SUPPORTING STATEMENT FOR

EPA INFORMATION COLLECTION REQUEST NUMBER 2310.01

REVISIONS TO THE RCRA DEFINITION OF SOLID WASTE

October 28, 2008

Office of Solid Waste

United States Environmental Protection Agency

Washington, D.C. 20460

TABLE OF CONTENTS

  TOC \o "1-3" \h \z    HYPERLINK \l "_Toc212958266"  1.	IDENTIFICATION
OF THE INFORMATION COLLECTION	  PAGEREF _Toc212958266 \h  1

  HYPERLINK \l "_Toc212958267"  1(a)	Title and Number of the Information
Collection	  PAGEREF _Toc212958267 \h  1

  HYPERLINK \l "_Toc212958268"  1(b)	Short Characterization	  PAGEREF
_Toc212958268 \h  1

  HYPERLINK \l "_Toc212958269"  2.	NEED FOR AND USE OF THE COLLECTION
PAGEREF _Toc212958269 \h  22

  HYPERLINK \l "_Toc212958270"  2(a)	Need and Authority for the
Collection	  PAGEREF _Toc212958270 \h  22

  HYPERLINK \l "_Toc212958271"  2(b)	Practical Utility and Users of the
Data	  PAGEREF _Toc212958271 \h  30

  HYPERLINK \l "_Toc212958272"  3.	NONDUPLICATION, CONSULTATIONS, AND
OTHER COLLECTION CRITERIA	  PAGEREF _Toc212958272 \h  35

  HYPERLINK \l "_Toc212958273"  3(a)	Nonduplication	  PAGEREF
_Toc212958273 \h  35

  HYPERLINK \l "_Toc212958274"  3(b)	Public Notice	  PAGEREF
_Toc212958274 \h  35

  HYPERLINK \l "_Toc212958275"  3(c)	Consultations	  PAGEREF
_Toc212958275 \h  37

  HYPERLINK \l "_Toc212958276"  3(d)	Effects of Less Frequent Collection
  PAGEREF _Toc212958276 \h  39

  HYPERLINK \l "_Toc212958277"  3(e)	General Guidelines	  PAGEREF
_Toc212958277 \h  39

  HYPERLINK \l "_Toc212958278"  3(f)	Confidentiality	  PAGEREF
_Toc212958278 \h  39

  HYPERLINK \l "_Toc212958279"  3(g)	Sensitive Questions	  PAGEREF
_Toc212958279 \h  39

  HYPERLINK \l "_Toc212958280"  4.	THE RESPONDENTS AND THE INFORMATION
REQUESTED	  PAGEREF _Toc212958280 \h  40

  HYPERLINK \l "_Toc212958281"  4(a)	Respondents and NAICS Codes
PAGEREF _Toc212958281 \h  40

  HYPERLINK \l "_Toc212958282"  4(b)	Information Requested	  PAGEREF
_Toc212958282 \h  41

  HYPERLINK \l "_Toc212958283"  5.	THE INFORMATION COLLECTED:  AGENCY
ACTIVITIES, COLLECTION METHODOLOGY, AND INFORMATION MANAGEMENT	  PAGEREF
_Toc212958283 \h  84

  HYPERLINK \l "_Toc212958284"  5(a)	Agency Activities	  PAGEREF
_Toc212958284 \h  84

  HYPERLINK \l "_Toc212958285"  5(b)	Collection Methodology and
Management	  PAGEREF _Toc212958285 \h  90

  HYPERLINK \l "_Toc212958286"  5(c)	Small Entity Flexibility	  PAGEREF
_Toc212958286 \h  90

  HYPERLINK \l "_Toc212958287"  5(d)	Collection Schedule	  PAGEREF
_Toc212958287 \h  90

  HYPERLINK \l "_Toc212958288"  6.	ESTIMATING THE HOUR AND COST BURDEN
OF THE COLLECTION	  PAGEREF _Toc212958288 \h  102

  HYPERLINK \l "_Toc212958289"  6(a)	Estimating Respondent Burden Hours
 PAGEREF _Toc212958289 \h  102

  HYPERLINK \l "_Toc212958290"  6(b)	Estimating Respondent Costs
PAGEREF _Toc212958290 \h  102

  HYPERLINK \l "_Toc212958291"  6(c)	Estimating Agency Hour and Cost
Burden	  PAGEREF _Toc212958291 \h  103

  HYPERLINK \l "_Toc212958292"  6(d)	Estimating the Annual Respondent
Universe and Total Hour and Cost Burden	  PAGEREF _Toc212958292 \h  103

  HYPERLINK \l "_Toc212958293"  6(e)	Bottom Line Hour and Cost Burden
PAGEREF _Toc212958293 \h  115

  HYPERLINK \l "_Toc212958294"  6(f)	Reasons for Change In Burden
PAGEREF _Toc212958294 \h  116

  HYPERLINK \l "_Toc212958295"  6(g)	Public Burden Statement	  PAGEREF
_Toc212958295 \h  116

1.	IDENTIFICATION OF THE INFORMATION COLLECTION

1(a)	Title and Number of the Information Collection

This Information Collection Request (ICR) is entitled ARevisions to the
RCRA Definition of Solid Waste,” EPA ICR Number 2310.01.

1(b)	Short Characterization

The U.S. Environmental Protection Agency (EPA) has published final
revisions to the definition of solid waste that exclude certain
hazardous secondary materials from regulation under Subtitle C of the
Resource Conservation and Recovery Act (RCRA), as amended.
Specifically, EPA has amended 40 CFR Part 261 to provide that hazardous
secondary materials reclaimed under the control of the generator are not
solid wastes if specified conditions are met.  EPA has also amended Part
261 to provide that hazardous secondary materials that are generated and
then transferred to another person for the purpose of reclamation are
not solid waste, provided that specified conditions are met.  In
addition, EPA has established conditions for the export of excluded
materials, as specified.  Finally, EPA has finalized other amendments to
address particular issues (e.g., it has established standards in Part
260 to enable a person to apply to EPA for a formal determination that a
material is not discarded and therefore not a solid waste).  The purpose
of the amendments is to codify the RCRA concept of “legitimate
recycling” and to respond to court decisions concerning the definition
of solid waste.

In Sections 1 through 5 of this document, EPA presents a comprehensive
description of the information collection requirements in the final
rule.  In Section 6, EPA estimates the total annual hour and cost burden
to respondents associated with these new paperwork requirements.  In
addition, EPA estimates the total annual burden savings to generators
and subsequent handlers for no longer being subject to the existing RCRA
information collection requirements for the excluded materials.

In the following paragraphs, EPA describes the information collection
requirements in the final rule.

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED AND RECLAIMED
UNDER THE CONTROL OF THE GENERATOR

40 CFR 260.10 provides that “hazardous secondary material generated
and reclaimed under the control of the generator” means: (1) that such
material is generated and reclaimed at the generating facility (for
purposes of this paragraph, generating facility means all contiguous
property owned, leased, or otherwise controlled by the hazardous
secondary material generator); or (2) that such material is generated
and reclaimed at different facilities, if the reclaiming facility is
controlled by the generator or if both the generating facility and the
reclaiming facility are controlled by a person as defined in section
260.10, and if the generator provides one of the certifications as
specified.  For purposes of this paragraph, “control” means the
power to direct the policies of the facility, whether by the ownership
of stock, voting rights, or otherwise, except that contractors who
operate facilities on behalf of a different person as defined in section
260.10 shall not be deemed to “control” such facilities; or (3) that
such material is generated pursuant to a written contract between a
tolling contractor and a toll manufacturer and is reclaimed by the
tolling contractor, if the tolling contractor provides a certification
as specified. For purposes of this paragraph, tolling contractor means a
person who arranges for the production of a product or intermediate made
from specified unused materials through a written contract with a toll
manufacturer.  Toll manufacturer means a person who produces a product
or intermediate made from specified unused materials pursuant to a
written contract with a tolling contractor.

NON-WASTE DETERMINATIONS

	Application for Non-Waste Determination

40 CFR 260.33(a) provides that an applicant must apply to the
Administrator for a variance or non-waste determination.  The
application must address the relevant criteria contained in section
260.31, 260.32, or 260.34, as applicable.  [Note:  40 CFR 260.31 and
260.32 are existing requirements that were not affected by the final
rule.  Therefore, they are not addressed in this supporting statement.]

Section 260.34(a) provides that an applicant may apply to the
Administrator for a formal determination that a hazardous secondary
material is not discarded and therefore not a solid waste. The
determinations will be based on the criteria contained in section
260.34(b) or (c), as applicable.  If an application is denied, the
hazardous secondary material might still be eligible for a solid waste
variance or exclusion (for example, one of the solid waste variances
under section 260.31).  Determinations may also be granted by the State
if the State is either authorized for this provision or if the specified
conditions are met.

Section 260.34(b) provides that the Administrator may grant a non-waste
determination for hazardous secondary material which is reclaimed in a
continuous industrial process if the applicant demonstrates that the
hazardous secondary material is a part of the production process and is
not discarded.  The determination will be based on whether the hazardous
secondary material is legitimately recycled as specified in section
260.43 and on the criteria under paragraphs (b)(1)-(4).

Section 260.34(c) provides that the Administrator may grant a non-waste
determination for hazardous secondary material which is
indistinguishable in all relevant aspects from a product or intermediate
if the applicant demonstrates that the hazardous secondary material is
comparable to a product or intermediate and is not discarded.  The
determination will be based on whether the hazardous secondary material
is legitimately recycled as specified in section 260.43 and on the
criteria under paragraphs (c)(1)-(5).

Re-Application for Non-Waste Determination

40 CFR 260.33(c) applies to non-waste determinations and provides that,
in the event of a change in circumstances that affects how a hazardous
secondary material meets the relevant criteria contained in section
260.34 upon which a non-waste determination has been based, the
applicant must re-apply to the Administrator for a formal determination
that the hazardous secondary material continues to meet the relevant
criteria and therefore is not a solid waste.

NOTIFICATION

40 CFR 260.42(a) provides that hazardous secondary material generators,
tolling contractors, toll manufacturers, reclaimers, and intermediate
facilities managing hazardous secondary materials which are excluded
from regulation under section 261.2(a)(2)(ii) or section 261.4(a)(23),
(24), or (25) must send a notification prior to operating under the
exclusion(s) and by March 1 of each even numbered year thereafter to the
Regional Administrator using EPA Form 8700-12 that includes the
specified information at section 260.42(a)(1)-(10).

Section 260.42(b) provides that, if a hazardous secondary material
generator, tolling contractor, toll manufacturer, reclaimer or
intermediate facility has submitted a notification, but then
subsequently stops managing hazardous secondary materials in accordance
with the exclusion(s), the facility must notify the Regional
Administrator within thirty (30) days using EPA Form 8700-12.  For
purposes of this section, a facility has stopped managing hazardous
secondary materials if the facility no longer generates, manages and/or
reclaims hazardous secondary materials under the exclusion(s) and does
not expect to manage any amount of hazardous secondary materials for at
least one year.

LEGITIMATE RECYCLING

	40 CFR 260.43(a) provides that persons regulated under section 260.34
or claiming to be excluded from hazardous waste regulation under section
261.2(a)(2)(ii) or section 261.4(a)(23), (24), or (25) because they are
engaged in reclamation must be able to demonstrate that the recycling is
legitimate.  Hazardous secondary material that is not legitimately
recycled is discarded material and is a solid waste.  In determining if
their recycling is legitimate, persons must address the requirements of
section 260.43(b) and must consider the requirements of section
260.43(c).

	Section 260.43(b) provides that legitimate recycling must involve a
hazardous secondary material that provides a useful contribution to the
recycling process or to a product or intermediate of the recycling
process, and the recycling process must produce a valuable product or
intermediate.  Section 260.43(b)(1) provides that the hazardous
secondary material provides a useful contribution if it meets the
specified criteria.  Section 260.43(b)(2) provides that the product or
intermediate is valuable if it meets the specified criteria.

Section 260.43(c) specifies the factors that must be considered in
making a determination as to the overall legitimacy of a specific
recycling activity.

[Note:  The requirements of 40 CFR 260.43 are not information collection
requirements.  They are technical criteria that must be satisfied for
recycling to be legitimate.]

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

	Exclusion at 40 CFR 261.2(a)(2)(ii)

40 CFR 261.2(a)(2)(ii) provides that a hazardous secondary material is
not discarded if it is generated and reclaimed under the control of the
generator as defined in section 260.10, it is not speculatively
accumulated as defined in section 261.1(c)(8), it is handled only in
non-land-based units and is contained in such units, it is generated and
reclaimed within the United States and its territories, it is not
otherwise subject to material-specific management conditions under
section 261.4(a) when reclaimed, it is not a spent lead acid battery
(see sections 266.80 and 273.2), it does not meet the listing
description for K171 or K172 in section 261.32, and the reclamation of
the material is legitimate, as specified under section 260.43.  The
notification requirements of section 260.42 also apply.  For hazardous
secondary materials managed in land-based units, see section
261.4(a)(23).

Exclusion at 40 CFR 261.4(a)(23)

40 CFR 261.4(a)(23) provides that hazardous secondary material generated
and reclaimed within the United States or its territories and managed in
land-based units as defined in section 260.10 is not a solid waste
provided that: the material is contained (261.4(a)(23)(i)); the material
is a hazardous secondary material generated and reclaimed under the
control of the generator, as defined in section 260.10
(261.4(a)(23)(ii)); the material is not speculatively accumulated, as
defined in section 261.1(c)(8) (261.4(a)(23)(iii)); the material is not
otherwise subject to material-specific management conditions under
section 261.4(a) when reclaimed, it is not a spent lead acid battery
(see sections 266.80 and 273.2), and it does not meet the listing
description for K171 or K172 in section 261.32 (261.4(a)(23)(iv)); and
the reclamation of the material is legitimate, as specified under
section 260.43 (261.4(a)(23)(v)).  In addition, persons claiming the
exclusion under section 261.4(a)(23) must provide notification as
required by section 260.42 (261.4(a)(23)(vi)). For hazardous secondary
materials managed in a non-land-based unit, see section 261.2(a)(2)(ii).

Exclusion at 40 CFR 261.4(a)(24)

40 CFR 261.4(a)(24) provides that hazardous secondary material that is
generated and then transferred to another person for the purpose of
reclamation is not a solid waste, provided that the requirements of
section 261.4(a)(24)(i)-(vii) are met.  Section 261.4(a)(24)(i)-(iv)
sets forth technical standards applicable to the material (e.g.,
requirements for handling the material).

Section 261.4(a)(24)(v) provides that the hazardous secondary material
generator must satisfy the conditions of section 261.4(a)(24)(v)(A)-(E).
 Section 261.4(a)(24)(v)(A) provides that the material must be
contained.  Section 261.4(a)(24)(v)(B) provides that, prior to arranging
for transport of hazardous secondary materials to a reclamation facility
(or facilities) where the management of the hazardous secondary
materials is not addressed under a RCRA Part B permit or interim status
standards, the hazardous secondary material generator must make
reasonable efforts to ensure that each reclaimer intends to properly and
legitimately reclaim the hazardous secondary material and not discard
it, and that each reclaimer will manage the hazardous secondary material
in a manner that is protective of human health and the environment.  If
the hazardous secondary material will be passing through an intermediate
facility where the management of the hazardous secondary materials is
not addressed under a RCRA Part B permit or interim status standards,
the hazardous secondary material generator must make contractual
arrangements with the intermediate facility to ensure that the hazardous
secondary material is sent to the reclamation facility identified by the
hazardous secondary material generator, and the hazardous secondary
material generator must perform reasonable efforts to ensure that the
intermediate facility will manage the hazardous secondary material in a
manner that is protective of human health and the environment.
Reasonable efforts must be repeated at a minimum of every three years
for the hazardous secondary material generator to claim the exclusion
and to send the hazardous secondary materials to each reclaimer and any
intermediate facility.  In making these reasonable efforts, the
generator may use any credible evidence available, including information
gathered by the hazardous secondary material generator, provided by the
reclaimer or intermediate facility, and/or provided by a third party.
Section 261.4(a)(24)(v)(C) provides that the hazardous secondary
material generator must maintain for a minimum of three years
documentation and certification that reasonable efforts were made for
each reclamation facility and, if applicable, intermediate facility
where the management of the hazardous secondary materials is not
addressed under a RCRA Part B permit of interim status standards prior
to transferring hazardous secondary material.  Documentation and
certification must be made available upon request by a regulatory
authority within 72 hours, or within a longer period of time as
specified by the regulatory authority.  Section 261.4(a)(24)(v)(D)
provides that the hazardous secondary material generator must maintain
at the generating facility for no less than three (3) years records of
all off-site shipments of hazardous secondary materials.  Section
261.4(a)(v)(E) provides that the hazardous secondary material generator
must maintain at the generating facility for no less than three (3)
years confirmations of receipt from each reclaimer and, if applicable,
each intermediate facility for all off-site shipments of hazardous
secondary materials.

Section 261.4(a)(24)(vi) provides that reclaimers of hazardous secondary
material excluded from regulation under this exclusion and intermediate
facilities as defined in section 260.10 must satisfy the conditions of
section 261.4(a)(24)(vi)(A)-(F).  Section 261.4(a)(24)(vi)(A) provides
that the reclaimer and intermediate facility must maintain at its
facility for no less than three (3) years records of all shipments of
hazardous secondary material that were received at the facility and, if
applicable, for all shipments of hazardous secondary materials that were
received and subsequently sent off-site from the facility for further
reclamation.  Section 261.4(a)(24)(vi)(B) provides that the intermediate
facility must send the hazardous secondary material to the reclaimer(s)
designated by the hazardous secondary materials generator.  Section
261.4(a)(24)(vi)(C) provides that the reclaimer and intermediate
facility must send to the hazardous secondary material generator
confirmations of receipt for all off-site shipments of hazardous
secondary materials.  Section 261.4(a)(24)(vi)(D) and (E) provides
technical standards for the management of hazardous secondary material
and residuals from reclamation. Section 261.4(a)(24)(vi)(F) provides
that the reclaimer and intermediate facility must have financial
assurance as required under Subpart H of 40 CFR Part 261.

Section 261.4(a)(24)(vii) provides that all persons claiming the
exclusion under section 261.4(a)(24) must provide notification as
required under section 260.42.

Export Requirements at 40 CFR 261.4(a)(25)

40 CFR 261.4(a)(25) provides that hazardous secondary material that is
exported from the United States and reclaimed at a reclamation facility
located in a foreign country is not a solid waste, provided that the
hazardous secondary material generator complies with the applicable
requirements of section 261.4(a)(24)(i)-(v) (excepting section
261.4(a)(24)(v)(B)(2) for foreign reclaimers and foreign intermediate
facilities), and that the hazardous secondary material generator also
complies with the conditions in section 261.4(a)(25).

Section 261.4(a)(25)(i) provides that the hazardous secondary material
generator must notify EPA of an intended export before the hazardous
secondary material is scheduled to leave the United States.  A complete
notification must be submitted at least sixty (60) days before the
initial shipment is intended to be shipped off-site.  This notification
may cover export activities extending over a twelve (12) month or lesser
period.  Section 261.4(a)(25)(ii) sets forth addresses for submittal of
notifications and provides that the following shall be prominently
displayed on the front of the envelope: “Attention:  Notification of
Intent to Export.”  Section 261.4(a)(25)(iii) provides that, except
for changes to the telephone number in paragraph (i)(A) of this section
and decreases in the quantity of hazardous secondary material indicated
pursuant to paragraph (i)(D) of this section, when the conditions
specified on the original notification change (including any exceedance
of the estimate of the quantity of hazardous secondary material
specified in the original notification), the hazardous secondary
material generator must provide EPA with a written renotification of the
change. The shipment cannot take place until consent of the receiving
country to the changes (except for changes to paragraph (i)(I) of this
section and in the ports of entry to and departure from transit
countries pursuant to paragraph (i)(E) of this section) has been
obtained and the hazardous secondary material generator receives from
EPA an Acknowledgment of Consent reflecting the receiving country’s
consent to the changes.  Section 261.4(a)(25)(iv) provides that, upon
request by EPA, the hazardous secondary material generator shall furnish
to EPA any additional information which a receiving country requests in
order to respond to a notification.

Section 261.4(a)(25)(v) describes procedures for EPA to notify the
receiving country and any transit countries.  Section 261.4(a)(25)(vi)
sets forth provisions for the consent, objection, and withdrawal of
prior consent of an intended export shipment by a receiving country.
Section 261.4(a)(25)(vii) provides that, for exports to OECD Member
countries, the receiving country may respond to the notification using
tacit consent. If no objection has been lodged by any receiving country
or transit countries to a notification provided pursuant to paragraph
(i) of this section within thirty (30) days after the date of issuance
of the acknowledgement of receipt of notification by the competent
authority of the receiving country, the transboundary movement may
commence. In such cases, EPA will send an Acknowledgement of Consent to
inform the hazardous secondary material generator that the receiving
country and any relevant transit countries have not objected to the
shipment, and are thus presumed to have consented tacitly.  Tacit
consent expires one (1) calendar year after the close of the thirty (30)
day period; renotification and renewal of all consents is required for
exports after that date.

Section 261.4(a)(25)(viii) provides that a copy of the Acknowledgment of
Consent must accompany the shipment.  The shipment must conform to the
terms of the Acknowledgment of Consent.  Section 261.4(a)(25)(ix)
provides that, if a shipment cannot be delivered for any reason to the
reclaimer, intermediate facility or the alternate reclaimer or alternate
intermediate facility, the hazardous secondary material generator must
re-notify EPA of a change in the conditions of the original notification
to allow shipment to a new reclaimer in accordance with paragraph (iii)
of this section and obtain another Acknowledgment of Consent.  Section
261.4(a)(25)(x) provides that hazardous secondary material generators
must keep a copy of each notification of intent to export and each
Acknowledgment of Consent for a period of three years following receipt
of the Acknowledgment of Consent.  Section 261.4(a)(25)(xi) provides
that hazardous secondary material generators must file with the
Administrator no later than March 1 of each year, a report summarizing
the types, quantities, frequency and ultimate destination of all
hazardous secondary materials exported during the previous calendar
year.  Such reports must include the information in section
261.4(a)(25)(xi)(A)-(E).

Section 261.4(a)(25)(xii) provides that all persons claiming an
exclusion under section 261.4(a)(25) must provide notification as
required by section 260.42.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED HAZARDOUS SECONDARY
MATERIALS

40 CFR 261.140(a) provides that the requirements of 40 CFR Part 261
Subpart H, “Financial Requirements for Management of Excluded
Hazardous Secondary Materials,” apply to owners or operators of
reclamation and intermediate facilities managing hazardous secondary
materials excluded under 40 CFR 261.4(a)(24), except as provided
otherwise.  Section 261.140(b) provides that States and the Federal
government are exempt from the financial assurance requirements of the
subpart.

	Cost Estimate

40 CFR 261.142(a) requires owners or operators to have a detailed
written estimate, in current dollars, of the cost of disposing of any
hazardous secondary material as listed or characteristic hazardous
waste, and the potential cost of closing the facility as a treatment,
storage, and disposal facility.  The cost estimate must satisfy the
requirements of section 261.142(a)(1)-(4).

Section 261.142(b) requires that, during the active life of the
facility, the owner or operator must adjust the cost estimate for
inflation within 60 days prior to the anniversary date of the
establishment of the financial instrument(s) used to comply with section
261.143.  For owners or operators using the financial test or corporate
guarantee, the cost estimate must be updated for inflation within 30
days after the close of the firm's fiscal year and before submission of
updated information to the Regional Administrator as specified in
section 261.143(e)(3).

Section 261.142(c) provides that, during the active life of the
facility, the owner or operator must revise the cost estimate no later
than 30 days after a change in a facility’s operating plan or design
that would increase the costs of conducting the activities described in
section 261.142(a) or no later than 60 days after an unexpected event
which increases the cost of conducting the activities described in
section 261.142(a). The revised cost estimate must be adjusted for
inflation as specified in section 261.142(b).

Section 261.142(d) requires the owner or operator to keep the following
at the facility during the operating life of the facility: The latest
cost estimate prepared in accordance with section 261.142(a) and (c)
and, when this estimate has been adjusted in accordance with section
261.142(b), the latest adjusted cost estimate.

Financial Assurance Condition

Per 40 CFR 261.4(a)(24)(vi)(F), an owner or operator of a reclamation or
intermediate facility must have financial assurance as a condition of
the exclusion as required under section 261.4(a)(24).  He must choose
from the options as specified in section 261.143(a) through (e).

(1)	Trust Fund

40 CFR 261.143(a)(1) provides that an owner or operator may satisfy the
requirements of this section by establishing a trust fund which conforms
to the requirements of this paragraph and submitting an originally
signed duplicate of the trust agreement to the Regional Administrator.
Section 261.143(a)(2) provides that the wording of the trust agreement
must be identical to the wording specified in section 261.151(a)(1), and
the trust agreement must be accompanied by a formal certification of
acknowledgment.  Schedule A of the trust agreement must be updated
within 60 days after a change in the amount of the current cost estimate
covered by the agreement.  Section 261.143(a)(3) provides that the trust
fund must be funded for the full amount of the current cost estimate
before it may be relied upon to satisfy the requirements of this
section.  Section 261.143(a)(4) provides that, whenever the current cost
estimate changes, the owner or operator must compare the new estimate
with the trustee's most recent annual valuation of the trust fund.  If
the value of the fund is less than the amount of the new estimate, the
owner or operator, within 60 days after the change in the cost estimate,
must either deposit an amount into the fund so that its value after this
deposit at least equals the amount of the current cost estimate, or
obtain other financial assurance as specified in this section to cover
the difference.  Section 261.143(a)(5) provides that, if the value of
the trust fund is greater than the total amount of the current cost
estimate, the owner or operator may submit a written request to the
Regional Administrator for release of the amount in excess of the
current cost estimate.  Section 261.143(a)(6) provides that, if an owner
or operator substitutes other financial assurance as specified in this
section for all or part of the trust fund, he may submit a written
request to the Regional Administrator for release of the amount in
excess of the current cost estimate covered by the trust fund.  Section
261.143(a)(7) provides that, within 60 days after receiving a request
from the owner or operator for release of funds as specified, the
Regional Administrator will instruct the trustee to release to the owner
or operator such funds as the Regional Administrator specifies in
writing.  If the owner or operator begins final closure under Subpart G
of 40 CFR Part 264 or 265, an owner or operator may request
reimbursements for partial or final closure expenditures by submitting
itemized bills to the Regional Administrator.  The owner or operator may
request reimbursements for partial closure only if sufficient funds are
remaining in the trust fund to cover the maximum costs of closing the
facility over its remaining operating life.  Section 261.143(a)(8)
describes EPA procedures for termination of the trust.

 (2)	Surety Bond Guaranteeing Payment into a Trust Fund

40 CFR 261.143(b)(1) provides that an owner or operator may satisfy the
requirements of this section by obtaining a surety bond which conforms
to the requirements of this paragraph and submitting the bond to the
Regional Administrator.  The surety company issuing the bond must, at a
minimum, be among those listed as acceptable sureties on Federal bonds
in Circular 570 of the U.S. Department of the Treasury.  Section
261.143(b)(2) requires the wording of the surety bond to be identical to
the wording specified in section 261.151(b).  Section 261.143(b)(3)
provides that the owner or operator who uses a surety bond to satisfy
the requirements of this section must also establish a standby trust
fund. This standby trust fund must meet the requirements specified in
section 261.143(a), except as otherwise specified.  Section
261.143(b)(4) provides that the bond must make specified guarantees.
Section 261.143(b)(5) and (6) describe standards related to the owner or
operator’s failure to perform as guaranteed and the penal sum amount.
Section 261.143(b)(7) provides that, whenever the current cost estimate
increases to an amount greater than the penal sum, the owner or
operator, within 60 days after the increase, must either cause the penal
sum to be increased to an amount at least equal to the current cost
estimate and submit evidence of such increase to the Regional
Administrator, or obtain other financial assurance as specified in this
section to cover the increase.  Whenever the current cost estimate
decreases, the penal sum may be reduced to the amount of the current
cost estimate following written approval by the Regional Administrator.
Section 261.143(b)(8) provides that, under the terms of the bond, the
surety may cancel the bond by sending notice of cancellation by
certified mail to the owner or operator and to the Regional
Administrator.  Cancellation may not occur, however, during the 120 days
beginning on the date of receipt of the notice of cancellation by both
the owner or operator and the Regional Administrator, as evidenced by
the return receipts.  Section 261.143(b)(9) provides that the owner or
operator may cancel the bond if the Regional Administrator has given
prior written consent based on his receipt of evidence of alternate
financial assurance as specified in this section.

(3)	Letter of Credit

40 CFR 261.143(c)(1) provides that an owner or operator may satisfy the
requirements of this section by obtaining an irrevocable standby letter
of credit which conforms to the requirements of this paragraph and
submitting the letter to the Regional Administrator.  Section
261.143(c)(2) provides that the wording of the letter of credit must be
identical to the wording specified in section 261.151(c).  Section
261.143(c)(3) provides that an owner or operator who uses a letter of
credit to satisfy the requirements of this section must also establish a
standby trust fund, as specified.  This standby trust fund must meet the
requirements of the trust fund specified in section 261.143(a), except
as otherwise specified.  An originally signed duplicate of the trust
agreement must be submitted to the Regional Administrator with the
letter of credit.  Section 261.143(c)(4) provides that the letter of
credit must be accompanied by a letter from the owner or operator,
referring to the letter of credit as specified.  Section 261.143(c)(5)
provides that the letter of credit must be irrevocable and issued for a
period of at least 1 year.  The letter of credit must provide that the
expiration date will be automatically extended for a period of at least
1 year unless, at least 120 days before the current expiration date, the
issuing institution notifies both the owner or operator and the Regional
Administrator by certified mail of a decision not to extend the
expiration date.  Section 261.143(c)(6) specifies that the letter of
credit must be issued in an amount at least equal to the current cost
estimate, except as provided in section 261.143(f).  Section
261.143(c)(7) provides that, whenever the current cost estimate
increases to an amount greater than the amount of the credit, the owner
or operator, within 60 days after the increase, must either cause the
amount of the credit to be increased so that it at least equals the
current cost estimate and submit evidence of such increase to the
Regional Administrator, or obtain other financial assurance as specified
in this section to cover the increase.  Whenever the current cost
estimate decreases, the amount of the credit may be reduced to the
amount of the current cost estimate following written approval by the
Regional Administrator.  Section 261.143(c)(8) provides that, following
a determination by the Regional Administrator that the hazardous
secondary materials do not meet the conditions of the exclusion under
section 261.4(a)(24), the Regional Administrator may draw on the letter
of credit.  Section 261.143(c)(9) provides that, if the owner or
operator does not establish alternate financial assurance as specified
in this section and obtain written approval of such alternate assurance
from the Regional Administrator within 90 days after receipt by both the
owner or operator and the Regional Administrator of a notice from the
issuing institution that it has decided not to extend the letter of
credit beyond the current expiration date, the Regional Administrator
will draw on the letter of credit.  The Regional Administrator may delay
the drawing if the issuing institution grants an extension of the term
of the credit.  During the last 30 days of any such extension the
Regional Administrator will draw on the letter of credit if the owner or
operator has failed to provide alternate financial assurance as
specified in this section and obtain written approval of such assurance
from the Regional Administrator.  Section 261.143(c)(10) addresses the
return of the letter of credit by EPA to the issuing institution for
termination.

(4)	Insurance

40 CFR 261.143(d)(1) provides that an owner or operator may satisfy the
requirements of this section by obtaining insurance which conforms to
the requirements of this paragraph and submitting a certificate of such
insurance to the Regional Administrator.  Section 261.143(d)(2) provides
that the wording of the certificate of insurance must be identical to
the wording specified in section 261.151(d).  Section 261.143(d)(3)
provides that the insurance policy must be issued for a face amount at
least equal to the current cost estimate, except as provided in section
261.143(f).  Section 261.143(d)(4) provides that the insurance policy
must make specified guarantees.  Section 261.143(d)(5) provides that,
after beginning partial or final closure under 40 CFR Part 264 or 265,
as applicable, an owner or operator or any other authorized person may
request reimbursements for closure expenditures by submitting itemized
bills to the Regional Administrator, in accordance with specified
standards.  Section 261.143(d)(6) provides that the owner or operator
must maintain the policy in full force and effect until the Regional
Administrator consents to termination of the policy by the owner or
operator as specified in paragraph (i)(10) of this section.  Failure to
pay the premium, without substitution of alternate financial assurance
as specified in this section, will constitute a significant violation of
these regulations, warranting such remedy as the Regional Administrator
deems necessary.  Such violation will be deemed to begin upon receipt by
the Regional Administrator of a notice of future cancellation,
termination, or failure to renew due to nonpayment of the premium,
rather than upon the date of expiration.  Section 261.143(d)(7) provides
that each policy must contain a provision allowing assignment of the
policy to a successor owner or operator.  Such assignment may be
conditional upon consent of the insurer, provided such consent is not
unreasonably refused.  Section 261.143(d)(8) provides that the policy
must provide that the insurer may not cancel, terminate, or fail to
renew the policy except for failure to pay the premium.  The automatic
renewal of the policy must, at a minimum, provide the insured with the
option of renewal at the face amount of the expiring policy.  If there
is a failure to pay the premium, the insurer may elect to cancel,
terminate, or fail to renew the policy by sending notice by certified
mail to the owner or operator and the Regional Administrator.
Cancellation, termination, or failure to renew may not occur, however,
during the 120 days beginning with the date of receipt of the notice by
both the Regional Administrator and the owner or operator, as evidenced
by the return receipts.  Cancellation, termination, or failure to renew
may not occur and the policy will remain in full force and effect as
specified.  Section 261.143(d)(9) provides that, whenever the current
cost estimate increases to an amount greater than the face amount of the
policy, the owner or operator, within 60 days after the increase, must
either cause the face amount to be increased to an amount at least equal
to the current cost estimate and submit evidence of such increase to the
Regional Administrator, or obtain other financial assurance as specified
in this section to cover the increase.  Whenever the current cost
estimate decreases, the face amount may be reduced to the amount of the
current cost estimate following written approval by the Regional
Administrator.  Section 261.143(d)(10) provides that the Regional
Administrator will give written consent to the owner or operator that he
may terminate the insurance policy as specified.

(5)	Financial Test and Corporate Guarantee

40 CFR 261.143(e)(1) provides that an owner or operator may satisfy the
requirements of this section by demonstrating that he passes a financial
test as specified in this paragraph.  To pass this test the owner or
operator must meet the criteria of either section 261.143(e)(1)(i) or
(ii).  Section 261.143(e)(2) defines phrases used in the regulations.
Section 261.143(e)(3) provides that, to demonstrate that he meets this
test, the owner or operator must submit specified items to the Regional
Administrator.  Section 261.143(e)(4) provides that the owner or
operator may obtain an extension of the time allowed for submission of
the documents specified in paragraph (e)(3) of this section if the
fiscal year of the owner or operator ends during the 90 days prior to
the effective date of these regulations and if the year-end financial
statements for that fiscal year will be audited by an independent
certified public accountant.  The extension will end no later than 90
days after the end of the owner's or operator's fiscal year. To obtain
the extension, the owner's or operator's chief financial officer must
send, by the effective date of these regulations, a letter to the
Regional Administrator of each Region in which the owner's or operator's
facilities to be covered by the financial test are located.  Section
261.143(e)(5) provides that, after the initial submission of items
specified in paragraph (e)(3) of this section, the owner or operator
must send updated information to the Regional Administrator within 90
days after the close of each succeeding fiscal year. This information
must consist of all three items specified in paragraph (e)(3) of this
section.  Section 261.143(e)(6) provides that, if the owner or operator
no longer meets the requirements of paragraph (e)(1) of this section, he
must send notice to the Regional Administrator of intent to establish
alternate financial assurance as specified in this section. The notice
must be sent by certified mail within 90 days after the end of the
fiscal year for which the year-end financial data show that the owner or
operator no longer meets the requirements. The owner or operator must
provide the alternate financial assurance within 120 days after the end
of such fiscal year.  Section 261.143(e)(7) provides that the Regional
Administrator may, based on a reasonable belief that the owner or
operator may no longer meet the requirements of paragraph (e)(1) of this
section, require reports of financial condition at any time from the
owner or operator in addition to those specified in paragraph (e)(3) of
this section. If the Regional Administrator finds, on the basis of such
reports or other information, that the owner or operator no longer meets
the requirements of paragraph (e)(1) of this section, the owner or
operator must provide alternate financial assurance as specified in this
section within 30 days after notification of such a finding.  Section
261.143(e)(8) provides that the Regional Administrator may disallow use
of this test on the basis of qualifications in the opinion expressed by
the independent certified public accountant in his report on examination
of the owner's or operator's financial statements (see paragraph
(e)(3)(ii) of this section).  An adverse opinion or a disclaimer of
opinion will be cause for disallowance.  The Regional Administrator will
evaluate other qualifications on an individual basis.  The owner or
operator must provide alternate financial assurance as specified in this
section within 30 days after notification of the disallowance.  Section
261.143(e)(9) describes circumstances when the owner or operator is no
longer required to submit the items specified in paragraph (e)(3) of
this section.  Section 261.143(e)(10) provides that an owner or operator
may meet the requirements of this section by obtaining a written
guarantee.  The guarantor must meet the requirements for owners or
operators in paragraphs (e)(1) through (8) of this section and must
comply with the terms of the guarantee.  The wording of the guarantee
must be identical to the wording specified in section 261.151(g)(1).  A
certified copy of the guarantee must accompany the items sent to the
Regional Administrator as specified in paragraph (e)(3) of this section.
 One of these items must be the letter from the guarantor's chief
financial officer, as described in section 261.143(e)(10).

Use of Financial Mechanisms for Multiple Facilities

40 CFR 261.143(g) provides for the use of a financial mechanism for
multiple facilities.  An owner or operator may use a financial assurance
mechanism specified in this section to meet the requirements of this
section for more than one facility.  Evidence of financial assurance
submitted to the Regional Administrator must include a list showing, for
each facility, the EPA Identification Number (if any issued), name,
address, and the amount of funds assured by the mechanism.  If the
facilities covered by the mechanism are in more than one Region,
identical evidence of financial assurance must be submitted to and
maintained with the Regional Administrators of all such Regions.  The
amount of funds available through the mechanism must be no less than the
sum of funds that would be available if a separate mechanism had been
established and maintained for each facility.  In directing funds
available through the mechanism for any of the facilities covered by the
mechanism, the Regional Administrator may direct only the amount of
funds designated for that facility, unless the owner or operator agrees
to the use of additional funds available under the mechanism.

Removal and Decontamination Plan and Release from Financial Assurance
Obligations

40 CFR 261.143(h)(1) provides that an owner or operator of a reclamation
facility or an intermediate facility who wishes to be released from his
financial assurance obligations under section 261.4(a)(24)(vi)(F) must
submit a plan for removing all hazardous secondary material residues to
the Regional Administrator at least 180 days prior to the date on which
he expects to cease to operate under the exclusion.  Section
261.143(h)(2) spells out the contents of the plan.  Section
261.143(h)(3) provides that the Regional Administrator will provide the
owner or operator and the public, through a newspaper notice, the
opportunity to submit written comments on the plan and request
modifications to the plan no later than 30 days from the date of the
notice. He will also, in response to a request or at his discretion,
hold a public hearing whenever such a hearing might clarify one or more
issues concerning the plan. The Regional Administrator will give public
notice of the hearing at least 30 days before it occurs. The Regional
Administrator will approve, modify, or disapprove the plan within 90
days of its receipt. If the Regional Administrator does not approve the
plan, he shall provide the owner or operator with a detailed written
statement of reasons for the refusal and the owner or operator must
modify the plan or submit a new plan for approval within 30 days after
receiving such written statement. The Regional Administrator will
approve or modify this plan in writing within 60 days. If the Regional
Administrator modifies the plan, this modified plan becomes the approved
plan. The Regional Administrator must assure that the approved plan is
consistent with applicable requirements.  A copy of the modified plan
with a detailed statement of reasons for the modifications must be
mailed to the owner or operator.  Section 261.143(h)(4) provides that,
within 60 days of completion of the activities described for each
hazardous secondary materials management unit, the owner or operator
must submit to the Regional Administrator, by registered mail, a
certification that all hazardous secondary materials have been removed
from the unit and the unit has been decontaminated in accordance with
the specifications in the approved plan. The certification must be
signed by the owner or operator and by a qualified Professional
Engineer. Documentation supporting the Professional Engineer's
certification must be furnished to the Regional Administrator, upon
request, until he releases the owner or operator from the financial
assurance requirements for section 261.4(a)(24)(vi)(F).

Section 261.143(i) provides that, within 60 days after receiving
certifications from the owner or operator and a qualified Professional
Engineer that all hazardous secondary materials have been removed from
the facility or a unit at the facility and the facility or a unit has
been decontaminated in accordance with the approved plan per paragraph
(h), the Regional Administrator will notify the owner or operator in
writing that he is no longer required under section 261.4(a)(24)(vi)(F)
to maintain financial assurance for that facility or a unit at the
facility, unless the Regional Administrator has reason to believe that
that all hazardous secondary materials have not been removed from the
facility or unit at a facility or that the facility or unit has not been
decontaminated in accordance with the approved plan. The Regional
Administrator will provide the owner or operator a detailed written
statement of any such reason to believe that all hazardous secondary
materials have not been removed from the unit or that the unit has not
been decontaminated in accordance with the approved plan.

Coverage for Sudden and Non-Sudden Accidental Occurrences

40 CFR 261.147(a) provides that an owner or operator of a hazardous
secondary material reclamation facility or an intermediate facility
subject to financial assurance requirements under section
261.4(a)(24)(vi)(F), or a group of such facilities, must demonstrate
financial responsibility for bodily injury and property damage to third
parties caused by sudden accidental occurrences arising from operations
of the facility or group of facilities.  Section 261.147(b) provides
that an owner or operator of a hazardous secondary material reclamation
facility or intermediate facility with land-based units, as defined in
section 260.10, which are used to manage hazardous secondary materials
excluded under section 261.4(a)(24), or a group of such facilities, must
demonstrate financial responsibility for bodily injury and property
damage to third parties caused by nonsudden accidental occurrences
arising from operations of the facility or group of facilities.  The
owner or operator must have and maintain liability coverage for sudden
and nonsudden accidental occurrences in the amounts specified in the
regulations.  This liability coverage may be demonstrated as specified
in section 261.147(a)(1), (2), (3), (4), (5), or (6) for sudden
accidental occurrences and section 261.147(b)(1), (2), (3), (4), (5), or
(6) for nonsudden accidental occurrences.

(1)	Liability Insurance

40 CFR 261.147(a)(1) and (b)(1) provides that an owner or operator may
demonstrate the required liability coverage by having liability
insurance for sudden and nonsudden accidental occurrences, as specified
in section 261.147(a)(1) and (b)(1), respectively.  Section
261.147(a)(1)(i) and (b)(1)(i) require that each insurance policy must
be amended by attachment of the Hazardous Secondary Material Facility
Liability Endorsement, or evidenced by a Certificate of Liability
Insurance.  The wording of the endorsement must be identical to the
wording specified in section 261.151(h).  The wording of the certificate
of insurance must be identical to the wording specified in section
261.151(i).  The owner or operator must submit a signed duplicate
original of the endorsement or the certificate of insurance to the
Regional Administrator, or Regional Administrators if the facilities are
located in more than one Region.  If requested by a Regional
Administrator, the owner or operator must provide a signed duplicate
original of the insurance policy.  Section 261.147(a)(1)(ii) and
(b)(1)(ii) provide that each insurance policy must be issued by an
insurer which, at a minimum, is licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus
lines insurer, in one or more States.

 (2)	Financial Test or Guarantee

40 CFR 261.147(a)(2) and (b)(2) provide that an owner or operator may
meet the requirements of this section by passing a financial test or
using the guarantee for liability coverage as specified in section
261.147(f) and (g).

Section 261.147(f)(1) provides that an owner or operator may satisfy the
requirements of this section by demonstrating that he passes a financial
test as specified in this paragraph. To pass this test the owner or
operator must meet the criteria of paragraph (f)(1)(i) or (ii) of this
section.  Section 261.147(f)(2) defines phrases used in the regulations.
 Section 261.147(f)(3) provides that, to demonstrate that he meets this
test, the owner or operator must submit the specified items to the
Regional Administrator.  Section 261.147(f)(4) provides that the owner
or operator may obtain a one-time extension of the time allowed for
submission of the documents specified in paragraph (f)(3) of this
section if the fiscal year of the owner or operator ends during the 90
days prior to the effective date of these regulations and if the
year-end financial statements for that fiscal year will be audited by an
independent certified public accountant. The extension will end no later
than 90 days after the end of the owner's or operator's fiscal year. To
obtain the extension, the owner's or operator's chief financial officer
must send, by the effective date of these regulations, a letter to the
Regional Administrator of each Region in which the owner's or operator's
facilities to be covered by the financial test are located.  Section
261.147(f)(5) provides that, after the initial submission of items
specified in paragraph (f)(3) of this section, the owner or operator
must send updated information to the Regional Administrator within 90
days after the close of each succeeding fiscal year. This information
must consist of all three items specified in paragraph (f)(3) of this
section.  Section 261.147(f)(6) provides that, if the owner or operator
no longer meets the requirements of paragraph (f)(1) of this section, he
must obtain insurance, a letter of credit, a surety bond, a trust fund,
or a guarantee for the entire amount of required liability coverage as
specified in this section.  Evidence of liability coverage must be
submitted to the Regional Administrator within 90 days after the end of
the fiscal year for which the year-end financial data show that the
owner or operator no longer meets the test requirements.  Section
261.147(f)(7) provides that the Regional Administrator may disallow use
of this test on the basis of qualifications in the opinion expressed by
the independent certified public accountant in his report on examination
of the owner's or operator's financial statements (see paragraph
(f)(3)(ii) of this section). An adverse opinion or a disclaimer of
opinion will be cause for disallowance. The Regional Administrator will
evaluate other qualifications on an individual basis. The owner or
operator must provide evidence of insurance for the entire amount of
required liability coverage as specified in this section within 30 days
after notification of disallowance.

Section 261.147(g)(1) provides that, subject to paragraph (g)(2) of this
section, an owner or operator may meet the requirements of this section
by obtaining a written guarantee, hereinafter referred to as
“guarantee.” The guarantor must be the direct or higher-tier parent
corporation of the owner or operator, a firm whose parent corporation is
also the parent corporation of the owner or operator, or a firm with a
“substantial business relationship” with the owner or operator. The
guarantor must meet the requirements for owners or operators in
paragraphs (f)(1) through (f)(6) of this section. The wording of the
guarantee must be identical to the wording specified in section
261.151(g)(2). A certified copy of the guarantee must accompany the
items sent to the Regional Administrator as specified in paragraph
(f)(3) of this section. One of these items must be the letter from the
guarantor's chief financial officer.  Section 261.147(g)(2)(i) provides
that, in the case of corporations incorporated in the United States, a
guarantee may be used to satisfy the requirements of this section only
if the Attorneys General or Insurance Commissioners of (A) the State in
which the guarantor is incorporated, and (B) each State in which a
facility covered by the guarantee is located have submitted a written
statement to EPA that a guarantee executed as described in this section
and section 264.151(g)(2) is a legally valid and enforceable obligation
in that State.  Section 261.147(g)(2)(ii) provides that, in the case of
corporations incorporated outside the United States, a guarantee may be
used to satisfy the requirements of this section only if (A) the
non-U.S. corporation has identified a registered agent for service of
process in each State in which a facility covered by the guarantee is
located and in the State in which it has its principal place of
business, and if (B) the Attorney General or Insurance Commissioner of
each State in which a facility covered by the guarantee is located and
the State in which the guarantor corporation has its principal place of
business, has submitted a written statement to EPA that a guarantee
executed as described in this section and section 261.151(h)(2) is a
legally valid and enforceable obligation in that State.

(3) 	Letter of Credit

40 CFR 261.147(a)(3) and (b)(3) provide that an owner or operator may
meet the requirements of this section by obtaining a letter of credit
for liability coverage as specified in section 261.147(h).

Section 261.147(h)(1) provides that an owner or operator may satisfy the
requirements of this section by obtaining an irrevocable standby letter
of credit that conforms to the requirements of this paragraph and
submitting a copy of the letter of credit to the Regional Administrator.
 Section 261.147(h)(2) provides that the financial institution issuing
the letter of credit must be an entity that has the authority to issue
letters of credit and whose letter of credit operations are regulated
and examined by a Federal or State agency.  Section 261.147(h)(3)
provides that the wording of the letter of credit must be identical to
the wording specified in section 261.151(j). Section 261.147(h)(4)
provides that an owner or operator who uses a letter of credit to
satisfy the requirements of this section may also establish a standby
trust fund. Under the terms of such a letter of credit, all amounts paid
pursuant to a draft by the trustee of the standby trust will be
deposited by the issuing institution into the standby trust in
accordance with instructions from the trustee. The trustee of the
standby trust fund must be an entity which has the authority to act as a
trustee and whose trust operations are regulated and examined by a
Federal or State agency.  Section 261.147(h)(5) provides that the
wording of the standby trust fund must be identical to the wording
specified in section 261.151(m).

(4)	Surety Bond for Liability Coverage

40 CFR 261.147(a)(4) and (b)(4) provide that an owner or operator may
meet the requirements of this section by obtaining a surety bond for
liability coverage as specified in section 261.147(i).

Section 261.147(i)(1) provides that an owner or operator may satisfy the
requirements of this section by obtaining a surety bond that conforms to
the requirements of this paragraph and submitting a copy of the bond to
the Regional Administrator.  Section 261.147(i)(2) provides that the
surety company issuing the bond must be among those listed as acceptable
sureties on Federal bonds in the most recent Circular 570 of the U.S.
Department of the Treasury.  Section 261.147(i)(3) provides that the
wording of the surety bond must be identical to the wording specified in
section 261.151(k).  Section 261.147(i)(4) provides that a surety bond
may be used to satisfy the requirements of this section only if the
Attorneys General or Insurance Commissioners of (i) the State in which
the surety is incorporated, and (ii) each State in which a facility
covered by the surety bond is located have submitted a written statement
to EPA that a surety bond executed as described in this section and
section 261.151(k) is a legally valid and enforceable obligation in that
State.

(5)	Trust Fund

40 CFR 261.147(a)(5) and (b)(5) provide that an owner or operator may
meet the requirements of this section by obtaining a trust fund for
liability coverage as specified in section 261.147(j).

Section 261.147(j)(1) provides that an owner or operator may satisfy the
requirements of this section by establishing a trust fund that conforms
to the requirements of this paragraph and submitting an originally
signed duplicate of the trust agreement to the Regional Administrator.
Section 261.147(j)(2) provides that the trustee must be an entity which
has the authority to act as a trustee and whose trust operations are
regulated and examined by a Federal or State agency.  Section
261.147(j)(3) provides that the trust fund for liability coverage must
be funded for the full amount of the liability coverage to be provided
by the trust fund before it may be relied upon to satisfy the
requirements of this section. If at any time after the trust fund is
created the amount of funds in the trust fund is reduced below the full
amount of the liability coverage to be provided, the owner or operator,
by the anniversary date of the establishment of the Fund, must either
add sufficient funds to the trust fund to cause its value to equal the
full amount of liability coverage to be provided, or obtain other
financial assurance as specified in this section to cover the
difference. For purposes of this paragraph, “the full amount of the
liability coverage to be provided” means the amount of coverage for
sudden and/or nonsudden occurrences required to be provided by the owner
or operator by this section, less the amount of financial assurance for
liability coverage that is being provided by other financial assurance
mechanisms being used to demonstrate financial assurance by the owner or
operator.  Section 261.147(j)(4) provides that the wording of the trust
fund must be identical to the wording specified in section 261.151(l).

 (6)	Combination of Financial Mechanisms

40 CFR 261.147(a)(6) and (b)(6) provide that an owner or operator may
demonstrate the required liability coverage through the use of
combinations of insurance, financial test, guarantee, letter of credit,
surety bond, and trust fund, except that the owner or operator may not
combine a financial test covering part of the liability coverage
requirement with a guarantee unless the financial statement of the owner
or operator is not consolidated with the financial statement of the
guarantor.  The amounts of coverage demonstrated must total at least the
minimum amounts required by this section.  If the owner or operator
demonstrates the required coverage through the use of a combination of
financial assurances under this paragraph, the owner or operator shall
specify at least one such assurance as ``primary'' coverage and shall
specify other assurance as ``excess'' coverage.

	Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

40 CFR 261.147(a)(7) and (b)(7) provide that an owner or operator shall
notify the Regional Administrator in writing within 30 days whenever: a
claim results in a reduction in the amount of financial assurance for
liability coverage provided by a financial instrument as specified
(261.147(a)(7)(i) and (b)(7)(i)); or a Certification of Valid Claim for
bodily injury or property damages caused by a sudden or non-sudden
accidental occurrence arising from the operation of a hazardous
secondary material reclamation facility or intermediate facility is
entered between the owner or operator and third-party claimant for
liability coverage as specified (261.147(a)(7)(ii) and (b)(7)(ii)); or a
final court order establishing a judgment for bodily injury or property
damage caused by a sudden or non-sudden accidental occurrence arising
from the operation of a hazardous secondary material reclamation
facility or intermediate facility is issued against the owner or
operator or an instrument that is providing financial assurance for
liability coverage as specified (261.147(a)(7)(iii) and (b)(7)(iii)).

.

Request for Variance

40 CFR 261.147(c) provides that, if an owner or operator can demonstrate
to the satisfaction of the Regional Administrator that the levels of
financial responsibility required by paragraph (a) or (b) of this
section are not consistent with the degree and duration of risk
associated with treatment and/or storage at the facility or group of
facilities, the owner or operator may obtain a variance from the
Regional Administrator.  The request for a variance must be submitted in
writing to the Regional Administrator.  If granted, the variance will
take the form of an adjusted level of required liability coverage, such
level to be based on the Regional Administrator's assessment of the
degree and duration of risk associated with the ownership or operation
of the facility or group of facilities.  The Regional Administrator may
require an owner or operator who requests a variance to provide such
technical and engineering information as is deemed necessary by the
Regional Administrator to determine a level of financial responsibility
other than that required by paragraph (a) or (b) of this section.

Adjustments by the Regional Administrator

40 CFR 261.147(d) provides that, if the Regional Administrator
determines that the levels of financial responsibility required by
paragraph (a) or (b) of this section are not consistent with the degree
and duration of risk associated with treatment and/or storage at the
facility or group of facilities, the Regional Administrator may adjust
the level of financial responsibility required under paragraph (a) or
(b) of this section as may be necessary to protect human health and the
environment.  This adjusted level will be based on the Regional
Administrator's assessment of the degree and duration of risk associated
with the ownership or operation of the facility or group of facilities.
In addition, if the Regional Administrator determines that there is a
significant risk to human health and the environment from nonsudden
accidental occurrences resulting from the operations of a facility that
is not a surface impoundment, pile, or land treatment facility, he may
require that an owner or operator of the facility comply with paragraph
(b) of this section.  An owner or operator must furnish to the Regional
Administrator, within a reasonable time, any information which the
Regional Administrator requests to determine whether cause exists for
such adjustments of level or type of coverage.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

40 CFR 261.148(a) provides that an owner or operator must notify the
Regional Administrator by certified mail of the commencement of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S.
Code, naming the owner or operator as debtor, within 10 days after
commencement of the proceeding. A guarantor of a corporate guarantee as
specified in section 261.143(e) must make such a notification if he is
named as debtor, as required under the terms of the corporate guarantee.
 Section 261.148(b) provides that an owner or operator who fulfills the
requirements of section 261.143 or section 261.147 by obtaining a trust
fund, surety bond, letter of credit, or insurance policy will be deemed
to be without the required financial assurance or liability coverage in
the event of bankruptcy of the trustee or issuing institution, or a
suspension or revocation of the authority of the trustee institution to
act as trustee or of the institution issuing the surety bond, letter of
credit, or insurance policy to issue such instruments. The owner or
operator must establish other financial assurance or liability coverage
within 60 days after such an event.

Use of State-Required Mechanisms

40 CFR 261.149(a) provides that, for a reclamation or intermediate
facility located in a State where EPA is administering the requirements
of Subpart H but where the State has regulations that include
requirements for financial assurance of closure or liability coverage,
an owner or operator may use State-required financial mechanisms to meet
the requirements of section 261.143 or section 261.147 if the Regional
Administrator determines that the State mechanisms are at least
equivalent to the financial mechanisms specified in Subpart H. The
Regional Administrator will evaluate the equivalency of the mechanisms
principally in terms of (1) certainty of the availability of funds for
the required closure activities or liability coverage and (2) the amount
of funds that will be made available. The Regional Administrator may
also consider other factors as he deems appropriate. The owner or
operator must submit to the Regional Administrator evidence of the
establishment of the mechanism together with a letter requesting that
the State-required mechanism be considered acceptable for meeting the
requirements of Subpart H. The submission must include the information
specified in section 261.149(a).  The Regional Administrator may require
the owner or operator to submit additional information as is deemed
necessary to make this determination. Pending this determination, the
owner or operator will be deemed to be in compliance with the
requirements of section 261.143 or section 261.147, as applicable.

Section 261.149(b) provides that, if a State-required mechanism is found
acceptable as specified in paragraph (a) of this section except for the
amount of funds available, the owner or operator may satisfy the
requirements of Subpart H by increasing the funds available through the
State-required mechanism or using additional financial mechanisms as
specified in Subpart H. The amount of funds available through the State
and Federal mechanisms must at least equal the amount required by
Subpart H.

State Assumption of Responsibility

40 CFR 261.150(a) provides that, if a State either assumes legal
responsibility for an owner's or operator's compliance with the closure
or liability requirements of this part or assures that funds will be
available from State sources to cover those requirements, the owner or
operator will be in compliance with the requirements of section 261.143
or section 261.147 if the Regional Administrator determines that the
State's assumption of responsibility is at least equivalent to the
financial mechanisms specified in Subpart H. The Regional Administrator
will evaluate the equivalency of State guarantees principally in terms
of (1) certainty of the availability of funds for the required closure
activities or liability coverage and (2) the amount of funds that will
be made available. The Regional Administrator may also consider other
factors as he deems appropriate. The owner or operator must submit to
the Regional Administrator a letter from the State describing the nature
of the State's assumption of responsibility together with a letter from
the owner or operator requesting that the State's assumption of
responsibility be considered acceptable for meeting the requirements of
Subpart H. The letter from the State must include, or have attached to
it, the information specified at section 261.150(a).  The Regional
Administrator may require the owner or operator to submit additional
information as is deemed necessary to make this determination. Pending
this determination, the owner or operator will be deemed to be in
compliance with the requirements of section 265.143 or section 265.147,
as applicable.  Section 261.150(b) provides that, if a State's
assumption of responsibility is found acceptable as specified in
paragraph (a) of this section except for the amount of funds available,
the owner or operator may satisfy the requirements of Subpart H by use
of both the State's assurance and additional financial mechanisms as
specified in Subpart H. The amount of funds available through the State
and Federal mechanisms must at least equal the amount required by
Subpart H.

2.	NEED FOR AND USE OF THE COLLECTION

2(a)	Need and Authority for the Collection

The regulations are promulgated under the authority of sections 2002,
3001, 3002, 3003, 3004, 3007, 3010, and 3017 of RCRA, as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA).

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED AND RECLAIMED
UNDER THE CONTROL OF THE GENERATOR

EPA has established the certification requirement for materials that are
generated and reclaimed under the control of the generator because of
existing complexities in corporate ownership and liability.  The
certification is needed to increase the company=s awareness and
accountability for ensuring that the generator and reclamation
facilities are in fact under its ownership.  The certification also may
be needed by regulators (e.g., on-site inspectors) to verify compliance.

NON-WASTE DETERMINATIONS

The intent of the non-waste determination petition process is to provide
petitioners with an administrative procedure for receiving a formal
determination that their material is not a solid waste. This process is
available in addition to the solid waste exclusions.  Facilities may
choose to continue to self-implement the waste determination
requirements of 40 CFR Part 261 and, for the vast majority of cases,
self-implementation will still be the most appropriate approach.
However, for cases where there is ambiguity about whether a secondary
material is a solid waste, this process may be needed to provide
regulatory certainty for both the facility and Agency.

NOTIFICATION

EPA has established the notification requirements for generators, toll
manufacturers, tolling contractors, intermediate facilities and
reclaimers to provide basic information to regulatory agencies about who
will be managing hazardous secondary materials under the exclusions and
the types of materials that will be reclaimed.  EPA believes its right
to require such information is inherent in its authority to determine
whether a material is discarded.  EPA considers this to be the minimum
information needed to enable credible evaluation of the status of a
material under RCRA.

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

EPA has established conditional exclusions from the definition of solid
waste for hazardous secondary materials as specified.  Since there is
some potential for mismanagement of these materials in the absence of
any regulatory controls, the exclusions specify certain conditions that
must be satisfied by the generator facility and, if applicable, the
intermediate and reclamation facilities to whom the materials are
transferred.  EPA=s assessment that conditions are needed for recycling
of excluded material has been influenced by recycling studies that EPA
conducted (e.g., analyses of environmental problems associated with
recycling of hazardous secondary materials).  These studies are
described in the preamble to the final rule and contained in the
administrative record.

	Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

This supporting statement describes the need for the information
collection requirements of these exclusions under “Certifications for
Hazardous Secondary Material Generated and Reclaimed under the Control
of the Generator” and “Notification.”

Exclusion at 40 CFR 261.4(a)(24)

Contractual arrangements are needed between the hazardous secondary
material generator and intermediate facility where the management of the
hazardous secondary material is not addressed under a Part B permit or
interim-status standards, as required under section 261.4(a)(24)(v)(B).
This provision ensures that the hazardous secondary material is sent to
the reclamation facility identified by the hazardous secondary material
generator.  Without these contractual arrangements, a generator may not
be able to ensure that its waste is shipped to the appropriate reclaimer
that is participating under the exclusion.  EPA believes such contracts
are a standard business practice.

In order to demonstrate that the hazardous secondary materials will not
be discarded, generators who transfer their hazardous secondary
materials to a third party 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.  To gain this understanding, the generator must make a
reasonable effort under section 261.4(a)(24)(v)(B) to ensure that the
reclaimer intends to legitimately recycle the material pursuant to
section 260.43(a) and not discard it, and that the reclaimer (and any
intermediate facility) will manage the material in a manner that is
protective of human health and the environment.

	EPA finds that the reasonable efforts provision is a critical factor in
determining when hazardous secondary materials sent to another party for
reclamation are not discarded. According to a study of successful
recycling practices, some generators of hazardous secondary materials
routinely 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 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 percent of the
large customers and 30–50 percent of the smaller customers now perform
audits on them. 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.  EPA has developed a reasonable efforts provision that is
objective and is based on the types of information that are typically
gathered in environmental audits currently performed by generators.

EPA is requiring that generators make reasonable efforts every three
years, at a minimum, in order to ensure generators adequately manage
their risk and are attuned to changes at reclamation facilities and
intermediate facilities with which they are partners. EPA believes that
this schedule reflects an average time frame for re-evaluating
facilities. By specifying periodic updates for reasonable efforts every
three years at a minimum, EPA in no way intends to limit a generator to
conducting evaluations only every three years. In fact, EPA expects that
any generator who has concerns about an intermediate or reclamation
facility, or who gains new knowledge of significant changes or
extraordinary situations at such facilities, would conduct reasonable
efforts regardless of the minimum required update schedule. For example,
if a hazardous secondary material generator conducted reasonable efforts
in the first year it took advantage of the exclusion, prior to
transferring materials to an intermediate facility, and then again
conducted reasonable efforts in the second year upon learning about a
significant change at the intermediate facility (such as bankruptcy),
the generator would be required to update reasonable efforts three years
later during the generator’s fifth year of taking advantage of the
exclusion.

Documentation and certification are both necessary requirements of the
reasonable efforts condition.  Documentation of the specified questions
will support a hazardous secondary material generator’s assertion that
it affirmatively answered the questions and is in compliance with the
regulations.  It will also facilitate any review by regulatory
authorities investigating whether the conditions of the transfer-based
exclusion are satisfied and help delineate liability under RCRA if the
materials were discarded.  Having an authorized representative certify
reasonable efforts is critical for guaranteeing accountability at the
generator facility for meeting the condition and for ensuring that the
act of making reasonable efforts is in fact genuine.  The certification
is also necessary in order to allow for the “flexible” documentation
requirement that does not specify a particular format.  Since individual
generators may use any form of documentation, EPA believes it is
critical for all generators to uniformly certify that the condition is
satisfied.  Furthermore, EPA finds both reasonable efforts requirements
(documentation and certification) to be appropriate based on its
understanding that third-party auditors do not generally draw any
conclusions based on their audits, but simply report the results to
generators.  While a generator may use any information for making
reasonable efforts, the certification statement would affirm that a
generator used information that is gathered and documented during the
reasonable efforts inquiry, similar to how generators currently draw
conclusions based on third-party audit documents.

The requirement for documentation and certification of reasonable
efforts is not unlike existing forms of RCRA documentation that
incorporate certifications, such as the RCRA Site ID Form, RCRA
financial assurance requirements, and the Uniform Hazardous Waste
Manifest.

EPA believes that certifying reasonable efforts is a necessary and
minimally burdensome requirement for ensuring that the reasonable
efforts condition is met prior to transferring hazardous secondary
materials to a reclamation facility.  EPA strongly believes that
requiring the signature of an authorized representative of the generator
company, who can be any appointed company representative, requires a
necessary level of management oversight and is critical for ensuring
accountability for satisfying the condition.  In the event of an
enforcement action, EPA believes that the certification will lend
support to generators needing to prove that the reasonable efforts
requirement was met.  The certification also reflects that third parties
may conduct audits on behalf of the generator.  In such cases, the
certification shows that the generator’s management has considered and
evaluated the third-party information.  Finally, EPA believes that
requiring a generator to certify the reasonable efforts condition would
provide them the flexibility to use audits or other information
necessary in certifying that the condition of the exclusion was met.

Records retained by the generator under section 261.4(a)(24)(v)(D) and
(E) of each shipment are needed so that the generator can demonstrate to
regulators (e.g., in an on-site inspection) that it is in compliance
with the conditions (e.g., that its excluded material is being sent to,
and received by, the reclamation facility).  The records enable
regulators to evaluate the generator=s compliance (e.g., a regulator can
use the records to track shipments from generator to reclaimer).  The
confirmations are also needed so that the generator is accountable for
the delivery of its excluded materials to the appropriate destination.

Records retained by the intermediate and reclamation facility under
section 261.4(a)(24)(vi)(A) and (C) are needed to enable the effective
oversight of their activities.  The records enable regulators (e.g.,
on-site inspectors) to learn about the shipments of the excluded
materials received (e.g., quantity and types).  For example, the records
would be important in identifying the generators of the excluded
materials received by the facility.

Export Requirements at 40 CFR 261.4(a)(25)

The export requirements provide notice-and-consent procedures for the
export shipments.  Such procedures help ensure, for example, that the
materials will not be discarded and give the receiving country an
opportunity to respond to the intended shipment (e.g., request
additional information).

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED HAZARDOUS SECONDARY
MATERIALS

EPA has established the financial requirements of 40 CFR Part 261
Subpart H because it has found that the financial health of a
reclamation facility can be a crucial consideration in determining
whether it is likely to discard a material.  EPA has found that an
examination of a company’s finances is an important part of many
environmental audits.  In addition, EPA found that bankruptcies or other
types of business failures were associated with 66 percent of the damage
cases in a study and a low net worth of a firm can be 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 is requiring owner/operators of intermediate and
reclamation facilities to obtain financial assurance as a condition of
the exclusion under section 261.4(a)(24) and (25).  The financial
assurance requirements will help ensure that the owner/operators who
operate under the terms of this exclusion are financially sound.

In addition, by obtaining financial assurance, the owner/operator 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 an environmental problems study reviewed by EPA.
Of the 208 damage cases, 69 (33%) involved abandoned materials.  By
obtaining financial assurance, a reclaimer (or intermediate facility) is
demonstrating that even if events beyond his control make his operations
uneconomical, the hazardous secondary material will not be abandoned.

Cost Estimate

Because hazardous secondary material that loses the exclusion may have
to be disposed of as a hazardous waste and the facility may have to be
closed as a hazardous waste facility in accordance with the requirements
of 40 CFR Part 265, the owner or operator must have a detailed written
estimate in current dollars of performing this work.  The requirements
are designed so that if the State or EPA must close a facility because
of an owner or operator’s failure, there will be adequate funds to do
so.  The requirements for the cost estimate therefore are based upon the
point when the extent and manner of the facility’s operation would
make these activities the most expensive.

Financial Assurance Condition

EPA is specifying that an owner or operator of a reclamation or
intermediate facility must establish financial assurance as a condition
of the exclusion under section 261.4(a)(24) and (25). He must choose
from the options as specified: trust fund, surety bond guaranteeing
payment into a trust fund, letter of credit, insurance, financial
test/corporate guarantee, or a combination of instruments.  If the
facility violates the exclusion, EPA can invoke the instruments to
ensure that the hazardous materials at the facility are removed and the
facility is decontaminated/cleaned up.  These instruments are the same
types as those allowed in Part 265 and have been found to be effective
for these purposes.

Use of Financial Mechanisms for Multiple Facilities

These provisions, found at section 261.143(g), are needed because a
company may own/operate multiple facilities.  The company may find it
beneficial to combine these facilities under a single instrument.  For
example, a company may be able to use the financial test to satisfy the
financial assurance requirements for all of its facilities under the
exclusion.  This would relieve it of the need to establish separate
financial instruments for each.

Removal and Decontamination Plan and Release from Financial Assurance
Obligations

The provisions for releasing the reclamation or intermediate facility
from the financial assurance requirements, found in 40 CFR 261.143(h)
and (i), are equivalent to those under 40 CFR 265.143(h).  Because 40
CFR 265.143(h) relies on receiving a certification (per 40 CFR 265.115)
that the unit was closed per the approved closure plan in section
265.112, language from the closure plan requirement found in section
265.112 and from the certification requirement found in section 265.115
has been included in section 261.143(h). However, because the units are
excluded, they are not subject to the RCRA Subtitle C closure
requirements.  Thus, instead of a “closure plan,” the regulations
require submission of a plan at least 180 days prior to the date that
owner or operator expects to cease operating under the exclusion in
order for the owner or operator to be released from the financial
assurance requirements.

The plan is needed to describe the owner/operator’s approach for
removing all hazardous secondary material residues in a manner that is
protective of human health and the environment.  The plan goes through
the same administrative review process as a 40 CFR Part 265 closure
plan, because that would ensure that the reclamation or intermediate
facility has arranged to appropriately manage the hazardous secondary
materials and residuals and not abandon them and would also provide
certainty to the facility that EPA would agree with his plan.

	The certification is needed to formally notify EPA that all hazardous
materials have been removed from the unit and the unit has been
decontaminated in accordance with the approved plan.  A signature from a
qualified Professional Engineer gives EPA assurance that this has been
done properly.

Coverage for Sudden and Non-Sudden Accidental Occurrences

EPA is specifying that an owner/operator of a reclamation or
intermediate facility must have liability coverage for sudden and
nonsudden accidental occurrences, as specified.  The owner or operator
must have and maintain liability coverage in the amounts specified in
the regulations.  This liability coverage may be demonstrated through
the options as specified in the regulations: liability insurance,
financial test/guarantee, letter of credit, surety bond guaranteeing
payment into a trust fund, trust fund, or a combination of instruments.
This coverage is needed to ensure that the facility is financially
responsible and capable of addressing accidents without jeopardizing its
ability to continue operating in compliance with the exclusion.

Combination of Financial Mechanisms

These provisions, found at section 261.147(a)(6) and (b)(6), are
necessary because some owner/operators may not be able to fulfill their
financial obligations for liability coverage through a single
instrument.  These provisions allow owner/operators to combine two or
more instruments in order to meet their required level of coverage.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

These provisions are needed to ensure that owner/operators notify EPA
when a claim or court order, as specified, occurs that could result in
financial responsibility for damages or injury arising from the
facility.  Payment of claims could decrease the facility’s ability to
meet the required levels of financial assurance.

Request for Variance

The variance is needed because facility-specific factors may warrant a
different level of financial responsibility than required in the
regulations for sudden and/or nonsudden accidental occurrences.  The
variance provisions enable an owner/operator to demonstrate to EPA that
the levels of financial responsibility in the regulations are not
consistent with the degree and duration of risk associated with the
facility’s operations.  If granted, the variance will take the form of
an adjusted level of required liability coverage.  This level is based
on the Regional Administrator's assessment of the degree and duration of
risk associated with the ownership or operation of the facility or group
of facilities.

Adjustment by the Regional Administrator

The adjustment procedures, found at section 261.147(d), are needed
because the level of financial responsibility required in the
regulations for liability coverage may not be consistent with the degree
and duration of risk associated with a facility’s operation.  These
provisions enable EPA to adjust the level of financial responsibility
based on its assessment of the degree and duration of risk associated
with the facility.   In addition, if EPA determines that there is a
significant risk to human health and the environment from nonsudden
accidental occurrences resulting from the operations of a facility that
is not a surface impoundment, pile, or land treatment facility, he may
require that an owner or operator of the facility comply with section
261.147(b).

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

These provisions, found at section 261.148, are needed to ensure that
owner/operators notify EPA in case of commencement of voluntary or
involuntary bankruptcy proceedings, as specified.  EPA found that
bankruptcies or other types of business failures were associated with 66
percent of the damage cases in a study and a low net worth of a firm can
be a strong indication of a sub-optimal outcome of recycling.  This
notification will inform EPA that the facility is having difficulty
meeting its financial obligations.

Use of State-Required Mechanisms

These provisions, found at section 261.149, are needed to provide for
owner/operators to use State-required financial mechanisms to meet the
requirements of section 261.143 or 261.147 if EPA determines that the
State mechanisms are at least equivalent to the financial mechanisms
specified in Subpart H.  These procedures may be necessary in States in
which EPA is administering the financial assurance requirements, but
where the State has regulations that include requirements for financial
assurance of closure or liability coverage.

State Assumption of Responsibility

These provisions, found at section 261.150, are needed in cases in which
a State either assumes legal responsibility for an owner/operator's
compliance with the closure or liability requirements or assures that
funds will be available from State sources to cover those requirements.
The provisions enable EPA to determine if the State's assumption of
responsibility is at least equivalent to the financial mechanisms
specified in Subpart H and to grant States the assumption of
responsibility.

2(b)	Practical Utility and Users of the Data

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED AND RECLAIMED
UNDER THE CONTROL OF THE GENERATOR

EPA is requiring the certification requirement for materials that are
generated and reclaimed under the control of the generator because of
existing complexities in corporate ownership and liability.  The
certification will be used to hold the company accountable for knowing
and complying with the definition of “hazardous secondary materials
generated and reclaimed under the control of the generator” and to
enable regulatory authorities to determine when facilities are eligible
for this exclusion.

NON-WASTE DETERMINATIONS

An applicant may apply to the Administrator for a formal determination
that its material is not a solid waste.  For cases where there is
ambiguity about whether a secondary material is a solid waste, this
process may be used to provide regulatory certainty for both the
facility and Agency.

NOTIFICATION

The regulatory agencies will use the notifications from the generators,
toll manufacturers, tolling contractors, intermediate facilities and
reclaimers to learn basic information about who will be managing
hazardous secondary materials under the exclusion and the types of
materials that will be recycled.  The information will help the agencies
evaluate the status of the material under RCRA.

EXCLUSIONS FROM THE DEFINITION OF SOLID WASTE

	Exclusions at 40 CFR 261.2(a)(2)(ii) and 261.4(a)(23)

This supporting statement addresses the utility and users of the
information collection requirements of these exclusions under
“Certifications for Hazardous Secondary Material Generated and
Reclaimed under the Control of the Generator” and “Notification.”

Exclusion at 40 CFR 261.4(a)(24)

Contractual arrangements are used by the hazardous secondary materials
generator and intermediate facility under section 261.4(a)(24)(v)(B) to
ensure that the hazardous secondary material is sent to the reclamation
facility identified by the generator.

The reasonable efforts required under section 261.4(a)(24)(v)(B) are
used to ensure that the generator’s materials will be recycled
legitimately, and otherwise managed in a manner that is protective of
human health and the environment.  The generator must keep
documentation, including a certification, of its efforts under
261.4(a)(24)(v)(C).  EPA believes the questions laid out in the
regulations are normally considered by responsible generators.  However,
the questions will reinforce the need for generators to ask these
questions.  Generators must keep records of their reasonable efforts,
including certifications, to demonstrate their compliance with the
regulations.

The certification statement under section 261.4(a)(24)(v)(C) is used to
hold the generator accountable for ensuring that the reasonable efforts
condition is met prior to transferring hazardous secondary materials to
a reclamation facility.  Generators would provide a necessary level of
management oversight for ensuring compliance with the condition.  In the
event of an enforcement action, generators could use the certification
to prove that the reasonable efforts requirement was met.  EPA would use
the certification to ensure that the generators reviewed the reasonable
effort documentation, including any information derived from audits
conducted by third parties.

Records retained by the generator under section 261.4(a)(24)(v)(D) and
(E) of each shipment are used by the generator to confirm and
demonstrate that its shipments of excluded materials were received by
the appropriate facilities.  The records are used by regulators to
confirm this.

Records retained by the intermediate and reclamation facility under
section 261.4(a)(24)(vi)(A) and (C) are used by regulators (e.g.,
on-site inspectors) to learn about the shipments of the excluded
materials (e.g., to learn how much material is being received and
reclaimed under the exclusion).

Export Requirements at 40 CFR 261.4(a)(25)

The requirements at section 261.4(a)(25) provide notice-and-consent
procedures for export shipments.  For example, the receiving country
will have the opportunity to review the exporter’s notification and
approve or deny the export shipment.  Export of the material is
prohibited unless the receiving country consents to the intended export.

FINANCIAL REQUIREMENTS FOR MANAGEMENT OF EXCLUDED HAZARDOUS SECONDARY
MATERIALS

Cost Estimate

The cost estimate is used to determine the level of financial assurance
needed by the facility.  The cost estimating requirements are designed
so that if a State or EPA must close a facility because of an owner or
operator’s failure, there will be adequate funds to do so.

Financial Assurance Condition

If the conditions of the exclusion are violated (including the condition
to maintain financial assurance), then the hazardous secondary material
is a hazardous waste and EPA can invoke the financial instruments to
manage the materials and wastes and clean up/decontaminate the facility
as necessary.  By obtaining financial assurance, a reclaimer (or
intermediate facility) is demonstrating that even if events beyond his
control make his operations uneconomical, the hazardous secondary
material will not be abandoned.

Use of Financial Mechanisms for Multiple Facilities

These provisions, found at section 261.143(g), may be used by companies
that own/operate multiple facilities.  These companies may find it
advantageous to combine these facilities under a single instrument.

Removal and Decontamination Plan and Release from Financial Assurance
Obligations

The plan submitted under section 261.143(h) is used by the owner or
operator to remove all hazardous secondary material residues as
specified.  The certification from the owner or operator and a qualified
Professional Engineer certifies that all hazardous secondary materials
have been removed from the unit and the unit has been decontaminated in
accordance with the approved plan.  This information is used by EPA to
ensure management of the materials in a manner that is protective of
human health and the environment, prior to releasing the owner/operator
from the financial assurance requirements.

Coverage for Sudden and Non-Sudden Accidental Occurrences

The requirements for liability coverage are used by facilities to
prepare financially for accidental occurrences.  This coverage is used
to ensure that the facility is financially responsible and capable of
addressing accidents (e.g., paying claims) without jeopardizing its
ability to continue operating in compliance with the exclusion.  These
instruments are the same types as those allowed in Part 265 and have
been found to be effective for these purposes.

Combination of Financial Mechanisms

These provisions, found at section 261.147(a)(6) and (b)(6), may be used
by owner/operators who cannot fulfill their financial obligations for
liability coverage through a single instrument.  Under these provisions,
they can combine two or more instruments to meet their required level of
coverage, as specified.

Notification to EPA under 40 CFR 261.147(a)(7) and (b)(7)

These provisions are used by owner/operators to notify EPA whenever a
claim or court order, as specified, occurs that results in liability for
damages or injury arising from the facility.  EPA uses the information
to monitor the financial health of the facility and its ability to
satisfy its financial obligations under the exclusion.

Request for Variance

The variance provisions, found at section 261.147(c), are used by
owner/operators to demonstrate to EPA that the levels of financial
responsibility in the regulations are not consistent with the degree and
duration of risk associated with the facility’s operations.  If
granted, the variance will take the form of an adjusted level of
required liability coverage.  EPA will base the adjusted level on its
assessment of the degree and duration of risk associated with the
ownership or operation of the facility or group of facilities.

Adjustment by the Regional Administrator

These procedures, found at section 261.147(d), are used by EPA to adjust
a facility’s level of financial responsibility based on its assessment
of the degree and duration of risk associated with the facility.   EPA
will base the adjusted level on its assessment of the degree and
duration of risk associated with the ownership or operation of the
facility or group of facilities.  In addition, if EPA determines that
there is a significant risk to human health and the environment from
nonsudden accidental occurrences resulting from the operations of a
facility that is not a surface impoundment, pile, or land treatment
facility, he may require that an owner or operator of the facility
comply with the financial requirements for nonsudden accidental
occurrences.

Incapacity of Owners or Operators, Guarantors, or Financial Institutions

These provisions, found at section 261.148, are used by owner/operators
to notify EPA in case of commencement of voluntary or involuntary
bankruptcy proceedings, as specified.  EPA found that bankruptcies or
other types of business failures were associated with 66 percent of the
damage cases in a study and a low net worth of a firm can be a strong
indication of a sub-optimal outcome of recycling.  EPA uses this
information to learn about the financial health of the facility.

Use of State-Required Mechanisms

These provisions, found at section 261.149, provide for owner/operators
to use State-required financial mechanisms to meet the requirements of
section 261.143 or 261.147 if EPA determines that the State mechanisms
are at least equivalent to the financial mechanisms specified in Subpart
H.  These procedures may be used in States in which EPA is administering
the financial assurance requirements, but where the State has
regulations that include requirements for financial assurance of closure
or liability coverage.

State Assumption of Responsibility

These provisions, found at section 261.150, are used in cases in which a
State either assumes legal responsibility for an owner/operator's
compliance with the closure or liability requirements or assures that
funds will be available from State sources to cover those requirements.
Under the provisions, EPA can determine if the State's assumption of
responsibility is at least equivalent to the financial mechanisms
specified in Subpart H and to grant States the assumption of
responsibility.

3.	NONDUPLICATION, CONSULTATIONS, AND OTHER COLLECTION CRITERIA

3(a)	Nonduplication

None of the information required by the final rule is duplicative with
any information required by the existing Federal regulations.

3(b)	Public Notice

EPA first proposed changes reflecting court decisions on the definition
of solid waste, as well as regulatory criteria for legitimacy, on
October 28, 2003 (68 FR 61558). EPA then published a supplemental
proposal on March 26, 2007 (72 FR 14172).  Following is a summary of the
public comments received on the supplemental proposal that offered
concerns or suggestions for revising the ICR.  For each comment, EPA
provides an Agency response describing how the comment was addressed in
preparing this ICR for the final rule.  [Note:  Refer to the “Response
to Comment Document: Revisions to the Definition of Solid Waste” for
all comments and Agency responses on the supplemental proposal.  It is
available in the docket for this rulemaking.]

Comment:  One commenter stated that the ICR’s burden estimates are
based on the minimal notice and recordkeeping provisions in the
supplemental proposal.  The commenter stated that these estimates do not
take into account EPA’s requests for public comment on more detailed
notice and recordkeeping provisions.  The commenter expressed concern
that the final rule could differ markedly from the supplemental proposal
by including more onerous recordkeeping and notice requirements, and
encouraged EPA to prepare an ICR that estimates the burden of the final
rule.

EPA Response:  EPA thanks the commenter for its views and believes it
has fulfilled the commenter’s request by preparing this ICR of the
final rule.  This ICR estimates the burden associated with all of the
final rule’s recordkeeping and reporting requirements.  Refer to
Section 6 of this supporting statement for the burden estimates.

Comment:  One commenter stated that the ICR supporting statement for the
supplemental proposal declares that the Agency consulted with three
companies, all of which are resource recovery operations using hazardous
waste as their feedstocks.  The commenter expressed concern that EPA
consulted with organizations in one industry only (i.e., waste
management).  The commenter encouraged EPA to contact other industries
potentially affected by the rule.

EPA Response:  EPA thanks the commenter for its feedback on the
Agency’s consultations.  EPA agrees that its consultations were
limited primarily to hazardous waste management facilities and that
further consultations were warranted.

In preparing the ICR for the supplemental proposal, EPA was mindful that
it could not contact more than nine organizations to collect burden
estimates for the ICR.  The 1995 Paperwork Reduction Act prevents a
Federal agency from collecting information from more than nine
organizations, unless clearance is obtained from the U.S. Office of
Management and Budget.  Obtaining clearance for purposes of preparing
this ICR is not practicable.

Given this constraint on the number of organizations that could be
contacted, the Agency consulted three large, multi-state reclamation
facilities and one trade association in preparing the ICR for the
supplemental proposal.  EPA recognized that these organizations have a
broad knowledge of the reclamation industry because they work with both
small and large generators in many industries.  For example, reclaimers
routinely perform technical and paperwork activities on behalf of their
generator customers, such as packaging their wastes and materials for
shipment, preparing manifests and notices, and supporting customers in
making reasonable efforts to audit the reclamation process.  As a
result, they were able to speak about their own activities and burdens,
as well as those of their generator customers.

Notwithstanding this, EPA was persuaded by the commenter that additional
consultations were warranted and contacted four additional organizations
in preparing this ICR for the final rule.  These organizations are
hazardous secondary materials generators in the following industries:
automobile manufacturing, information technology, agricultural products,
and metals production.  EPA believes these additional consultations
address the commenter’s request to contact other industries affected
by the rule.  Refer to the table in Section 3(c) for the list of all
organizations contacted.

Comment:  One commenter stated that the ICR does not make mention of the
potentially wide variation in how States might adopt the rule and which
of the rule’s provisions might or might not be adopted by the States.
The commenter pointed out that, to the extent that the final rule is
less stringent than the current RCRA regulations, States authorized to
implement their own RCRA programs will not be bound to adopt the final
rule.  Thus, it is conceivable that great variation may result among
States on whether and how much of the final rule to adopt.  The
commenter stated that the rule’s requirements and resulting burden on
industry will be significantly affected by States’ decisions to adopt
or not adopt the final rule.

EPA Response:  EPA thanks the commenter for expressing its concerns
about the ICR’s burden estimates in light of State variations in rule
adoption and agrees that State adoption rates will affect burden impacts
under the rule.  Essentially, the commenter raises two points that need
an Agency response: (i) should EPA estimate burden impacts based on an
assumption of full State adoption and (ii) should this assumption be
made more clear in this supporting statement?

On the first point, it has been EPA’s belief that ICRs for rulemakings
should be based on full State adoption.  Normally, EPA cannot reliably
identify States that will not adopt a final rule.  Although a State may
express concerns or opposition to a proposed rule (or portions of it)
such as during the public comment period, modifications made in response
to the public’s comments may make the State more inclined to adopt the
final version.  In addition, a State’s decision to adopt the final
rule (as well as the timing of the adoption) may be based on factors
that are not known at the time of the ICR’s preparation (e.g., the
State’s regulatory needs and priorities).  Therefore, EPA continues to
believe that the burden impacts estimated in this ICR should be based on
an assumption of full State adoption.  When this ICR is renewed three
years from now, EPA will be in a better position to reflect variations
in States’ adoption of the final rule.

On the second point, EPA agrees that additional clarification is needed
in this supporting statement on the Agency’s assumptions regarding
full State adoption of the final rule.  This clarification has been
included in Section 6(e) of this supporting statement.

3(c)	Consultations

	In August 2006 and March-April 2008, EPA contacted a number of
hazardous secondary materials generators and reclamation companies for
the sole purpose of preparing this ICR.  They provided consultative
input according to four paperwork burden issues potentially affected by
this rulemaking:

Use of shipping papers instead of the RCRA manifest: The representatives
speculated that, in the absence of a requirement for a RCRA manifest,
they would use a multi-part shipping paper to ship their excluded
materials.  This would enable the reclaimer to send a copy to the
generator to confirm receipt of shipment.

Use of reasonable efforts to evaluate the reclaimer:  The
representatives believe that responsible generator customers currently
make an effort to evaluate prospective reclamation facilities (e.g., to
determine if the facilities have adequate equipment and procedures to
reclaim their waste in a manner that is protective of human health and
the environment).  This may include a visit to the facility by generator
employees or contracted auditor and/or a review of facility
documentation.

Relief from RCRA permit:  The representatives provided feedback on
whether they believe their reclamation facilities could see some relief
from the RCRA permitting requirements under the rule.  They believe such
relief would depend on a number of factors (e.g., whether a facility
would manage only excluded materials under the rule or whether it would
continue to receive and manage hazardous wastes in addition to excluded
materials).

Types of hazardous secondary materials facilities that support the
reclamation process.  The representatives described facilities currently
in use that store and/or aggregate secondary materials prior to transfer
to reclamation.  They indicated that the number of such intermediate
facilities needed for reclamation operations can vary greatly depending
on many factors.  For example, reclaimers that receive waste
predominantly from small generators may rely more heavily on
intermediate aggregation facilities.  Partial loads are collected and
taken to aggregation facilities before shipment to the reclamation
facility, enhancing economies of scale.  On the other hand, reclaimers
that work with larger generators may rely less on aggregation
facilities.

In addition, EPA contacted a representative of CHWMEG, an organization
that provides facility review services to the hazardous waste industry.
The representative agreed that generators may make reasonable efforts
using their own employees or a third-party auditor.  The decision to use
either in-house employees or a third-party auditor to perform the audit
will depend on a number of considerations (e.g., trade-offs between cost
and desired quality/thoroughness of the audit report).

The table below identifies the organizations contacted.  Their feedback
is reflected in the burden assumptions of this ICR, as appropriate.

Organizations EPA Contacted for ICR Preparation

(August 2006 and March/April 2008)

Name of Organization	Name of Representative	Phone Number

Alcoa Corporation	Gary Crouth<PHONE_NUMBER>

CHWMEG	Jeff Sacre<PHONE_NUMBER>

Ford Motor Company	Susan Rokosz<PHONE_NUMBER>

Giant Resource Recovery	Stan Ray<PHONE_NUMBER>

Intel Corporation	Cherry Moyer<PHONE_NUMBER>

Monsanto Company	Mary Shaffer<PHONE_NUMBER>

Safety Kleen Systems, Incorporated	Mike Fusco and Lin Longshore
610-558-3186

Veolia ES Technical Solutions (formerly Onyx Environmental Services)
Thomas Baker<PHONE_NUMBER>

3(d)	Effects of Less Frequent Collection

EPA has carefully considered the information collection burden imposed
by the final rule.  EPA is confident that those activities required of
respondents are necessary, and to the extent possible, the Agency has
attempted to minimize the burden imposed.  A number of the required
activities, for example, will be performed once (e.g., one-time
certifications).  In addition, a number of other requirements can be
satisfied by activities already being undertaken by respondents.  For
example, EPA has found that responsible generators currently make
reasonable efforts to evaluate prospective reclaimers, as required by
the rule.  EPA believes strongly that, if the minimum information
collection requirements of the rule are not met, EPA will not be able to
ensure that the hazardous secondary materials are being properly managed
and do not pose a threat to human health and the environment.

3(e)	General Guidelines

This ICR adheres to the guidelines stated in the Paperwork Reduction Act
of 1995, OMB=s implementing regulations, EPA=s ICR Handbook, and other
applicable OMB guidance.

3(f)	Confidentiality

Participation under the exclusions is voluntary.  EPA does not expect to
deem any information collected under the rule to be CBI (Confidential
Business Information).  If such a claim were asserted, EPA must and will
treat the information in accordance with the applicable regulations
(e.g., 40 CFR Part 2, Subpart B).  EPA also will assure that this
information collection complies with the Privacy Act of 1974 and OMB
Circular 108.

3(g)	Sensitive Questions

No questions of a sensitive nature are included in the information
collection requirements associated with the rule.

4.	THE RESPONDENTS AND THE INFORMATION REQUESTED

4(a)	Respondents and NAICS Codes

The following is a list of North American Industry Classification System
(NAICS) codes associated with industries most likely affected by the
information collection requirements covered in this ICR.

NAICS Codes of Potentially Affected Industries

Industry Sector

NAICS Codes

Agriculture, Forestry, Fishing and Hunting

11

Mining

21

Utilities

22

Construction

23

Manufacturing

31

Manufacturing

32

Manufacturing

33

Wholesale Trade

42

Retail Trade

44, 45

Transportation

48, 49

Information

51

Finance and Insurance	52

Real Estate, Rental, Leasing	53

Professional, Scientific & Technical Services	54

Management of Companies and Enterprises	55

Administrative Support, Waste Management & Remediation	56

Educational Services	61

Health Care & Social Assistance	62

Arts, Entertainment, Recreation	71

Accommodation and Food Services	72

Other Services	81

Public Administration	92

Source: Exhibit 9C of EPA’s 2008 Regulatory Impact Analysis for this
rulemaking.

4(b)	Information Requested

CERTIFICATIONS FOR HAZARDOUS SECONDARY MATERIAL GENERATED AND RECLAIMED
UNDER THE CONTROL OF THE GENERATOR

40 CFR 260.10 provides that “hazardous secondary material generated
and reclaimed under the control of the generator” means: (1) that such
material is generated and reclaimed at the generating facility (for
purposes of this paragraph, generating facility means all contiguous
property owned, leased, or otherwise controlled by the hazardous
secondary material generator); or (2) that such material is generated
and reclaimed at different facilities, if the reclaiming facility is
controlled by the generator or if both the generating facility and the
reclaiming facility are controlled by a person as defined in section
260.10, and if the generator provides one of the certifications as
specified.  For purposes of this paragraph, “control” means the
power to direct the policies of the facility, whether by the ownership
of stock, voting rights, or otherwise, except that contractors who
operate facilities on behalf of a different person as defined in section
260.10 shall not be deemed to “control” such facilities; or (3) that
such material is generated pursuant to a written contract between a
tolling contractor and a toll manufacturer and is reclaimed by the
tolling contractor, if the tolling contractor provides a certification
as specified. For purposes of this paragraph, tolling contractor means a
person who arranges for the production of a product or intermediate made
from specified unused materials through a written contract with a toll
manufacturer.  Toll manufacturer means a person who produces a product
or intermediate made from specified unused materials pursuant to a
written contract with a tolling contractor.

	(i)	Data items

A certification from the generator stating one of the following:

-	“On behalf of [insert generator facility name], I certify that this
facility will send the indicated hazardous secondary material to [insert
reclaimer facility name], which is controlled by [insert generator
facility name] and that [insert the name of either facility] has
acknowledged full responsibility for the safe management of the
hazardous secondary material;” or

-	“On behalf of [insert generator facility name], I certify that this
facility will send the indicated hazardous secondary material to [insert
reclaimer facility name], that both facilities are under common control,
and that [insert name of either facility] has acknowledged full
responsibility for the safe management of the hazardous secondary
material.”

A certification from the tolling contractor stating the following:
“On behalf of [insert tolling contractor name], I certify that [insert
tolling contractor name] has a written contract with [insert toll
manufacturer name] to manufacture [insert name of product or
intermediate] which is made from specified unused materials, and that
[insert tolling contractor name] will reclaim the hazardous secondary
materials generated during this manufacture.  On behalf of [insert
tolling contractor name], I also certify that [insert tolling contractor
name] retains ownership of, and responsibility for, the hazardous
secondary materials that are generated during the course of the
manufacture, including any releases of hazardous secondary materials
that occur during the manufacturing process.”

(ii)	Respondent activities

The generator (including tolling contractor) must prepare the
certification.

NON-WASTE DETERMINATIONS

	Application for Non-Waste Determination

40 CFR 260.33(a) provides that an applicant must apply to the
Administrator for a variance or non-waste determination.  The
application must address the relevant criteria contained in section
260.31, 260.32, or 260.34, as applicable.  [Note:  40 CFR 260.31 and
260.32 are existing requirements that were not affected by the final
rule.  Therefore, they are not addressed in this supporting statement.]

Section 260.34(a) provides that an applicant may apply to the
Administrator for a formal determination that a hazardous secondary
material is not discarded and therefore not a solid waste. The
determinations will be based on the criteria contained in section
260.34(b) or (c), as applicable.  If an application is denied, the
hazardous secondary material might still be eligible for a solid waste
variance or exclusion (for example, one of the solid waste variances
under section 260.31). Determinations may also be granted by the State
if the State is either authorized for this provision or if the specified
conditions are met.

Section 260.34(b) provides that the Administrator may grant a non-waste
determination for hazardous secondary material which is reclaimed in a
continuous industrial process if the applicant demonstrates that the
hazardous secondary material is a part of the production process and is
not discarded.  The determination will be based on whether the hazardous
secondary material is legitimately recycled as specified in section
260.43 and on the criteria under paragraphs (b)(1)-(4).

Section 260.34(c) provides that the Administrator may grant a non-waste
determination for hazardous secondary material which is
indistinguishable in all relevant aspects from a product or intermediate
if the applicant demonstrates that the hazardous secondary material is
comparable to a product or intermediate and is not discarded.  The
determination will be based on whether the hazardous secondary material
is legitimately recycled as specified in section 260.43 and on the
criteria under paragraphs (c)(1)-(5).

	(i)	Data items

Application under section 260.34(b) for a non-waste determination for
hazardous secondary material which is reclaimed in a continuous
industrial process.  The application must demonstrate that the hazardous
secondary material is a part of the production process and is not
discarded and address the following criteria:

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

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

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

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

An application under section 260.34(c) for a non-waste determination for
hazardous secondary material which is indistinguishable in all relevant
aspects from a product or intermediate.  The application must
demonstrate that the hazardous secondary material is comparable to a
product or intermediate and is not discarded, and address the following
criteria:

-	Whether market participants treat the hazardous secondary material as
a product or intermediate rather than a waste (for example, based on the
current positive value of the hazardous secondary material, stability of
demand, or any contractual arrangements);

-	Whether the chemical and physical identity of the hazardous secondary
material is comparable to commercial products or intermediates;

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

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

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

(ii)	Respondent activities

The applicant prepares and submits an application to EPA under section
260.34.

Re-Application for Non-Waste Determination

40 CFR 260.33(c) applies to non-waste determinations and provides that,
in the event of a change in circumstances that affects how a hazardous
secondary material meets the relevant criteria contained in section
260.34 upon which a non-waste determination has been based, the
applicant must re-apply to the Administrator for a formal determination
that the hazardous secondary material continues to meet the relevant
criteria and therefore is not a solid waste.

	(i)	Data item

Re-application to EPA for a formal determination that the hazardous
secondary material continues to meet the relevant criteria and is