For wastes with no form codes and not reporting source codes G01 through G06, G24, G26, or G61 or RCRA waste codes listed in Exhibit 3H or item 8 below include RCRA waste codes:
* D004 arsenic
                                    11,472
8.  Materials unlikely to be economically recovered off site***
For wastes not reporting source code G61 include:
* W103 spent concentrated acid >5%
* W110 caustic aqueous waste without cyanides
For wastes with no form code include source codes:
* G02 stripping & acid or caustic cleaning
* G05 metal forming
For wastes with no form codes and not reporting source codes G01 through G06, G24, G26, or G61 include RCRA waste codes:
* K031, K043, K097, K099, K123, K124, K125, K126, K131, K132 pesticide mfg wastewaters, sludges, absorbents, solids
* K062 iron & steel spent pickle liquor
                                   2,879,521
9. Mixture of RCRA Waste Codes

Wastes that have multiple RCRA waste codes reported and the fall under more than one of the first seven categories.
                                      42
                                                                 Column total =
                                   4,639,023
Percentage of 2007 National Biennial RCRA Hazardous Waste Report total hazardous waste generation (46.693 million tons, Exhibit 1.3) =
                                     -10%
Notes:
Some materials identified in this exhibit may contain potential beneficial re-use market value (e.g., construction fill, soil amendments, cement additives) which is not covered under the DSW final rule exclusions, and therefore not included in this RIA for evaluation of potential switchover from baseline disposal to future recycling.
* Or which may be managed as excluded materials under other RCRA exemptions (e.g., as "universal wastes").
** As determined by comparison with the physical/chemical types or constituents of RCRA hazardous wastes currently being recovered/ recycled according to H010, H020, or H039 management method codes in the 2007 Biennial Report.
*** Note that these data were initially pulled from the 2007 BR under Commodity Group #3 in Exhibit 3R.  Upon review of W103 spent concentrated acids > 5%, G02 stripping and acid or caustic cleaning, and G05 metal forming and treatment waste streams nearly all the waste is not suitable for switchover to off-site other recovery.  Much of the waste are dilute acid wastes that are disposed in on-site wastewater treatment systems followed by POTW/sewer or NPDES discharge or disposed by Class I UIC permitted deep-well injection.  These disposal methods are less expensive compared to offsite recovery, therefore it should be more costly to ship these wastes offsite for other recovery.  It is beyond the time and resource constraints of this RIA to individually carry these records through the analysis.  A small quantity (< 1,000 tons) of spent pickle liquor (K062) was identified.  The quantity is too small to carry forward through the analysis.

Sensitivity Analysis #6:	Expected Accuracy of Impact Estimates

This RIA is based on a semi-detailed cost data designed to provide semi-detailed estimates rather than exact engineering cost and benefit estimates for each of the 622 different industries consisting of about 9,100 of facilities which are generating and managing 10,000s of individual waste streams which may be affected by the proposed revisions to the DSW and other RCRA industrial recycling exclusions.  For purpose of classifying relative degrees of estimation accuracy, the Association for the Advancement of Cost Engineering (AACE) defines five generic classes of cost estimation accuracy for application in engineering, procurement, and industry.  AACE defined these classes in relation to ANSI standards Z94.0 and Z94.2.  In the context of this RIA, the purpose of estimation accuracy classification is to indicate the relative degree to which the "ex-post" (i.e., post-rule) actual economic impacts for the DSW rule may vary from the "ex-ante" (i.e., pre-rule) impacts estimated in this RIA.  The AACE classification scheme expresses five levels of estimation accuracy according to a +/- percentage range around the point estimate.  The five accuracy classes are formulated to reflect varying, relative degrees of:

   * Project definition, design, and planning maturity level (e.g., <2% vs. >50% complete),
   * End usage purpose of cost estimates (e.g., initial concept screening vs. contract bid),
   * Type of estimation methodology (e.g., judgment vs. detailed unit costs), and
   * Estimate preparation level-of-effort (e.g., <200 hours vs. >1,000 hours to prepare).

The five accuracy classifications range from -50% :to:+100% for Class 5 "order-of-magnitude" type estimates, to -10% to +15% Class 1 "definitive estimates".  Basically, as the level-of-detail and level-of-effort given to a cost (or cost savings) estimate increases, the expected accuracy of the estimate tends to improve, as indicated by a tighter +/- accuracy range assigned to it according to the accuracy classification scheme.  The impact estimates of this RIA may be classified as a "Class 3" semi-detailed type of estimate with expected accuracy range of -20% to +30%, because this RIA includes semi-detailed unit costs, but which are less than the thousands of highly detailed unit costs and other details that typify a "Class 2" type estimate with -15% to +20% expected accuracy range.
                                   Chapter 7
                             Supplemental Analyses

This chapter addresses the special analytic topics, evaluative criteria, supporting data, and analytic results, associated with the Federal regulatory agency evaluations required under four White House Executive Orders and two Congressional laws, spanning 1980 to 2011:

      7A.	Regulatory Planning and Review			(1993 Executive Order 12866)
      7B.	Impact Analysis					(1980 RFA/1996 SBREFA)
      7C.	Unfunded Mandates Analysis				(1995 UMRA)
      7D.	Federalism Implications				(1999 Executive Order 13132)
      7E.	Energy Impact Analysis				(2001 Executive Order 13211)
      7F.	Improving Regulation & Regulatory Review		(2011 Executive Order 13563)

Note: This chapter does not address or present supporting data or analytic results for three other Federal regulatory agency evaluations required by the following White House Executive Orders (EOs):
      (1) 1994 EO-12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.
      (2) 1997 EO-13045: Protection of Children from Environmental Health Risk & Safety Risks.
      (3) 1998 EO-13084 Consultation & Coordination with Indian Tribal Governments.
EPA's supporting data and analyses addressing these three Executive Orders are presented in EPA's environmental justice (EJ) analysis document in support of the 2011 DSW proposed revisions.  See EPA's 2011 Federal Register notice for the DSW proposed revisions for information about these other analyses and the EJ reference document.

7A.	Regulatory Planning and Review (1993 Executive Order 12866)

Executive Order 12866, as amended by Executive Order 13258, requires EPA to determine whether a regulatory action is "significant" and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. As defined in Executive Order 12866, a "significant regulatory action" is any regulatory action that is likely to result in a rule that may:

   1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
   2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
   3. Materially alter budgetary impacts of entitlements, grants, user fees, loan programs or the rights and obligations of recipients thereof; or
   4. Raise novel legal or policy issues arising out of legal mandates, President's priorities, or principles set forth in the Executive Order.

Based on the cost estimates presented in this RIA, this RIA concludes that the 2011 proposed revisions to the DSW recycling exclusions do not constitute an "economically significant" regulatory action, as defined under the first factor listed above (i.e., the $100 million annual effect threshold), because the proposed revisions are not expected to have an annual effect on the economy of $100 million or more.  The industry compliance costs estimated in this RIA show that the future average annualized costs are expected to total between (2011$ @7% discount rate):

      * 13% base case adoption scenario:		$7.2 million and $13.1 million per year
      * 74% upper-bound adoption scenario:	$7.4 million and $47.5 million per year

Even at a 0% discount rate and the 74% upper-bound scenario, annual costs are between $11.5 million and $67.7 million per year.

7B.	Small Business Impact Analysis (1980 RFA/1996 SBREFA)

According to the requirements of the 1980 Regulatory Flexibility Act (RFA) as amended by the 1996 Small Business Regulatory Enforcement Fairness Act (SBREFA), Federal regulatory agencies are required to make initial determinations if proposed regulatory actions may have a "significant economic impact on a substantial number of small entities" (SISNOSE).  Small entities include small businesses, small organizations, and small governmental jurisdictions. Agencies are required to conduct a Regulatory Flexibility Screening Analysis (RFSA) to make this determination.  This section presents the methodology and findings for the RFSA conducted for the proposed rule.  Unless Agencies are able to certify that a particular regulatory action is not expected to have a SISNOSE, the RFA/SBREFA requires a formal analysis of the potential adverse economic impacts on small entities, completion of a Small Business Advocacy Review Panel (proposed rule stage), preparation of a Small Entity Compliance Guide (final rule stage), and Agency review of the rule within 10 years of promulgation.  The small business impact analysis of this RIA follows the four analytic steps described in EPA's November 2006 RFA/SBREFA compliance final guidance:

      Step 1: Determine which small entities are subject to the rule's requirements.
      Step 2: Select appropriate measures for determining economic impacts on these small entities and estimate those impacts.
      Step 3: Determine whether the rule may be certified as not having a significant impact on small entities (SISNOSE).
      Step 4: Document the screening analysis and include the appropriate RFA statements in the preamble.
      Step 1: Identification of Small Entities

Based on the baseline and impact analyses presented in EPA's RIA for the 2008 DSW final rule, the 2011 proposed rule revisions to the DSW could potentially affect 5,321 facilities currently (as of 2007) operating under pre-2008 RCRA recycling exclusions plus between 662 and 3,671 facilities currently recycling or disposing hazardous waste regulated which could eventually operate under the 2008 DSW recycling exclusions.  This range of 5,983 to 8,992 potentially affected facilities is in a wide range of industries up to 622 industries (as listed in Appendix A).  For purposes of this RFA/SBREFA analysis only 27 NAICS industries with the largest number of facilities potentially affected were evaluated.  This RIA identified the 27 industries by first looking at the count of facilities by 6-digit NAICS for the current population of facilities recovering hazardous secondary materials based on the 2005 Biennial Report data from the 2008 DSW RIA.  This data analysis was a further refinement of the facility counts presented in Exhibit 3E by six-digit NAICS.  This list of industries was then expanded to capture the largest industries in the list of affected pre-2008 DSW exclusion facilities (from Exhibit 3J) identified in the 2007 TRI database.  This data analysis was a further refinement of the facility counts presented by six-digit NAICS.   Exhibit 7A presents small business size standards for the 27 major industries expected to be affected by the rule.

                                  Exhibit 7A
Small Business Size Standards for 27 Major Industries Potentially Affected by the 2011 DSW Proposed Revisions
                                     Item
                                     NAICS
                             Industry Description
                     2007 Count of Companies in Industry*
                   2007 Count of Establishments in Industry*
           SBA small business size standards in number of employees
                             or annual revenues**
                                       1
                                    323110
Commercial Lithographic Printing
                                    12,614
                                    13,239
                                      500
                                       2
                                    324110
Petroleum Refineries
                                      98
                                      195
                                     1,500
                                       3
                                    325188
All Other Basic Inorganic Chemical Mfg
                                      396
                                      632
                                     1,000
                                       4
                                    325199
All Other Basic Organic Chemical Mfg
                                      540
                                      696
                                     1,000
                                       5
                                    325211
Plastics Material and Resin Manufacturing
                                      803
                                     1,062
                                      750
                                       6
                                    325412
Pharmaceutical Preparation Manufacturing
                                      763
                                      991
                                      750
                                       7
                                    325510
Paint and Coating Manufacturing
                                     1,132
                                     1,370
                                      500
                                       8
                                    325998
All Other Miscellaneous Chemical Product and Preparation Mfg
                                     1,087
                                     1,261
                                      500
                                       9
                                    326199
All Other Plastics Product Manufacturing
                                     6,272
                                     7,311
                                      500
                                      10
                                    331111
Iron and Steel Mills
                                      235
                                      352
                                     1,000
                                      11
                                    331492
Secondary Smelting, Refining & Alloying of Nonferrous Metal (except Copper, Aluminum)
                                      205
                                      233
                                      750
                                      12
                                    332312
Fabricated Structural Metal Manufacturing
                                   <3,698
                                     3,698
                                      500
                                      13
                                    332812
Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers
                                     2,370
                                     2,579
                                      500
                                      14
                                    332813
Electroplating, Plating, Polishing, Anodizing and Coloring
                                     2,622
                                     2,731
                                      500
                                      15
                                    332999
All Other Miscellaneous Fabricated Metal Product Mfg
                                     3,567
                                     3,636
                                      500
                                      16
                                    333415
Air Conditioning, Warm Air Heating Equipment, and Commercial & Industrial Refrigerator Equipment Manufacturing
                                    <902
                                      902
                                      750
                                      17
                                    334412
Bare Printed Circuit Board Manufacturing
                                      681
                                      716
                                      500
                                      18
                                    334413
Semiconductor and Related Device Manufacturing
                                      871
                                      972
                                      500
                                      19
                                    334418
Printed Circuit Assembly Manufacturing
                                   <1,021
                                     1,021
                                      500
                                      20
                                    336399
All Other Motor Vehicle Parts Manufacturing
                                     1,315
                                     1,555
                                      750
                                      21
                                    336412
Bare Printed Circuit Board Manufacturing
                                      333
                                      440
                                      500
                                      22
                                    336413
Other Aircraft Part and Auxiliary Equipment Mfg
                                      770
                                      890
                                     1,000
                                      23
                                    541710
Research & Development in Physical, Engineering, Life Sciences
                                    11,382
                                    14,457
                                      750
                                      24
                                    562211
Hazardous Waste Treatment and Disposal
                                    <751
                                      751
                                 $12.5 million
                                      25
                                    611310
Colleges, Universities and Professional Schools
                                     2,419
                                      NA
                                  $7 million
                                      26
                                    622110
General Medical and Surgical Hospitals
                                   <5,159
                                     5,159
                                 $34.5 million
                                      27
                                    928110
National Security
                                    No data
                                    No data
                                    No data
Notes:
* The number of companies and establishments are the totals reported in the 2007 Census of Manufacturers.  Only a subset of these companies and establishments should be affected by the 2011 DSW proposed rule if promulgated.
** Source:  US Small Business Administration.  Table of Small Business Size Standards Matched to North American Industry Classification System Codes.  Effective November 5, 2010.

Any business, small or large, has the option of choosing to be subject to the regulation.  Any business that chooses to be subject to the proposed rule would have to abide by the requirements of the rule.  Accordingly, the business would be required to meet specific requirements of the rule, as described in previous chapters of this RIA.

Two assumptions are used to estimate the number of businesses which may voluntarily choose to be subject to the 2011 DSW revisions, providing a "base case" and an alternative "upper bound" scenario, defined as follows:

   * Base case adoption scenario: The number of businesses choosing to be subject to the rule (aka "notifiers") is assumed to be equal to the number of average annual notifiers under the 2008 DSW final rule.  This is equivalent to a total of 21 businesses per year, for a total number of businesses of 1,176 adopting the DSW recycling exclusion revisions through year 2064.
   * Upper-bound adoption scenario: The upper bound estimate is based on assuming that all of the 44 states will adopt the 2011 DSW proposed rule within a four-year period beginning in 2015, at a rate of 25% of the 44 states adopting in each of the four years following 2014.  By the end of those four years all facilities in those 44 states will notify under the DSW recycling exclusions, for an ultimate total of 3,781 businesses adopting the DSW recycling exclusion revisions through year 2064.

The numbers of small businesses that are expected to notify under both the "base case" and "upper bound" adoption scenarios, are estimated based on an analysis of actual notifiers under the 2008 DSW final rule, as presented in Appendix D of this RIA.  Of the 37 industrial facilities which had notified under the 2008 DSW recycling exclusions final rule during the notification data period analyzed, a total of five of the 31 facilities are owned by small businesses, which is 14% of all notifiers (i.e., 5/37 = 14%).  Thus, for those facilities adopting the 2011 proposed revisions to the DSW recycling exclusions, 14% are assumed in this RIA to be small businesses.

      Step 2: Select appropriate measures for determining economic impacts on these small entities and estimate those impacts

According to Exhibit 5G of EPA's 2006 RFA/SBREFA small business impact guidance, there are three numerical tests that EPA may use to determine if small entities may be significantly impacted by a proposed rule:

         * Sales test:		Annualized compliance costs as a percentage of sales
         * Cash flow test:		Debt-financed capital compliance costs relative to current cash flow
         * Profit test:		Annualized compliance costs as a percentage of profits

For purposes of this RIA, the sales test method was used to determine if small entities may be significantly impacted by the proposed rule.

      Step 3 & Step 4: Determine and document whether the proposed rule may be certified as having "No SISNOSE"

This RIA determined whether each regulatory option may have a "significant impact on a substantial number of small entities" (i.e., SISNOSE) which may choose to be subject to the requirements of the proposed rule.  This determination involved comparing the average estimated regulatory compliance costs for each entity in each industry with the respective annual revenues for each entity.  The percentage results calculated for each small entity were compared to the three impact thresholds defined in Table 2 of EPA's November 2006 RFA/SBREFA guidance as reproduced in Exhibit 7B below, regarding the appropriate SISNOSE determination category.

                                  Exhibit 7B
Reproduction of Table 2 "Example SISNOSE Certification Decision Process" from
                   EPA's November 2006 RFA/SBREFA Guidance
                               Impact Threshold
Number of Small Entities Subject to the Rule and Experiencing Given Economic Impact
Percent of All Small Entities Subject to the Rule That are Experiencing Given Economic Impact
                        SISNOSE Determination Category
Less than 1% for all affected small entities
Any number
Any percent
Presumed No SISNOSE
1% or greater for one or more affected small entities
Fewer than 100
Less than 20%
Presumed No SISNOSE

Fewer than 100
20% or more
Uncertain -No Presumption

100-999
Less than 20%
Presumed No SISNOSE

100-999
20% or more
Uncertain -No Presumption

1,000 or more
Any percent
Uncertain -No Presumption
3% or greater for one or more affected small entities
Fewer than 100
Less than 20%
Presumed No SISNOSE

Fewer than 100
20% or more
Uncertain -No Presumption

100-999
Less than 20%
Uncertain -No Presumption

100-999
20% or more
Presumed Ineligible for Certification

1,000 or more
Any percent
Presumed Ineligible for Certification

The estimated impacts on small entities are presented below in Exhibits 7C (13% base case adoption scenario) and 7D (74% upper bound adoption scenario).  As shown in the Exhibits, the average annual impact on small businesses is estimated to be significantly less than 1% of annual sales for all small entities.  The highest impact as a percentage of sales is estimated at 0.41% of annual sales.  The total number of small businesses impacted at this level is estimated at 21 small entities under the 13% base-case adoption scenario, and 30 small entities under the 74% adoption scenario, which represents 2.3% to 2.4%, respectively, of the 910 (13% scenario) to 1,274 (74% scenario) small entities which could be impacted by the proposed revisions to the 2008 and pre-2008 recycling exclusions.  Based on this analysis, this RIA concludes that the 2011 proposed revisions to the DSW recycling exclusions are not expected to have a "significant economic impact on a substantial number of small entities" (i.e., "No SISNOSE" determination).

   Limitations of RFA/SBREFA Determination

The assumption of this RIA that 14% of recycling exclusion notifiers will be small businesses was based on data from actual notifiers under the 2008 DSW rule in the 2.3 years of its effective period to date (i.e., December 2008 to April 2011), and may not be representative of future notifiers, nor of facilities operating under pre-2008 RCRA industrial recycling exclusions.

This RIA did not evaluate annual revenue data specific to small businesses.  Instead, this RIA developed a proxy for annual revenues based on establishment data from the Census of Manufacturers.  For example if the small business size standard was 1,000 employees, the average value of shipments for those facilities with 10-500 employees was used as a proxy for small business revenues.  This value may not be an accurate representation of actual notifiers under the rule.

This RIA estimates that under the 13% base-case adoption scenario 910 small entities could be affected by today's proposal (if promulgated) out of a total 6,497 affected small plus non-small entities (i.e., 14.0%; from Exhibit 7C), and 1,274 small entities could be affected out of a total 9,102 potentially affected small plus non-small entities (i.e., 14.0%) under the 74% upper-bound adoption scenario (from Exhibit 7D).  These facility counts include facilities currently operating under the pre-2008 DSW recycling exclusions (32 exclusions), plus additional current RCRA hazardous waste recyclers which in the future could potentially operate under the 2008 DSW recycling exclusions (3 exclusions). However, these facility count estimates are based on analyses presented in EPA's RIA involving EPA's Toxic Release Inventory (TRI) database for the pre-2008 exclusions, and EPA's RCRA Hazardous Waste Biennial Report database for potential adoption of the 2008 DSW exclusions, and both databases have limitations which may make these facility count estimates inaccurate.  Specifically, some of the facilities identified using the TRI database may be RCRA conditionally-exempt small quantity generators (CESQGs) which will not be affected by today's proposal (and thus may contribute to over-estimating in the RIA both small and total small plus non-small entities affected under the pre-2008 exclusions), and the BR database does not include comprehensive data on RCRA small quantity generators (SQGs) which may contribute to under-estimating in the RIA both small and total small plus non-small entities.

Small business impacts were only estimated for 27 of the industries that will have the largest number of impacted facilities out of 621 6-digit NAICS code industries (as listed in Appendix A) that may be affected by the pre-2008 and/or 2008 DSW exclusions.  This RIA assumes that these 27 largest impacted industries represent the largest potential impact to small entities for purposes of this RFA/SBREFA impact evaluation.  There may be significant impacts to small businesses in some of the industries that were not evaluated.

                                  Exhibit 7C
Estimated Average Annual Impact of the 2011 DSW Proposed Revisions on Small Businesses
                     (13% base case adoption scenario) 1/
                                       A
                                       B
                                       C
                                       D
                                       E
                                       F
                                       G
                                       H
                                       I
                                       J
                                     Item
                                     NAICS
                                   Industry
              Small Company Average Annual Revenue (2011$/yr) 2/
              Average Annual Cost Impact Per Facility (2011$/yr)
            Annual Cost Impact as Percent of Annual Revenue (%) 3/
              Total Count of Businesses Impacted in Year 2015 4/
              Count of Small Businesses Impacted in Year 2015 5/
              Total Count of Businesses Impacted in Year 2064 6/
              Count of Small Businesses Impacted in Year 2064 7/
                                       1
                                    323110
Commercial Lithographic Printing
                                  $7,655,524
                                    $15,303
                                    0.200%
                                      13
                                       2
                                      24
                                       3
                                       2
                                    324110
Petroleum Refineries
                                $1,441,928,214
                                    $15,303
                                    0.001%
                                      83
                                      12
                                      105
                                      15
                                       3
                                    325188
All Other Basic Inorganic Chemical Manufacturing
                                  $45,983,586
                                    $15,303
                                    0.033%
                                      61
                                       8
                                      72
                                      10
                                       4
                                    325199
All Other Basic Organic Chemical Manufacturing
                                 $111,235,602
                                    $15,303
                                    0.014%
                                      88
                                      12
                                      111
                                      15
                                       5
                                    325211
Plastics Material and Resin Manufacturing
                                  $88,876,271
                                    $15,303
                                    0.017%
                                      87
                                      12
                                      104
                                      15
                                       6
                                    325412
Pharmaceutical Preparation Manufacturing
                                  $88,315,826
                                    $15,303
                                    0.017%
                                      29
                                       4
                                      49
                                       7
                                       7
                                    325510
Paint and Coating Manufacturing
                                  $29,517,080
                                    $15,303
                                    0.052%
                                      120
                                      17
                                      143
                                      20
                                       8
                                    325998
All Other Miscellaneous Chemical Product and Preparation Manufacturing
                                  $26,680,578
                                    $15,303
                                    0.057%
                                      55
                                       8
                                      68
                                      10
                                       9
                                    326199
All Other Plastics Product Manufacturing
                                  $12,424,800
                                    $15,303
                                    0.123%
                                      49
                                       7
                                      58
                                       8
                                      10
                                    331111
Iron and Steel Mills
                                 $136,490,820
                                    $15,303
                                    0.123%
                                      64
                                       9
                                      76
                                      11
                                      11
                                    331492
Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum)
                                  $52,091,967
                                    $15,303
                                    0.029%
                                      41
                                       6
                                      45
                                       6
                                      12
                                    332312
Fabricated Structural Metal Manufacturing
                                  $12,859,681
                                    $15,303
                                    0.119%
                                      86
                                      12
                                      88
                                      12
                                      13
                                    332812
Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers
                                  $11,002,159
                                    $15,303
                                    0.139%
                                      96
                                      13
                                      115
                                      16
                                      14
                                    332813
Electroplating, Plating, Polishing, Anodizing and Coloring
                                  $4,457,248
                                    $15,303
                                    0.343%
                                      178
                                      25
                                      240
                                      34
                                      15
                                    332999
All Other Miscellaneous Fabricated Metal Product Manufacturing
                                  $8,723,677
                                    $15,303
                                    0.175%
                                      101
                                      14
                                      109
                                      15
                                      16
                                    333415
Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing
                                  $21,511,990
                                    $15,303
                                    0.071%
                                      72
                                      10
                                      75
                                      10
                                      17
                                    334412
Bare Printed Circuit Board Manufacturing
                                  $3,714,108
                                    $15,303
                                    0.412%
                                      121
                                      17
                                      148
                                      21
                                      18
                                    334413
Semiconductor and Related Device Manufacturing
                                  $27,339,212
                                    $15,303
                                    0.056%
                                      40
                                       6
                                      55
                                       8
                                      19
                                    334418
Printed Circuit Assembly (Electronic Assembly) Manufacturing
                                  $12,450,771
                                    $15,303
                                    0.123%
                                      143
                                      20
                                      147
                                      21
                                      20
                                    336399
All Other Motor Vehicle Parts Manufacturing
                                  $16,892,517
                                    $15,303
                                    0.091%
                                      102
                                      14
                                      110
                                      15
                                      21
                                    336412
Aircraft Engine and Engine Parts Manufacturing
                                  $27,299,207
                                    $15,303
                                    0.056%
                                      46
                                       6
                                      54
                                       8
                                      22
                                    336413
Other Aircraft Part and Auxiliary Equipment Manufacturing
                                  $23,568,125
                                    $15,303
                                    0.065%
                                      41
                                       6
                                      55
                                       8
                                      23
                                    541710
Research & Development in Physical, Engineering, Life Sciences
                                  $6,249,609
                                    $13,637
                                    0.218%
                                       3
                                       0
                                      25
                                       4
                                      24
                                    562211
Hazardous Waste Treatment and Disposal
                                  $6,534,593
                                    $13,637
                                    0.209%
                                       1
                                       0
                                      10
                                       1
                                      25
                                    611310
Colleges, Universities and Professional Schools
                                  $7,834,683
                                    $13,637
                                    0.174%
                                       4
                                       1
                                      35
                                       5
                                      26
                                    622110
General Medical and Surgical Hospitals
                                      NA
                                    $13,637
                                      NA
                                       2
                                       0
                                      14
                                       2
                                      27
                                    928110
National Security
                                      NA
                                    $13,637
                                      NA
                                       4
                                       1
                                      35
                                       5
                                                           All Other Industries
                                      NA
                                      NA
                                      NA
                                      NA
                                     3,737
                                      523
                                     4325
                                Total Number of Facilities Impacted All Options
                                       -
                                       -
                                       -
                                     5,468
                                      766
                                     6,497
                                      910
1/ The 13% base case adoption scenario is based on the assumption that 21 facilities adopt the 2011 DSW proposed rule each year. By year 2064 a total of 1,176 facilities will have notified under one of the DSW recycling exclusions.  Annual cost impact per facility is discounted by 3% to reflect change in price level from 2015 to 2011.
2/ Small company annual revenue is approximated using the average establishment value of shipments from Census of Manufacturers Data.  For example the number is the average establishment value of shipments for small establishments (e.g., for industries with an SBA small business size standard of 1,000 employees, the number is the average value of shipments for facilities with less than 500 employees).  This estimate is intended to serve as a conservative value of annual revenue for small businesses.  Annual cost impact per facility is discounted by 3% to reflect change in price level from 2015 to 2011.
3/ Column E divided by Column D times 100%.
4/ In the first two years and four months following the 2008 DSW final rule 49 facilities have notified under one of the 2008 DSW recycling exclusions.  This rate of 21 facilities notifying per year is continued up through 2015.  At this rate, by 2015, 147 facilities will notify under one of the DSW recycling exclusions.  See footnote 1 for the years 2015 and later.
5/ Based on industry notifications under the 2008 DSW final rule, approximately 14% of notifiers were small businesses. Calculated as Column G * 0.14.
6/ Total Number of Businesses Impacted in Year 2064 is based on the assumption discussed in footnote 1.
7/ Based on industry notifications under the 2008 DSW final rule where approximately 14% of notifiers were small businesses. Calculated as Column I * 0.14.

                                  Exhibit 7D
Estimated Average Annual Impact of the 2011 DSW Proposed Revisions on Small Businesses
                    (67% upper-bound adoption scenario) 1/
                                       A
                                       B
                                       C
                                       D
                                       E
                                       F
                                       G
                                       H
                                       I
                                       J
                                     Item
                                     NAICS
                                   Industry
              Small Company Average Annual Revenue (2011$/yr) 2/
              Average Annual Cost Impact Per Facility (2011$/yr)
            Annual Cost Impact as Percent of Annual Revenue (%) 3/
              Total Count of Businesses Impacted in Year 2015 4/
              Count of Small Businesses Impacted in Year 2015 5/
       Total Count of Businesses Impacted in Years 2018 through 2064 6/
       Count of Small Businesses Impacted in Years 2018 through 2064 7/
                                       1
                                    323110
Commercial Lithographic Printing
                                  $7,655,524
                                    $15,303
                                    0.200%
                                      23
                                       3
                                      53
                                       7
                                       2
                                    324110
Petroleum Refineries
                                $1,441,928,214
                                    $15,303
                                    0.001%
                                      102
                                      14
                                      161
                                      22
                                       3
                                    325188
All Other Basic Inorganic Chemical Manufacturing
                                  $45,983,586
                                    $15,303
                                    0.033%
                                      70
                                      10
                                      100
                                      14
                                       4
                                    325199
All Other Basic Organic Chemical Manufacturing
                                 $111,235,602
                                    $15,303
                                    0.014%
                                      108
                                      15
                                      168
                                      23
                                       5
                                    325211
Plastics Material and Resin Manufacturing
                                  $88,876,271
                                    $15,303
                                    0.017%
                                      102
                                      14
                                      146
                                      20
                                       6
                                    325412
Pharmaceutical Preparation Manufacturing
                                  $88,315,826
                                    $15,303
                                    0.017%
                                      47
                                       7
                                      101
                                      14
                                       7
                                    325510
Paint and Coating Manufacturing
                                  $29,517,080
                                    $15,303
                                    0.052%
                                      140
                                      20
                                      200
                                      28
                                       8
                                    325998
All Other Miscellaneous Chemical Product and Preparation Manufacturing
                                  $26,680,578
                                    $15,303
                                    0.057%
                                      67
                                       9
                                      103
                                      14
                                       9
                                    326199
All Other Plastics Product Manufacturing
                                  $12,424,800
                                    $15,303
                                    0.123%
                                      57
                                       8
                                      81
                                      11
                                      10
                                    331111
Iron and Steel Mills
                                 $136,490,820
                                    $15,303
                                    0.123%
                                      74
                                      10
                                      107
                                      15
                                      11
                                    331492
Secondary Smelting, Refining, and Alloying of Nonferrous Metal (except Copper and Aluminum)
                                  $52,091,967
                                    $15,303
                                    0.029%
                                      45
                                       6
                                      57
                                       8
                                      12
                                    332312
Fabricated Structural Metal Manufacturing
                                  $12,859,681
                                    $15,303
                                    0.119%
                                      88
                                      12
                                      94
                                      13
                                      13
                                    332812
Metal Coating, Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers
                                  $11,002,159
                                    $15,303
                                    0.139%
                                      113
                                      16
                                      165
                                      23
                                      14
                                    332813
Electroplating, Plating, Polishing, Anodizing and Coloring
                                  $4,457,248
                                    $15,303
                                    0.343%
                                      232
                                      32
                                      396
                                      55
                                      15
                                    332999
All Other Miscellaneous Fabricated Metal Product Manufacturing
                                  $8,723,677
                                    $15,303
                                    0.175%
                                      108
                                      15
                                      130
                                      18
                                      16
                                    333415
Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing
                                  $21,511,990
                                    $15,303
                                    0.071%
                                      74
                                      10
                                      80
                                      11
                                      17
                                    334412
Bare Printed Circuit Board Manufacturing
                                  $3,714,108
                                    $15,303
                                    0.412%
                                      145
                                      20
                                      218
                                      30
                                      18
                                    334413
Semiconductor and Related Device Manufacturing
                                  $27,339,212
                                    $15,303
                                    0.056%
                                      53
                                       7
                                      93
                                      13
                                      19
                                    334418
Printed Circuit Assembly (Electronic Assembly) Manufacturing
                                  $12,450,771
                                    $15,303
                                    0.123%
                                      147
                                      21
                                      159
                                      22
                                      20
                                    336399
All Other Motor Vehicle Parts Manufacturing
                                  $16,892,517
                                    $15,303
                                    0.091%
                                      109
                                      15
                                      129
                                      18
                                      21
                                    336412
Aircraft Engine and Engine Parts Manufacturing
                                  $27,299,207
                                    $15,303
                                    0.056%
                                      53
                                       7
                                      74
                                      10
                                      22
                                    336413
Other Aircraft Part and Auxiliary Equipment Manufacturing
                                  $23,568,125
                                    $15,303
                                    0.065%
                                      53
                                       7
                                      91
                                      13
                                      23
                                    541710
Research and Development in the Physical, Engineering, and Life Sciences
                                  $6,249,609
                                    $13,637
                                    0.218%
                                      22
                                       3
                                      81
                                      11
                                      24
                                    562211
Hazardous Waste Treatment and Disposal
                                  $6,534,593
                                    $13,637
                                    0.209%
                                       9
                                       1
                                      31
                                       4
                                      25
                                    611310
Colleges, Universities and Professional Schools
                                  $7,834,683
                                    $13,637
                                    0.174%
                                      31
                                       4
                                      112
                                      16
                                      26
                                    622110
General Medical and Surgical Hospitals
                                      NA
                                    $13,637
                                      NA
                                      13
                                       2
                                      46
                                       6
                                      27
                                    928110
National Security
                                      NA
                                    $13,637
                                      NA
                                      31
                                       4
                                      112
                                      16
                                                           All Other Industries
                                      NA
                                      NA
                                      NA
                                     4,247
                                      595
                                     5,814
                                      814
                                Total Number of Facilities Impacted All Options
                                       -
                                       -
                                       -
                                     6,361
                                      891
                                     9,102
                                     1,274
Notes:
1/ The upper bound adoption rate is based on the assumption that all of the 44 states will adopt the 2011 DSW proposed rule within a four-year period beginning in 2015, at a rate of 25% of the 44 states adopting in each of the four years following 2014.  By the end of those four years all facilities in those 44 states will notify under one of the DSW recycling exclusions.    Annual cost impact per facility is discounted by 3% to reflect change in price level from 2015 to 2011.
2/ Small company annual revenue is approximated using the average establishment value of shipments from Census of Manufacturers Data.  For example the number is the average establishment value of shipments for small establishments (e.g., for industries with an SBA small business size standard of 1,000 employees, the number is the average value of shipments for facilities with less than 500 employees).  This estimate is intended to serve as a conservative value of annual revenue for small businesses.  Annual cost impact per facility is discounted by 3% to reflect change in price level from 2015 to 2011.
3/ Column E divided by Column D times 100%.
4/ In the first two years and four months following the 2008 DSW final rule 49 facilities have notified under one of the 2008 DSW recycling exclusions.  This rate of 21 facilities notifying per year is continued up through 2014.  At this rate, by 2015 147 facilities will notify under one of the DSW recycling exclusions plus those facilities notifying per footnote 1.
5/ Based on industry notifications under the 2008 DSW final rule, approximately 14% of notifiers were small businesses. Calculated as Column G * 0.14.
6/ Total Number of Businesses Impacted in Year 2018 through 2064 is based on the assumption discussed in footnote 1.  Though year 2015 it is estimated that 126 facilities will have notified.  In the following four years (2015-2018) a total 3,655 additional facilities located in 44 states that adopt the rule are estimated to notify in the upper bound estimate for a total of 3,781 facilities that notified.  This total number of notifiers remains constant for the years 2018 through 2064.
7/ Based on industry notifications under the 2008 DSW final rule where approximately 14% of notifiers were small businesses. Calculated as Column I * 0.14.
7C.	Unfunded Mandates Analysis (1995 UMRA)

The Unfunded Mandates Reform Act (UMRA) requires that federal agencies assess the effects of federal regulations on state, local, and tribal governments and the private sector. In particular, UMRA requires that agencies prepare a written statement to accompany any rulemaking that "includes any federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (annually adjusted for inflation) in any one year" (Section 202(a)).  Potential future annual added direct costs to state, local, and tribal governments could include the following eleven paperwork activities associated with Option 2, Option 4, Option 5, Option 6, and Option 7 of the 2011 proposed revisions to the DSW recycling exclusions:

   1. Receive, review and file biennial notifications (Options 2, 4, 6, & 7)
   2. Receive, review and file reclamation plan (Option 2)
   3. Receive, Review and approve emergency plans (Option 2)
   4. Receive, review and file notification of compliance regarded affected release area (Option 2)
   5. Review RCRA permit applications and enter into database (Option 2)
   6. Evaluate legitimacy petitions (Option 4)
   7. Evaluate legitimacy documentation (Options 4)
   8. Receive, review, and file re-application for variance or non-waste determination (Option 5)
   9. EPA provides online public access to a list (including documentation) of facilities receiving non-waste determinations (Option 5).
   10. Petition process for re-manufacturing exclusion (Option 6)
   11. Other State paperwork requirements under existing paperwork requirements covering 2008 revisions to the RCRA definition of solid waste, RCRA hazardous waste manifest system requirements, hazardous waste generator standards, hazardous waste specific unit requirements and special waste processes and types, and air emission standards for tanks, surface impoundment and containers.

The state government share of estimated future average annualized direct costs under all options is displayed below in Exhibit 7E, which indicates that the maximum annual cost to state governments is $8.5 million for the 13% base case adoption scenario, and $9.1 million for the 74% upper bound adoption scenario.  No impacts are expected for local or tribal governments.  Because the impacts of all the regulatory options are expected to result in state government expenditures well below the $100 million UMRA threshold, this RIA concludes that the 2011 DSW rule is not an unfunded mandate based on this UMRA cost criterion.

                                  Exhibit 7E
Estimated Maximum Annual State Cost Burden Associated with 2011 DSW Rules (2011$) 1/
                                     Item
                        Type of Direct Compliance Cost
                        13% Base Case Adoption Scenario
                       74% Upper Bound Adoption Scenario
                                     Notes

                         Maximum Count of Submissions
                           State Cost per Submission
                               Total Annual Cost
                         Maximum Count of Submissions
                           State Cost per Submission
                               Total Annual Cost

                                       1
Receive, Review and File Biennial Notifications (Option 2A,  Option 4B, Option 6, and Option 7B)
                                                                          3,312
                                                                             $6
                                                                        $20,799
                                                                          4,673
                                                                             $6
                                                                        $29,346
                                                                              2
                                       2
Receive, Review and File Reclamation Plan (Option 2, Requirement 2B)
                                                                          1,176
                                                                            $38
                                                                        $44,735
                                                                          3,781
                                                                            $38
                                                                       $143,829
                                                                              3
                                       3
Review and Approve Emergency Plans (Option 2, Requirement 2D)
                                                                            118
                                                                            $90
                                                                        $10,589
                                                                            378
                                                                            $90
                                                                        $34,044
                                                                              4
                                       4
Receive, Review and File Notification of Compliance Regarding Affected Release Area (Option 2, Requirement 2D)
                                                                            118
                                                                           $225
                                                                        $26,488
                                                                            378
                                                                           $225
                                                                        $85,163
                                                                              5
                                       5
Review RCRA Permit Applications and Enter Into Database (Option 2, Requirement 2E)
                                                                             19
                                                                         $1,194
                                                                        $22,572
                                                                             19
                                                                         $1,194
                                                                        $22,572
                                                                              6
                                       6
Evaluation of Legitimacy Petitions (Options 4A, 4B)
                                                                             76
                                                                         $8,551
                                                                       $649,846
                                                                            103
                                                                         $8,551
                                                                       $880,712
                                                                              7
                                       7
Evaluation of Legitimacy Documentation (Options 4A and 4C)
                                                                          3,247
                                                                         $2,138
                                                                     $6,940,950
                                                                          3,247
                                                                         $2,138
                                                                     $6,940,950
                                                                              8
                                       8
Receive, Review and File Re-application for Variance or Non-waste Determination (Option 5A)
                                                                             78
                                                                         $8,550
                                                                       $666,900
                                                                             78
                                                                         $8,550
                                                                       $666,900

                                       9
EPA provides online public access to a list (including supporting documentation) of facilities receiving non-waste determinations (Option 5B)
                                                                             37
                                                                            $75
                                                                         $2,787
                                                                             37
                                                                            $75
                                                                         $2,787
                                                                              9
                                      10
Petition Process for Re-manufacturing Exclusion (Option 6D)
                                                                              5
                                                                        $13,640
                                                                        $68,199
                                                                             16
                                                                        $13,640
                                                                       $218,238

                                      11
Other State Paperwork Requirements under Existing Paperwork Requirements
                                                                             NA
                                                                             NA
                                                                        $60,605
                                                                             NA
                                                                             NA
                                                                        $60,605
                                                                             10
                                      12
Total Annual Costs

                                                                     $8,514,470

                                                                     $9,085,146

Notes:
1/  Data depict the maximum annual costs that will be incurred by states in any one year. For the lower bound adoption rate this is year 2064; for the upper bound adoption rate the maximum impacts occur in years 2018-2064.  The maximum number of adoptions under Option 2 is estimated at 1,176 and 3,781 under the lower and upper bound estimates, respectively.  The maximum number of adoptions under Option 4 is all 5,321 pre-2008 exclusion facilities and all 4,933 RCRA recycling facilities at 10,254.  The maximum number of adoptions under Option 5 is estimated at 74 non-waste determinations  and 4 variances.  The maximum number under Option 6 is estimated at 53 and 170 for re-manufacturing notifications and 5 and 16 for petitions under the lower and upper bound estimates, respectively.  The maximum number of adoptions under Option 7 is estimated at 5,321.
2/ 50% for the total number of facilities opting for coverage under the rule submit notifications every year.  State cost estimate obtained from the "Supporting Statement for Revisions to the RCRA Definition of Solid Waste (Proposed Rule), June 30, 2011 (i.e., 2011 DSW ICR).
3/  State cost estimate obtained from 2011 DSW ICR.
4/ Assumes plan is resubmitted every 10 years.  State cost estimate obtained from 2011 DSW ICR.
5/ Assumes plan is resubmitted every 10 years.  State cost estimate obtained from 2011 DSW ICR.
6/ 189 off-site recyclers accepting hazardous waste identified in Exhibit 3A.  Permits are assumed to be renewed every 10 years.
7/ 5% of facilities submit petitions every five years. State cost estimate obtained from 2011 DSW ICR.
8/ 95% of facilities submit documentation every three years. State cost estimate obtained from 2011 DSW ICR.
9/ State cost estimate obtained from 2011 DSW ICR.
10/  State cost estimate obtained from 2011 DSW ICR.  The 2011 DSW ICR identifies other agency costs under existing paperwork requirements that cover 2008 revisions to the RCRA definition of solid waste, RCRA hazardous waste manifest system requirements, hazardous waste generator standards, hazardous waste specific unit requirements and special waste processes and types, and air emission standards for tanks, surface impoundment and containers.

7D.	Federalism Implications (1999 Executive Order 13132)

The 1999 Federalism Executive Order 13132 (Federal Register, Vol.64, No. 153, 10 Aug 1999) furthers the policies of the 1995 Unfunded Mandates Reform Act (UMRA) by establishing federalism principles, federalism policymaking criteria, and a state/local government consultation process for the development of Federal regulations that have federalism implications.  Federalism implications refers to regulations and other Federal policies and actions that have substantial direct effects on states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government.  For purpose of complying with the Section 6 consultation process of EO 13132, this section of the RIA evaluates whether the 2011 proposed revisions to the DSW recycling exclusions (i.e., Option 1 thru Option 7) may "impose substantial direct compliance costs" on state/local governments.  EPA's 2008 guidance for compliance with EO 13132 describes two numerical methods (i.e., numerical tests) for evaluating whether an EPA rule may have federalism implications with respect to the "substantial direct compliance costs" criterion:

   * $25 million test: Annualized direct compliance costs to state/local governments in aggregate of $25 million or more
   * 1% test: Annualized direct compliance costs to state/local governments equal or exceed 1% of state/local government annual revenues

As listed above in the prior (UMRA) section of this RIA, potential future annual added costs to state, local, and tribal governments could include the following eleven paperwork activities associated with Option 2, Option 4, Option 5, Option 6, and Option 7:

   1. Receive, review and file biennial notifications (Options 2, 4, 6, & 7)
   2. Receive, review and file reclamation plan (Option 2)
   3. Receive, Review and approve emergency plans (Option 2)
   4. Receive, review and file notification of compliance regarded affected release area (Option 2)
   5. Review RCRA permit applications and enter into database (Option 2)
   6. Evaluate legitimacy petitions (Option 4)
   7. Evaluate legitimacy documentation (Options 4)
   8. Receive, review, and file re-application for variance or non-waste determination (Option 5)
   9. EPA provides online public access to a list (including documentation) of facilities receiving non-waste determinations (Option 5).
   10. Petition process for re-manufacturing exclusion (Option 6)
   11. Other State paperwork requirements under existing paperwork requirements covering 2008 revisions to the RCRA definition of solid waste, RCRA hazardous waste manifest system requirements, hazardous waste generator standards, hazardous waste specific unit requirements and special waste processes and types, and air emission standards for tanks, surface impoundment and containers.

As also displayed in the prior (UMRA) section of this RIA in Exhibit 7E, the state government share of estimated future annual direct costs indicates that the maximum annual direct cost to state governments is $8.5 million per year for the 13% base case adoption scenario, and $9.1 million per year for the 74% upper bound adoption scenario.  No added costs are expected for local or tribal governments.  Because these direct costs are well below the $25 million test threshold, this RIA concludes that the 2011 DSW rule does not meet the Federalism implication "substantial direct compliance costs" criterion.

7E.	Energy Impact Analysis (2001 Executive Order 13211)

Executive Order 13211 "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355 (May 22, 2001)) requires EPA to prepare and submit a Statement of Energy Effects to OMB for those matters identified as significant energy actions.  As defined in Executive Order 13211, a "significant energy action" is any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking that:

   1. Is a significant regulatory action under Executive Order 12866 or any successor order and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or
   2. Is designated by OMB as a significant energy action.

This rule does not involve the supply, distribution, or use of energy and is not a significant regulatory action under Executive Order 12866.  Thus, Executive Order 13211 does not apply to this rule.

7F.	Improving Regulation & Regulatory Review (2011 Executive Order 13563)

The basic framework, scope, and contents of this RIA represent a "benefit-cost analysis" which is the type of analysis required under section 6(a)(2)(B) of the 1993 Executive Order 12866 for regulatory actions which are "significant" according to one or more of four criteria:

   1. Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
   2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
   3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
   4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.

Furthermore, for regulatory actions which are expected to have more than a $100 million per year "economically significant" annual effect on the economy according to the first criterion listed above, Section 6(a)(2)(C) of Executive Order 12866 requires Federal regulatory agencies (such as the EPA) to assess the potential effects of the benefits and costs of the proposed regulation on economic and market efficiency, productivity, employment, competitiveness, health, safety, and the natural environment.  The January 2011 Executive Order 13563 "Improving Regulation and Regulatory Review" reaffirms the principles, structures, and definitions established by Executive Order 12866.  However, because the 2011 DSW proposed rule is not expected to be an "economically significant" rule according to the quantified and monetized benefits (i.e., cost savings) and costs as estimated in the prior chapters of this RIA, this RIA does not provide quantitative assessments of these other effects, but below provides a brief qualitative assessment of these other economic effects.  The following chapter (Chapter 8) provides a qualitative assessment of potential effects (i.e., benefits) on health, safety and the natural environment.

EPA anticipates the 2011 DSW proposed rule, if promulgated, may create jobs in the long-term (i.e., 3 to 5 years beyond its effective date after states adopt it), for the following reason.  EPA is proposing revisions to a set of 35 existing exclusions to RCRA industrial waste management regulations which EPA promulgated between 1985 and 2008.  EPA promulgated three of the 35 exclusions in 2008, and the 32 other exclusions EPA promulgated between 1985 and 2002.  Facilities in industries which are eligible to operate under these exclusions realize annual savings in regulatory costs, compared to operating under full RCRA Subtitle C hazardous waste regulations without these exclusions.  However, not all state governments have adopted each of these existing 35 exclusions, particularly with regard to the most recent 2008 set of three RCRA exclusions for operations involving industrial recycling of hazardous secondary materials which are not discarded.  As of almost three years after EPA's promulgation of the 2008 exclusions, only four states (ID, IL, NJ, and PA) have voluntarily adopted the exclusions, and only 49 industrial facilities have notified EPA regional offices they are operating under the 2008 exclusions.

One explanation of why more states have not yet adopted the 2008 DSW exclusions, as well as not yet adopted all of the 32 pre-2008 exclusions, is some states may not believe one or more of the exclusions are fully protective of human health and the environment.  During EPA's 2008 DSW exclusions rulemaking, 12 state governments commented to EPA on the 2007 re-proposal of the DSW exclusions that they were not likely to adopt one or more of the three 2008 DSW final rule exclusions.  These 12 states account for 23% of foregone RCRA regulatory cost savings to industries compared to nationwide cost savings potential under hypothetical total adoption of the 2008 DSW exclusions by all states.

For the 32 existing pre-2008 RCRA industrial recycling exclusions, as displayed in Exhibit 7F below an average of eight states representing 5.3% of nationwide total RCRA industrial hazardous waste generation have not yet adopted 12 of the 32 exclusions, and 24 states have not adopted at least one of the 32 exclusions.  Because it is EPA's intention in the 2011 DSW proposed rule, to remedy the concerns of non-adopting states about the under-protectiveness of these exclusions, EPA anticipates that once promulgated, more states may be induced to adopt both the pre-2008 and the 2008 DSW exclusions, thereby making more facilities eligible for regulatory cost savings in additional industries (Appendix A indicates only a 49% overlap in the types of industries that currently operate under the pre-2008 exclusions, compared to the types of industries which may become eligible in the future to operate under the 2008 DSW exclusions).  If those facilities pass-thru their cost savings, in whole or in part, to customers in the form of lower prices for goods and services, the proposed revisions to the recycling exclusions could improve output productivity, improve market competitiveness, stimulate business growth, and create jobs in those industries.

                                  Exhibit 7F
Count of States Which Have Not Adopted the 32 pre-2008 RCRA Regulatory Exclusions for Industrial Recycling
                                       A
                                       B
                                       C
                                       D
                                       E
                                       F
                                       G
                                       H
                                       I
                    Count of pre-2008 Recycling Exclusions
                                40 CFR Citation
                            RCRA Base Program Code
             Count of States Adopting (out of 52 w/DC & Guam)
                         Count of Non-Adopting States
                   Identity of States Not Adopting Exclusion
          2009 Hazardous Waste Generation Tons of Non-Adopting States
             % of 2009 US Total Hazardous Waste Generation Tons**
260 & 261 Definition of Solid Waste
                                       1
260.3
Procedures for variances & non-waste determinations
                                      13
                                      52
                                       0

                                       2
261.2 (e)
Use/Reuse
                                      13
                                      52
                                       0

                                       3
261.2 Table 1
Characteristic sludges being reclaimed
                                      13
                                      52
                                       0

                                       4
261.2 Table 1
Characteristic by-products being reclaimed
                                      13
                                      52
                                       0

                                       5
261.2 Table 1
Commercial chemical products being reclaimed
                                      13
                                      52
                                       0

261.4(a) Exclusions from the Definition of Solid Waste
                                       6
261.4(a)(6)
Pulping Liquors
                                      13
                                      52
                                       0

                                       7
261.4(a)(7)
Spent Sulfuric Acid
                                      13
                                      52
                                       0

                                       8
261.4(a)(8)
Closed-Loop Recycling
                                      28N
                                      52
                                       0

                                       9
261.4(a)(9)
Spent Wood Preservatives
                                     167F
                                      46
                                       6
FL, GU, HI, MA, ME, NH
                                                                        211,016
                                                                          0.60%
                                      10
261.4(a)(10)
Coke By-Product Wastes
                                      85
                                      45
                                       7
MA, MD, ME, MN, NH, RI, WA
                                                                        185,689
                                                                          0.53%
                                      11
261.4(a)(11)
Splash Condenser Dross Residue
                                      95
                                      47
                                       5
GU, MD, ME, NH, RI
                                                                         46,835
                                                                          0.13%
                                      12
261.4(a)(12)
Hazardous Oil-Bearing Secondary Materials and Recovered Oil from Petroleum Refining Operations
                                      135
                                      46
                                       6
GU, MA, MD, ME, MN, NH
                                                                        181,605
                                                                          0.51%
                                      13
261.4(a)(13)
Processed Scrap Metal
                                      157
                                      46
                                       6
AL, GU, MD, ME, NH, RI
                                                                      2,110,444
                                                                          5.97%
                                      14
261.4(a)(14)
Shredded Circuit Boards
                                      157
                                      46
                                       6
AL, GU, MD, ME, NH, RI
                                                                      2,110,444
                                                                          5.97%
                                      15
261.4(a)(16)
Comparable Fuels
                                      168
                                      42
                                      10
CA, CO, CT, GU, HI, MA, ME, NH, RI, VT
                                                                        810,437
                                                                          2.29%
                                      16
261.4(a)(17)
Mineral Processing Spent Materials
                                     167D
                                      40
                                      12
AZ, FL, GU, HI, MA, MD, ME, MS, NE, NH, VT, WA
                                                                      2,315,145
                                                                          6.55%
                                      17
261.4(a)(18)
Petrochemical Recovered Oil
                                      169
                                      44
                                       8
AZ, CA, GU, HI, MD, ME, NH, RI
                                                                        768,493
                                                                          2.18%
                                      18
261.4(a)(19)
Spent Caustic Solutions from Petroleum Refining
                                      169
                                      44
                                       8
AZ, CA, GU, HI, MD, ME, NH, RI
                                                                        768,493
                                                                          2.18%
                                      19
261.4(a)(20)
Hazardous Secondary Materials Used to Make Zinc Fertilizers
                                      200
                                      39
                                      13
AZ, CA, CT, GU, HI, KS, MD, ME, MN, NH, NJ, NY, WY
                                                                      2,706,707
                                                                          7.66%
                                      20
261.4(a)(21)
Zinc Fertilizers Made from Recycled Hazardous Secondary Materials
                                      200
                                      39
                                      13
AZ, CA, CT, GU, HI, KS, MD, ME, MN, NH, NJ, NY, WY
                                                                      2,706,707
                                                                          7.66%
                                      21
261.4(a)(22)
Used Cathode Ray Tubes (CRTs)
                                      ND*
                                      ND*
                                      ND*
                                      ND*
                                      ND*
                                      ND*
261.4(b) Solid wastes which are not hazardous wastes
                                      22
261.4(b)(12)
Spent Chlorofluorocarbon Refrigerants
                                      84
                                      49
                                       3
MA, ME, TX
                                                                     13,498,069
                                                                         38.20%
                                      23
261.4(b)(14)
Used Oil Distillation Bottoms used to manufacture asphalt products
                                      122
                                      43
                                       9
AZ, CA, GU, MA, MD, ME, NE, NH, PA
                                                                      1,114,499
                                                                          3.15%
261.6 Requirements for recyclable materials (hazardous wastes)
                                      24
261.6(a)(3)(ii)
Scrap metal
                                      IA
                                      52
                                       0

                                      25
261.6(a)(3)(iii)
Waste-derived fuels from refining processes
                                      13
                                      52
                                       0

                                      26
261.6(a)(3)(iv)
Unrefined waste-derived fuels and oils from petroleum refineries
                                      19
                                      49
                                       3
MD, ME, RI
                                                                         41,876
                                                                          0.12%
                                      27
261.6(c)(2)
Reclaimers that do not store
                                      13
                                      52
                                       0

261.7 Residues of hazardous waste in empty containers
                                      28
261.7
Residues of hazardous waste in empty containers
                                      IA
                                      52
                                       0

Part 266 Standards for the Management of Specific Hazardous Wastes
                                      29
266 Subpart C
Recyclable Materials Used in a Manner Constituting Disposal
                                      13
                                      52
                                       0

                                      30
266 Subpart F
Materials Utilized for Precious Metal Recovery
                                      13
                                      52
                                       0

                                      31
266 Subpart G
Spent Lead-Acid Batteries Being Reclaimed
                                      13
                                      52
                                       0

                                      32
266 Subpart H
Hazardous Waste Burned in Boilers & Industrial Furnaces
                                      85
                                      45
                                       7
MA, MD, ME, MN, NH, RI, WA
                                                                        502,906
                                                                          1.42%
Statistical Summary for Exclusions with One or More Non-Adopting States:
                                                                      Minimum =
                                      39
                                       3

                                    41,876
                                     0.1%
                                                                      Maximum =
                                      49
                                      13

                                  13,498,069
                                     38.2%
                                                                      Average =
                                      44
                                       8

                                   1,879,960
                                     5.3%
Non-duplicative identity/totals for states not adopting at least one exclusion =
                                      28
                                      24
AL, AZ, CA, CO, CT, FL, GU, HI, KS, MA, MD, ME, MN, MS, NE, NH, NJ, NY, PA, RI, TX, VT, WA, WY
                                  20,819,873
                                     58.9%
Footnotes:
* Columns A, B, C data source: Table from section XIII of EPA's 2011 DSW proposed rule Federal Register notice.
* Column D data source 1 of 2: EPA RCRA Rule List StATS database for 52 states (including DC & Guam) as of March 31, 2011 at http://www.epa.gov/waste/laws-regs/state/stats/allrules.pdf
* Column D data source 2 of 2: EPA StATS "Consolidated Checklists C1-C11" for 52 states (including DC & Guam) as of December 31, 2002 at http://www.epa.gov/waste/laws-regs/state/revision/cclists.htm
* Columns E, F, G data source: Authorization Status by Rule from EPA StATS database for 52 states (including DC & Guam) as of March 31, 2011 at http://www.epa.gov/waste/laws-regs/state/stats/authall.pdf
* Columns H & I data source: Exhibit 1.1 of EPA's 2009 "National Biennial RCRA Hazardous Waste Report" at http://www.epa.gov/waste/inforesources/data/br09/national09.pdf
* * ND = No data available in the "Consolidated Checklists C1-C11" because EPA promulgated this particular exclusion after the most current StATS data (Dec 31, 2002).
* ** 2009 US total industrial hazardous waste generated by 56 states (including DC, Guam, Navajo Nation, Puerto Rico, Trust Territories, Virgin Islands) = 35,331,398

                                   Chapter 8
                Potential Environmental & Economic Benefits
        For the 2011 Proposed Revisions to the DSW Recycling Exclusions

This chapter provides qualitative descriptions of three categories of potential future environmental and economic benefits, which could be associated with the 2011 DSW proposed revisions.  This chapter identifies at least one benefit for each of the seven options presented in the 2011 proposed revisions to the DSW recycling exclusions.  Some options have multiple potential benefits associated with multiple revisions proposed under some options (all Options except Option 1 have multiple components, i.e., sub-options).

      8A.	Reduction in future environmental damages associated with industrial recycling of hazardous secondary materials
      (Options 1, 2, 6).
      8B.	Improved environmental compliance:
            B1.	Clearer and more specific regulatory standards improve environmental compliance (Options 3, 4, 7, 8).
            B2.	More stringent recordkeeping provisions improve environmental compliance (Options 3, 4, 7).
            B3.	Self-reporting requirements (e.g., notification requirements) improve environmental compliance (Options 2, 3, 5, 7).
            B4.	Increased likelihood of detection and potential penalty for non-compliance improves environmental compliance
                  (Options 2, 3, 4, 5, 7).
      8C.	More specific standards result in reduced liability, less uncertainty for the regulated entity, and lower legal and credit costs
      (Options 3, 4, 7, 8).

8A.  Reduction in Future Environmental Damage Cases Associated With Hazardous Secondary Materials Industrial Recycling

Option 1 proposes to withdraw the 2008 DSW offsite transfer recycling exclusion, and Option 2 proposes to replace that 2008 exclusion with alternative RCRA Subtitle C hazardous waste regulations for offsite transfer recycling.  After analyzing the potential for adverse impact to human health and the environment from discarded material under the 2008 offsite recycling exclusion, including the potential for disproportionate impact to minority and low-income populations, the most appropriate regulatory approach may be to keep most types of third-party transfers of hazardous secondary material regulated under RCRA Subtitle C, rather than excluded from it.
As noted in the preamble to the 2008 DSW rule (74 FR 64675), generators of hazardous secondary materials who do not reclaim these materials themselves often ship the materials to be reclaimed to a commercial facility or another manufacturer in order to avoid the costs of disposing of the material.  Because of low commercial value and high potential liability associated with most types of hazardous secondary materials, the generator typically pays the reclamation facility to accept the materials or receives a salvage fee that only partially offsets the cost of transporting and managing the hazardous secondary materials.  In such situations, the generator has relinquished control of the hazardous secondary materials and the entity receiving such materials may not have the same incentives to manage them as a useful product.

This behavior is evidenced by the results of EPA's 2007 "industrial recycling historical damages study."  The study identified a total of 208 historical environmental damage cases from industrial hazardous secondary materials recycling spanning between 1983 and 2005.  The study selected year 1983 as the historical cut-off year because EPA published the bulk (i.e., base program) of the RCRA Subtitle C regulations between 1980 and 1982.  A sub-total 195 (94%) of the recycling damage cases were associated with off-site third-party recyclers, with clear instances of recyclable materials discard resulting in risks to human health and the environment, including cases of large-scale soil and ground water contamination.  The types and prevalence of environmental damages associated with the 208 sites included (source: p.7 of 2007 study):

   * Soil & groundwater contamination	41%
   * Abandoned hazardous materials	33%
   * Soil contamination			30%
   * Air pollution				10%
   * Surface water contamination		9%
   * Sediment contamination		8%
   * Groundwater contamination		6%

As displayed in Exhibit 8A below, an average annual rate of nine recycling damage cases have occurred since the RCRA Subtitle C regulations were promulgated.  As also displayed in the Exhibit, based on cleanup cost data for 89 of the 208 historical cases for which the study found cleanup cost data, the average annual cleanup cost for an average of nine recycling damage cases is $62.7 million per year, based on an average of $6.9 million cleanup cost per industrial recycling environmental damage case.  However, the summary of cleanup costs displayed in Exhibit 8A is based on a mix of price levels during the 1983 to 2005 data collection period in the 2007 EPA study.  Based on updating the historical cleanup costs to year 2011 (i.e., 2011$) as displayed in Exhibit 8B below, the 2011-updated average annual cleanup cost is $86 million per year based on the historical average annual nine damage cases per year extrapolated to year 2011.

                                  Exhibit 8A
              Estimate of Average Annual Historical Cleanup Costs
Involving 208 Industrial Recycling Environmental Damage Cases Between 1983 and 2005*
A. Estimation of Average Cleanup Cost Per Damage Case Based on Data for a Sample of 89 of the 208 Industrial Recycling Environmental Damage Cases Between 1983 and 2005*
                                       A
                                       B
                                       C
                                  D ((B+C)/2)
                                       E
                                   F (D x E)
                              Cleanup cost range
                             Low-end cleanup cost
                             High-end cleanup cost
                         Cleanup cost range midpoints
                      Count of damage cases in cost range
                    Total cleanup cost for each cost range
                                       1
                                                                        $10,000
                                                                       $100,000
                                                                        $55,000
                                       6
                                                                       $330,000
                                       2
                                                                       $100,000
                                                                       $250,000
                                                                       $175,000
                                       8
                                                                     $1,400,000
                                       3
                                                                       $250,000
                                                                       $500,000
                                                                       $375,000
                                      11
                                                                     $4,125,000
                                       4
                                                                       $500,000
                                                                     $1,000,000
                                                                       $750,000
                                      12
                                                                     $9,000,000
                                       5
                                                                     $1,000,000
                                                                     $2,500,000
                                                                     $1,750,000
                                      20
                                                                    $35,000,000
                                       6
                                                                     $2,500,000
                                                                     $5,000,000
                                                                     $3,750,000
                                      14
                                                                    $52,500,000
                                       7
                                                                     $5,000,000
                                                                    $10,000,000
                                                                     $7,500,000
                                      10
                                                                    $75,000,000
                                       8
                                                                    $10,000,000
                                                                   $100,000,000
                                                                    $55,000,000
                                       8
                                                                   $440,000,000
                                                                    Sub-total =
                                      89
                                                                   $617,355,000
                                         Average cleanup cost per damage case =
                                                   $6.9 million per damage case
B. Estimation of Average Annual Cleanup Cost Based on Extrapolation of Per-Damage Case Cleanup Cost to All 208 Historical Cases
   Total industrial recycling damage cases over 23-year period (1983 to 2005) =
                                      208

                        Average count of damage cases per year (1983 to 2005) =
                                      9.0

               Average annual cleanup cost over 23-year period (1983 to 2005) =
                                 $62.7 million
                                   per year
* Notes:
* Source: Based on data from page 13 of EPA's January 11, 2007 industrial recycling damage case study "An Assessment of Environmental Problems Associated with Recycling of Hazardous Secondary Materials" available as document ID nr. EPA-HQ-RCRA-2002-0031-0355 at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-RCRA-2002-0031-0355
* From page 13 of the source document: "It is entirely possible that these cost data are not a truly accurate representation of actual cleanup costs for the entire sample of 208 cases. For one thing, cost data were much easier to find for CERCLA cleanups than cleanups done under other programs. Since CERCLA cleanups are likely to be skewed toward addressing relatively large, high-priority, expensive contamination sites, the actual cleanup costs for all 208 cases are likely to be somewhat lower than these data suggest."
* Costs in this table are at mixed price levels spanning the 23-year damage cast period (1983 to 2005).

                                  Exhibit 8B
     2011$ Update of the 1983-2005 Average Annual Historical Cleanup Costs
Associated with Industrial Hazardous Secondary Materials Recycling Damage Cases
                                       A
                                       B
                                       C
                                       D
                                       E
                           F ((2011 value in E) / E)
                                   G (D x F)
                                     Item
                                     Year
                               Reference period
                         Average annual cleanup cost*
                       GDP price deflator** (2005 = 100)
                   Price update multiplier based on deflator
                   2011$ updated average annual cleanup cost
                                       1
                                     1983
                               Historical cases
                                 $62,730,747
                                    57.603
                                    1.9392
                                                                  $121,649,928
                                       2
                                     1984
                               Historical cases
                                 $62,730,747
                                    59.766
                                    1.8691
                                                                  $117,247,278
                                       3
                                     1985
                               Historical cases
                                 $62,730,747
                                    61.576
                                    1.8141
                                                                  $113,800,845
                                       4
                                     1986
                               Historical cases
                                 $62,730,747
                                    62.937
                                    1.7749
                                                                  $111,339,924
                                       5
                                     1987
                               Historical cases
                                 $62,730,747
                                    64.764
                                    1.7248
                                                                  $108,199,012
                                       6
                                     1988
                               Historical cases
                                 $62,730,747
                                    66.988
                                    1.6676
                                                                  $104,606,808
                                       7
                                     1989
                               Historical cases
                                 $62,730,747
                                    69.518
                                    1.6069
                                                                  $100,799,805
                                       8
                                     1990
                               Historical cases
                                 $62,730,747
                                    72.201
                                    1.5472
                                                                   $97,054,069
                                       9
                                     1991
                               Historical cases
                                 $62,730,747
                                     74.76
                                    1.4942
                                                                   $93,731,953
                                      10
                                     1992
                               Historical cases
                                 $62,730,747
                                    76.533
                                    1.4596
                                                                   $91,560,514
                                      11
                                     1993
                               Historical cases
                                 $62,730,747
                                    78.224
                                    1.4280
                                                                   $89,581,213
                                      12
                                     1994
                               Historical cases
                                 $62,730,747
                                    79.872
                                    1.3986
                                                                   $87,732,883
                                      13
                                     1995
                               Historical cases
                                 $62,730,747
                                    81.536
                                    1.3700
                                                                   $85,942,416
                                      14
                                     1996
                               Historical cases
                                 $62,730,747
                                    83.088
                                    1.3444
                                                                   $84,337,098
                                      15
                                     1997
                               Historical cases
                                 $62,730,747
                                    84.555
                                    1.3211
                                                                   $82,873,879
                                      16
                                     1998
                               Historical cases
                                 $62,730,747
                                    85.511
                                    1.3063
                                                                   $81,947,361
                                      17
                                     1999
                               Historical cases
                                 $62,730,747
                                    86.768
                                    1.2874
                                                                   $80,760,198
                                      18
                                     2000
                               Historical cases
                                 $62,730,747
                                    88.647
                                    1.2601
                                                                   $79,048,370
                                      19
                                     2001
                               Historical cases
                                 $62,730,747
                                     90.65
                                    1.2323
                                                                   $77,301,719
                                      20
                                     2002
                               Historical cases
                                 $62,730,747
                                    92.118
                                    1.2126
                                                                   $76,069,832
                                      21
                                     2003
                               Historical cases
                                 $62,730,747
                                     94.1
                                    1.1871
                                                                   $74,467,596
                                      22
                                     2004
                               Historical cases
                                 $62,730,747
                                     96.77
                                    1.1543
                                                                   $72,412,946
                                      23
                                     2005
                               Historical cases
                                 $62,730,747
                                      100
                                    1.1171
                                                                   $70,074,008
                                      24
                                     2006
                                 Extrapolated
                                 $62,730,747
                                    103.257
                                    1.0818
                                                                   $67,863,688
                                      25
                                     2007
                                 Extrapolated
                                 $62,730,747
                                    106.296
                                    1.0509
                                                                   $65,923,467
                                      26
                                     2008
                                 Extrapolated
                                 $62,730,747
                                    108.619
                                    1.0284
                                                                   $64,513,583
                                      27
                                     2009
                                 Extrapolated
                                 $62,730,747
                                    109.615
                                    1.0191
                                                                   $63,927,390
                                      28
                                     2010
                                 Extrapolated
                                 $62,730,747
                                    110.488
                                    1.0110
                                                                   $63,422,280
                                      29
                                     2011
                                 Extrapolated
                                 $62,730,747
                                    111.706
                                    1.0000
                                                                   $62,730,747
                                               Average annual updated to 2011$=
                                  $86 million
                                   per year
Notes:
* Source: Column C average annual cost from Exhibit 8A.
** Source: Column D from "Table 1.1.9 Implicit Price Deflators for Gross Domestic Product" from the US Bureau of Economic Analysis National Economic Accounts at http://www.bea.gov/national/nipaweb/SelectTable.asp?Selected=Y; First quarter implicit price deflator used for 2011.  All other years are annual implicit price deflators.

In addition, EPA's 2006 "industrial recycling market forces study" in the docket for the 2008 DSW final rule supports the conclusion that the pattern of discard at off-site, third-party recyclers (e.g., commercial recyclers) is a result of inherent differences between commercial recycling and normal manufacturing.  As opposed to manufacturing where the cost of raw materials or intermediates (or inputs) is greater than zero, and revenue is generated primarily from the sale of the output, hazardous secondary materials recycling can involve generating revenue primarily from receipt of the hazardous secondary materials.  Recyclers of hazardous secondary materials in this situation may thus respond differently than traditional manufacturers to economic forces and incentives, accumulating more inputs (hazardous secondary materials) than can be recycled, which could potentially be lead to environmental contamination (e.g., ground water leaching, container leaks) during protracted storage periods if not sufficiently contained.

The 2008 DSW final rule attempted to address this pattern of adverse impacts to human health and the environment from discarded material transferred to offsite third-party recyclers, by setting conditions for the 2008 DSW offsite transfer recycling exclusion.  The intent of those conditions was to define when transfers to offsite third-party recyclers would not result in discard.   However, as explained in EPA's 2001 DSW environmental justice analysis (available from the docket for the 2011 DSW proposed revisions), EPA failed to take into account how the conditions of the 2008 DSW offsite recycling exclusion would work when implemented.  EPA's analysis of the 2008 DSW final rule assumed that compliance with the DSW offsite recycling exclusion conditions would be the same as compliance with traditional RCRA Subtitle C hazardous waste recycling regulations.

However, the traditional RCRA Subtitle C recycling regulations have several implementation provisions that are missing from the 2008 DSW offsite recycling exclusion.  These provisions ensure a greater level of EPA regional office and state government oversight of the Subtitle C requirements, thereby potentially improving industry compliance:

   * Recycling operating permits: Most important of which is the Subtitle C recycling permit requirement which ensures that an EPA regional office or state government agency has reviewed a facility's planned recycling operations before recycling begins, and allows public participation in the permit review and approval/rejection process.
   * Recycling inspections: Subtitle C recycling requirements also include a statutory provision that such facilities be inspected every two years by an EPA regional office or state government agency.

When Congress enacted these Subtitle C recycling provisions, it was based on their finding that the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment.  Furthermore, the 1976 RCRA statute and its legislative history suggest that Congress expected EPA to regulate as solid and hazardous wastes, certain industrial hazardous materials that are destined for recycling.  Based on the evidence of EPA's 2007 industrial recycling historical damage case study and EPA's 2008 recycling market forces study, most transfers of hazardous secondary material for recycling do involve discard, and EPA's attempt to define such material as "not discarded" solely by setting additional management conditions poses the danger of circular reason.  In other words, adding conditions, many of which resemble hazardous waste requirements, in order to attempt to prevent the discard of hazardous secondary materials that would otherwise be subject to full hazardous waste requirements, is potentially counter to the original intent of RCRA.

At the same time, some specific types of hazardous secondary materials may be more like valuable commodities than solid wastes, and the act of transferring them to a third-party does not automatically involve discard.  Many of the other DSW recycling exclusions in 40 CFR 261.4(a) are for these types of recyclable materials, and the 2008 DSW non-waste determination process under 40 CFR 260.34(c) provides an administrative process for determining that additional hazardous secondary materials are indistinguishable from a product and therefore are not waste.  Option 6 proposes a DSW re-manufacturing exclusion for certain high-value hazardous secondary materials (i.e., solvents used as chemical processing aids) whose management is more like manufacturing than waste management.  However, the 2008 DSW offsite recycling exclusion applies equally to all hazardous secondary materials intended for recycling, and is not limited to materials that are indistinguishable from products.