pentoxide catalysts, acid plant blowdown, metal-bearing baghouse dust,
metal- and acid-bearing sulfuric acid plant solutions, and metal-bearing
materials from tapping troughs. [0079-2, 0086-5, 0087-7, 0152-3, 0152-8,
0225-13] Commenters objected to the fact that, with a few limited
exceptions, the proposed revision to the definition of solid waste does
not alter the requirements currently applicable to the mineral
processing industry's use of its own secondary materials. The proposed
rule provides relief only for by-products and sludges that are listed as
hazardous wastes at 40 CFR 261.31 or 40 CFR 261.32 and for "spent
materials" if generated and used/reused within the mineral processing
sector of the primary metals and minerals industry.

Commenters also argue that the distinctions EPA draws among in-process
materials within the primary metals and minerals industry are
meaningless and create uncertainty and confusion. [0152-8] Under the
existing regulations, materials produced and recycled within the primary
metals and minerals industry are viewed differently, depending upon
whether they are classified as sludges, by-products, spent materials,
commercial products, or scrap metal. Commenters argue that none of these
categories, however, has any meaning within the industry. They believe
that materials at issue are in-process materials (or intermediates),
rather than secondary materials. Thus, it makes no sense to try figuring
out which types of secondary materials they are.

The commenters argue that only relevant consideration within the
industry is whether a particular material has significant amounts of
recoverable metals and/or other useful material values. Because EPA's
categories do not in any way affect the way that the industry views or
handles the materials, such categories cannot be the determining factor
in deciding whether a material is discarded. It is simply arbitrary to
say that a material within the primary metals and minerals industry is a
waste if it is labeled as "spent material," but not if it is labeled a
"by-product" or "sludge."

Commenters believe that the current regulatory scheme is especially
problematic given the difficulty in trying to apply EPA's categories to
materials produced by the primary metals and minerals industry.
Consider, for example, used refractory brick. As noted above, EPA has
indicated that this material qualifies as a "spent material," which is
defined as "any material that has been used and as a result of
contamination can no longer serve the purpose for which it was produced
without processing." See 40 C.F.R. 9 261.l(c)(l). However, used
refractory brick is not "contaminated" and is removed from service for
other reasons (e.g., wearing or cracking). Moreover, it is often still
capable of continuing to serve its original purpose. Refractory brick
might instead be viewed as a by-product. See 40 C.F.R. 9 261.1(~)(3)
(defining a "by-product" as "a material that is not one of the primary
products of a production process and is not solely or separately
produced by the production process").  For example, the Nevada Division
of Environmental Protection has taken the position that used bricks from
rebuilding of autoclaves and roasting units are properly considered
by-products, rather than spent materials.  On the other hand, because
used bricks generally have visible veins of solid metal, they might be
viewed as scrap metal. See 40 C.F.R. 5 261.l(c)(6) (defining "scrap
metal" to include "bits and pieces" of metal).

Rather than trying to figure out which of EPA's categories of materials
comes closest to being relevant to each type of in-process material
produced by the primary metals and minerals industry, the Agency should
simply acknowledge that when the materials are beneficially used within
the industry, they are not being discarded and cannot be regulated as
wastes.

Commenters also objected to classifying spent materials from mineral
processing operations as wastes when destined for reclamation within the
primary metals and minerals industry, unless they meet certain
requirements (e.g., storage in tanks, containers, buildings, or approved
pads). See 40 C.F.R. 261.4(a)(17). These in-process materials are
therefore being regulated as wastes based on their manner of storage.
However, commenters argue that this type of regulatory scheme is
prohibited under RCRA and the relevant case law. See, e.g., Safe Food,
350 F.3d at 1268 ('"the term 'discarded' cannot encompass materials that
are destined for beneficial reuse or recycling in a continuous process
by the generating industry itself."). Accordingly, the regulatory
definition of solid waste must be amended to eliminate the storage
requirements for in-process spent material. [0079-2, 0152-8]

2.1.2 - Response

While EPA agrees that, as the courts have clearly stated, materials
recycled in a continuous process by the generating industry are not
solid wastes, EPA disagrees that the final rule improperly regulates
such materials.   As discussed in the March 2007 supplemental proposal,
EPA believes that the generator-controlled exclusion also excludes from
the definition of solid waste hazardous secondary materials recycled in
a continuous industrial process (72 FR 14202). In effect, hazardous
secondary materials reclaimed in a continuous process are a subset of
the hazardous secondary materials reclaimed under the control of the
generator that are excluded under the final rule.

EPA also disagrees that the restrictions of the generator-controlled
exclusion (i.e., the requirement that the hazardous secondary material
must be contained, the prohibition on speculative accumulation and the
notification requirement) result in unlawful regulation of materials
recycled in a continuous process by the generating industry itself.

As discussed in section <IP_ADDRESS> of the response to comments document,
the "contained" standard is directly linked with the concept of discard.
 Commenters have failed to demonstrate how hazardous secondary materials
that are not contained could in any way be considered "reclaimed in a
continuous process." It is a self-evident fact that hazardous secondary
materials released to the environment (e.g., causing soil and
groundwater contamination) are not "destined for recycling" or "recycled
in a continuous process"; they are part of the waste disposal problem.
Moreover, to the extent that significant releases to the environment
from a unit remain unaddressed, it is reasonable to conclude that the
material remaining in the unit is also actively being discarded. (It is
important to note that under the final rule, the hazardous secondary
materials that remain in the unit are not solid wastes, unless the
releases from the storage unit indicate that these materials are not
being managed as valuable commodities and are, in fact, discarded.)

In addition, EPA disagrees that the prohibition on speculative
accumulation results in unlawful regulation of materials recycled in a
continuous process by the generating industry itself.  As noted in the
March 2007 supplemental proposal, restrictions on speculative
accumulation (40 CFR 261.1(c)(8)) have been an important element of the
RCRA hazardous waste recycling regulations since they were promulgated
on January 4, 1985. Historically, hazardous secondary materials excluded
from the definition of solid waste generally become wastes when they are
speculatively accumulated, because, at that point, they are considered
to be unlikely to be recycled and therefore discarded. According to this
regulatory provision, a hazardous secondary material is accumulated
speculatively if the person accumulating it cannot show that the
material is potentially recyclable; further, the person accumulating the
hazardous secondary material must show that during a calendar year
(beginning January 1) the amount of such material that is recycled, or
transferred to a different site for recycling, must equal at least 75%
by weight or volume of the amount of that material at the beginning of
the period.  As noted in the March 2007 supplemental proposal, this
provision already applies to hazardous secondary materials that are not
otherwise considered to be wastes when recycled, such as materials used
as ingredients or commercial product substitutes, materials that are
recycled in a closed-loop production process, or unlisted sludges and
by-products being reclaimed (72 FR 14188). Given that a significant
portion of the damage cases stemmed from over-accumulation of hazardous
secondary materials, EPA continues to believe that a restriction on
speculative accumulation is needed to determine that the hazardous
secondary material is actually being recycled and also is not discarded.

Moreover, in response to comments that storage of hazardous secondary
materials is a "necessary phase of reclaiming mineral processing
secondary material" that must in many instances continue for longer than
one year, in those cases there is already an administrative remedy in
place to address this situation.  The variance process in 40 CFR
260.31(a) was developed to allow facilities to store materials longer
than one year without sufficient amounts being recycled if the applicant
can demonstrate that sufficient amounts will be recycled the following
year.  This variance can also be renewed annually.

Thus EPA continues to believe that the application of the prohibition on
speculative accumulation to hazardous secondary materials recycled under
the control of the generator is a reasonable way of determining that the
hazardous secondary materials are in fact going to be recycled rather
than simply stored indefinitely.

The consequences of indefinite storage of hazardous secondary materials
is clearly demonstrated in the record for today's rulemaking.  For
example, the damage case profile for Rockwell Industries, Inc. shows how
indefinite storage of "recyclable" hazardous secondary materials
contributes to the waste disposal problem. (see
EPA-HQ-RCRA-2002-0031-0355 An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials, Appendix 2,
p. 336).  At this site, mineral wool was manufactured in blast furnaces
using raw material such as slags from copper and antimony smelting,
waste from limestone mining and coke and basalts. The residue left in
the furnace from the heating of the slags was a metal "shot" type
material. This "spent iron shot" was the main secondary material
generated as a part of the Rockwool production process.   While some of
the spent iron shot was recycled back into the process, most was piled
up in different locations on-site.   When the facility ceased operations
in 1987, one of the piles was estimated to contain 20,000 to 30,000
cubic yards of waste and span 3 acres, and another was estimated to
contain between 15,000 and 25,000 cubic yards of waste.  Antimony,
arsenic, and lead contamination were found in the soils and groundwater.
  The site was listed on the Superfund National Priorities List in 1998,
with cleanup costs estimated to be more than $3 million.   Clearly, the
bulk of the spent iron shot stored at this site was never "destined for
reuse within the primary minerals and metal industry" and was discarded.
  The prohibition on speculative accumulation in the
generated-controlled exclusion is a reasonable approach to identifying
hazardous secondary material that is not destined for reuse or recycling
and that is therefore discarded.

However, EPA also recognized in the March 2007 supplemental proposal
that production processes can vary widely from industry to industry. (72
FR 14202) Thus, in some cases, case-specific fact patterns may indicate
whether an individual hazardous secondary material is reclaimed in a
continuous industrial process, and therefore not a solid waste.   For
example, in the ABR decision, the Court acknowledged that the term
"discard" could be "ambiguous as applied to some situations, but not as
applied to others," and particularly cited the difficulty in examining
the details of the many processes in the mineral processing industry
(208 F.3d at 1056). While the court overturned EPA's regulations for
casting too wide a net over continuous industrial processes, it
acknowledged that there are a large number of processes, some of which
may be continuous and some of which may not. Determining what is a
continuous process in the mineral processing industry, according to the
Court, would require examination of the details of the processes and
does not lend itself well to broad abstraction. Specifically, the Court
stated,

"Some mineral processing secondary materials covered under the Phase IV
Rule may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of the sort EPA is attempting to regulate under RCRA." 208 F.3d
at 1056.

This principle also would apply to temporary storage of materials such
as recycled reverts, which the court in ABR specifically discussed.  208
F.3d at 1054 n.2.  The court criticized EPA's rule for regulating
temporary storage of these materials even though the process seemed to
involve reclamation in a continuous process.  This rule, however,
remedies that situation.  Such storage would be allowed but only under
conditions that would ensure that material is not discarded and truly is
reclaimed within a continuous process - for example, material would need
to be contained and not accumulated speculatively.  This is consistent
with the court's general direction to avoid broad abstractions while
still appropriately defining solid waste under RCRA.

While in most instances, hazardous secondary materials reclaimed in a
continuous process would be excluded under the self-implementing
generator-controlled exclusion, for those applicants who do not believe
that the restrictions imposed by the self-implementing exclusions are
applicable to their materials, the non-waste determination process
provides an administrative procedure for receiving a formal
determination that their hazardous secondary materials are not discarded
and, therefore, are not solid wastes when recycled.

Such individual determinations are beyond the scope of today's
rulemaking, which is focused on appropriately defining solid waste for
hazardous secondary materials that are reclaimed regardless of the
specific hazardous secondary material or generating industry affected.
In addition, comments on the existing definitions of spent materials,
by-products, sludges, scrap metals, commercial products in 40 CFR 261
and on the existing exclusions under 40 CFR 261.4(a), including 40 CFR
261.4(a)(17), are outside the scope of today's rulemaking.

2.1.3 - EPA's proposed exclusions inappropriately deregulate materials
that are discarded

2.1.3 - Summary

Many commenters argue that EPA has no authority under the RCRA statute
to broadly exclude hazardous secondary materials from the definition of
solid waste, arguing that Congress intended for recycling to occur
within the constrains of RCRA, and not beyond the statute's protective
reach.  "If the regulations were void from the beginning then no
amendment to the underlying provision or enactment of a new statutory
provision can infuse them with life unless they are specifically enacted
as law." US Brewer's Association v. EPA 600 F.2d 974.  Commenters state
that the federal statute provides for only one opportunity to exempt
materials recovered from solid waste from regulation when recycled,
found at 42 U.S.C. 6903 (19) "The term ''recovered material'' means
waste material and byproducts which have been recovered or diverted from
solid waste, but such term does not include those materials and
byproducts generated from, and commonly reused within, an original
manufacturing process. Comments note that Congress took steps under
Public Law 98-616 to affirm the EPA's authority over these activities
and require the establishment of standards:

Section 8. Reuse, recycling, and reclamation

"This Section of the bill amends Section 3001 of RCRA to require the
Administrator to issue regulations regarding the use, reuse, recycling,
and reclamation of hazardous wastes.  This provision is intended to
reaffirm the Agency's existing authority to regulate as hazardous waste
to the extent it may be necessary to protect human health and the
environment.  The Committee affirms that RCRA already provides
regulatory authority over these activities (which authority the Agency
has exercised to a limited degree) and in this provision is amending to
clarify that materials being used, reused, recycled, or reclaimed can
indeed be solid and hazardous wastes and that these various recycling
activities may constitute hazardous waste treatment, storage, or
disposal."

Commenters also note that Congress established the EPA as the standard
setting agency for the management of hazardous waste, but specifically
gave the authority for identifying which wastes would be appropriate
substitutes for virgin materials to the Department of Commerce.
Commenters also cite the definition of the central statutory term
"disposal": the discharge, deposit, injection, dumping, spilling,
leaking, or placing of any solid or hazardous waste into or on any land
or water so that such solid or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or
discharged into any wastes, including ground waters. 42 U.S.C. Sec.
6903(3). Commenters assert that this definition clearly encompasses more
than the everyday meaning of disposal, which is a "discarding or
throwing away" (Webster's).  The definition is functional: waste is
disposed under this provision if it is put into contact with land or
water in such a way as to pose the risks to health and the environment
that animated Congress to pass RCRA.  Whether the manufacturer
subjectively intends to put the material to additional use is irrelevant
to this definition, as indeed it should be, because the manufacturer's
state of mind bears no necessary relation to the hazards of the
industrial processes he employs."   824 F.2d 1177 American Mining
Congress vs. EPA. [0130-2, 0227-2, 0231-14, 0231-16, 0231-23, 0231-27,
0539-2, 0559-4, 0559-18, 0561-1, 0561-2, 0561-8]

Commenters also argue that it is counterintuitive that RCRA would
require of small quantity generators: 1) "cradle-to-grave"
accountability of wastes generated"  ["the Administrator shall
promulgate standards under sections 6922, 6923, and 6924 of this title
for hazardous waste generated" 42 U.S.C. 6921 (d)(1)];  2) "standards
applicable to the legitimate use, reuse, recycling and reclamation of
such wastes" 42 U.S.C. 6921 (d)(2), and 3) "a Uniform Hazardous Waste
Manifest form signed by the generator" for "material which is shipped
off the premises on which such waste is generated"  42 U.S.C. 6921
(d)(3) and then allow the EPA to promulgate rules exempting a much
larger universe of wastes from regulation. Additionally, commenters
believe that to provide a rule that provides a blanket proviso to a
universe of unidentified hazardous wastes flies in the face of the
public's right to comment on a process of removing hazardous waste from
regulation - the equivalent of "delisting" 42 U.S.C. 6921 (f)(1-3),
i.e., excludes a waste generated from a particular facility from being
listed as hazardous. [0561-2]

Commenters also note that several statutorily defined terms show that
Congress intended for materials to be classified as "solid wastes" even
when they are recycled.  Specifically, the statute includes several
definitions related to "resource recovery" (i.e., recycling), and all of
these terms are based on the premise that the recycled or recovered
materials will be first defined as solid wastes. The term "recovered
material," for example, is defined as "waste material and byproducts
which have been recovered or diverted from solid waste."

 42 U.S.C. 6903(19). "Recovered resources" are "material or energy
recovered from solid waste." 42 U.S.C. 6903(20).  The term
"recoverable," moreover, "refers to the capability and likelihood of
being recovered from solid waste for a commercial or industrial use."
42 U.S.C.  6903(18). "Resource recovery," in turn, is the "recovery of
material or energy from solid waste." 42 U.S.C. 6903(22). A "resource
recovery system" is "a solid waste management system which provides for
collection, separation, recycling, and recovery of solid wastes," and a
"resource recovery facility" is "any facility at which solid waste is
processed for the purpose of extracting, converting to energy, or
otherwise separating and preparing solid waste for reuse." 42 U.S.C.
6903(23) and (24).  In addition, resource recovery and recycling are
repeatedly mentioned as aspects of solid waste management plans.  See 42
U.S.C. §§ 6902(a)(1)&(6) ("The objectives of this chapter are to
promote the protection of health and the environment and to conserve
valuable material and energy resources by - providing assistance for the
development of solid waste management plans (including resource recovery
and resource conservation systems) which will promote recovery of solid
waste; [and] minimizing the generation of hazardous waste and the land
disposal of hazardous waste by encouraging process substitution,
materials recovery, properly conducted recycling and reuse, and
treatment.").  Commenters believe that EPA's proposed rule substitutes
recycling for solid waste management, and therefore is contrary to
Congress' intent that recycling be a component of solid waste
management, and also renders the resource recovery provisions of RCRA
null and cannot therefore be upheld. [0231-29, 0559-26]

Commenters argue also that EPA's proposals go far beyond the court's
ruling that ". . .at least some of the secondary material EPA seeks to
regulate as solid waste [in the mineral processing rule] is destined for
reuse as part of a continuous industrial process."  Commenters also
state that the Agency erred when it attempted to apply the decisions by
the Court in AMC I and II, as well as API I and ABR as justification for
modifying the regulations that apply to off-site recycling. Commenters
state that these cases neither compel or even support EPA's proposed
definition and that the legal underpinnings of EPA's proposed regulation
are, therefore, utterly lacking.  Commenters also note that EPA has also
already responded to these cases by revoking the offending regulations
and has no further obligation to act. See 67 Fed. Reg. at 11251.

In each of the court decisions, the focus was on how secondary materials
were classified when they were managed on-site prior to recycling back
into the industrial process, and involved industries (mineral processing
and petroleum) whose nature involves multiple processing steps with
residues inserted directly back into the process.   Of primary
importance to the petitioners was the concept that secondary materials
that were stored or otherwise managed on-site prior to being
reintroduced to the production process (recycled) were not discarded,
abandoned, or thrown away. However, a generator that sends his material
off-site either for reclamation or disposal clearly has no further use
for them either because he does not have the capability of conducting
the reclamation himself, or because the material does not have valuable
components in sufficient quantity or quality that would make reclamation
economically feasible. In this case, the material could be considered
abandoned or thrown away. [0076-1, 0110-2, 0117-1, 0119-1, 0119-6,
0191-6, 0231-14, 0231-22, 0539-3, 0559-28, 0559-29]

Commenters also believe that the court's decision in Safe Food and
Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003), confirms that EPA
reads, or rather misreads, the prior case law far too broadly. The court
said that "Petitioners assert that, as a matter of plain meaning, the
materials in question are "discarded" even though they are recycled in a
useful product. They claim that under the cases recycled material
destined for immediate reuse within an ongoing industrial process is
never considered "discarded," whereas material that is transferred to
another firm or industry for subsequent recycling must always be so
viewed."  350 F.3d at 1265.  Commenters believe that the juxtaposition
of "material destined for immediate reuse" in the first clause with
"material that is transferred to another firm or industry" in the second
clause indicates that the court meant the two clauses to describe
different and contrasting situations. [0119-1, 0119-5]

Commenters believe that Safe Food is further instructive because the
court then carefully examined EPA's reasons for the conditional
exclusion of K061 wastes used to produce fertilizer.  EPA's main reason
was that "market participants treat the exempted materials more like
valuable products than like negatively-valued wastes, managing them in
ways inconsistent with discard …."  350 F.3d at 1267.  But the court
suggested that this reason might not be sufficient, and that the
agency's case rested "on the combination: market participants' treatment
of the materials, together with EPA-required management practices and
contaminant limits assuring substantial chemical identity."  Id. The
court evaluated these reasons from the "proper perspective - namely, a
perspective based on health and environmental risk."  The court held
that these three, each of undefined weight, were critical to EPA's
reasoning, and the court placed great weight on a risk assessment study
in the administrative record showing that the excluded materials would
"not endanger human health or the environment."  350 F.3d at 1268.
Commenters note that, while upholding EPA's rule in general, the record
did not clearly show that the contaminant level for chromium was safe,
so the court remanded for an explanation of the chromium limit "when
considered in light of possible effects on human health or the
environment."  Id.  Commenters assert that most of the secondary
materials that come from processes that are not as amenable to proper
recycling as the metals and petroleum refining industries, will fail the
first test.  Commenters also note that record compiled by EPA in support
of the proposed rule demonstrates that unregulated recyclers treat
hazardous secondary materials as wastes, not valuable commodities, and
accordingly do not properly handle or store the wastes.  As a result,
unregulated recycling operations cause the vast majority of damage cases
identified by EPA. Under EPA's proposed rule, the second item above is
not codified, and is not supported by the damage case information.
Commenters also assert that the proposed rule also clearly fails to
satisfy the "identity" requirement, and that EPA has proposed to convert
this requirement into an optional element of the agency's assessment of
what constitutes legitimate recycling.  70 Fed. Reg. at 14,199. Since
the "identity" factor played such a large role in the court's conclusion
in SFF I, 350 F.3d at 1269-71, commenters believe that it is
inconceivable that EPA could claim that it is acting consistent with
this decision  when EPA is turning "identity" into an optional
consideration.  Overall, the commenters assert that EPA's proposed rule
fails to measure up to the standards set by the D.C. Circuit. [0119-5,
0539-3, 0559-32]

Commenters also assert that Court decisions that address EPA's exercise
of discretion to regulate recyclable materials as solid wastes provide
valuable guidance.  The court views the question of discard along a
continuum of materials and recycling practices.  At one end of the
continuum are materials directly reinserted by the generator into the
production process from which they are produced, such as the mineral
processing secondary materials in AMC I. At the other end of the
continuum are materials that are "indisputably discarded" before being
reclaimed, such as the K061 furnace dust that was shipped to a metals
recovery furnace in API I. "A material somewhere between the extremes of
ongoing production and indisputable discard was addressed" in AMC II.
216 F.3d at 56. There sludges from a surface impoundment that the court
said may later be reclaimed in smelting operations were part of the
facility's wastewater treatment system and not part of ongoing
industrial processes. AMC II, 907 F.2d at 1186. Somewhere along the
continuum were the oil-bearing wastewaters at issue in API II. The court
noted that "[o]ur prior cases have not had to draw a line for deciding
when discard has occurred."  216 F.2d at 57. That line was the central
issue in API II. The court reviewed EPA's determination that oily
wastewaters were discarded prior to treatment to recover oil, against
industry's contention that they were in-process materials that were
recycled and not discarded.  Most importantly, the court examined EPA's
reasons in detail, emphasizing that "the record must reflect that EPA
engaged in reasoned decision-making to decide which characterization
[i.e., discarded material or in-process material] is appropriate."   Id.
The court carefully reviewed EPA's reasons, examining each one in
detail, and concluded "[t]he record in this case is deficient in that
regard." Id. [0119-5]

Commenters also argue that the proposed exclusions are contrary to the
plain language of RCRA. RCRA defines solid waste as:

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

Commenters noted that despite this expansive statutory definition, EPA
has focused its own regulatory program solely on materials that meet the
Agency's ever-shifting definition of "discarded material."  However, the
commenters argue that the plain language of RCRA shows that Congress
intended for certain wastes - namely garbage, refuse, and sludge from
pollution control facilities - to qualify always as solid wastes.  The
statutory definition of "solid waste" also shows that Congress intended
for the term "discarded material" to encompass a broad range of
materials, even if such materials could ultimately be recycled or
reclaimed.  Commenters believe that EPA accordingly lacks authority
under RCRA to redefine the term solid waste in a way that excludes
materials that Congress intended RCRA to regulate, and EPA's proposed
exclusions are therefore contrary to law. [0119-9, 0231-15, 0559-18,
0561-1]

Specifically, commenters argue that the rules of statutory construction
prohibit EPA from excluding statutory solid wastes from regulation.
EPA has long claimed that it has authority to redefine the term "solid
waste" based on the alleged ambiguity of the term "discarded material."
Whatever ambiguity may exist in that term, however, the commenters
believe that statutory definition of solid waste clearly identifies
certain materials - garbage, refuse, and pollution control sludges - as
solid wastes, whether or not those materials are also discarded.  See 42
U.S.C. § 6903(27). Other parts of the statute further show that RCRA
requires strict regulation of pollution control sludges as solid wastes.
Giving effect to the "unambiguously expressed intent of Congress," API
I, 906 F.2d at 740 (quoting Chevron, 467 U.S. at 842-43), commenters
believe EPA must withdraw this proposed regulation as it relates to
pollution control sludges, which are per se solid wastes, whether or not
they may ultimately be recycled. [0231-22, 0231-28, 0559-19, 0559-20,
0559-21]

RCRA defines solid waste as "any garbage, refuse, [pollution control]
sludge and other discarded material."  42 U.S.C. § 6903(27).  The Act
thus defines "solid waste" by listing first those categories of
materials that are always solid wastes and then providing a general
"residual" term to encompass all other materials that are also
considered solid waste. Commenters believe that EPA may not define the
residual term "discarded material" in a way that will negate the
independent significance of the inclusion of the term "sludge" in the
definition of solid waste. It is a "settled principle of statutory
construction that [the agency] must give effect, if possible, to every
word of the statute." Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833
(1983). As both the Supreme Court and the D.C. Circuit have held,
allowing a residual, general term to define the specific terms in a
statute renders the specific terms redundant.  See, e.g., Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001); Cole v. Burns
Intern. Sec. Servs., 105 F.3d 1465, 1470-71 (D.C. Cir. 1997). Indeed,
the Supreme Court in Circuit City declared the statutory language before
it, in which specific examples were followed by a general residual
phrase, to be an "insurmountable obstacle" that could not be interpreted
in a manner that would negate the specific terms.  532 U.S. at 114.
Here, EPA's approach to statutory construction would render the terms
"garbage," "refuse," and "sludge" superfluous if EPA could define "solid
waste" solely based on EPA's determination of whether a given material
qualifies as "discarded material." Commenters therefore believe that
EPA's approach violates basic commands of statutory construction and is
therefore illegal. [0559-21]

Commenters assert that had Congress intended under RCRA for "other
discarded material" to modify all of the other words in the definition
of solid waste, it would not have needed to specifically list "garbage,
refuse, and sludge" separately.  Instead, Congress could have simply
stated that solid waste means "any discarded material."  Rather than do
that, however, Congress as a body rejected just such a definition.  The
House bill H.R. 14496 generally used the term "discarded materials" in
lieu of the Senate's "solid waste."  H.R. 14496 also had a different
definition: "[t]he term 'discarded material' means any garbage, refuse,
sludge, or other waste, including solid, liquid, semisolid, or contained
gaseous material from any source."  94 Cong. House Debates 1976, 32606.
However, the House tabled H.R. 14496 and instead passed S.2150,
deliberately acceding to the Senate definition. See Id. at 32599 ("The
Senate's 'solid waste' terminology was agreed to be used instead of the
House's 'discarded materials' terminology. The Senate definitions of
solid waste and solid waste management have been included."); see also
id. at 33817. By treating "discarded material" as the only statutory
term of significance, commenters believe that EPA has negated Congress'
intent that pollution control sludges categorically qualify as solid
wastes.  Under rules of statutory construction, EPA lacks the authority
to do this.  [0231-24, 0231-26, 0559-21]

Commenters also state that EPA's proposed rule also violates the well
established ejusdem generis canon of construction, under which "general
words [that] follow specific words in a statutory enumeration are
construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words."  Circuit City, 532 U.S. at
114-15, quoting 2A n. Singer, Sutherland on Statutes and Statutory
Construction § 47.17 (1991).  According to this canon, although the
residual clause may be read to give effect to the specific terms, it
also must be controlled and defined by reference to the specific terms
it follows.  Id. at 115; Cole, 105 F.3d at 1470-71. Nothing in the
ejusdem generis canon of construction allows for specific terms to be
defined away by the general residual term.  EPA's to attempt to nullify
the specific term "sludge" within the definition of solid waste is thus
impermissible.  [0227-3, 0231-25, 0559-21]

Indeed, the D.C. Circuit itself relied on ejusdem generis to reach its
conclusions in its first decision interpreting the term "solid waste."
AMC I, 824 F.2d at 1189-90. There, the court analyzed whether EPA could
define as "discarded material," and thus solid waste, intermediate
manufacturing or mining products that would be processed in the ongoing
production processes of the same facility.  Id. at 1181-83. In
concluding that EPA could not extend the term "discarded material" to
encompass materials involved in the ongoing production processes, the
D.C. Circuit turned to the ejusdem generis canon of construction for
support. Specifically, the Court observed:

“[T]he statutory definition of "solid waste" is quite specific. [T]he
definition here is carefully crafted with specificity.  It contains
three specific terms and then sets forth the broader term, "other
discarded material."  The definitional structure brings to mind a
long-standing canon of statutory construction, ejusdem generis. Under
that familiar canon, where general words follow the enumeration of
particular classes of things, the general words are most natural
construed as applying only to things of the same general class as those
enumerated.  Here, the three particular classes - garbage, refuse, and
sludge from a waste treatment plant, water supply treatment plant, or
air pollution control facility - contain materials that clearly fit
within the ordinary, everyday sense of "discarded." It is most sensible
to conclude that Congress, in adding the concluding phrase "other
discarded material," meant to grant EPA authority over similar types of
waste, but not to open up the federal regulatory reach of an entirely
new category of materials, i.e., materials neither disposed of nor
abandoned, but passing in a continuous stream or flow from one
production process to another.” Id. at 1189-90.

Commenters assert that, notably, in referencing the ejusdem generis
canon, the D.C. Circuit made several observations that apply with
particular force here.  First, the court acknowledged that the RCRA
statutory definition of solid waste contains three specific terms that
must be regulated.  Id. at 1189. Second, in finding that these three
specific terms should also help define the broader term, "discarded
material," the court noted that garbage, refuse, and pollution control
sludges "clearly fit within the ordinary, everyday sense of
'discarded.'" Id. at 1190. The court's interpretation thus shows that,
while the specific terms lend meaning to the catch-all term, "discarded
material," they cannot be undermined by EPA's shifting interpretation of
the catch-all term.  Finally, the court acknowledged that a "plain,
everyday" meaning of discard - and not one based on market
participation, economic factors, chemical identity, and other extraneous
considerations - provides the legal touchstone for analyzing EPA's
statutory interpretations.  Accordingly, using the ejusdem generis canon
of construction, and as the D.C. Circuit's opinion in AMC I
acknowledges, Congress intended for three specific categories of
materials - garbage, refuse, and pollution control sludges - to fall
always within the statute's regulatory schemes.  Commenters assert that
EPA's attempt to upset Congress' specific designation of these three
categorical wastes cannot stand under basic statutory construction
rules. [0227-3, 0559-21]

Commenters also cite the Supreme Court's decision in Massachusetts v.
EPA, 127 S.Ct. 1438 (2007), which shows that EPA and the courts must
consider the entirety of a statutory definition when attempting to
define specific terms within that definition.  The Supreme Court found
that the Clean Air Act's statutory definition of "air pollutant" plainly
encompassed carbon dioxide and other greenhouse gases.  Id. at 1460. In
so doing, the Court made clear that EPA cannot single out specific
statutory words, to the exclusion of other defining terms, in an effort
to avoid regulating particular substances.  Id. at 1460 n. 26.
Commenters assert that the structure of the definition of "air
pollutant" under the Clean Air Act is remarkably similar to the
structure of the definition of "solid waste" under RCRA. Therefore, the
commenters believe that Court's statutory analysis in Massachusetts
applies with particular force here, and it shows that EPA's
interpretation of the term "discarded material" impermissibly exempts
material "resulting from industrial, commercial, mining, and
agricultural operations" from regulation as solid waste. The Clean Air
Act defines "air pollutant" as "any air pollution agent or combination
of agents, including any physical, chemical, biological, radioactive
substance or matter which is emitted into or otherwise enters the
ambient air."  (42 U.S.C. 7602(g)). RCRA, as noted, defines "solid
waste" as "any garbage, refuse, [pollution control] sludge , or other
discarded material, including solid, liquid, semisolid, or contained
gaseous material, resulting from industrial, commercial, mining, and
agricultural operations." 42 U.S.C. 6903(27).  Both statutory
definitions start with broad terms - "air pollution agent" under the
Clean Air Act and "garbage, refuse, sludge and other discarded material"
under RCRA - that are further defined by a description of substances
that the broad terms include.  Under the Clean Air Act, "air pollution
agent" includes any physical substance that enters the ambient air.  127
S.Ct. at 1460. Under RCRA, then, the term discarded material must
similarly include materials "resulting from industrial, commercial,
mining, and agricultural operations."  EPA's definition of "solid waste"
reads these terms out of the statute entirely.  Moreover, because RCRA
defines "solid waste" to include "any" garbage, refuse, pollution
control sludge, and other discarded material.  42 U.S.C.6903(27),
commenters believe that in using the term "any," Congress signaled its
clear intent that the term "solid waste" would apply broadly and without
limitation. [0559-25, 0559-26]

Although the commenters acknowledged that EPA has promulgated exclusions
for these materials in the past, and that one such exclusion was
recently upheld in court in Safe Food and Fertilizer v. EPA, they stated
that they believed that the D.C. Circuit erred in  Safe Food and
Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003) ("SFF I"). In that
case, the court invoked a "reverse ejusdem generis" principle to find
that EPA could override Congress' express determination that pollution
control sludges are per se solid wastes, if EPA determined that these
sludges were not also "discarded material."  Id. at 1268-69. Commenters
believe that the court's approach to statutory construction, however,
has no basis in law and cannot be used to allow an agency to ignore
clear statutory directives.  Because the court has consistently reviewed
the term "discarded material" as a stand-alone provision unhinged from
the rest of the statutory definition, commenters believe that the
court's opinions, as a result, are all premised on a significant
misapprehension of the statutory language of RCRA and the regulatory
requirements that Congress intended to impose on "solid, liquid,
semisolid, or contained gaseous material, resulting from industrial,
commercial, mining, and agricultural operations."  42 U.S.C. 6903(27).
Commenters believe that if the court were to properly view the statutory
definition in its entirety, and not view the term "discarded material"
in isolation, it would have to conclude that the materials at issue here
in EPA's proposed exclusions plainly fall within RCRA's statutory
definition of solid waste and therefore must be regulated as such,
whether or not they may at some point be recycled.  Moreover, commenters
believe that the D.C. Circuit relied upon inappropriate factors to
uphold EPA's assessment that pollution control sludges were not
"discarded materials" in SFF I. Accordingly, commenters believe that EPA
cannot rely on SFF I to exclude pollution control sludges from
regulation as solid wastes under RCRA. [0559-21, 0559-24]

Commenters also argue that the "reverse ejusdem generis" principle does
not support EPA's exclusion of pollution control sludges.  The "reverse
ejusdem generis" concept appears for the first time in federal case law
in a 1996 decision authored, like SFF I, by Judge Williams.  United
States v. Davis-Williams, 90 F.3d 490, 509 (D.C. Cir. 1996). In that
case, the relevant statute defined "a person engaged in a continuing
criminal enterprise" to require the person to be "undertaken by such
person in concert with five or more other persons with respect to whom
such person occupies a position of organizer, a supervisory position, or
any other position of management."  Id. at 508 (citing 21 U.S.C.
848(c)).  The Ninth Circuit had held that the statutory terms "a
position of organizer, a supervisory position, or any other position of
management," require the government to show that a person occupying a
"position of organizer" play some sort of managerial role.  Id. at
508-09 (citing United States v. Delgado, 4 F.3d 780, 785 (9th Cir. 1993)
and United States v. Jerome, 942 F.2d 1328 (9th Cir. 1991).
Specifically, as a matter of syntax, the Ninth Circuit held that the
phrase "A, B, or any other C" indicates that A is a subset of C.  Id. at
509. The D.C. Circuit dubbed this approach "a sort of reverse ejusdem
generis" in which the syntax made clear that a person could be liable as
an "organizer" only where he occupied a sort of managerial position.
Id. at 508-09.

The D.C. Circuit's second use of the "reverse ejusdem generis" principle
appears in Dong v. Smithsonian Inst., 125 F.3d 877 (D.C. Cir. 1997),
another decision authored by Judge Williams.  There, a private plaintiff
sued the Smithsonian Institution for failing to adhere to the Privacy
Act, which applies to any "agency."  Id. at 878. The Privacy Act defines
"agency" to include "any executive department, military department,
Government corporation, Government controlled corporation, or other
establishment in the executive branch of the Government, or any
independent regulatory agency."  5 U.S.C. 552(f). The D.C. Circuit held
first that the Smithsonian was not "an establishment in the executive
branch." 125 F.3d at 879. It then considered whether the Smithsonian
qualified as a "Government controlled corporation."  Without addressing
the specific arguments raised by the Smithsonian, the court concluded
that the definition of agency, with its catch-all use of the term "or
other establishment in the executive branch," signaled Congress' intent
to limit the Privacy Act only to the executive branch.  Id. To support
this conclusion, the D.C. Circuit relied on the "reverse ejusdem
generis" principle, as well as a Congressional publication that defines
"agency" to apply solely to the executive branch.  Id. at 879 n.2. The
court did not, however, adopt a categorical rule that a general
catch-all phrase at the end of a list of terms must necessarily be read
so that the general catch-all phrase defines all other words in a list.

In SFF I, however, the D.C. Circuit expanded its use of the "reverse
ejusdem generis" principle in a way that goes well beyond its previous
employment of the term.  Indeed, in both Davis-Williams and Dong, the
D.C. Circuit considered the overall syntax of the statutory terms at
issue and the statutory schemes as a whole before it read the general
catch-all phrases to impose limitations on the previously listed terms.
In SFF I, in contrast, the court stated that EPA's reading of the
statute was "sensible" and "consistent with the 'reverse ejusdem
generis' principle."  350 F.3d at 1269. The court never explained how
the "reverse ejusdem generis" principle gives effect to RCRA's statutory
structure and plain language or how it operates consistently with
Congress' intent in establishing RCRA.  [Footnote 3: (Further, the
"reverse ejusdem generis" explanation only works where a statute uses
the disjunctive "or" rather than the conjunctive "and," and so it should
not apply to the RCRA definition of solid waste, which encompasses "any
garbage, refuse, sludge  and other discarded material.")] Any such
explanation would have faltered under the directive that courts "must
give effect, if possible, to every word of the statute."  Bowsher v.
Merck & Co., Inc., 460 U.S. 824, 833 (1983). In SFF I, by employing the
"reverse ejusdem generis" canon of construction, the court made the term
"discarded material" the only relevant part of the statutory definition
of solid waste.  This is simply impermissible.

Commenters believe that the SFF I opinion is additionally flawed because
the D.C. Circuit impermissibly allowed EPA to justify its exclusion of
pollution control sludges by relying on factors that Congress did not
allow EPA to consider under RCRA.  Specifically, the D.C. Circuit
accepted EPA's argument that EPA could define "discarded materials"
based on a combination of "market participants' treatment of the
materials, together with EPA-required management practices and
contaminant limits assuring substantial chemical identity." 350 F.3d at
1269. Yet nothing in RCRA gives EPA the authority to define "discarded
materials" based on these factors.  RCRA does not allow EPA to define
the term "solid waste" through a market-based approach.  Nor does RCRA
give EPA the authority to exclude materials as "solid wastes" because
EPA believes that the excluded materials have "substantial chemical
identity" with other products or substances.  Commenters believe that
the statute limits EPA's assessment to a consideration of whether the
materials are 1) garbage, 2) refuse, 3) pollution control sludge, and 4)
discarded material, (i.e., material resulting from industrial,
agricultural, mining, and commercial operations).  42 U.S.C. §
6903(27). Commenters assert that the other factors that EPA has included
in its proposed rule may relate to other parts of the statute, but they
have no place in the assessment of whether materials are "solid wastes"
at the outset.

[559-23, 559-27]

2.1.3 - Response

EPA disagrees with comments that state that the Agency has exceeded its
authority by the exclusions in the final rule. While EPA agrees that
Congress has given it the authority to regulate hazardous secondary
materials that are reclaimed under Subtitle C of RCRA when discard is
involved, the Agency also believes (and the courts have confirmed) that
when hazardous secondary materials are reclaimed and such recycling
operations do not involve discard, the hazardous secondary materials
involved are not solid wastes under RCRA.

EPA also has the authority to determine which types of recycling do not
involve discard and, therefore, which types of hazardous secondary
materials are not solid wastes. As EPA noted in the March 2007
supplemental proposal, "[u]nder the RCRA Subtitle C definition of solid
waste, many existing hazardous secondary materials are not solid wastes
and, thus, not subject to RCRA's 'cradle-to-grave' management system if
they are recycled. The basic idea behind this construct is that
recycling of such materials often closely resembles normal industrial
manufacturing, rather than waste management" (72 FR 14197). Existing
exclusions, found in 40 CFR 261.4(a), provide a long historical
precedent for EPA's authority to exclude reclaimed materials from the
definition of solid waste. EPA refers these commenters to the discussion
of case law in the 2007 supplemental proposal (72 FR 14176-78) and the
final rule (Section III of the final rule preamble), and asserts that
this rule follows valid precedent in the D.C. Circuit, including the
court's opinion in Safe Food.

As discussed in section 2.1.5 of the response to comments document, EPA
does not agree that hazardous secondary material that meets the
conditions of the final rule must be subject to full Subtitle C
regulatory control.  Because the conditions define hazardous secondary
materials that are not discarded, and therefore not solid wastes, they
are appropriate for use in this context.

EPA also does not agree that hazardous secondary materials would have to
meet the three factors evaluated by the court in the Safe Food and
Fertilizer v. EPA (350 F.3d at 1267) case (i.e., market participants'
treatment of the materials, together with EPA-required management
practices, and contaminant limits assuring substantial chemical
identity) in order to be excluded.  EPA's rationale in the final rule is
somewhat different than in the Safe Food case, but it is nonetheless
specifically linked to the concept of discard.

Specifically, as discussed in section <IP_ADDRESS> of the response to
comments document, EPA has determined that if the generator maintains
control over the recycled hazardous secondary material, the material is
legitimately recycled under the standards established in the final rule,
and the material is not speculatively accumulated within the meaning of
EPA's regulations, then the hazardous secondary material is not
discarded. This is because the hazardous secondary material is being
treated as a valuable commodity rather than as a waste. By maintaining
control over, and potential liability for, the recycling process, the
generator ensures that the hazardous secondary materials are not
discarded (see ABR 208 F.3d 1051 ("Rather than throwing these materials
[destined for recycling] away, the producer saves them; rather than
abandoning them, the producer reuses them.")) (72 FR 14178).  EPA
continues to believe that when a generator legitimately reclaims
hazardous secondary material under its control, the generator has not
abandoned the material and has every opportunity and incentive to
maintain oversight of, and responsibility for, the hazardous secondary
material that is reclaimed.

In addition, in the case of hazardous secondary materials sent to
another party for recycling, specific conditions allow the Agency to
determine that these hazardous secondary materials are not discarded.
One key condition that reflects the basic premise underlying the
exclusion is the condition that the hazardous secondary material
generator perform and document reasonable efforts to ensure that its
hazardous secondary material will be properly and legitimately recycled.
As EPA explained in the March 2007 supplemental proposal, in order to
demonstrate that hazardous secondary materials will not be discarded,
generators who transfer their hazardous secondary materials to a third
party for reclamation must have a reasonable understanding of who will
be reclaiming the materials and how they will be managed and reclaimed
and a reasonable assurance that the recycling practice is safe and
legitimate (72 FR 14194). In order for a generator to determine whether
its hazardous secondary materials are not solid wastes because they are
not discarded, the generator must make a reasonable effort to ensure
that the reclaimer intends to legitimately recycle the material pursuant
to 40 CFR 260.43 and not discard it, and that the reclaimer (and any
intermediate facility) will properly manage the material.

EPA continues to find that the reasonable efforts condition is critical
in determining when hazardous secondary materials sent to another party
for reclamation are not discarded. According to the study of successful
recycling practices found in the docket for today's rulemaking,
generators of hazardous secondary materials frequently perform audit
activities and inquiries to determine whether the entity to which they
are sending hazardous secondary materials is equipped to responsibly and
legitimately reclaim and manage those materials without the risk of
releases or other environmental damage. These recycling and waste audits
of other companies' facilities form a backbone of many of the
transactions in the hazardous secondary materials markets. As noted in
the March 2007 supplemental proposal, EPA's study of good practices for
recycling quotes one large recycling and disposal vendor as stating that
of its new customers, 60% of the large customers and 30%-50% of the
smaller customers now perform audits on them (72 FR 14191). Thus,
although these practices are not universal, they do indicate that there
are currently many generators who recognize the risk of third-party
recyclers discarding their hazardous secondary materials and who take
responsibility to ensure that this discard does not occur. By codifying
the reasonable efforts condition of the transfer-based exclusion, EPA
has structured the exclusion to appropriately exclude from the
definition of solid waste hazardous secondary materials that are
generated by companies who take this type of responsibility and
therefore are not discarding these materials.

In addition, EPA has determined that the financial health of a
reclamation facility can be a crucial consideration in determining
whether discard is taking place. According to the successful recycling
study, an examination of a company's finances is an important part of
many environmental audits. In addition, the environmental problems study
showed that bankruptcies or other types of business failures were
associated with 138 (66%) of the damage cases, and the market forces
study identified a low net worth of a firm as a strong indication of a
sub-optimal outcome of recycling.  To address the issue of the
correlation of financial health with the absence of discard, EPA
proposed in the March 2007 supplemental proposal to require that
reclamation facilities obtain financial assurance. The financial
assurance requirements are designed to help EPA determine that the
hazardous secondary material generator is not discarding the hazardous
secondary material by sending it to a reclamation facility that is
financially unsound.  In addition, by obtaining financial assurance, the
owner/operator of the reclamation facility (or intermediate facility) is
making a direct demonstration that it will not abandon the hazardous
secondary material. Discard through abandonment was a major cause of
damages identified in the environmental problems study. Of the 208
damage cases, 69 (33%) involved abandoned materials. By obtaining
financial assurance, a reclaimer (or intermediate facility) is
demonstrating that even if unexpected events or events beyond its
control make its operations uneconomical, the hazardous secondary
material will not be abandoned.

In the March 2007 supplemental proposal, EPA also proposed a condition
for reclaimers that they must manage the hazardous secondary materials
in at least as protective a manner as they would an analogous raw
material, and in such a way that the hazardous secondary materials would
not be released into the environment (72 FR 14195). This condition
addresses another major cause of damages identified in the environmental
problems study, mismanagement of recyclable materials, constituting the
primary cause of damage in 81 (40%) of the 208 cases. After reviewing
the comments, EPA continues to find that such a condition is necessary
to distinguish which hazardous secondary materials are not discarded.

The third major source of damages identified in the environmental
problems study was mismanagement of residuals generated from the
reclamation activity, constituting the primary cause of damage in 71
(34%) of the 208 cases. As discussed in the March 2007 supplemental
proposal, EPA found that in many cases, the residuals were comprised of
the most hazardous components of the hazardous secondary materials
(e.g., polychlorinated biphenyls (PCBs) from transformers) and were
simply disposed of in on-site landfills or piles, with little regard for
the environmental consequences of such mismanagement or possible CERCLA
liabilities associated with cleanup of these releases. Therefore, EPA
proposed that "any residuals that are generated from reclamation
processes will be properly managed. If any residuals exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261, or themselves
are listed hazardous wastes, they are hazardous wastes (if discarded)
and must be managed according to the applicable requirements of 40 CFR
parts 260 through 272'' (72 FR 17195). EPA continues to find that this
condition is important to clarify the regulatory status of these waste
materials, to emphasize in explicit terms that the residuals generated
from reclamation operations must be managed properly (i.e., consistent
with federal and state requirements) and to distinguish which hazardous
secondary materials are not discarded.

Finally, other provisions of the transfer-based exclusion help ensure
that the hazardous secondary material is properly transferred to the
reclamation facility for recycling and is not discarded. Only the
hazardous secondary material generator, transporter, intermediate
facility and reclaimer can handle the material. (Note that, as with
hazardous waste, a hazardous secondary material can be held up to 10
days at a transfer facility and still be considered as being
transported.) The hazardous secondary material generators, intermediate,
and reclamation facilities claiming the exclusion must keep records of
the hazardous secondary material shipments, and reclamation and
intermediate facilities must send confirmations of receipt back to the
hazardous secondary material generator. Thus, all parties responsible
for the excluded hazardous secondary materials will be able to
demonstrate that the materials were in fact sent for recycling and
arrived at the intended facility and were not discarded in transit. For
hazardous secondary material generators who are exporting to other
countries for recycling, notice and consent must be obtained, thus
facilitating oversight of the hazardous secondary material when sent
beyond the borders of the United States, helping to ensure that it is
recycled rather than discarded.

EPA's discussion of the issues summarized above in the preamble to the
final rule, as well as all materials in the rulemaking record, support
EPA's decision that materials meeting the conditions and restrictions in
this rule are excluded from the definition of solid waste.  The comments
repeat old arguments that have been raised in the courts and have been
decided.  EPA disagrees with both extremes of the arguments so often
presented in comments on this rule.  That is, the Agency disagrees with
those that would, essentially, prevent the Agency's reasonable exercise
of discretion to exclude materials from the definition of solid waste
and, also, disagrees with those that say the Agency has no discretion to
regulate any recycling.  EPA responds to the latter arguments in other
places in this Response to Comment document and the rulemaking record.
The overall concept that the cases establish is that both wastes and
non-wastes may be recycled.  RCRA may exercise its Subtitle C regulatory
jurisdiction over recycling of materials that have been discarded -
solid wastes - that are also hazardous wastes.  If the materials are not
solid waste, however, recycling is not covered by RCRA Subtitle C
regulations.

With respect to the arguments presented in these comments, EPA will
avoid repeating the "mind-numbing journey through RCRA" that has already
been undertaken by the courts.  See, for example, AMC I, 824 F.2d at
1187-89.  Specific RCRA provisions cited by comments do not "revamp the
basic definitional section of the statute."  Id. at 1187.  EPA refers
the commenters to existing case law.  EPA, also, does not need to
respond to arguments that the D.C. Circuit has wrongly decided cases,
particularly the Safe Food case, since the Agency is bound by decisions
of that court in issuing its rules.

<IP_ADDRESS> - Proposed exclusion for hazardous secondary material recycled
under the control of the generator is unrelated to discard

<IP_ADDRESS> - Summary

EPA's Rationale For Generator-Controlled Exclusion - Comments

Commenters expressed concern about what they understood as the basic
rationale for EPA's broad exclusion for generator on-site recycling,
that: "[b]y maintaining control over, and potential liability for, the
recycling process, the generator ensures that the materials are not
discarded."  57 FR 14178, citing ABR, 208 F.3d at 1051.  However,
commenters assert that EPA is extending the principle too far.
Commenters believe that mere control and potential liability are by no
means sufficient to "ensure" that materials are not discarded,
especially when the generator thereby avoids the cost of proper
recycling or disposal. In addition, commenters assert that whether a
company is "familiar" or not with the hazardous secondary material has
little bearing on anything, and it especially has no bearing on whether
the particular material is discarded.

Excluding Hazardous Secondary Material that is No Longer Useful -
Comments

While commenters acknowledge that a generator that directly reuses a
hazardous secondary material in its ongoing production process has not
discarded that material, they note that EPA's proposed exclusion for
hazardous secondary material under the control of the generator goes
further than direct reuse, and would exclude materials that are no
longer useful to the generator, that are accumulated and stored for
potentially lengthy periods of time, and that are reclaimed in a
recycling process that is not part of the generator's production
activities.

Generator-Controlled Recycling Not Part of Core Business - Comments

Commenters note that many companies recycle on-site to avoid the cost of
RCRA's regulated disposal.  When the reclamation occurs on-site in a
company's normal production processes, commenters believe that EPA can
reasonably conclude that the material is not discarded and is part of a
continuous process. Thus, a paint manufacturing company may reclaim
pigment-impregnated sludges in its production process.  However, normal
paint production does not include a separate solvent distillation unit
that is used to reclaim spent solvent from metal parts cleaning.  Making
solvent to clean equipment is a completely different industry than paint
production - paint companies make paint, not reclaimed solvents.

Commenters also provided the example of a paint manufacturer who must
operate wastewater treatment systems to comply with the discharge limits
of the Clean Water Act and air pollution control systems to meet
emission limits of the Clean Air Act, and then decides to make the
capital investment to construct a metals separation and smelting unit on
its property to recover ferrous metals from the sludge. That process
would clearly be separate and distinct from paint production.
Commenters agssert that it is common sense that the pollution control
sludge is discarded material which is no longer useful to the paint
company for the production of paint, and that the sludge is subsequently
reclaimed as a waste management activity.

Commenters provided another example of a manufacturer that recycles
F-listed spent solvents from equipment cleaning in a thermal
distillation unit that is separate and distinct from its manufacturing
operation.  This generator is not directly reusing the solvent in its
production process, but rather is collecting, storing, and processing a
RCRA-listed spent solvent just like a commercial solvent recycler.
Commenters assert that this situation is similar to the reclamation of
oil-bearing wastewaters at petroleum refineries, which the court held
could be subject to RCRA jurisdiction.  American Petroleum Institute v.
EPA ("API II"), 216 F.3d 50 (D.C. Cir 2000).   In API II, the court
could not determine whether oily wastewater recovered at petroleum
refineries was part of production or waste treatment, and remanded to
EPA for a reasoned explanation.  The administrative record in that case
that was far more fulsome than EPA's meager effort here.  Yet EPA's
proposed rule would exclude all oily wastewater recovery by any company,
without any reasonable explanation of why this is not hazardous waste
reclamation. EPA needs to explain why those reclamation processes,
either at the generator's site or at another firm's site, do not involve
discard prior to recycling.  In other words, EPA must explain how
materials stored and recycled in a subsequent off-site reclamation
process can possibly be viewed as "passing in a continuous stream or
flow from one production process to another." AMC I, 824 F.2d at 1190.

Commenters also note that EPA itself assumes in the Economic Assessment
that paint manufacturers will build solvent recycling units and aluminum
manufacturers will build Vortec systems to recover fluoride from
aluminum potliner.  These reclamation activities are not part of the
basic production process in those industries, which is producing paint
or aluminum, but are separate processes for reclaiming unusable spent
materials.  Thus commenters believe that the proposed rule would exclude
materials that are not reclaimed in an ongoing industrial process, but
can only reasonably be viewed as discarded and subsequently recycled.

Commenters note that EPA's 2003 proposed regulation claims that it would
result in safe recycling, because facilities within the "same industry"
already possess the technological expertise necessary to accomplish safe
and effective recycling. However, EPA also recognized that, under its
proposed rule, facilities within the "same industry" would be allowed to
manufacture recycled products which they do not normally produce and
with which they have no experience, much less expertise.  The commenters
said that EPA fails to explain how allowing industries to experiment
with recycling hazardous wastes (which themselves will be excluded from
regulation) will lead to safe management, when the premise of EPA's
definition hinges on EPA's expectation of the industries' inherent
expertise.  This inconsistency is at its apex when one considers that
EPA has made clear that hazardous wastes that are in fact sent to the
industries with the greatest expertise in waste recycling - the waste
management facilities - will actually be subject to greater regulation
than wastes sent to facilities with absolutely no recycling, or even
waste management, experience.

[0119-7, 0119-8, 0231-17, 0231-34, 0558-5, 0559-38]

<IP_ADDRESS> - Response

EPA's Rationale For Generator-Controlled Exclusion - Response

In the March 2007 supplemental proposal, EPA determined that if the
generator maintains control over the recycled hazardous secondary
material, the material is legitimately recycled under the standards
established in the proposal, and the material is not speculatively
accumulated within the meaning of EPA's regulations, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. By maintaining control over, and potential liability for,
the recycling process, the generator ensures that the hazardous
secondary materials are not discarded (see ABR 208 F.3d 1051 ("Rather
than throwing these materials [destined for recycling] away, the
producers saves them; rather than abandoning them, the producer reuses
them.")) (72 FR 14178).

EPA disagrees with comments that state that the proposed exclusion for
hazardous secondary materials recycled under the control of generator is
unrelated to discard. While the court in Association of Battery
Recyclers v. EPA ("ABR"), 208 F.3d 1047 (D.C. Cir. 2000) specifically
addressed the case where a generator that directly reuses a hazardous
secondary material in its ongoing production process and therefore has
not discarded that material, EPA disagrees that this is the only type of
recycling that does not involve discard.  In the case of hazardous
secondary material recycled under the control of the generator, EPA
believes that the combination of the fact pattern surrounding these
types of recycling situations, coupled with the specific restrictions of
the exclusion, appropriately identify recycling activities that do not
involve discard.  EPA emphasizes the fact material is under the control
of the generator is not sufficient by itself to determine it is not
discarded.  These other factors also come into play.   EPA's view is
that other factors would need to be evaluated to determine whether such
recycling involves waste or not.

EPA continues to believe that when a generator legitimately recycles
hazardous secondary material under its control and meets certain
restrictions described below, the generator has not abandoned the
material and has every opportunity and incentive to maintain oversight
of, and responsibility for, the hazardous secondary material that is
reclaimed.

In determining when recycling occurs "under the control" of the
generator, EPA looked at three scenarios: recycling performed on-site,
recycling performed within the same company, and recycling performed
under certain specific tolling arrangements.

In the March 2007 supplemental proposal, EPA noted that, of the 208
recycling cases that caused environmental damage, only 13 (approximately
6%) occurred as a result of on-site recycling. We also agreed with
commenters on the October 2003 proposal who asserted that "generators
who recycle materials on-site (even if the reclamation takes place in a
different NAICS code) are likely to be familiar with the material and
more likely to maintain responsibility for the materials" (72 FR 14185).
  Familiarity is an important consideration because a facility that is
not familiar with a hazardous secondary material would have a difficult
time recycling it properly.

EPA also determined that this rationale applies to reclamation taking
place within the same company. In the case of same-company recycling,
both the generating facility and the reclamation facility (if they are
different) would be familiar with the hazardous secondary materials and
the company would be ultimately liable for any mismanagement of the
hazardous secondary materials. Under these circumstances, the incentive
to avoid such mismanagement would be so strong that mismanagement also
would be unlikely.

In the case of certain tolling operations, EPA determined in the March
2007 supplemental proposal that a certain specific type of tolling
arrangement provides equivalent assurance that recycling is performed
"under the control of the generator" and does not constitute discard.
Under this type of arrangement, one company (the tolling contractor)
contracts with a second company (the toll manufacturer) to produce a
specialty chemical from specified virgin materials identified in the
tolling contract. The toll manufacturer produces the chemical and the
production process generates a hazardous secondary material (such as a
spent solvent) which is routinely reclaimed at the tolling contractor's
facility. The typical toll manufacturing contract contains detailed
specifications about the product to be manufactured, including
management of any hazardous secondary materials that are produced and
returned to the tolling contractor for reclamation. Under this scenario,
the hazardous secondary material continues to be managed as a valuable
product, so discard has not occurred. Moreover, because the contract
specifies that the tolling contractor retains ownership of, and
responsibility for, the hazardous secondary materials, there is a strong
incentive to avoid any mismanagement or release. In essence, the tolling
contractor has outsourced a step in its manufacturing process, but
continues to take responsibility and maintain control of the process as
a whole, including both the virgin materials going into the process and
the product and hazardous secondary materials resulting from the
process.

For all three of these generator-controlled exclusions (reclamation
performed on-site, within the same company, and via certain tolling
arrangements) EPA continues to find that the hazardous secondary
material generator still finds value in the hazardous secondary
materials, has retained control over them, and intends to reclaim them.
Therefore, EPA is finalizing an exclusion for these materials, with
certain restrictions discussed below.

In the March 2007 supplemental proposal, EPA also noted that management
in a land-based unit does not automatically indicate a hazardous
secondary material is being discarded. As long as the hazardous
secondary material is contained and is destined for recycling under the
control of the generator, it would still meet the terms of the
exclusion. However, if the hazardous secondary material is not managed
as a valuable product and, as a result, a significant release from the
unit occurs, the hazardous secondary material in the land-based unit
would be considered discarded (72 FR 14186). Thus, EPA proposed that the
hazardous secondary material must be contained in the land-based unit in
order for the exclusion to be applicable.

However, in making this finding that hazardous secondary materials
managed in a land-based unit must be contained in order to retain the
exclusion, EPA did not intend to imply that hazardous secondary
materials managed in non-land-based units do not need to be contained.
Hazardous secondary materials released to the environment are not
destined for recycling and are clearly discarded whether they originated
from a land-based unit or not. Because non-land-based units do not
involve direct contact with the land, in the March 2007 supplemental
proposal, EPA did not include an explicit "contained" restriction for
these units. However, as commenters noted, it is still possible for
non-land-based units to leak or otherwise release significant amounts of
hazardous secondary materials to the environment, even if they are not
in direct contact with the land, resulting in those materials being
discarded. Thus, in the final rule, EPA is requiring that hazardous
secondary materials must be contained (whether managed in land-based
units or non-land-based units) in order to identify the hazardous
secondary materials that are not being discarded and, therefore, are not
solid wastes.

Another restriction on the generator-controlled exclusions is the
prohibition against speculative accumulation. As noted in the March 2007
supplemental proposal, restrictions on speculative accumulation (40 CFR
261.1(c)(8)) have been an important element of the RCRA hazardous waste
recycling regulations since they were promulgated on January 4, 1985.
Historically, hazardous secondary materials excluded from the definition
of solid waste generally become wastes when they are speculatively
accumulated, because, at that point, they are considered to be unlikely
to be recycled and therefore are discarded. According to this regulatory
provision, a hazardous secondary material is accumulated speculatively
if the person accumulating it cannot show that the material is
potentially recyclable; further, the person accumulating the hazardous
secondary material must be able to show that during a calendar year
(beginning January 1) the amount of such material that is recycled, or
transferred to a different site for recycling, equals at least 75% by
weight or volume of the amount of that material at the beginning of the
period. As noted in the March 2007 supplemental proposal, this provision
already applies to hazardous secondary materials that are not otherwise
considered to be wastes when recycled, such as materials used as
ingredients or commercial product substitutes, materials that are
recycled in a closed-loop production process, or unlisted characteristic
sludges and by-products being reclaimed (72 FR 14188). Given that a
significant portion of the damage cases stemmed from over-accumulation
of hazardous secondary materials, EPA continues to believe that a
restriction on speculative accumulation is necessary to distinguish
which that the hazardous secondary material is being recycled and is not
discarded.

In addition, as with all recycling exclusions under RCRA, the excluded
hazardous secondary materials must be recycled legitimately. As
discussed in section IX of the final rule preamble, EPA has long
articulated the need to distinguish between "legitimate" (i.e., true)
recycling and "sham" recycling, beginning with the preamble to the 1985
regulations that established the definition of solid waste (50 FR 638,
January 4, 1985) and continuing with the October 2003 and March 2007
proposed codification of criteria for identifying legitimate recycling.
Because there can be a significant economic incentive to manage
hazardous secondary materials outside the RCRA regulatory system, there
is a potential for some handlers to claim that they are recycling, when,
in fact, they are conducting waste treatment and/or disposal in the
guise of recycling. While the legitimacy construct applies to both
excluded recycling and the recycling of regulated hazardous wastes,
hazardous secondary materials that are not legitimately recycled (i.e.,
that are being treated and/or disposed in the guise of recycling) are
discarded materials and, therefore, are solid wastes.

A final restriction on the generator-controlled exclusion from the
definition of solid waste is that the hazardous secondary material must
be generated and recycled within the United States.  Because hazardous
secondary materials that are exported for recycling pass out of the
regulatory control of the federal government, making it difficult to
determine if these activities are "under the control of the generator"
and because, as noted in the March 2007 supplemental proposal, we do not
have sufficient information about most recycling activities outside of
the United States to decide whether discard is likely or unlikely (72 FR
14187), EPA continues to find that this restriction is needed to
properly define when the hazardous secondary material is not being
discarded.

Excluding Hazardous Secondary Material that is No Longer Useful -
Response

EPA disagrees with the comments that material no longer useful to the
generator is automatically a solid waste.  In the first place, the D.C.
Circuit in AMC I specifically rejected the argument that Congress
defined "discard" in an "open-ended way, so as to encompass materials no
longer useful in their original capacity though destined for immediate
reuse in another phase of the industry's ongoing production process."
824 F.2d at 1185.  This, of course, differs from material that is "no
longer useful, valuable, or pleasurable" as noted at 825 F.2d at 1184
n.7.  A material is a waste when it is destined for ultimate disposal or
abandonment.  Furthermore, in Safe Food the court stated, "[W]e have
never said that RCRA compels the conclusion that material destined for
recycling in another industry is necessarily 'discarded.'"  350 F.3d at
1268.

Material recycled under the control of the generator, in many cases,
will fall between these two cases.  That is, it may not be recycled in a
continuous process and it is generally not recycled in another industry.
 In any case material not considered a solid waste under this rule must
meet a number of conditions or restrictions.  Usefulness is only one of
them.  EPA acknowledges that discarded material may, at some point in
the future, be useful but will still be considered a waste.  Simply put,
wastes may have value and may be useful.  See e.g., Owen Steel v.
Browner, 37 F.3d 146, 150 n.4 (4th Cir. 1994); United States v. ILCO
Inc., 996 F.2d 1126, 1131 (11th Cir. 1993); AMC II, 907 F.2d at 1186.
Further, recycling within an industry may or may not be recycling of
wastes, as the D.C. Circuit discussed with respect to oil-bearing
wastewater in API II, 216 F.3d at 55-58.  In this case, however, EPA has
determined that materials that meet the conditions and restrictions of
this rule are not wastes in the first instance.

In response to commenters' concern regarding hazardous secondary
materials being "accumulated and stored for potentially lengthy periods
of time," the Agency would like to clarify the difference between the
2003 proposal and the 2007 proposal regarding speculative accumulation.
In 2003, EPA proposed that reclaimed hazardous secondary materials that
were stored in accordance with existing speculative accumulation
provisions would be considered reclaimed in a "continuous industrial
process.”  However, for the reasons explained in the preamble to the
March 26, 2007 proposal, at that time we chose not to continue pursuing
an exclusion for hazardous secondary materials that are recycled in a
continuous industrial process.  Instead, under the 2007 proposal, we
proposed to require that generators, intermediate facilities, and
reclaimers must comply with the long-standing speculative accumulation
provisions of 40 CFR 261.1(c)(8).  The speculative accumulation
provision distinguishes hazardous secondary materials that a reclaimed
from those that are merely being stored hopes of possible future
recycling.  These provisions already apply to almost all forms of
excluded recycling;  failure to comply with the requirements means that
the material in question is considered a solid waste, and, if it is also
a hazardous waste, subject to all applicable Subtitle C requirements.
The use of these regulations as part of the definition of solid waste
under RCRA has been upheld by the D.C. Circuit (API II, 216 F.3d at
58-59) and the Agency has not reopened these regulations for comment in
this rulemaking.

Generator-Controlled Recycling Not Part of Core Business - Comments

Comments providing examples of on-site recycling that are not part of a
company's production process or otherwise part of its core business
appear to be based on the commenters' misconception that the only type
of recycling that does not involve discard is direct reuse of a
hazardous secondary material in an ongoing production process.  EPA
rejects this premise.  While the generator-controlled exclusions would
include reuse in an ongoing production process, that is not the only
type of generator-controlled reclamation that EPA has determined does
not involve discard.  EPA emphasizes the fact that a hazardous material
under the control of the generator is not a sufficient reason, by
itself, for determining a hazardous secondary material is not discarded.
 These other factors also come into play.  In this respect, EPA
acknowledges the comment's reference to the oil-bearing wastewaters
discussed in API II.  That material may, or may not, be a waste and the
mere fact that it was recycled on-site was not dispositive.  EPA's view
is that other factors would need to be evaluated to determine whether
such recycling involves waste or not.

Accordingly, EPA disagrees with the comments' reference to various
examples of hazardous secondary materials recycled in a way that is not
part of the company's core business and the assertion that these
materials are automatically discarded.  A hazardous secondary material
can be determined to not be a solid waste even if it is recycled outside
the main production process.  Paint manufacturers may still recycle
solvents, or metal-bearing sludge,  even if they decide to ship them to
another company, and the recycling could still be considered recycling
of a useful product depending on compliance with other conditions and
restrictions included in the regulation.

EPA also notes that commenters appear to misinterpret the application of
API II and the AMC I cases to this rulemaking.  EPA is not arguing that
materials stored and recycled in off-site reclamation process are
"passing from a continuous stream." As EPA in this final rule and the
D.C. Circuit in all its cases have repeatedly stressed, AMC I (as well
as ABR) is only cited for the fact that EPA's overturned regulation was
too broad in the sense that it regulated as a waste material reclaimed
in a continuous process.  In ABR, in fact, the court acknowledged that
some material was appropriately regulated as a waste but other material
was also regulated that was clearly not a waste.  EPA in this final rule
is in no sense trying to fit this regulation into a rubric that defines
"reclamation in a continuous process within an industry."  Moreover, AMC
I was not an instruction by the court to have EPA determine criteria for
making that determination.

In regards to the citation to API II and the comparison of solvent
recycling to the recycling of oil bearing wastewater in API II, EPA
acknowledges that solvent recycling, as well as oil bearing wastewater
recycling as discussed in API II, may be waste recycling or may not be,
depending on other factors discussed here.  Further, EPA disagrees that
this rule would exclude all oil bearing wastewater recycling at
refineries from regulation and finds no discussion anywhere in this rule
that says so.  Rather, reclamation of secondary materials would be
excluded from RCRA Subtitle C regulation only if it meets the conditions
and restrictions set forth in this rule.  In fact, the kinds of
questions asked by the court in API II regarding whether the recycling
of the oil bearing wastewaters is waste treatment or not would be the
same kinds of questions that would be asked under this rule -
essentially, "Is it simply a step in the act of discarding? Or is it the
last step in a production process before discard?"  API II 216 F.3d at
57.  Thus, this rule will be upheld (or overturned) based on the
Agency's reasoning in issuing the conditions and restrictions and
showing how hey relate to discard, not on any abstract principle stated
in arguments made by the comments.  A detailed explanation for each
process is simply not warranted given the broad principles established
by this regulation.

In response to the comment on the 2003 proposal concerning EPA's
reliance on facilities within the "same industry" possessing the
technological expertise and familiarity with the hazardous secondary
materials to accomplish safe and effective recycling, EPA notes that, as
discussed elsewhere, the EPA has abandoned the "same industry" approach
in favor of an approach more focused on the concept of discard.
However, the commenters basic issue - that allowing industries to
experiment with recycling hazardous wastes will not lead to safe
management, and that waste management facilities, which have more
expertise in recycling, are subject to greater regulation - is closely
related to other comments in this section.

Again, EPA notes that the central organizing principle of this final
rule is the concept of discard.  EPA has determined that if the
generator maintains control over the recycled hazardous secondary
material, the material is legitimately recycled under the standards
established in the final rule, and the material is not speculatively
accumulated within the meaning of EPA's regulations, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. By maintaining control over, and potential liability for,
the recycling process, the generator ensures that the hazardous
secondary materials are not discarded (see ABR 208 F.3d 1051 ("Rather
than throwing these materials [destined for recycling] away, the
producers saves them; rather than abandoning them, the producer reuses
them.")) (72 FR 14178).   While the generator will already be familiar
with the hazardous secondary material that is generated from its
production process, this is a peripheral issue in determining whether
the hazardous secondary material is discarded.  In contrast, hazardous
secondary material sent to a third party is subject to additional
conditions because EPA has determined, based on the record, that such
material is more likely to be discarded.

<IP_ADDRESS> - EPA should evaluate each type of hazardous secondary material
in making recycling determinations

<IP_ADDRESS> - Summary

One commenter asserted that EPA should evaluate each type of secondary
hazardous material and the particular process at issue in making
recycling determinations under RCRA. After EPA undertakes this inquiry,
the agency must exercise its discretion to determine regulated and
unregulated materials under RCRA from the "proper perspective —
namely, a perspective based on health and environmental risk."  Safe
Food and Fertilizer v. EPA, 350 F.3d 1263, 1265 (D.C. Cir. 2003).
Namely, EPA's record must contain specific evidence that the particular
processes and products at issue protect public health and the
environment.  Safe Food and Fertilizer v. EPA, 350 F.3d 1263, 1265 (D.C.
Cir. 2003). EPA has failed to provide such data or rationales for the
scope of this proposal.  Courts have noted that EPA must have specific
data to make regulatory decisions under RCRA. American Mining Congress
v. EPA, 907 F.2d 1179, 1186-1190 (D.C. Cir. 1990) and Association of
Battery Recyclers v. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000). In
Association of Battery Recyclers v. EPA, the D.C. Circuit chastised the
parties for failing to note that some of the particular mining wastes at
issue:

"may not proceed directly to an ongoing recycling process and may be
analogous to the sludge in AMC II. The parties have presented this
aspect of the case in broad abstraction, providing little detail about
the many processes throughout the industry that generate residual
material of this sort that EPA is attempting the regulate under RCRA. At
this stage, all we can say with certainty is that at least some of the
secondary material EPA seeks to regulate as solid waste is destined for
reuse as part of a continuous industrial process... " 208 F.3d 1047 at
1056.

The D.C. Circuit reemphasized the fact-intensive nature of determining
which materials are recycled and which are not in American Petroleum
Institute v. EPA, 216 F.3d 50, 56 (D.C. Cir 2000) (“We only held that
in-process secondary materials are not 'discarded' so that EPA could not
regulate them; we did not address the discard status of any of the
particular materials discussed in the briefs.")

The classes of materials included in the proposal involve a tremendous
variety of manufacturing processes that produce an array of distinct
products, many of which do not normally integrate reclamation as part of
their production cycle. EPA's Industry Sector Notebooks, which the
agency uses in enforcement, compliance assistance, and pollution
prevention activities, detail a wide variety of the products and
processes that are affected by the proposal. E.g. Environmental
Protection Agency, Electronics and Computer Industry Sector Notebook,
Chapter II and III; Environmental Protection Agency, Fabricated Metal
Products Industry Sector Notebook , Chapter II and II (1995);
Environmental Protection Agency, Inorganic Chemical Industry Sector
Notebook, Chapter II and III (1995); Environmental Protection Agency,
Rubber and Miscellaneous Plastic Products Industry Sector Notebook,
Chapter II and III (1995); Environmental Protection Agency, Profile of
the Organic Chemical Industry 2nd, Chapter II and III (2002);
Environmental Protection Agency; Metal Casting Industry Sector Notebook,
Chapter II and III (1998); Environmental Protection Agency, Nonferrous
Metal Industry Sector Notebook , Chapter II through VIII (1995); and
Environmental Protection Agency, Profile of the Pharmaceuticals
Manufacturing Industry, Chapter II and III (1997) (The following link
contains other sector notebooks on describe a multitude of other
production processes potentially effected under EPA's proposed rule
http://www.epa.gov/compliance/resources/publications/assistance/sectors/
notebooks/ for additional data on other industries included in this
rule).] However, given the breadth of these processes and products, even
these resources fail to address the full range of products and
activities included in some sectors.

For example, EPA's Non-Ferrous Metal Industry Notebook focuses on only a
limited number of production processes because the industry "is a
diverse industrial area which is comprised of many different
manufacturing processes. It is because of this diversity of processes
and related pollutant issues that [EPA's] notebook focuses only on
Primary and Secondary Nonferrous Metals Processing." EPA, Nonferrous
Metal Industry Sector Notebook, II.B.5 (1995). EPA's Metal Casting
Industry Notebook simply acknowledges that the industrial processes are
too diverse to describe: "In addition to the casting techniques
described below, there are numerous special processes and variations of
those processes that cannot be discussed here." EPA, Metal Casting
Industry Sector Notebook, II.B.1.4. (1998). Similarly, the Organic
Chemical Manufacturing section "accounts for much of the diversity" in
the 15,000 types of chemicals manufactured in the U.S. in quantities
greater than 10,000 pounds. EPA, Profile of the Organic Chemical
Industry 2nd, II.A.3 (2002). Of course, the diversity of processes and
products is even greater when one includes the scores of other chemical
products manufactured in the United States in amounts smaller than
10,000 pounds.

[0231-32, 0231-33]

<IP_ADDRESS> - Response

EPA disagrees with comments asserting that the Agency should
individually evaluate each and every type of hazardous secondary
material and the particular process at issue in making recycling
determinations.  While EPA agrees that many of the past determinations
have been made on a material-specific basis, this type of determination
was not the purpose of the final rule.  The final rule instead
identifies in general when reclamation is discard and when it is not,
regardless of the material being reclaimed or the specific process used
for reclamation.  EPA believes that the principles included in the final
rule for determining which hazardous secondary materials are discarded
and which are not are appropriate for the universe of hazardous
secondary materials that re recycled by reclamation.  Further discussion
of EPA's basis for determining when hazardous secondary material
reclamation does not involve discard can be found in Section V of the
preamble to the final rule and in section 2.1 (and its subsections) of
this response to comments document.  EPA notes that the universes of
hazardous secondary materials recycled in ways other than reclamation
(e.g., burning for energy recover or use constituting disposal) are not
included in this rule and thus the principles laid out here are not
applied by this rule to these other universes.

EPA also takes issue with the comment's discussion of the case law.  In
the first place, EPA takes issue with the argument that the Agency must
evaluate each and every particular potential waste stream, based on the
court's statements in various cases and particularly the concern in ABR
that parties only referred to particular processes in "broad
abstractions."  However, the court in no case said that a regulation
must deal with each specific process.  EPA has established criteria in
this rule to evaluate reclamation processes for indicia of discard.
These are reasonable criteria, as noted elsewhere in this Response to
Comment document and in the rulemaking record, and would allay the
court's concern that matters are dealt with in "broad abstractions."
The criteria are sufficient to evaluate particular reclamation processes
for whether discard is occurring.

Second, EPA disagrees with the comment that Safe Food requires a risk
assessment for a determination that a material is not discarded.  In the
regulation challenged in Safe Food, EPA had determined that certain
recycled materials used to make zinc fertilizers and the fertilizers
themselves are not solid wastes so long as they are not speculatively
accumulated and meet certain handling, storage and reporting conditions
and (in the case of the fertilizers themselves) have concentration
levels for lead, arsenic, mercury, cadmium, chromium, and dioxins that
fall below specified thresholds.  350 F.3d at 1265.

These conditions mean that the recycled materials have not been
"discarded" as RCRA defines the term.  These conditions apply to a
number of materials not produced in the fertilizer production industry,
including electric arc furnace dust generated in steel production,
commonly known by its RCRA designation "K061."  350 F.3d at 1266.

The court rejected the argument that, as a matter of plain meaning,
recycled material destined for immediate reuse within an ongoing
industrial process is never considered "discarded," whereas material
that is transferred to another firm or industry for subsequent recycling
must always be solid wastes.  350 F.3d at 1268.  Instead, the court
determined "whether the agency's interpretation of ... 'discarded' . . .
is, reasonable and consistent with the statutory purpose," by evaluating
the validity of EPA's explanation that market participants treat the
exempted materials more like valuable products than like
negatively-valued wastes, manage them in ways inconsistent with discard,
and that the fertilizers derived from these recycled feedstocks are
chemically indistinguishable from analogous commercial products made
from virgin materials.  350 F.3d at 1269.

The court specifically stated that it "need not consider whether a
material could be classified as a non-discard exclusively on the basis
of the market-participation theory."  The market-participation theory
was not challenged.  Thus, it left open the possibility that market
participation could, by itself, lead to classification of a material as
not being a solid waste.  Id.

The court only determined whether the combination of market
participation and "identity" is enough to establish that the recycled
fertilizers are not "discarded."  The question, therefore, was whether
the identity principle, when used in conjunction with indicators like
market valuation and management practices, is a reasonable tool for
distinguishing products from wastes.  The court found that it is.  Id.
Thus, the court left open issues whether market valuation or management
practices, alone, is/are reasonable to distinguish products from wastes.

The remainder of the opinion discusses whether EPA's analysis that the
levels of contaminants in the recycled products were "identical" to the
products made with virgin materials when contaminant levels in the
recycled products were sometimes considerably higher.  350 F.3d at
1269-72.

The court determined that it could affirm EPA's determination if, based
on the Agency's analysis of health and environmental risks, the
differences are so slight as to be substantively meaningless.  The court
found that "the apparent differences in the EPA's exclusion ceilings and
the contaminant levels in the virgin fertilizer samples lose their
significance when put in proper perspective--namely, a perspective based
on health and environmental risks."  Those who argue that a risk
assessment is required latch on to the word "proper" to argue that a
risk assessment is always required.  The court made no such
determination.  It only decided that in this case a risk assessment
analysis was proper.  In fact for non-dioxin contaminants the court did
not demand as detailed a risk assessment.

With respect to dioxins EPA set a level in the final product of 8 parts
per trillion (ppt) and determined that level was "identical" enough
[sic] to support a finding that recycled materials with 8 ppt dioxin are
products rather than "discarded" wastes.  Again, all the court did was
find EPA's analysis reasonable.  In no sense did the court say that
EPA's risk assessment was required.

In fact, for materials other than dioxin and chromium, EPA explained
that its technology-based exclusion limits "are considerably below
levels ... safe for humans and ecosystems," and that setting stricter
limits would yield no substantial environmental benefits. In addition,
EPA explained that the commenters proposing stricter limits failed to
provide data indicating the specified metals' presence in zinc
fertilizers.

For chromium, however, the court determined that EPA has not pointed to
anything in the record indicating that differences in chromium
concentrations are trivial from a health and environment perspective
and, therefore, could not affirm the identity principle for chromium.
The court remanded for clarification on chromium levels.

While Safe Food does not require a risk assessment of the environmental
and health effects of recycling of materials that are not wastes, there
are certain indications in the court's opinion that show how the Agency
may evaluate certain aspects of risk.  For example, in Safe Food, under
the identity principle, the court indicated that comparison of levels
would be appropriate between products made from raw materials and
products made from recycled materials.  Further, if there were an
apparent discrepancy between the products, the Agency could examine
relative risks.  The degree of analysis, however, would depend on the
circumstances in particular cases.  Note that the analysis of dioxin,
chromium and other substances varied depending on the relationship of
the levels in the different products (i.e., those derived from hazardous
secondary materials and those derived from other sources).  Furthermore,
there are various places in this rule where EPA has chosen to consider
whether discard occurs that have some relationship to risk.  For
example, material is discarded if it is stored in a way that is not
contained, residuals have to be managed so they are not improperly
released to the environment, and the legitimacy criteria take into
consideration whether in some circumstances the recycling is merely an
excuse for disposing of unwanted toxic materials.

<IP_ADDRESS> - 2003 proposal lacks data to support the exclusion

<IP_ADDRESS> - Summary

Commenters criticized the 2003 proposal, asserting that EPA lacked the
data to support the proposed exclusions.  Commenters said that there is
no EPA analysis of the potential environmental harm from the proposed
rule, and no reasoned analysis of the indicia of discard or the
environmental basis for EPA's approach.  Commenters asserted that, as of
February 22, 2004, the docket contained no information supporting EPA's
position that the proposed rule would promote safe recycling. Commenters
said that there is no proof in the docket that facilities within certain
industries actually possess expertise necessary to safely recycle
materials, nor is there any evidence in the docket supporting EPA's
blanket assertion that raw materials and valuable materials are
necessarily handled so that releases to the environment do not occur.
Commenters state that the types of materials eligible for the proposed
exclusion include wastes that are typically discarded and subsequently
recycled and that EPA offered very little explanation in just six
paragraphs of the preamble on why the proposal does not exclude
discarded material.

Commenters also cite a memorandum from EPA Headquarters to EPA Region VI
dated March 24, 1994, regarding the regulatory status of mercuric
chloride catalyst.  EPA stated that the partially spent catalyst was a
solid and hazardous waste when it was no longer used by Borden for its
original purpose and was sent to another chemical company for
reprocessing back into mercuric chloride catalyst. EPA stated that
"[t]his is the only interpretation that makes environmental sense,"
since such materials are handled in the same way and pose the same risks
as hazardous wastes.  The commenter asserts that EPA has done a complete
about-face from this position without adequately explaining its
departure from its prior reasoning.  Commenters believe that if EPA's
long-standing position that materials sent for reclamation are discarded
is "the only interpretation that makes environmental sense," then EPA
has damned the proposed rule in its own words. Nowhere in the proposal
does EPA provide reasons why materials that "pose the same potential
risks" when shipped to reclamation should now be deemed non-wastes.
After more than 30 years of RCRA-based experience with reclamation
practices in U.S. industry, the commenter believes that EPA should
certainly be able to develop an adequate record, and notes that EPA has
produced guidance documents for making recycling determinations under
the current rules.

Commenters also note that despite EPA's assertion in 2003 that recycling
operations will not result in risks to human health and the environment
because they involve valuable materials, EPA also acknowledges that
numerous "recycling" operations are responsible for a large number of
environmental damage cases.  Commenters note that numerous environmental
damage cases requiring remediation under RCRA or CERCLA have in fact
involved improper storage, transportation, and handling of "valuable"
raw materials.  Commenters believe that EPA has thus failed to
demonstrate recycling will necessarily involve protective management
practices and thus calls for withdrawal of the proposal.

[0119-9, 0119-10, 0119-11, 0119-12, 0231-17, 0231-34, 0564-24]

<IP_ADDRESS> - Response

EPA acknowledges the public comments to the October 2003 proposal that
criticized the Agency specifically for not having conducted a study of
the potential impacts of the proposed regulatory changes and for not
explaining how the proposed exclusion relates to discard.   In light of
these comments on the October 2003 proposal, and in deliberating on how
to proceed with this rulemaking effort, the Agency decided that
additional information on hazardous secondary material recycling would
benefit the regulatory decision-making process, and would provide
stakeholders with a clearer picture of the hazardous secondary material
recycling industry in this country.

Accordingly, in support of the 2007 supplemental proposal, the Agency
examined three basic issues that we believed were of particular
importance to informing this rulemaking effort:

(1) How do responsible generators and recyclers of hazardous secondary
materials ensure that recycling is done in an environmentally safe
manner?

(2) To what extent have hazardous secondary material recycling practices
resulted in environmental problems in recent years, and why?

(3) Are there certain economic forces or incentives specific to
hazardous secondary material recycling that can explain why
environmental problems can sometimes originate from such recycling
activities?

Reports documenting these studies are available in the docket for this
rulemaking, under the following titles:

- An Assessment of Good Current Practices for Recycling of Hazardous
Secondary Materials (EPA-HQ-RCRA-2002-0031-0354 ) ("successful recycling
study")

- An Assessment of Environmental Problems Associated With Recycling of
Hazardous Secondary Materials (EPA-HQ-RCRA-2002-0031-0355)
("environmental problems study")

- A Study of Potential Effects of Market Forces on the Management of
Hazardous Secondary Materials Intended for Recycling
(EPA-HQ-RCRA-2002-0031-0358) ("market forces study")

The results of these three studies have informed and supported EPA's
decision making in today's final rule.

The successful recycling study has provided information to the Agency
that has helped us determine what types of restrictions and conditions
would be appropriate for hazardous secondary materials sent for
reclamation to determine that they are handled as commodities rather
than wastes. EPA found that responsible recycling practices used by
generators and recyclers to manage hazardous secondary materials fall
into two general categories. The first category includes the audit
activities and inquiries performed by a generator of a hazardous
secondary material to determine whether the entity to which it is
sending such material is equipped to responsibly manage it without risk
of releases or other environmental damage. These recycling and waste
audits of other companies' facilities are a critical component of many
of the transactions in the hazardous secondary materials market. The
second category of responsible recycling practices consists of the
control practices that ensure responsible management of any given
shipment of hazardous secondary material, such as the contracts under
which the transaction takes place and the tracking systems in place that
inform a generator that its hazardous secondary material has been
properly managed.  These findings helped inform EPA's decision to
require that a hazardous secondary material generator conduct reasonable
efforts to ensure its materials are properly and legitimately recycled,
and to require certain recordkeeping requirements.

The goal of the environmental problems study was to identify and
characterize environmental problems that were caused by some types of
hazardous secondary material recycling activity that are relevant for
the purpose of this rulemaking effort. To address commenters concerns
that historic damages are irrelevant to current practices, EPA only
included cases where damages occurred after 1982 (post-RCRA and -CERCLA
implementation). The study identifies 208 cases in which environmental
damages of some kind occurred from some type of recycling activity and
that otherwise fit the scope of the study. The Agency believes that the
occurrence of certain types of environmental problems associated with
current recycling practices shows that discard has occurred. In
particular, instances where materials were abandoned (e.g., in
warehouses) and which required removal overseen by a government agency
and expenditure of public funds clearly demonstrate that the hazardous
secondary material was discarded. Of the 208 damage cases, 69 (33%)
involve abandoned materials. The relatively high incidence of abandoned
materials reflects the fact that bankruptcies or other types of business
failures were associated with 138 (66%) of the cases.

In addition, the pattern of environmental damages that resulted from the
mismanagement of recyclable materials (including contamination of soils,
groundwater, surface water and air) is a strong indication that the
hazardous secondary materials were generally not managed as valuable
commodities and were discarded. Of the 208 damage cases, 81 cases (40%)
primarily resulted from the mismanagement of recyclable hazardous
secondary materials. Mismanagement of recycling residuals was the
primary cause in 71 cases (34%). Often, in the case of mismanagement of
recycling residues, reclamation processes generated residuals in which
the toxic components of the recycled materials were separated from the
non-toxic components, and these portions of the hazardous secondary
material were then mismanaged and discarded. Examples of this include a
number of drum reconditioning facilities, where large numbers of used
drums were cleaned out to remove small amounts of remaining product such
as solvent, and these wastes were then improperly stored or disposed.

These findings helped inform EPA's decision to require that the
hazardous secondary material be contained in the unit and managed in a
manner that is at least as protective as an analogous raw material
(where there is an analogous material),  that the recycling residuals be
properly managed, and that the reclamation facility and any intermediate
facilities have financial assurance. In addition, the relatively small
proportion of cases of damages from on-site recycling (13 of the 208
cases (6%)) lends support for EPA's decision to include fewer
limitations on the exclusion for hazardous secondary materials recycled
under the control of the generator.

The market forces study uses accepted economic theory to describe how
various market incentives can influence a firm's decision-making process
when the recycling of hazardous secondary materials is involved. This
study helps explain some of the fundamental economic drivers of both
successful and unsuccessful recycling practices, which, in turn, helped
the Agency to design the exclusions in the final rule. As pointed out by
some commenters to the October 2003 proposed rule and explained in the
study, the economic forces shaping the behavior of firms that recycle
hazardous secondary materials are often different from those at play in
manufacturing processes using virgin materials. The market forces study
uses economic theory to provide information on how certain
characteristics can influence three different recycling models to result
in an optimal outcome. The three recycling models examined are: (1)
commercial recycling, where the primary business of the firms is
recycling hazardous secondary materials that are accepted for recycling
from off-site industrial sources (which usually pay a fee); (2)
industrial intra-company recycling, where firms generate hazardous
secondary materials as by-products of their main production processes
and recycle the hazardous secondary materials for sale or for their own
reuse in production; and (3) industrial inter-company recycling, where
firms whose primary business is not recycling either use or recycle
hazardous secondary materials obtained from other firms, with the
objective of reducing the cost of their production inputs. The report
looks at how the outcome from each model is potentially affected by
three market characteristics: (1) value of the recycled product, (2)
price stability of recycling output or inputs, and (3) net worth of the
firm.

While an individual firm's decision-making process is based on many
factors and attempting to extrapolate a firm's likely behavior from a
few factors could be an over-simplification, when used in conjunction
with other pieces of information, the economic theory can be quite
illuminating.

For example, according to the market forces study, the industrial intra-
and inter-company recyclers have more flexibility in adjusting to
unstable recycling markets (e.g., during price fluctuations, these
companies can more easily switch from recycling to disposal or from
recycled inputs to virgin inputs). Therefore, they would be expected to
be less likely to have environmental problems from over-accumulated
materials. On the other hand, certain specific types of commercial
recycling, where the product has low value, the prices are unstable,
and/or the firm has a low net worth, could be more susceptible to
environmental problems from over-accumulation of hazardous secondary
materials, especially when compared to recycling by a well-capitalized
firm that yields a product with high value. In both cases, these
predicted outcomes are supported by the results of the environmental
problems study, which show the majority of problems occur at off-site
commercial recyclers.

However, as shown by the study of successful recycling practices,
generators who might otherwise bear a large liability from poorly
managed recycling of their materials at other companies have addressed
this issue by carefully examining the recyclers to which they send their
hazardous secondary materials to ensure that they are technically and
financially capable of performing the recycling. In addition, we have
seen that successful recyclers (both commercial and industrial) have
often taken advantage of mechanisms such as long-term contracts to help
stabilize price fluctuations, allowing recyclers to plan their
operations better.

In response to the comment citing the memorandum on spent catalyst, EPA
notes that the catalyst in question was not subject at the that time to
the conditions and restrictions of the final rule, which EPA has
designed to define when hazardous secondary materials are not solid
wastes.  Thus the discussion in the memo does not address and is not
relevant to the universe of hazardous secondary material managed within
the restrictions and conditions of the final rule.   The record for the
final rule supports the conditions and restrictions that allow EPA to
appropriately define when hazardous secondary material reclamation does
not result in discard.

2.1.4 - EPA's 2007 proposed exclusions have appropriately focused on the
concept of discard

2.1.4 - Summary

Commenters stated that EPA's 2007 supplemental proposal approach
correctly relies on whether or not a secondary material has been
discarded, although some also said that the approach still fails to fix
the threshold problem of EPA assuming all recycling is discard, unless
the activity is specifically exempted.

Commenters supported EPA's new approach of using the concept of
"discard" as the critical identifies of whether secondary materials fall
under the jurisdiction of RCRA's Subtitle C, instead of the approach
used in the original proposal in 2003 ( 68 Fed. Reg. 61558 (October 28,
2003))]. Basing the supplemental proposed rule on the concept of discard
is in keeping with RCRA's basic tenets as well as the underlying case
law to this rulemaking.

Commenters said that the proposed rule demonstrates EPA's commitment to
increasing environmentally beneficial recycling and promoting materials
reuse and recovery.  Beneficial product reuse is consistent with the
goals of RCRA. As EPA correctly points out, basing the proposed rule on
the concept of discard reflects the fundamental logic of the RCRA
statute, which defines a "solid waste" as "…any garbage, refuse,
sludge from a waste treatment plant, or air pollution control facility
and other discarded material…" (emphasis added) (72 Fed. Reg. 14178
(March 26, 2007)).   EPA has now given stakeholders a viable option to
appropriately define all materials that are being legitimately recycled
and beneficially reused and thus, not abandoned, disposed of or
discarded. And, unlike the original proposal, the current proposed rule
does not define "discarded" in terms of a "generating industry" and
narrow possible beneficial reuse to within the same manufacturing
industries.  Instead, under the proposed rule, legitimate recycling by
reclamation can now rightly be accomplished whether the recycling and
reclamation is done within the generating industry or between
industries.

Commenters state that EPA's new approach is also consistent with what
the Court has held: materials that have not been discarded are not under
the jurisdiction of RCRA, apart from whether or not they are recycled
within or among generating industries.  For example, in American Mining
Congress v. EPA, 824 F.2d 1177 (D.C. Cir. 1987), the Court held that EPA
had exceeded its scope in regulating "solid waste," statutorily defined
as "discarded material," by including material destined for reuse in an
industry's ongoing production process.  The Court based its decision on
the plain language of the statute, stating that RCRA did not encompass
materials retained for immediate reuse, and that the legislative intent
of RCRA - to deal with problems of solid waste disposal - indicated that
Congress was using the term "discarded" in its ordinary sense.  In
American Petroleum Institute v. EPA, 906 F.2d 729 (D.C. Cir. 1990), the
Court ruled that EPA was not constrained to interpret the relevant
portions of RCRA based on "an ongoing manufacturing or industrial
process within the generating industry," but rather, is constrained by
RCRA jurisdiction covering materials that have been "disposed of,
abandoned, or thrown away."

Lastly, in the most recent decision on this issue, the Court in Safe
Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003), held that
while "We have held that the term "discarded" cannot encompass materials
that 'are destined for beneficial reuse or recycling in a continuous
process by the generating industry itself'… We have also held that
materials destined for future recycling by another industry may be
considered 'discarded'; the statutory definition does not preclude
application of RCRA to such materials if they can reasonably be
considered part of the waste disposal problem ... But we have never said
that RCRA compels the conclusion that material destined for recycling in
another industry is necessarily 'discarded' " (emphasis added)
[footnote4: (Safe Food, 350 F.3d at 1268)].

Commenters thus believe that EPA's new approach to defining whether or
not waste falls under RCRA Subtitle C jurisdiction based on whether or
not the secondary material is discarded is a reasonable construction
consistent with the plain statutory language of RCRA as well as the
Court's direction.

[0452-5, 0453-5, 0463-2, 0468-2, 0468-3, 0471-5, 0472-1, 0476-1, 0476-2,
0481-27, 0481-129, 0486-4, 0491-2, 0492-2, 0492-11, 0492-27, 0524-3,
0526-1, 0529-1, 0529-12, 0529-33, 0534-1, 0534-2, 0534-8, 0534-10,
0534-11, 0549-1, 0550-1, 0553-1]

2.1.4 - Response

EPA agrees with and appreciates comments that state that EPA's 2007
supplemental proposal approach correctly relies on whether or not a
secondary material has been discarded.

In regards to the comment that the proposal does not address the
"threshold problem of EPA assuming all recycling is discard," EPA notes,
as discussed earlier, the regulations do not equate all recycling as
discard.  EPA's current regulations at 40 CFR 261.2(c) provide that
certain types of hazardous secondary material are solid waste if it is
recycled by being (1) used in a manner constituting disposal, (2) burned
for energy recovery, (3) reclaimed, or (4) accumulated speculatively.
Under this same provision, certain types of hazardous secondary
materials are not solid wastes when recycled in these ways (e.g.,
sludges exhibiting a characteristic of hazardous waste are not solid
wastes when reclaimed).  The final rule only applies to the reclamation
part of the regulation.  The speculative accumulation condition, as has
been noted in this rulemaking record, has been a critical part of the
definition of solid waste for many years.  EPA has explained in the
rulemaking record why the "use constituting disposal" and "burning for
energy recovery" provision are outside the scope for this rulemaking.

2.1.5 - EPA inappropriately imposes conditions on materials that are not
discarded

2.1.5 - Summary

Commenters stated that some of the conditions that EPA proposes for the
exclusions are in the nature of regulatory requirements and are not
truly relevant to defining discard or the absence of discard. Commenters
urge EPA to consider deleting such conditions in the final rule, and
believe that EPA should certainly decline to add more conditions of a
regulatory nature because the addition of such conditions would simply
constitute a modified regulatory regime for undiscarded, recycled
materials, rather than an exclusion of such materials from RCRA
regulation consistent with the limits on EPA's statutory authority.
Commenters note that, according to EPA, the ability to propose these
obligations is "inherent in our authority to regulate discarded
materials, and we consider this to be the minimum information needed to
enable credible oversight of such activities, and ensure that the terms
of the exclusion are being met by generators and recyclers."  68 Fed.
Reg. at 61,577.  However, commenters believe that if a material is not
being "discarded," the Agency has no jurisdiction over that material and
find EPA's justification to be confusing in the context of those
secondary materials defined by the Agency as "materials that are not
considered wastes when recycled."  68 Fed. Reg. at 61,561.  If a
material is not considered a "waste," then how can it be "discarded"?
One commenter stated that a condition of meeting some very basic
recordkeeping requirements - consistent with normal business practices
for handling valuable commodities - may reasonably help to define the