. 2d 1179 (D.C. Cir. 1990)
(listed wastes managed in units that are part of wastewater treatment
units are discarded materials (and solid wastes), especially where it is
not clear that the industry actually reuses the materials). For cases
that lie within the spectrum, persons applying for a non-waste
determination need to provide sufficient information about the
production process to demonstrate that the management of the hazardous
secondary material is an integral part of the production process and is
not waste treatment. It is important to note that this non-waste
determination is not necessarily limited to cases under the control of
the generator. For example, hazardous secondary materials that are hard
piped from one facility to another facility that is under separate
control would appear to be fully integrated into the production process
and may therefore be eligible for this non-waste determination, provided
the other criteria are met.

SPECULATIVE ACCUMULATION: For the final rule's self-implementing
exclusions for hazardous secondary materials, EPA's existing regulations
regarding speculative accumulation (as defined in 40 CFR 261.1(c)(8))
apply. For the non-waste determination, a person may wish to provide
information about the hazardous secondary material and the process to
demonstrate that, even though the speculative accumulation criteria will
not be met, the hazardous secondary material will in fact be reclaimed
in a reasonable time frame and will not be discarded. EPA is not
explicitly defining "reasonable time frame" because such time frames
could vary according to the hazardous secondary material and industry
involved and, therefore, determining this time frame should be made on a
case-specific basis. However, a person may still choose to use the
speculative accumulation time frame as a default.

Furthermore, regarding the comment that materials must be used after
reclamation, we note that persons seeking non-waste determinations must
be legitimately recycling pursuant to the new 40 CFR 260.43, which
requires that hazardous secondary material provide a useful contribution
to the recycling process, or to a product or intermediate of the
recycling process, and the recycling process must produce a valuable
product. EPA further defines these two factors in the final rule; the
product or intermediate is valuable if it is: 1) sold to a third party;
or 2) used by the recycler or the generator as an effective substitute
for commercial product or as an ingredient or intermediate in an
industrial process.

BROKERS: EPA is convinced by commenters' arguments that it is possible
for intermediate facilities to use responsible business practices to
ensure hazardous secondary materials are sent for reclamation and are
not discarded. In response to comments received on the 2003 and 2007
proposals, EPA is allowing use of intermediate facilities under the
final rule's transfer-based exclusion, provided certain conditions are
met (see section 7.3 for more detail). Since EPA has structured the
non-waste determination process as a flexible alternative to the final
rule's two self-implementing exclusions, it seems logical to extend this
thinking to the non-waste determinations as well. Therefore, use of
intermediate facilities would not necessarily preclude a person from
obtaining a non-waste determination, provided the applicant is able to
demonstrate the extent the management of the hazardous secondary
material is part of the continuous primary production process and is not
waste treatment. However, we note that regulatory authorities, if they
so choose, may stipulate conditions within the non-waste determination
as appropriate and relevant on a case-by-case basis. We also note that
the final rule includes regulatory definitions to ensure clarity for
what EPA considers an "intermediate facility," as opposed to a "transfer
facility."

MULTIPLE RECLAMATION STEPS:  The non-waste determination for hazardous
secondary materials reclaimed in a continuous industrial process does
not preclude reclamation which must occur in one or more processing
steps, at one or more sites, provided the applicant can demonstrate the
extent the management of the hazardous secondary material is part of a
continuous primary production process and is not waste treatment. We
note that multiple reclamation steps would likely be a factor for
consideration and that regulatory authorities, if they so choose, may
stipulate conditions within the non-waste determination as appropriate
and relevant on a case-by-case basis.

8.2.2 - Capacity of the production process to use the material in a
reasonable timeframe

8.2.2 - Summary

One commenter supported a more conservative timeframe when defining
continuous process, preferably full recovery within 90 days of receipt.
If this creates difficulty for any given recycler, a regulatory
provision could provide alternate timeframes, provided a necessity can
be documented. One commenter supported using the existing definition of
speculative accumulation to ensure materials are reclaimed in a
reasonable timeframe. Another commenter believed that speculative
accumulation should not be a requirement for such a determination but
that if imposed, that a one-year extension be made possible. A third
commenter agreed that a recyclable material should not be stored in
perpetuity prior to recycling; however, believed that the appropriate
time period is either: 1) two years from January 1st; or 2) the one-year
period currently contemplated by EPA, with the availability of an
extension of up to an additional year. This commenter noted that the
Arizona Department of Environmental Quality recognized that there may be
legitimate reason as to why the generator of a recyclable material may
not be able to meet the speculative accumulation prohibition and, as
such, provided a mechanism for the generator to request an extension of
up to one year to recycle or have the materials at issue recycled
without being deemed "solid waste." This additional year is well placed
and recognizes that there may be exigent circumstances wherein a
recyclable material will be recycled, but not within a one-year time
period. Another commenter argued that longer storage times should only
be granted on a case-by-case basis if the facility demonstrates that a
longer period of time is necessary to recycle the material and the
longer storage time would not impact the environment. [0069, 0077, 0083,
0526, 0528]

One commenter requested that EPA clarify whether hazardous secondary
material determined by a state not to be discarded could then be
speculatively accumulated. Specifically, in the first column EPA states
that, once a non-waste determination has been granted to a hazardous
secondary material it "would not be subject to…speculative
accumulation," but in the third column states that "the petitioner would
not necessarily need to demonstrate that the material would be
accumulated speculatively." [0516]

One commenter supported the concept of a case-specific "reasonable
timeframe" as an option to speculative accumulation. However, this
commenter believed that EPA should make the regulated community more
aware of its availability and relationship to speculative accumulation,
for example, by including a statement in 261.1(c)(8) as follows:
"Materials subject to a 260.30 non-waste determination for hazardous
secondary materials recycled in a continuous manufacturing process are
not accumulated speculatively when materials are reclaimed in a
reasonable timeframe as determined on a case-specific basis." [0491]

Commenters said, because the judicial direction regarding non-discard is
"continuous process," all non-waste determinations should include the
"reasonable timeframe" criterion. [0470, 0543]

8.2.2 - Response

EPA is not explicitly defining "reasonable timeframe" because such
timeframes could vary according to the hazardous secondary material and
industry involved and, therefore, determining this time frame should be
made on a case-specific basis. However, a person may still choose to use
the speculative accumulation timeframe as a default.

For the non-waste determination, a person may wish to provide
information about the hazardous secondary material and the process to
demonstrate that, even though speculative accumulation will not be met,
the hazardous secondary material will in fact be reclaimed in a
reasonable time frame and will not be discarded. By not defining
"reasonable timeframe," EPA is preserving flexibility in order to
accommodate various types of reclamation processes and hazardous
secondary material. However, if an applicant chooses to use speculative
accumulation as a default for meeting this criterion, and receives a
non-waste determination based on that, the applicant must comply with
the speculative accumulation limits or he may be considered to be
discarding his hazardous secondary materials and thus subject to RCRA
Subtitle C. This same rationale applies if the applicant, instead,
demonstrated he met this criterion using a different time table for
"reasonable timeframe." If an applicant is not reclaiming his materials
in a reasonable timeframe as demonstrated in his application for a
non-waste determination, then he may be considered to be discarding his
materials and thus subject to hazardous waste regulations. We also note
that we have added a provision to the non-waste determination process
that, in the event of a change in circumstances that affect how a
hazardous secondary material meets the relevant criteria, the applicant
must re-apply for a formal determination that the hazardous secondary
material continues to meet the relevant criteria and, therefore, is not
a solid waste.

We believe that the proposed regulatory language regarding "reasonable
timeframe" is sufficiently clear because it does not reference
speculative accumulation and provides examples of what types of factors
would influence "reasonable timeframe" (for example, past practices,
market factors, nature of material and any contractual arrangements).
Furthermore, we believe adding in a reference to speculative
accumulation would instead serve to increase confusion and uncertainty,
not only for this non-waste determination process, but perhaps with the
definition of speculative accumulation as well.

Since EPA would consider hazardous secondary materials that were
eternally 'stored' for future recycling to be akin to discard, EPA
agrees with commenters that all non-waste determinations should take
into account whether the hazardous secondary materials will be reclaimed
within a "reasonable timeframe." Therefore, in this final rule, EPA has
added this criterion (with appropriate modifications to the language) to
the non-waste determination for hazardous secondary materials
indistinguishable in all relevant aspects from a product or
intermediate. As with the non-waste determination for hazardous
secondary materials reclaimed in a continuous industrial process, a
person may wish to provide information about the hazardous secondary
material and the process to demonstrate that, even though the
speculative accumulation criteria will not be met, the hazardous
secondary material will in fact be reclaimed in a reasonable time frame
and will not be discarded. However, a person may still choose to use the
speculative accumulation time frame as a default if he so chooses.

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

8.2.3 - Summary

Some commenters opposed this criterion. One commenter said, in the
mining and mineral processing industry, it is inevitable in some cases
that releases will be at a "significantly" higher level due to the
concentration of metals in sequential production operations. These
releases, however, may not pose a meaningful risk or represent an
indicator of discard. As EPA acknowledges, "production processes can
vary widely from industry to industry," thus, EPA should not burden the
non-waste determination process with criteria that do not accurately
assess whether a material has in fact been discarded. A second commenter
believed whether or not the constituents are discarded should be the
determining factor in evaluating this criterion. Another commenter said
such considerations should have no place in the definition of solid
waste context, because the issue of whether a material is discarded
depends on what is being done with the material itself, not on the
ultimate fate of each and every constituent the material contains.
Furthermore, the use of ordinary products commonly results in releases
or emissions of some kind, but this provides no basis to say that the
product itself is discarded material. For example, the ultimate disposal
of avocado pits and skins provides no rational basis to claim that fresh
avocados on a grocery shelf are "discarded material." This commenter
argued that, if one valuable material is being used to produce another
valuable material, for example, the fact that emissions occur in the
process does not alter the fact that the valuable material is being used
rather than discarded. This commenter further argued that RCRA provides
no authority to regulate non-discarded materials for this purpose. If
the use of non-discarded materials generates solid waste, such waste
would be subject to air, water, and waste regulations as appropriate.
[0481, 0528, 0534, 0537]

One commenter very much supported this criterion as exactly the right
inquiry to be conducted. This criterion correctly reflects the guidance
of the court in Safe Foods v. EPA and related cases. Furthermore,
whether hazardous constituents are released at "significant" levels is
invariably more a qualitative than quantitative determination, this
commenter agreed with EPA's approach of considering statistical or
risk-based measurements. This commenter recommended that EPA include
guidance in the final rule on statistical measures that would provide a
bright line, which could include: adopting the approach used for cement
kiln dust in 40 CFR 266.112 to distinguish "normal residues" from "waste
derived residues"; using universal treatment standards in 40 CFR 268.48;
or defining acceptable levels of hazardous constituents based on the
risk model in the delisting process. Another commenter said this
criterion is ambiguous in its reference to hazardous constituents and
does not provide the bright line needed for a safe harbor. Moreover,
this criterion establishes a bias against metal reclamation in that
secondary materials worthy of reclamation will invariably contain some
constituents at higher levels than are found in ores. [0535, 0558]

A couple commenters suggested, for clarity and consistency, that
260.34(b)(3), 260.34(c)(3) and 260.34(d)(2) should all state that
"hazardous constituents in the secondary material are reclaimed rather
than discarded at significantly higher levels than would otherwise be
released from the primary production process." [0470, 0543]

One commenter said this criterion would be difficult to evaluate on an
on-going basis without a permitting and inspection program. [0509]

8.2.3 - Response

EPA disagrees with commenters who believe this criterion is not relevant
for determining if hazardous secondary materials are being discarded. By
indicating that releases must not be at "significantly higher
concentrations" than would otherwise be released during the production
process, we believe we have set a reasonable and meaningful bar that
applicants must meet in order to demonstrate that their hazardous
secondary materials are reclaimed and not discarded. Reclamation
scenarios that fail to meet this criterion are, by definition, different
than the relevant production process in terms of releases of hazardous
constituents. Thus, they cannot be determined (without further analysis)
to not be discard and to not present a greater risk of adverse impacts
to human health and the environment. In these cases, a non-waste
determination would not be appropriate. To entertain the avocado
example, if a person were to throw a large portion of the avocado fruit
on the ground, he would in fact be releasing significantly higher
concentrations of the avocado than would otherwise be released by the
primary production process (i.e., the person is discarding more of the
avocado than the pits and skins, which are normally released during the
eating process). In cases where a significant concentration of the fruit
ends up on the ground, it would be challenging to argue that the person
is not discarding the avocado. Therefore, we disagree with this
commenter's reasoning.

Regarding those commenters who support a "bright line" in order to
define "significantly higher concentrations," EPA believes that, given
the wide variety of production processes and recycling practices,
establishing a "one size fits all" objective standard is not practical
and would invite inefficiency. We also note that non-waste
determinations are reviewed on a case-by-case basis; thus, the non-waste
determination itself serves to provide a safe harbor for facilities,
since the regulatory authority would have reviewed the specific fact
pattern and deemed the hazardous secondary material not to be solid
waste. Furthermore, we disagree that this criterion presents a bias
against metal reclamation in the way suggested by the commenter since
this criterion compares the hazardous constituents released to the air,
land or water to that which would otherwise be released by the
production process; it does not compare the hazardous constituents in a
hazardous secondary material to a virgin material (or in this case,
virgin ore).

We agree with commenters who suggested the language of the criterion
should be exactly the same for each of the non-waste determinations to
improve clarity and consistency. We have incorporated this change into
the final rule.

EPA anticipates that regulatory authorities may monitor compliance of
facilities that have been granted a non-waste determination,
particularly if the non-waste determination stipulates conditions that
the facility must meet. Furthermore, in the event of a change in
circumstances that affect how a hazardous secondary material meets the
relevant criteria, including this criterion, the applicant must re-apply
to the Administrator for a formal determination that the hazardous
secondary material continues to meet the relevant criteria.

8.3 - Non-waste determination for hazardous secondary material
indistinguishable in all relevant aspects from a product or intermediate

8.3 - Summary

One commenter questioned the need for this determination because the
current regulations already exclude hazardous secondary materials from
the definition of solid waste when they are recycled as a substitute for
a commercial chemical product. This commenter requested EPA clarify how
this determination differs from the current exclusion at 261.2(e)(ii).
Another commenter suggested that generators be required to obtain a
variance under 40 CFR 261.31(c). [0479, 0539]

One state commenter requested clarification of EPA's preamble language
on page 14203 where EPA states: "to qualify for a non-waste
determination, any differences between the hazardous secondary material
in question and commercial products or intermediates must be
insignificant from either a statistical or from a health and
environmental risk perspective." This commenter asked if they were
correctly interpreting this statement as "no toxics along for the ride"
and expressed that confirmation from EPA will help to ensure that no
state will administer their non-waste determination program less
stringently than EPA intended. [0516]

One commenter did not believe it is EPA's responsibility to enforce
product safety standards and that any proposed recycling consumer
product that has potential safety issues in this matter can be referred
to the U.S. Consumer Product Safety Commission or other applicable
federal agency for a safety evaluation. [0488]

8.3 - Response

In cases where hazardous secondary materials that are used or reused
directly and are indistinguishable from products they would be excluded
from solid waste regulation under 40 CFR 261.2(e). However, 40 CFR
261.2(e) does not cover materials that are indistinguishable from an
intermediate that goes on for further processing that would be
considered reclamation. 261.2(e) also does not cover situations where
the hazardous secondary material is speculatively accumulated. The final
rule's 40 CFR 260.34(c) covers these scenarios.

EPA cannot simply require generators to apply for a variance under 40
CFR 260.31 because the existing variances do not extend to, and thus
would offer no relief for, cases where hazardous secondary materials are
reclaimed in a continuous industrial process or for hazardous secondary
material that are indistinguishable in all relevant aspects from a
product or intermediate. Today's non-waste determinations, although
similar to the current variance procedures, are technically not
variances in which EPA regulations otherwise classify materials as solid
wastes and facilities may apply for an exception. Instead, the new
procedure would apply to cases in which hazardous secondary materials
are not discarded but which do not fit within the self-implementing
exclusions or for which the restrictions and conditions of the
exclusions are not applicable.

EPA clarifies that our statement that "any differences between the
hazardous secondary material in question and commercial products or
intermediates should not be significant from either a statistical or
from a health and environmental risk perspective" is used to explain the
second criterion regarding whether the chemical and physical identity of
the hazardous secondary material is comparable to commercial products or
intermediates. This concept is different from "no toxics along for the
ride," since this legitimacy factor is concerned only with the hazardous
constituents and hazardous characteristics of the material, whereas the
second criterion for the non-waste determination looks at the entire
chemical and physical identity of the hazardous secondary material and
whether it is comparable to a product or intermediate. Furthermore, we
note that legitimacy, as provided in the final rule under 40 CFR 260.43
and including the non-mandatory factor of "no toxics along for the
ride," applies to hazardous secondary materials reclaimed under both
non-waste determinations.

We agree that EPA does not have the authority to regulate product
safety; however, EPA does have the authority to define when a hazardous
secondary material is discarded and, thus, a solid waste. EPA,
therefore, is establishing criteria which, along with the codified
legitimacy provision, serve to define discard for the non-waste
determination for hazardous secondary materials indistinguishable from a
product or intermediate.

8.4 - Non-waste determination for hazardous secondary material reclaimed
under the control of the generator via a tolling arrangement or similar
contractual arrangement

8.4 - Summary

One commenter argued that, when contractual arrangements (like tolling
agreements) are involved, the notion that the person who physically
generates the hazardous secondary material retains control over its
reclamation and the residuals resulting from its reclamation is more
likely to be a convenient fiction than an accurate description of what
is actually occurring. One commenter agreed that a properly structured
tolling arrangement will be inconsistent with the concept of "discard,"
but this determination should not turn on the fictitious notion that the
person who physically generates the secondary material being reclaimed
retains ownership of, and liability for, the material (and the
residuals). Another state commenter argued that residuals are generally
co-mingled to save shipping and disposal costs and that, with regards to
the recycled material, some recyclers may return a specified volume of
the same material, but it may actually have been co-mingled with other
generators' recyclable materials before processing. This commenter also
stated that another issue is the management of recyclable materials that
are not processed in a timely manner or not processed back to the
generator's specifications; since, under these circumstances, the
processor may have already failed to comply with the contract and thus
confidence in the generator's ability to insure that this waste will be
managed in an environmentally safe manner is questionable. Another state
commenter anticipated major enforcement problems in scenarios where a
commercial recycler is processing multiple hazardous secondary material
streams from numerous customers and the streams are combined into a
single recycling unit that produces residuals (e.g., still bottoms) that
are mismanaged. [0452, 0509, 0516]

Some commenters believed that hazardous secondary materials that are
reclaimed pursuant to tolling arrangements or similar contracts should
only be made on a case-by-case basis using the non-waste determination
petition process. This commenter argued that tolling agreements can vary
greatly in their terms and conditions; one provision in the contract can
purport to assign control of the production and residuals to the tolling
contractor, while other provisions can create warranties and indemnities
that effectively nullify the recitation of control. If the batch
manufacturer allegedly breaches the tolling contract, the specialty
chemical manufacturer may be exonerated and the basic premise of the
conditional exclusion would be vitiated. However, during the petition
process, EPA or a state would look closely at "whether the generator
retains ownership and liability via a contract" as well as the other
criteria to determine that the hazardous secondary material meets this
non-waste determination and is not discarded. This commenter also
suggested that SOCMA and its member companies could develop a standard
contract and tolling arrangement in a petition to EPA for approval.
[0470, 0558]

One state commenter disagreed with this non-waste determination,
believing that materials managed under a tolling arrangement are
discarded and should be subject to RCRA permits. This commenter argued
that the generator does not have the ability to insure that the recycler
will have the ability to properly recycle and return the material, and
to dispose of the residuals properly. Furthermore, the recycling
facility may attempt to attract customers based on lower recycling costs
and that these costs may in fact be the result of shortcuts in
environmental protection. Another commenter argued that contractual
agreements in the pre-RCRA/CERCLA era did not preclude environmental
catastrophes like fires, explosions, community evacuations and
groundwater contamination and even with today's contractual agreements,
these still occur today. [0509, 0564]

One commenter suggested adding additional criteria for consideration,
such as the length of time the material is on-site before and after
recycling, the length of time residuals are on-site, procedures for
managing recyclable materials and residuals and whether they are kept
separate from other generators' materials, and wastes and the compliance
history of the facility. Some commenters argued that the tolling
arrangement or "other contractual arrangement" must be a written
contract with copies maintained at the generating facility and the
reclaimer, and this exclusion should be limited to situations where the
primary business of both the generating facility and the reclaimer is
manufacturing. Another commenter supported requiring generators to
recycle the materials to remove any unstable characteristics of the
materials, such as the potential to self-heat, spontaneously combust,
react in air, be corrosive, release noxious or toxic fumes, and have
them obtain a variance under 40 CFR 261.31(c). [0470, 0479, 0509, 0543]

One commenter believed that the second criterion "whether the hazardous
constituents in the material are reclaimed rather than discarded to the
air, water or land at significantly higher levels from either a
statistical or from a health and environmental risk perspective than
would otherwise be released by a production process" has nothing to do
with whether the material is being reclaimed "under the control of the
generator." That is, this commenter says, the fact that a reclamation
process does (or does not) release hazardous constituents to the air,
water or land at higher levels than would otherwise be released by a
production process can hardly be said to demonstrate that the material
is (or is not) being "reclaimed under the control of the generator."
[0452]

8.4 - Response

EPA has decided not to finalize the non-waste determination for
materials reclaimed under the control of the generator because EPA could
not identify any comments which described in detail other specific
situations involving tolling or contractual arrangements that would not
already be covered under the final rule's self-implementing
generator-controlled exclusion. We, therefore, remain unclear as to what
other arrangements exist where the generator would retain control over
its hazardous secondary materials to ensure they are reclaimed and not
discarded. Without this clear picture, EPA believes we cannot finalize
this non-waste determination and thus we are not including it in the
final rule.

In addition, we did not intend for such circumstances where a hazardous
secondary material generator was unable to maintain control and
responsibility over his hazardous secondary materials to be eligible for
a non-waste determination for hazardous secondary materials reclaimed
under the control of the generator. Where an applicant's hazardous
secondary materials are intermingled with materials from other hazardous
secondary material generators in a way that renders the applicant unable
to maintain control and liability over his specific materials, the
applicant would have been effectively precluded from obtaining this
formal non-waste determination since he would ultimately fail the first
criterion.

8.5 - Non-waste determination process

8.5 - Summary

ESTABLISH TIMEFRAME FOR AGENCY DECISIONS: Some commenters argued that
EPA should set a standard timeframe for the agency's approval or denial
of the petition. Given that the decision to recycle a given material
needs to be made on a timely basis and that the current exclusions do
not provide for speculative accumulation of the materials, EPA must
specify a timeframe in which determinations will be made, lest an
applicant's petition remain open indefinitely. One commenter said many
of its members have had the experience of never receiving a response or
even a timeline for further consideration of these types of requests.
EPA may require an extended schedule due to limited regulatory
resources, but this information will at least enable the petitioner to
have some sense of when or whether it will receive the assessment needed
and plan production activities and make business decisions accordingly.
Another commenter recommended that EPA and the primary state(s) approve
or disapprove the non-waste determination within 180 days of receipt of
the application, or the application is automatically accepted. [0467,
0468, 0471.2, 0488, 0494]

PUBLIC NOTICE IS INADEQUATE: Some commenters said the public notice
requirements for non-waste determinations were inadequate to provide for
meaningful public participation. Commenters believed that the notice
requirements contained in 40 CFR 260.33 are not sufficient because only
publication in local media is required. There is no requirement for
establishing an administrative record, no opportunity for a public
hearing, no allowance for written public comment and response from the
agency, nor is there a requirement for publication in the federal
register. One commenter noted that the local notice requirement in 40
CFR 260.33(b) is currently used to make very limited determinations that
have only a local impact and are unlikely to significantly impact human
health and the environment. Just because the non-waste determinations
are conveniently located in 40 CFR 260.33 does not make local newspaper
or radio notice adequate for nationally-applicable non-waste
determinations. Materials that are recycled pursuant to contracts could
extend to many third-party reclaimers at wide-spread locations across
the U.S., thus, the significance of these non-waste determinations and
the potential health and environmental impacts are far greater than
contemplated by the local notice procedures in 40 CFR 260.33. Although
these are case-by-case determinations, the precedents set are likely to
have national importance and therefore, a broader range of the public,
including environmental groups, state agencies, and corporations, will
have a substantial interest. Commenters argued that non-waste
determinations should follow the public notice procedures in 40 CFR Part
260, which requires notice be published in the Federal Register, with
opportunity for public comment. Because of the broad scope of the
proposed exclusions, a large number of case-by-case petitions are not
expected and thus publication of a draft notice will not pose an undue
burden.  One commenter suggested promulgating non-waste determinations
as a rulemaking and giving states the option to adopt the determination
or not. Still another commenter said the process should be revised to
allow updated methods of public notice. In this age of electronic
information, notice can be made through methods other than, or in
addition to, newspaper publications, such as agency Web pages, e-mail,
listservers, and department calendars. The costs associated with
newspaper publication can be prohibitive in many locations. EPA should
also make the documents available to the public through the electronic
docket and EPA docket center. [0470, 0544, 0558, 0559]

REQUIRE RENEWAL OF PETITION IF CIRCUMSTANCES CHANGE: Some commenters
believed that a petitioner should be obligated to inform the agency
whenever circumstances change that affect the original basis of the
petition and that the Agency should be able to revoke a petition. One
commenter recommended the hazardous secondary material be conditionally
exempted from regulation, not excluded, for a term of three years, after
which the non-waste determination must be renewed. Commenters said EPA
should develop a mechanism by which the Agency can confirm that the
criteria that originally led to a "non-waste determination" persist over
time. Requiring one-time testing in the petition process is not
sufficient. In the delisting provisions, EPA requires that waste be
tested on some regular frequency, usually quarterly, to confirm that the
delisted waste is still meeting the exclusion limits. This same type of
regular confirmation test should apply to hazardous secondary materials
granted a non-waste determination. Furthermore, EPA should require an
amendment to the petition and re-testing if the process changes or a new
product or intermediate use is proposed. [0470, 0479, 0488, 0543, 0548,
0558]

ADDITIONAL COMMENTS: The following include additional comments received
on the petition process:

1.	EPA should handle the petition process so that EPA's decisions are
well-researched, documented and readily available to the public and the
regulated community. This commenter envisions a process whereby EPA
decisions will form a coherent and consistent set of precedents that
will guide petitioners as well as EPA.[0494]

2.	EPA should develop a guidance document that will assist petitioners
in preparing a complete non-waste determination application. [0494,
0517]

3.	EPA should not accept petitions from facilities in authorized states.
[0470]

4.	EPA needs to clarify the steps that need to be followed to obtain a
non-waste determination. [0467]

5.	The other recycling mechanisms in the proposal place the burden of
compliance on the regulated community that benefits from the exclusion,
while the petition process places the additional burden on the regulated
agency at a time when budgets are already strained. One commenter
recommended that EPA amend the proposal to place the financial burden on
the petitioning facility that will benefit from the process. Another
commenter said the Agency must provide resources for timely and
effective review of petitions. [0531, 0553]

6.	It is important that the petition contain some certification by the
generator to ensure that the generator is taking responsibility and
certifying the terms and conditions of the petition. [0558]

7.	If it is determined later that approval of a petition was based on
incomplete, inaccurate, or false information provided by the generator,
the waste should be subject to regulation from the point of generation
and not from the date of determination. Some sort of indemnification
mechanism must be in place for the generators, recyclers and regulatory
agencies if a "good faith" error is found in the evaluation and program
participation process. This indemnification should cover both the
organizations and the individual employees. [0470, 0488, 0543]

8.	If a petition is adopted, EPA must ensure that such petitions can be
filed with and approved by state approved programs and not retain
jurisdiction for reviewing those petitions. However, EPA must be bound
by such determination and the determination must provide a shield
against EPA enforcement. If EPA later disagrees with the determination,
it may seek to have the state program withdraw the determination on a
prospective basis. Absent such protection the granting of a petition
provides the generator of the material little comfort. [0549]

8.5 - Response

ESTABLISH TIMEFRAME FOR AGENCY DECISIONS: Although we understand
commenters' concern about the length of time an applicant would need to
wait before receiving a formal determination from their regulatory
authority, requiring non-waste determinations to be made within a
specific time frame would be difficult, as each case varies in
complexity with some requiring more time to review than others.
Furthermore, EPA would be challenged to prescribe one time frame that
would accommodate numerous state regulatory agencies that vary in
staffing and workloads. Therefore, we are not requiring regulators to
issue determinations within a certain period of time.

PUBLIC NOTICE IS INADEQUATE: EPA notes the non-waste determination
process was purposely structured to follow the same procedures as
outlined for solid waste variances in 40 CFR 260.33 in order to leverage
the existing structure and keep additional burden on the states to a
minimum. EPA, furthermore, believes that any changes to the type of
format required for public notice would be more appropriately handled as
part of a separate, wholesale effort to update all public notice
requirements in the federal hazardous waste regulations. Therefore, for
the final rule, EPA is retaining the same public notice provisions as
currently required in 40 CFR 260.33.

Furthermore, we note that the non-waste determination process is a
formalization of determinations that states may already perform. Thus,
we believe the non-waste determination process constitutes an
improvement in regards to public notice, because under many informal
state processes, states sometimes grant such determinations in private
letters without any opportunity for public comment.

We also note that non-waste determinations are granted on a case-by-case
basis and thus we consider the affects of the determination to be
relatively local and case-specific. We also note that that regulatory
authorities, if they so choose, may stipulate conditions within the
non-waste determination as appropriate and relevant on a case-by-case
basis.

REQUIRE RENEWAL OF PETITION IF CIRCUMSTANCES CHANGE: EPA agrees with
those commenters who believe that certain changes in the recycling
process should logically trigger a re-review of the circumstances.
Therefore, in the event of a change that affects how hazardous secondary
materials meet one or more of the criteria upon which a non-waste
determination has been based, EPA is requiring persons to re-apply to
the Administrator or the authorized state for a formal determination
that the hazardous secondary material continues to meet the relevant
criteria and is not discarded and, therefore, not a solid waste.

EPA believes that specifying particular conditions, such as quarterly
testing of the material, is not warranted across the board for all
hazardous secondary materials receiving non-waste determinations because
persons are, instead, required to make specific demonstrations as to how
the hazardous secondary materials meet the eligibility criteria.
Applicants should include demonstrations that the recycling meets the
criteria as appropriate to the specific case in their applications.
Furthermore, regulatory authorities, if they so choose, may stipulate
conditions within the non-waste determination as appropriate and
relevant on a case-by-case basis. One purpose of the non-waste
determination is to provide a measure of flexibility not provided by the
self-implementing solid waste exclusions and specifying the conditions
to be imposed would defeat this purpose.

ADDITIONAL COMMENTS: We provide the following responses to the comments
above:

1.	Under section 3006 of RCRA, EPA authorizes qualified states to
administer the RCRA Subtitle C hazardous waste program within the state.
Authorized states that adopt the non-waste determination process are
therefore primary administrators of non-waste determinations within
their state.

2.	EPA is open to considering development of a guidance document.

3.	Authorized states that adopt the non-waste determination process may
grant non-waste determinations without EPA review; however, because the
non-waste determination process is a formalization of determinations
that states may already perform, states that have not formally adopted
this non-waste determination process may participate if the following
conditions are met: (1) the state determines that the hazardous
secondary material meets the criteria in either paragraph (b) or (c) of
40 CFR 260.34; (2) the state requests EPA to review its determination;
and (3) EPA approves the state determination. In addition, of course,
states may continue to make regulatory determinations under their
authorized state regulations, as they do now. In addition, EPA would not
process petitions from facilities in states authorized to implement
these provisions.

4.	EPA notes the non-waste determination process was purposely
structured to follow the same procedures as outlined for solid waste
variances in 40 CFR 260.33 in order to leverage the existing structure
and keep additional burden on the states to a minimum. EPA, furthermore,
believes that any changes to this procedure would be appropriately
handled as part of a separate rulemaking effort. We also note that EPA
is open to considering development of a guidance document.

5.	We note that the regulated community would bear the financial
responsibility for preparing an application that demonstrates how their
hazardous secondary materials meet the relevant criteria for a non-waste
determination. We also anticipate that the vast majority of persons will
choose to use the self-implementing exclusions where applicable because
this would be less resource intensive for the facility. In fact, the
Agency does not envision any person submitting such an application if
they are considered "under the control of the generator" because there
are relatively few restrictions for this exclusion, and, indeed, it
would probably require less effort than seeking a non-waste
determination. In addition, the scope of activities to which the
non-waste determination process would potentially be applicable is
limited to situations which are do not constitute discard; we do not
have any evidence to suggest that there are a large number of scenarios
that would fit within the scope. Thus, the Agency only expects a limited
number of persons to submit applications where a formal non-waste
determination may be appropriate. Additionally, considering that the
non-waste determination process is a formalization of determinations
that states may already perform, we do not believe that states require
additional resources from EPA. Lastly, states may impose fees for
certain program implementation activities, if the state has the
authority to do so.

6.	We are not requiring a certification for non-waste determinations
because, as noted previously, the non-waste determination process was
purposely structured to follow the same procedures as outlined for solid
waste variances in 40 CFR 260.33 in order to leverage the existing
structure and keep additional burden on the states to a minimum. EPA,
furthermore, believes that any changes to this procedure would be
appropriately handled as part of a separate rulemaking effort.

7.	If the information in the application is found to be incomplete or
inaccurate and, as a result, the hazardous secondary material does not
meet the criteria for a non-waste determination, then the material may
be considered a solid waste from the point of generation subject to the
RCRA Subtitle C requirements and EPA or the authorized state could
choose to bring an enforcement action under RCRA section 3008(a).
Moreover, if the person submitting the non-waste determination is found
to have knowingly submitted false information, then he also may be
subject to criminal penalties under RCRA section 3008(d). EPA is not
including an indemnification mechanism due to the complexity of such a
provision. In addition, EPA does not believe indemnification is
necessary.

8.	Under section 3006 of RCRA, EPA may authorize qualified states to
administer the RCRA Subtitle C hazardous waste program within the state.
Authorized states that adopt the non-waste determination process are
therefore primary administrators of non-waste determinations within
their state. In addition, EPA would not process petitions from
facilities in states authorized to implement these provisions.

9 - General comments on changes to legitimacy

9 - Summary

(1) Commenters expressed general support for the legitimacy requirements
in the proposed rules. One requested that no changes be made to the
proposed rulemaking. They state that the legitimacy factors in the rule
closely mirror the Reusable Industrial Packaging Association Code of
Operating Practice they have developed for their members. One commenter
stated that limiting the definition of solid waste exclusion in the 2003
proposal to activities that are legitimate can help ensure that the
excluded recycled materials are managed in a way that minimizes the risk
of environmental harm. One commenter stated that transparent and
predictable legitimacy determinations would allow broader application
among the recycling industries and facilitate greater public and
regulatory acceptance of recycling. (170, 172, 178, 211, 513)

One commenter expressed support for the Agency to supersede the
legitimacy guidance with more specific conditional exclusions for
specific waste streams, such as zinc fertilizers from K061 and
recommended that EPA adopt this approach for all hazardous spent
materials, listed byproducts and sludges that are the subject of the
rule. (119)

One commenter stated that the legitimacy requirements should be
strengthened. (159)

(2) Commenters suggested general changes or clarifications to the
legitimacy requirements in the two proposed rules. One commenter argued
that EPA should consider the material and the recycling processes in
legitimacy determinations and must promulgate regulations that clarify
which processes under 40 CFR 261.6(c)(1) are legitimate processes and
which are not. Commenters stated that the legitimacy factors should have
more specific definitions for its terms, not vague factors. One
commenter stated that determinations should be approved by an
implementing agency. One commenter stated that sham recyclers will
operate in any market where money can be made. One commenter expressed
concern about it being the responsibility of a regulated entity to
ensure, if requested, that recycling is legitimate, because they think
that self-implementing regulations will not work and gamesmanship will
occur. (76, 103, 119, 130, 146, 475, 564)

(3) Another commenter expressed concern that the burden of determining
whether a recycling process is legitimate is placed on the generator
even though there is no way for the generator to know if the state, EPA,
or tribes would agree with the determination or if other states in which
the generator does business would agree. They suggested that this would
lead to less recycling and to prevent that, EPA should develop a process
whereby a generator can submit a request for a legitimacy determination
to a single source and that determination would be binding on other
regions, states, and tribes. (124, 127)

One commenter argued that a process should be developed to accommodate
recycling that is not an exact fit to the legitimacy requirements but is
still legitimate. An example is an environmental evaluation and
justification made by the recycler that is sent to EPA for processing
and approval in a reasonable timeframe. (172)

(4) Two commenters expressed general opposition to the legitimacy
factors in the proposed rules. One of these opposed the inclusion of
legitimacy in the rule, stating that EPA has engaged in “regulatory
creep” and has transformed its “sham recycling” policy into
something broader since 1985. The commenter argued that EPA's legal
authority to assert and enforce sham or legitimacy criteria only exists
in the language of the existing recycling exclusions and that codifying
the legitimacy criteria would for the first time provide an enforceable
legal basis for regulators to “trump” applicable recycling
exclusions with the case-by-case application of the legitimacy factors.
They argued also that this would lead to expansion of regulatory
uncertainty for the regulated community. (123)

Another commenter added that the legitimacy requirements in the proposed
rule add a “confounding burden” and that EPA should adopt the
proposed exclusion for on-site reclamation without these requirements.
(537)

One commenter stated that legitimate recycling should not be the focus
of the 2003 proposed rulemaking discussing the definition of solid waste
exclusions because a lot of waste treatment operations have been
involved in legitimate recycling and have caused extensive
contamination. The commenter added that EPA should clarify first what it
considers disposed or abandoned and then identify which recycling is
legitimate. (186)

(5) One commenter stated that regardless of the cost of treatment versus
the value of recovery, recycling activities resulting in products that
are not substantially degraded by the addition of Universal Treatment
Standards constituents and that do not result in the land application or
disposal of those constituents at higher levels should be regulated as
recycling. (484)

9 - Response

(1) EPA agrees with commenters supporting the legitimacy requirements
essentially as proposed. Although some changes were made to the 2003
proposal in the 2007 supplemental proposal in making two of the factors
mandatory, EPA kept many of the details of the individual factors the
same as they were when proposed. EPA believes that the finalized
legitimacy factors will assist the regulatory community in knowing
whether they are subject to the RCRA Subtitle C waste management
requirements or the recycling requirements and/or recycling exclusions
and will help implementing agencies with their compliance assistance and
enforcement responsibilities. EPA also agrees with the commenter that
codifying the legitimacy factors will result in more predictable and
transparent legitimacy determinations, which will, in turn, engender
greater acceptance and support for hazardous secondary material
recycling.

(2) In response to the commenters’ request to clarify which processes
under 40 CFR 261.6(c)(1) are legitimate and which are not, EPA responds
that the requirements in 40 CFR 261.6(c)(1) are for owners and operators
that store recyclable materials before they are recycled. To fit under
this provision, the recycling in question must be legitimate recycling.
The existing legitimacy policy, as discussed in preamble statements and
the Lowrance Memo are applicable to this provision and should be used to
make this legitimacy determination.

In response to the request that the legitimacy factors have specific
definitions for terms, EPA recognizes that there is flexibility in its
factors because the terms are not defined quantitatively or with
bright-line cut offs. However, we believe that this is more appropriate
than defining hard and fast tests for legitimacy that may result in
arbitrary legitimacy determinations. EPA has added more explanation and
more examples to the preamble of the final rule to clarify the meaning
of the terms in the factors.

In response to the concern that the legitimacy factors are
self-implementing, EPA notes that  under the policy, legitimacy has long
been the responsibility of the entity claiming the recycling exclusion
and EPA does not think it is practicable or necessary for recyclers to
seek legitimacy determinations from their implementing agency in every
case. The requirement that the recycler be able to demonstrate that
their recycling is legitimate is consistent with the existing
requirement at 40 CFR 261.2(f) that is currently applicable and EPA
believes that this self-implementing approach is most appropriate for
legitimacy determinations.

(3) In response to the request that there be a process in place for a
generator to request a determination from the implementing agency on the
legitimacy of its process, EPA reiterates that it expects the legitimacy
factors to work in much the same way that the existing policy currently
works. If a generator is unsure of the legitimacy of its particular
process, it can submit a request to its regulating entity with the
details of its materials and process for assistance in making a
legitimacy determination in the same way as it would have under the
legitimacy guidance. Because each state implementing RCRA can be more
stringent than the federal regulations, it is not appropriate for EPA to
mandate that one state, Region, or tribe's legitimacy determination must
be applicable in another area.

(4) To reduce confusion among the regulated community and implementing
states about the status of recycling under existing exclusions, EPA has
not codified the legitimacy provisions for all recycling in this final
rule. However, EPA does not agree with commenters that it has engaged in
“regulatory creep” with the legitimacy requirements since 1985. EPA
believes that the legitimacy provisions codified in this rule are
equivalent to the policy in the Lowrance Memo and in Federal Registers
that discuss legitimacy. EPA stresses, however, that the existing
legitimacy concept applies to all recycling and we expect that states
and implementing agencies will use it as they have in the past to ensure
that recycling is real and not sham.

(5) EPA does not agree with the comment that the determining factor for
what is recycling should be that the recycling activity results in
products that are not substantially degraded by the addition of
Universal Treatment Standards constituents and do not result in the land
application or disposal of those constituents at higher levels. EPA
believes that legitimate recycling at a minimum would meet the two
mandatory factors in the final rule. First, the hazardous secondary
material must provide a useful contribution either to the process or the
final product of the recycling—if this is not the case the material is
simply being run through the recycling process to avoid disposal.
Second, the product of the recycling process must be valuable. Simply
not having UTS constituents is not enough to assure that the recycling
is legitimate because if the product is not valuable, then the recycling
is being done just to provide a way to get rid of the hazardous
secondary materials.

9.1 - Change in structure for legitimacy

9.1.1 - The 2007 proposed structure for legitimacy is appropriate

9.1.1 - Summary

The vast majority of commenters agreed that the two factors proposed to
be mandatory (useful contribution and valuable product) are critical
indicators of legitimacy and as such, should be included in the
definition of legitimacy (452, 457, 460, 463, 467, 471.2). Some
commenters also discussed their reasoning for supporting the new
structure, with the two fundamental factors mandatory and the other two
factors (managed as a valuable commodity and no significant hazardous
constituents) to be considered (471.2, 478, 529). More than one
commenter noted that they did not object to the proposed “two plus
two” reorganization of the legitimacy criteria (472, 486) or preferred
it over an approach where all four factors were mandatory (481). Several
commenters noted that while they would prefer that legitimacy factors
remain as guidance, to the extent that the Agency codifies the criteria,
they agreed that only the useful contribution and valuable product
factors should be made mandatory (472, 481, 534). Two commenters stated
that the legitimacy factors EPA is proposing to codify are generally
fair and appropriate, and their application should in most cases be
sufficient by themselves to define discard (or its absence) in the
context of recycling. These commenters also agreed that only the first
two factors should be mandatory and that the third and fourth factors
are usually, but not always, relevant to the discard inquiry. These
commenters summarized their position by stating “On the whole, the
four factors and their structure are reasonably objective, but allow for
necessary flexibility in legitimacy determinations (473, 492).

One commenter specifically mentioned that they did not anticipate any
conflict between the generic legitimacy criteria and the more specific
regulatory provisions for their particular recycling practices (138).

The U.S. Chamber of Commerce noted that they approved of the new
structure, stating that codification of the criteria for distinguishing
legitimate recycling would provide consistency and predictability in
applying the exclusions while also preserving EPA's ability to evaluate
special circumstances on a case-by-case basis. They felt it was
especially important for the exclusions to be applied as consistently as
possible without being so rigid as to effectively bar future recycling
technologies (510).

9.1.1 - Response

The Agency agrees with the commenters who voiced their support for the
proposed structure of legitimacy, with the first part consisting of two
factors that must be met: (1) a requirement that hazardous secondary
materials being recycled provide a useful contribution to the recycling
process or to the product of the recycling process and (2) a requirement
that the product or intermediate of the recycling process be valuable
and the second part consisting of two factors that must be considered:
(1) whether the hazardous secondary materials are managed as a valuable
commodity and (2) whether the product of the recycling process contains
significant concentrations of hazardous constituents. Therefore, we are
finalizing this structure in the final legitimacy provision at 40 CFR
260.43. We have determined that the two factors that must be met are
crucial to evaluating legitimate recycling and are at the very core of
what it means to recycle legitimately. EPA also believes the other two
factors are still very important in making legitimacy determinations but
realizes that there are a small number of situations where one or both
of these factors may not be met and the recycling is still legitimate.
In cases where one or both of these factors are not met, the person
demonstrating the legitimacy should be prepared to explain why their
recycling activity is nevertheless legitimate. We have noted that the
generator or recycler may be requested to demonstrate the legitimacy of
its recycling process and explain why one or both of these factors do
not apply to their specific situation.

9.1.2 - The 2007 proposed structure for legitimacy is not appropriate

9.1.2 – Summary

A number of commenters expressed their support for legitimacy (or
certain legitimacy factors) but argued that it should only be applied to
the new exclusions being promulgated. These commenters did not believe
legitimacy (or specific legitimacy factors) should apply to the existing
definition of solid waste exclusions (74, 93, 115, 446, 473, 481, 486,
492, 506). Several commenters expressed the opinion that it is improper
to impose an evaluation of legitimacy on materials that the Agency has
already determined through industry or waste-specific rulemakings are
not solid wastes (449, 528, 537). One commenter stated that it believes
it is improper for three reasons: (1) the Agency did not provide
sufficient notice in its 2007 supplemental proposal to allow for
meaningful comment on this issue, (2) as applied to prior
determinations, the Agency did not provide “fair notice” mandated by
the due process clause, and (3) it is inconsistent with the deregulatory
nature of the 2007 supplemental proposal (528). Another commenter
specifically stated that it believes EPA has already made a legitimacy
determination for recycled wood preservative solutions and wastewater
(449). One commenter found the proposed adoption of the legitimacy
requirements to be the most troubling aspect of the proposed rule, in
part because they felt it is impermissibly narrowing the scope of all
recycling exclusions. This commenter believes the legitimacy
requirements are designed to create a new system that regulators could
use to trump all recycling exclusions as necessary to regulate or
preclude any recycling activity they don't approve of (537).

One commenter stated their opinion that EPA is greatly complicating a
matter that is not that complicated by adding a definition of legitimate
recycling. This commenter believes that legitimate recycling is already
clearly defined by the parenthetical in 40 CFR 261.3(c)(2)(I):
“(However, materials that are reclaimed from solid wastes and that are
used beneficially are not solid wastes and hence are not hazardous
wastes...).” This commenter believes that the variance system exists
to address materials that legitimately should be excluded because they
are reclaimed and that the Agency should promote that instead of adding
the legitimacy criteria to the regulations (479). Another commenter
stated that they did not see the need to address the legitimacy criteria
generically and believe that EPA should address any concerns with the
existing legitimacy criteria through more targeted approaches, e.g., by
examining in-depth waste-specific and industry-specific recycling
practices and addressing the legitimacy of these practices in specific
terms (481).