compared section 3007(a) with other provisions of RCRA and specially
noted that "Congress significantly chose the broad, general term
'hazardous waste' defined in section 6903(5) . . . rather than
'hazardous waste identified or listed under [Subtitle C of RCRA],'
employed in other provisions," such as RCRA's permitting provisions
under section 3004(a).  881 F.2d at 360. The court stated that the very
limited view of section 3007, advocated by the defendant, would
"emasculate EPA's ability to pursue the broad remedial goals of RCRA."
Id.

In both the 2003 and 2007 proposals, we proposed a one-time notification
in order to provide basic information to regulatory agencies about who
is managing hazardous secondary materials under the exclusions in order
to monitor compliance with the exclusions. However, as commenters noted,
with the proposed one-time notification approach, there is no assurance
that the information collected in EPA's databases will remain accurate
over time. Therefore, the Agency can imagine instances where precious
resources are required to "clean up" the data before regulatory
authorities can use it to identify facilities who are currently managing
hazardous secondary materials under the exclusions. This inefficient use
of resources would serve to lower the effectiveness of regulators to
monitor compliance overall and could potentially increase the risk of
environmental damage from abuse of the final rule's exclusions.

EPA further believes that responsibility for submitting and maintaining
updated information lies with the hazardous secondary material
generators, reclaimers, and intermediate facilities that use the
exclusions. We believe that, as originally proposed, the one-time
notification would in effect reverse this responsibility, placing an
unreasonable burden on the states and EPA to 'clean up' the data every
time a regulating agency sought to use the information. Instead, the
incremental burden to facilities who must submit periodic notifications
is minimal compared to the considerable public expense that states and
EPA would likely incur over time in order to use information submitted
in a one-time notification.

Furthermore, we note that the requirement to provide this notification
is not a condition of the exclusion. Thus, failure to comply with the
requirement constitutes a violation of RCRA, but does not affect the
excluded status of the hazardous secondary materials.

Lastly, we note that requiring periodic reports for hazardous secondary
materials excluded from the definition of solid waste is not without
precedent; EPA currently requires manufacturers of zinc fertilizers or
zinc fertilizer ingredients made from excluded hazardous secondary
materials to submit annual reports identifying the total quantities of
all excluded hazardous secondary materials that were used to manufacture
zinc fertilizers or zinc fertilizer ingredients under 40 CFR
261.4(a)(20).

ADDITIONAL BURDEN: We designed the notification requirement in the final
rule to enable effective compliance monitoring while keeping additional
burden to facilities at a minimum. Specifically:

We require only essential information that we consider to be what
responsible companies would maintain as part of routine business
information and avoid requiring information that would be complex or
difficult to collect. We believe the brief list of data elements
required in the notification will not pose an undue burden to
facilities.

We are requiring facilities to submit the notification using the RCRA
Site Identification Form in response to comments that expressed strong
support for using this form because it was already familiar to the
regulated community, inputs data into a retrievable database, and thus
would be more efficient and less burdensome to use.

Once an initial notification is submitted, to re-notify, a facility need
only review the previous notification and either make changes if
necessary or confirm that the information remains accurate and thus, we
believe additional burden for renotification will be minimal.

We chose the two-year time frame to reflect both commenters' suggestions
(of those who supported periodic reporting, most suggested annual or
biennial reporting) and to best fit with the biennial reporting process
for hazardous wastes. Since many facilities are accustomed to the
biennial reporting process and likely have structured their processes
around the biennial report schedule, we chose to mimic the same two-year
time frame for the notification requirement in order to allow facilities
to leverage their existing processes (and thus keep additional burden to
a minimum).

USE AND VALUE OF INFORMATION: We have made, in one commenter's words,
"an honest, upfront assessment of whether and how the information will
be used." For the final rule, we considered the data elements suggested
by commenters and selected what we believe to be the minimum necessary
information required to monitor compliance with the exclusions in order
to ensure that hazardous secondary materials are reclaimed and not
discarded. We also intend to use this information to meet other
objectives, such as assisting generators with performing reasonable
efforts, targeting state and government programs to achieve further
increases in safe hazardous waste recycling, compiling credible
information about hazardous waste recycling, and measuring impacts of
the rulemaking. We have listed in the table below how each specific data
element in the notification will be used:

EPA Rationale for Notification Requirements

We are requiring…	This will be used to…

Name, address or EPA ID number (if applicable)	Ensure that states know
which facilities are operating under the exclusion to enable compliance
monitoring, thereby addressing a major concern discussed in comments

Identify potential reclaimers (via RCRAInfo) for generators interested
in recycling

Name and telephone number of a contact person	Contact the facility, if
needed, in regards to the notification.

NAICS code 	NAICS code coupled with the type of HSM (reported as
hazardous waste code) allows EPA and states to identify and target waste
streams for compliance monitoring.

Enables EPA and states to target specific industries for future
programmatic efforts (e.g., compliance assistance, training, guidance).

Whether the HSM will be managed under the transfer-based or
generator-controlled exclusion	Alert EPA and the states to what
exclusion, and thus what conditions, a facility is complying with in
order to enable compliance monitoring.

Whether the reclaimer or intermediate facility has financial assurance
Support generators’ reasonable efforts inquiries (via RCRA Info) of
whether reclaimers have notified EPA of their excluded status and if
they have financial assurance

When the facility expects to begin managing HSM	Provide flexibility to
facilities submitting notification while allowing regulatory authorities
to determine, at any given time, which facilities are actually managing
HSM and therefore warrant compliance monitoring.

A list of hazardous secondary materials (HSM) that will be managed
according to the exclusion	Allow for prioritizing compliance monitoring
based on type and diversity of hazardous secondary material (e.g., a
facility managing 10 different HSM may warrant greater oversight than a
facility managing 1 type of HSM).

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Whether the HSM will be managed in a land-based unit	Allow for
prioritizing compliance monitoring based on use of land-based units
since they inherently pose more risk than non-land based units.

The quantity of HSM to be managed annually	Allow for prioritizing
compliance monitoring based on quantity of HSM managed (e.g., a facility
managing 10,000 tons of HSM may warrant greater oversight than a
facility managing 10 tons of HSM)

Target specific waste streams for future programmatic efforts (outreach,
guidance, training, and compliance assistance) by EPA and states in
order to achieve further increases in safe HSM recycling.

Enable performance measurement and public reporting of increases in safe
HSM recycling.

Certification signed and dated by an authorized representative of the
facility	Ensure accountability for accuracy of notification data.

Provide adequate assurance for generators who must rely on notification
data to perform reasonable efforts

 ADDITIONAL INFORMATION/DOCUMENTATION: We did not include many of the
additional data elements suggested by commenters on the basis that some
data seemed too complex and onerous to collect on a national basis (such
as description of the reclamation process) or that were not consistent
with the basic intent of the notification to identify who is managing
hazardous secondary materials under the exclusion. For example,
requiring billing records and mass balance summaries as some commenters
suggested seemed inappropriate for hazardous secondary materials that
are not solid wastes, particularly since these types of reports are not
required for hazardous wastes under the existing regulations. Other
suggestions seemed inconsistent with the principle of
self-implementation of the exclusions; for example, generators are not
required to obtain 'approval' from the regulatory authority prior to
operating under the exclusion and thus submission of detailed paperwork,
such as legitimacy determinations or documentation of reasonable
efforts, is unwarranted. We also did not include information that we
believe is more appropriately documented and maintained at the facility.
For example, some commenters suggested adding a requirement that
generators indicate the identity of the reclaimer receiving their
hazardous secondary materials for reclamation; however, under the
transfer-based exclusion, this information is already documented as part
of the requirement for hazardous secondary material generators to keep
records of all off-site shipments. Moreover, we didn't include
information that could be considered sensitive or confidential business
information (such as products produced or storage times) as this type of
information would unnecessarily complicate, and increase the burden for,
the notification requirement.

Some commenters opposed periodic reports because facilities could
maintain documentation on-site and that this documentation could be
provided upon request. We agree that this would be appropriate for many
types of documentation, such as documentation of reasonable efforts, but
would not be practical for the purposes of the notification, which is to
identify who is managing hazardous secondary materials under the
exclusions.

FORMAT OF REPORT/BIENNIAL REPORTING: We chose to require periodic
renotification using the Site ID form as a way to provide regulatory
authorities with essential, meaningful information while keeping
additional burden to facilities at a minimum. Use of the Site ID form
also means information will be collected and stored in EPA's RCRAInfo,
allowing governments, the regulatory community and the public to
electronically access and use the information.

In the March 2007 proposal, we considered using information collected
through the TRI program and the existing Biennial Report as a way to
measure increases in recycling as a result of the rulemaking. However,
as some commenters pointed out, TRI is focused on a limited number of
chemicals and thus the data is not consistent with what is required to
measure impacts of the rulemaking. Furthermore, the Biennial Report is
only required for large quantity generators managing hazardous waste and
thus facilities managing hazardous secondary materials under the final
rule's exclusions are not required to report these materials. EPA will,
instead, leverage the notification requirement to measure impacts of the
rulemaking.

As noted above, we decided to require renotification by March 1st of
each even numbered year to reflect both commenters' suggestions (of
those who supported periodic reporting, most suggested annual or
biennial reporting) and to best fit with the biennial reporting process
for hazardous wastes. Since many facilities are accustomed to the
biennial reporting process and likely have structured their processes
around the biennial report schedule, we chose to mimic the same two-year
time frame for the notification requirement in order to allow facilities
to leverage their existing processes (and thus keep additional burden to
a minimum).

WHO SHOULD SUBMIT REPORTS: All facilities that manage hazardous
secondary materials under the final rule's exclusions must comply with
all conditions or restrictions of the exclusions, regardless of the size
of the facility. Regulatory authorities, thus, must be enabled to
monitor compliance with all facilities operating under the exclusions.
Therefore, the final rule requires all facilities managing hazardous
secondary materials to re-notify every two years.

7.6.4 - Documentation of reasonable efforts

7.6.4 - Summary

While EPA proposed that generators conduct reasonable efforts before
sending hazardous secondary materials to the reclamation facility, we
did not propose that documentation records must be kept of such
demonstrations. However, EPA requested comment on whether to require
hazardous secondary material generators to maintain documentation at the
generating facility demonstrating that the reasonable efforts condition
was satisfied prior to transferring the hazardous secondary materials to
a reclamation facility. No form of documentation or format was
specified, although EPA did cite audits as one type of documentation
that could be relevant. We asked whether questions (A) - (F) should be
specifically documented. Finally, we requested comment on whether
hazardous secondary material generators should be required to maintain
certification statements, as a form of documentation, that reasonable
efforts were conducted for each reclamation facility to which the
generator transferred the hazardous secondary materials to be reclaimed.

A majority of commenters supported a requirement that generators
maintain documentation of reasonable efforts and most commenters
described documentation as facility audits, responses to questions (A) -
(F), and/or other relevant information. Several commenters also voiced
support for including the certification statement for reasonable efforts
as a form of documentation and a few commenters stated that legitimacy
determinations should also be included in a documentation requirement.
Several commenters asked EPA to require specific documentation or
guidance about how to clearly demonstrate that the reasonable efforts
condition had been met and be able to provide supporting documentation
as necessary. One commenter worried that allowing the use of "any
credible evidence" for making reasonable efforts, including information
provided by the reclaimer or reclaimer word-or-mouth, without a
documentation requirement, may allow generators to falsely claim they
met the condition. Another argued that the generator must document
reasonable efforts "within its facility records." This would add some
assurances when generators send hazardous secondary materials to brokers
that the generator satisfied the condition for all facilities managing
its materials and that the materials were ultimately legitimately
recycled and not discarded. Still, several commenters in support of
documentation also requested that EPA not specify a type of
documentation because, for example, reasonable efforts to "ensure
legitimate [recycling] and proper materials management is inherently a
case-specific inquiry."

Several commenters asked that documentation of reasonable efforts be
kept on-site, while a few commenters requested that the documentation
could be kept at a headquarters or other off-site location. Other
commenters specifically requested that EPA: not specify a location for
documentation; require documentation be made available to regulatory
authorities upon request; submit documentation to regulatory agencies,
even suggesting it be included with the one-time notification and
submitted annually or biannually; and maintain a document on-site
confirming an audit was performed and that the recycling facility was
approved for use via a generator company's internal review process. A
few commenters suggested that documentation should be maintained for
three or five years, and certification requirements be maintained for
one year. One industry commenter asked that EPA set a time requirement
specifying how long such documentation must be kept.

Commenters in favor of this requirement generally stated that
documentation would be necessary for showing the basis for the
reasonable efforts evaluation and determining whether a generator
satisfied the condition, as well as for improving the enforceability of
the condition. Commenters also stated:

It is "not unreasonable to require… some basic documentation" and
maintaining documentation of an audit is already part of existing good
business practice. Furthermore, any responsible generator that audits
facilities would document its work.

Documentation of reasonable efforts does not pose any undue hardship for
a responsible generator with the resources to perform audits or hire a
third party auditor.

Documentation provides the bare minimum amount of information regulatory
authorities could use to test that the condition is satisfied and
provide a paper trail for verification.

A generator's claim of having made reasonable efforts will be supported
by documentation, which will help shield a generator from liability.

Requiring documentation will help ensure generators only approve true
recycling facilities and it will also prove an audit is not a sham.

Maintaining a certification statement ensures an audit was properly
conducted and that documentation is a business record.

A certification statement could be required in lieu of specific
documentation, and backup documentation would be required to be made
available for review by regulatory authorities.

On the other hand, a few commenters were opposed to a documentation
requirement for reasonable efforts and provided the following reasons:

They do not support the reasonable efforts condition and/or disagree
with audits being the foundation of reasonable efforts; therefore, they
disagree with using audit reports as documentation.

Confidentiality is a serious concern for generators that audit a
facility's business operations and make financial evaluations. One
commenter stated they "strongly [oppose] any condition that [requires]
documentation… be accessible to regulatory agencies, third parties, or
any other individual," which according to the commenter could include
members of the media, non-governmental organizations, consultants, and
competitors of the facility. These commenters generally believed
providing access to documentation to outside parties, including
regulators, would limit reclaimer support for allowing generators or
third parties to review their facilities.

Do not require documentation, but "as with any recycling exclusion,
generators would be prepared to provide 'appropriate documentation' to
prove that their recycling process meets the requisite conditions of the
exclusion."

One commenter stated that certification is not a normal business
practice; therefore, it should not be required. However, this commenter
did support a documentation requirement.

A few commenters advocated requiring only a certification to show that
the generator answered questions (A) - (F) and/or satisfied the
reasonable efforts condition, instead of requiring other documentation.

One state commenter suggested it would be difficult for states to
enforce the documentation requirement, presumably because EPA proposed
that "any credible evidence available" could be used to demonstrate the
condition was met. The same commenter also expressed concern that by
documenting reasonable efforts, "generators may mistakenly believe such
'reasonable efforts' [serve] as a shield for their state or federal
[CERCLA] liability."

Some commenters also suggested comments on alternative methods of
documentation:

Maintaining a generator suggested set of pre-transfer and post-transfer
questions for reasonable efforts was suggested as an alternative to
documenting an audit.

"Use the manifest with an 'E' code in Block 13" for documenting
certification of reasonable efforts.

One commenter only expressed support for a "short-form checklist" of
questions, provided that it was not a condition of the exclusion.

(447, 457, 460, 463, 466, 470, 472, 475, 476, 479, 482, 486, 489, 491,
492, 495, 507, 509, 516, 525, 529, 534, 538, 543, 548, 549, 558, 559,
563)

7.6.4 - Response

After evaluating the comments, EPA has concluded that it is important
for hazardous secondary material generators to produce documentation to
demonstrate the reasonable efforts condition has been met prior to
transferring hazardous secondary materials to a reclamation and/or
intermediate facility. We believe this requirement helps generators
support their position that hazardous secondary materials have not been
discarded and helps regulators determine whether a generator has
satisfied this condition. This is critical to ensure that generator
liability for any discard is clearly defined in the event its hazardous
secondary materials are discarded by another facility at some point in
the future. Since updates of reasonable efforts are required at a
minimum of every three years, EPA believes generators should maintain
documentation for a minimum of three years to show that the requirement
to update reasonable efforts has been satisfied.

Based on commenter input, we understand that audits and evaluations of
reclamation facilities are not always kept on-site and may be maintained
at a generator's headquarters or at another off-site location. For this
reason, EPA is requiring that documentation 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. We agree with
commenters that this requirement is necessary to ensure regulatory
authorities are able to verify this condition is satisfied. We
understand that in the age of near-instantaneous communication, a
hazardous secondary material generator performing reasonable efforts
prior to transferring hazardous secondary materials should be able to
retrieve documentation with relative ease. We also note that time frames
for producing documentation are generally determined by regulatory
authorities on a case-by-case basis and time frames are clearly outlined
by authorities within RCRA Section 3007 information request letters.

In response to the comments we received, we believe by codifying
questions (1) - (5), we have clarified that generators must be able to,
at a minimum, document their affirmative responses to the questions in
order to satisfy the condition. We believe this requirement is specific
enough to satisfy commenters' interest in a clearly defined
documentation requirement. However, we do not believe it is necessary to
mandate that, for example, audits be specifically required for
documentation. Instead, we prefer to maintain some flexibility in terms
of the format for documenting the condition based on commenter input and
the knowledge that each reasonable efforts inquiry will be unique. This
flexibility for documentation is also in response to commenter concern
about the confidentiality of audits; although we never anticipated, as
suggested by a commenter, that documentation could be made available to
"[the] media, non-governmental organizations, consultants, and
competitors of the facility," or other third parties. We do not believe
this flexibility will in any way impact the ability of regulatory
authorities to determine whether the condition is satisfied. We believe
the certification statement is critical for ensuring accountability for
satisfying the condition and that the act of making reasonable efforts
is in fact genuine. In the event of an enforcement action, we believe
the certification will lend support to hazardous secondary material
generators needing to prove that the reasonable efforts condition was
met. We find the generator suggestion of maintaining a document on-site
confirming an audit was performed, and that the recycling facility was
approved for use via a generator company's internal review process,
would be an acceptable form of certification, provided it also met the
requirements of 40 CRF 261.4(a)(24)(v)(C)(1) and
261.4(a)(24)(v)(C)(2).However, we do not think a certification alone
could satisfy the documentation requirement and note that questions (1)
- (5) would have to be answered in order to be certified; therefore,
requiring the responses be documented is necessary for an authorized
representative to certify the condition. Based on our understanding of
existing best audit practices and on commenter feedback, we strongly
believe documenting evaluations of facilities is a sound business
practice that does not pose any significant burden to generators.

We also disagree with other commenter provided suggestions about
documentation of reasonable efforts for the following reasons:

Documenting legitimacy determinations is not a requirement of 40
CFR260.43; therefore, it is not necessary to include it within a
generator's documentation of reasonable efforts.

We do not believe it is necessary to submit documentation to regulatory
authorities, in a notification or any other format, if it is maintained
on-site and easily produced for review by such authorities.

Based on our understanding of how often generators currently audit
facilities, and on input from commenters, we believe it is necessary to
maintain documentation for three years. This is the required frequency
for updating reasonable efforts; therefore, it makes sense that every
time reasonable efforts are conducted, documentation of questions (1) -
(5) and a certification statement are updated and maintained for review.
(For more information about the frequency for updating reasonable
efforts, please refer to latter section of this document entitled,
"Frequency of periodically updating reasonable efforts.")

We do not believe there is a persuasive or strong enough distinction
between what we are finalizing and the following commenter suggestion: a
certification statement should be required in lieu of specific
documentation and that backup documentation must be made available for
review by regulatory authorities.

Since the severance of a generator's RCRA liability under the
transfer-based exclusion is not a characteristic that is shared with
other recycling exclusions, we do not agree with the commenter who
argued against a documentation requirement by noting that other
exclusions do not require it. We believe documentation is critical for
ensuring that generators have in fact made reasonable efforts and for
verifying that the generator did conduct reasonable efforts, and
therefore is not liable under RCRA for managing the hazardous secondary
material as a hazardous waste in the event of future discard by the
reclaimer or other parties.

We disagree that because certification is a normal business practice it
should not be a requirement. It is our understanding that not all
generators currently evaluate facilities; thus, they do not certify
evaluations. As a result, we believe it is critical to capture this
practice within the regulatory requirement for reasonable efforts.

We do not believe that because a generator documents and satisfies the
reasonable efforts condition for the transfer-based exclusion from the
RCRA definition of solid waste that the generator will believe it is
shielded from state or federal CERCLA liabilities. To clarify a
generator's liability with respect to the reasonable efforts condition,
we included a discussion of liability in the preamble. (For more
information, please refer to section VIII(E) of the preamble to today's
rulemaking.)

With respect to commenter support for documenting only pre-transfer and
post-transfer questions, or a "short-form checklist" of questions, we
believe requiring questions (1) - (5) is the most appropriate approach
for defining reasonable efforts and that documenting responses to those
questions is necessary and appropriate.  (For more information about the
questions defining "reasonable efforts," please refer to an earlier
section of this document entitled, "Questions that reasonable efforts
must address at a minimum.")

Use of the hazardous waste manifest form is not a requirement of the
transfer-based exclusion; therefore, it is not an appropriate method for
documenting certification of reasonable efforts.

7.6.5 - Certification of reasonable efforts

7.6.5 - Summary

EPA solicited comment on requiring hazardous secondary material
generators to certify they made reasonable efforts prior to arranging
for transport of hazardous secondary materials to be recycled. As
discussed in the preamble to the March 2007 supplemental proposal, the
certification statement would be a form of documentation necessary for
each reclamation facility and would be signed and dated by an authorized
representative of the generator company. We also provided certification
language as an example.

Several commenters, including recyclers, all responding states but one,
and a few industry generators and associations, commented in favor of
requiring hazardous secondary material generators to certify they had
met the reasonable efforts condition. All commenters that responded
regarding the example certification statement supported the language. A
few commenters reiterated that generators must certify reasonable
efforts for each reclamation facility and certification should not be
necessary for RCRA Part B permitted facilities. One commenter requested
that the certification statement must be made "prior to implementing
exempt operations." Another commenter believed a certification statement
would improve the enforceability of the reasonable efforts condition and
a few commenters believed it provides the bare minimum information to
regulators who may later want to verify that the condition is met. One
commenter stated that the certification correctly places responsibility
with the generator for managing hazardous secondary materials and that
certification by a corporate official is necessary to determine an
evaluation was properly conducted.  A generator currently auditing its
waste facilities stated that "a letter signed and dated by the
department manager is mailed to the audited facility stating the results
of the audit," and that the letter should act as a certification.
Another commenter suggested that given the large number of facilities
for which reasonable efforts is required, having a company
representative, as opposed to an "authorized representative," sign and
date a certification should be sufficient and would be less burdensome.
A few commenters proposed the generator certification and signature be
built into the one-time notification that EPA is requiring for the
exclusion. One commenter suggested EPA's Uniform Hazardous Waste
Manifest could be used for certification and another stated the
certification is similar to the one required for land disposal of
hazardous wastes. Finally, one commenter asked that certification be an
annual requirement.

A smaller number of comments from industry generators and associations,
and one state not supporting the reasonable efforts condition, opposed
the certification requirement. A few generators found the certification
statement to be overly burdensome and stated it would stifle the use of
third-party reclaimers. Additionally, a few commenters found a
certification unnecessary since a one-time notification is required,
current generator evaluations are already sufficient, documentation of
reasonable efforts is an adequate requirement, additional reporting
would be likely through the RCRA Biennial Report, and currently
facilities are not required to certify hazardous waste determinations.
One generator, who currently audits reclamation facilities, stated it
could not certify the accuracy of information prepared by third parties,
nor could it certify responses by reclamation facilities to questions
(B) through (E), which EPA discussed in the preamble. Another generator
responded that without further clarification as to the minimum
requirements for satisfying reasonable efforts, the generator could not
certify the condition was met. A commenter also suggested requiring
certification of reasonable efforts for reclamation facilities that
recycle hazardous secondary materials was unnecessary if certification
is not required for the storage, treatment, and disposal of hazardous
waste.

(442, 447, 452, 457, 458, 460, 463, 466, 470, 472, 475, 476, 479, 481,
485, 489, 491, 492, 495, 507, 509, 512, 516, 519, 525, 527, 529, 534,
538, 539, 543, 548, 549, 558, 559, 564)

7.6.5 - Response

After evaluating the public comments, the majority of which supported a
certification, EPA has concluded that certifying the reasonable efforts
provision is a necessary and minimally burdensome requirement for
ensuring the reasonable efforts condition is met prior to transferring
the hazardous secondary materials to a reclamation or intermediate
facility. This certification requirement is not unlike existing
certifications found in existing RCRA documentation with which the
regulated community is familiar and appear to function well, such as the
RCRA Site ID Form, RCRA financial assurance requirements, and the
Uniform Hazardous Waste Manifest. We also strongly believe having an
authorized representative, who can be any appointed representative of
the generator company, certify reasonable efforts is critical for
guaranteeing accountability by the generator for meeting the condition
and for ensuring that the act of making reasonable efforts is in fact
genuine. 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. Since individual generators may use any form of credible
evidence, we believe it is critical for all generators to uniformly
certify that the condition is satisfied demonstrating that they
evaluated the information and made a reasonable determination.
Furthermore, we find the certification requirement to be appropriate
based on our understanding that third-party auditors and other
information providers do not generally draw any conclusions based on
their audits, but simply report the results to generators. While a
generator may use any credible 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 to draw the conclusion that the facility meet the
reasonable efforts condition, similar to how generators currently draw
conclusions based on third-party audit documents.

Therefore, in today's final rulemaking, we are finalizing a requirement
that hazardous secondary material generators must certify that
reasonable efforts were made for each reclamation and intermediate
facility prior to transferring hazardous secondary materials to such
facilities. A certification for each facility will be required every
three years at a minimum and we believe this frequency is adequate for
generators making reasonable efforts to ensure their hazardous secondary
materials are properly and legitimately reclaimed and thus are not
discarded.

We are not requiring that certification be provided in a specific
format, such as the notification or manifest form, because we believe
the notification form is not an appropriate option and we are not
requiring manifesting within the final rulemaking. We are not requiring
certification to be included as part of the notification because the
consequences for failing to certify reasonable efforts (as a condition
of the exclusion) and failing to submit notification (as a requirement
of the exclusion) are not the same. If a facility fails to certify
reasonable efforts, the excluded status of its materials may be lost.
However, if a facility fails to submit a notification, although in
violation of the notification requirement, the excluded status of its
materials would not be lost provided it is complying with the conditions
of the exclusion. Therefore, to avoid potential ambiguities when a
facility fails to notify, we determined it was best to not include the
reasonable efforts certification as part of the notification. While
either of these commenter suggested options would serve to provide a
concrete, existing method for certification, we believe that the
certification details outlined in the regulatory text are adequate for
ensuring that generators have conducted reasonable efforts and thus are
not discarding their hazardous secondary material.

With respect to those commenters who opposed certification and
specifically argued that requiring such certification would stifle the
use of third-party auditors, it is our understanding that third-party
auditors do not generally draw any conclusions based on their audits,
but simply report the results. In addition, the reasonable efforts
condition requires the hazardous secondary material generator to decide
whether a reclaimer is acceptable, similar to how generators currently
draw conclusions based on third-party audits. The certification
statement would clearly show a generator used the information gathered
during the reasonable efforts inquiry.

Therefore, we disagree with those commenters who stated that requiring a
certification would constitute a significant new burden. Rather, EPA
believes requiring a hazardous secondary material generator to certify
the reasonable efforts condition would provide them the flexibility to
use audits or other information necessary in certifying the condition of
the exclusion was met. We also believe the certification requirement for
generators is necessary to satisfy the reasonable efforts condition
because it supports the underlying basis for reasonable efforts and for
determining when materials of concern are not discarded. For the above
reasons, we also disagree with the comment that documentation of
reasonable efforts is adequate without certification.

We also find the commenter example of an existing practice of sending a
letter with audit results to an audited facility would need to include
the certification language in 40 CFR 261.4(a)(24)(v)(C)(2) in order to
meet the reasonable efforts condition.

7.7 - Imports/Exports

7.7 - Summary

SUPPORT EXPORTS UNDER EXCLUSION: Some commenters supported allowing both
imports and exports of hazardous secondary materials for reclamation
under the transfer-based exclusion. One commenter supported the
requirements as proposed, believing the requirements are sufficient
enough to ensure that hazardous secondary materials will not be
discarded, but are not so burdensome so as to prevent exporters from
seeking legitimate recycling opportunities in other countries. One
commenter believed EPA should allow exports for recycled materials
"applied to the land' to prevent the loss of legitimate recycling
opportunities due to overly conservative assumptions. Specific to EPA's
2003 proposal, one commenter supported EPA's proposal that hazardous
secondary materials destined for recycling in a continuous manufacturing
process should not be regulated as hazardous wastes when sent to or from
the United States under import and export regulations and prevailing
OECD treaties. This commenter stated that many domestic plants have
sister plants located in other nations and the option to process a wider
range of materials at these facilities would potentially result in
additional secondary material recovery options that are not even
considered under the current regulatory program. This commenter further
supported the inclusion of imports and exports if EPA were to adopt a
broader exclusion. Another commenter, also in response to EPA's 2003
proposal, urged EPA to clarify how the exclusion would apply to imports
and exports. One state commenter noted a limitation of the NAICS code,
in the 2003 proposal, is verifying that industries in a foreign country
actually fall within the same industry as a generator. [0081, 0083,
0095, 0438, 0472, 0479, 0481, 0486, 0507, 0529, 0545, 0550]

OPPOSE EXPORTS UNDER EXCLUSION: Some commenters opposed allowing exports
of hazardous secondary material under the transfer-based exclusion,
arguing instead that the current hazardous waste export regulations
under 40 CFR 262 Subparts E and H should be required. One commenter did
not advocate a less rigorous approach than previous RCRA rules for any
domestic waste, but if less rigor must be applied allegedly to encourage
domestic recycling, this should be done in the RCRA provisions for
domestic hazardous waste management stipulated by differing destinations
and not by altering the definitions and scope of the law. [0470, 0475,
0484, 0502, 0538, 0559, 0562]

EXPORT REQUIREMENTS NOT NECESSARY: One commenter believed EPA should
eliminate the export notification and other requirements because the
proposed notice and consent procedures are inconsistent and unnecessary
given EPA's existing export regulations and the laws of importing
countries and international regimes, which this commenter believed to be
sufficient to ensure the hazardous secondary materials will be recycled
in an environmentally sound manner. This commenter also believed that,
under the terms of the proposal, a generator would be required to assure
itself through "reasonable efforts" that the reclaimer will manage the
materials in an environmentally sound manner and thus any person
claiming the exclusion will bear the burden of demonstrating that the
materials satisfy the conditions of the exclusion. This commenter
believed the proposed export requirements would serve as a barrier to
recycling of secondary materials in other countries and would discourage
overall recycling of hazardous secondary materials. Commenters argued
that EPA's proposed export requirements impose an unnecessary burden on
exports where an importing country's domestic laws do not require prior
consent because the importing country considers the secondary materials
sent for recycling to be commodities or non-hazardous wastes and, thus,
U.S. export controls would unduly restrict legitimate markets for
secondary materials in other countries and in turn limit options for
recycling of secondary materials. This commenter believed EPA needs to
work more closely with its own Office of International Affairs and with
the State Department to ensure a more reasonable approach to dealing
with exports of hazardous secondary materials. One commenter believed
the proposed notice and consent procedures are inconsistent with EPA's
existing export procedures and thus will confuse importing countries
because some secondary materials excluded from U.S. hazardous waste
regulations require importing country consent and others do not. One
commenter believed EPA's requirement for generators to provide
notification of the excluded material prior to export was in effect
applying "derived-from" principle to residuals generated from the
reclamation of excluded hazardous waste. This commenter believed that if
a hazardous waste determination has been performed and the material is
determined to be non-hazardous waste, then this commenter does not think
export notification should be required. [0438, 0479, 0481]

EXPORTS WILL RESULT IN ENVIRONMENTAL DAMAGE: One commenter strongly
disagreed with EPA's approach, arguing that there is certainly no
guarantee or method of enforcement to ensure the hazardous secondary
materials are in fact properly managed and recycled at overseas
locations, particularly with the limited information required in the
proposed notification and recordkeeping. This commenter argued that,
once the material is exported, there will be no labeling or tracking of
the material and there will be no paperwork in place to notify the
receiving country inspectors that this material has special conditions
attached to it and that it is a hazardous secondary material. [0475]

Commenters argued that verifying that sham recycling is not occurring
and determining that companies overseas are complying with the criteria
in legitimate recycling will be impractical given the limited authority
and resources available to both generators and states. Another state
commenter did not support the proposed exclusion for exported hazardous
secondary materials because the proposal increases the temptation and
opportunity for export-dumping, since the generator would not have to
use a hazardous waste transporter in the U.S. Many commenters noted
recent coverage of foreign mismanagement of exported electronics and
batteries as an indication for damage incidents resulting from
mismanagement of wastes subject to current exclusions. One commenter
expressed concern that any exclusion provided to battery breakers could
weaken North American recyclers of lead-acid batteries by creating an
economic incentive to shift battery recycling activities to other
countries where environmental laws are less stringent or less certain.
As a result, the shift of the lead-acid battery recycling market
overseas could undermine gains in protection of human health and the
environment that EPA has achieved with the current well-balanced
regulatory scheme. [0095, 0470, 0483, 0502, 0543, 0559, 0562]

Some commenters did not support exports of hazardous secondary materials
because the U.S. would potentially be exposing foreign countries to the
mismanagement of U.S. generated hazardous waste, arguing that the
economic incentives for exports of hazardous waste to countries are
indisputable because environmental standards in industrialized countries
significantly raise the cost of those activities in developed countries
and, thus, developing countries can provide disposal at a fraction of
the cost. Another commenter further believed the rule will have a
significant impact on international efforts to curtail both legal and
illegal traffic in hazardous electronic waste. This commenter argued
that the electronic waste trade, which has resulted in severe
environmental and occupational impacts, continues unabated because of
exemptions already carved into RCRA for recycling and should serve as a
warning against future delisting. This commenter further argued that
current exclusions for lead acid batteries, circuit boards, contaminated
scrap metals and mixed electronic wastes allows these materials to be
freely exported without controls and that this is illegal from an
international standpoint and stands as a global environmental injustice.
Lastly, one commenter argued that EPA provides no data or analysis
concerning the potential impacts of the exportation of hazardous
secondary materials for reclamation or recycling and that EPA should
determine the potential effect of its supplemental proposal on human
health and the environment in importing countries.[0484, 0502, 0559]

EXPORT REQUIREMENTS INCONSISTENT WITH INTERNATIONAL AGREEMENTS:  Some
commenters believed that the proposal is inconsistent with the Basel
Convention, the OECD 1986 accord, and the 1992 OECD accord. Some
commenters described the development and principles of the Basel
Convention on the Transboundary Movement of Hazardous Wastes and Their
Disposal, arguing that the Convention has been highly successful and
that the U.S. needs to be in step with the Convention, despite the fact
that the U.S. is not a party. Regarding the Basel Convention, some
commenters argued that, although the U.S. is not a Party of the Basel
Convention and therefore not legally liable for Basel's requirements,
the U.S. is aiding and abetting illegal trafficking in hazardous waste
by other countries. Regarding the OECD treaties, which are legally
binding on the U.S., one commenter argued the proposed rule violates the
1986 OECD Treaty and the 1992 OECD Treaty in the following ways:

Violations of 1986 and 1992 OECD Treaties:

While the proposed rule introduces a new form of prior informed consent,
the definitions of what is a hazardous waste under the OECD decision and
the proposed rule are not in alignment;

The proposed rule does not require the consent of the receiving country
for hazardous electronic waste, lead acid batteries and other hazardous
waste exports as defined as such by the OECD that have been exempted
through earlier delistings;

The proposed rule does not address that the United States currently
exercises no control, nor shows any concern as to whether the hazardous
wastes they export are destined for "adequate facilities." The
requirement for environmentally sound management by the exporter is
glaringly absent;

The proposed rule's claim that certain wastes are not hazardous simply
because they are recyclable is not consistent with the existing
obligations under OECD accords which are in fact legally binding on the
United States;

The proposed rule's requirements are far less comprehensive than Subpart
H of RCRA and fail to require contracts as required under the OECD
treaty;

The proposed rule fails to require the duty to re-import the material in
question;

The right of a Member country to control wastes differently must be on
an exceptional basis and in order to protect human health and the
environment;

A Member country may, in conformity with domestic legislation, legally
define or consider an Amber waste subject to the Green controls only if
it does not exhibit hazardous characteristics; and

All such deviations must be notified to the OECD Secretariat and Member
states.

This commenter argued that only the United States, unique among nations,
has concluded that materials cease to be a "waste," or less hazardous,
simply because somebody wants to recycle them. Under the Basel
Convention, while a national designation of what constitutes a hazardous
waste can augment the Basel definitions, it is not possible that a
country can subtract from the internationally agreed Basel lists simply
on the basis of national definitions; the vast majority of what the U.S.
will suddenly be designating as non-wastes will still be defined as
hazardous wastes under Basel and in the laws of 170 countries. This
commenter argued that generators should manage the materials as
hazardous waste; the receiving country could then have their own
exclusion or apply certain conditions if they want, just as specific
conditions and exclusions can be applied to hazardous waste that arrives
at the U.S. border. One commenter believed that EPA should strike the
proposed 40 CFR 261.4(a)(25) because imposing export controls on
excluded hazardous secondary materials was premature, overly broad and
unnecessarily burdensome, given anticipation of U.S. ratification of the
Basel Convention. This commenter suggested that EPA, instead, require
exporters to submit a one-time notification which would allow EPA to
track exports, but without imposing undue burdens on exporters,
importing countries and markets for recycling of secondary materials.
[0481, 0502, 0559]

STRENGTHEN EXPORT REQUIREMENTS: One commenter believed that if EPA is
going to retain the export provision the Agency needs to strengthen the
conditions for recordkeeping, characterization, shipping procedures and
documentation. It is also particularly important that the generator
facility maintain records of their audits and documentation used to meet
the reasonable efforts provision, as EPA and the states will not have
any access to the overseas reclamation facility. One commenter argued
that international shipments should be allowed, but due to restrictions
on the shipment of this material to most other countries governed by the
Basel Convention, the United States should limit this exclusion to
countries with which it has a bilateral agreement allowing this
practice. Another commenter believed that EPA should limit the scope of
the rule to allow export for recycling only to countries that are
members of the North American Free Trade Agreement (NAFTA) in order to
assure hazardous secondary materials are managed in an environmentally
sound way. One commenter argued that exports should not apply to
lead-acid batteries regulated under the specific requirements of 40 CFR
266.80 because the supplemental proposed rule could create an incentive
to export batteries for recycling to countries that may not have similar
restrictions as the United States or that may result in less recycled
lead that is available for use in the United States. This commenter
believed these incentives would undermine the purpose of the revisions
to promote safe recycling of materials and to reduce the amount of
hazardous materials that may be available for release into the
environment. [0475, 0502, 0514, 0545]

IMPORTS: One commenter said that hazardous waste that is generated in a
foreign country can enter the U.S. exempted, if the party importing it
claims that the waste is an excluded material because of the intent to
recycle it. Since there would not be a manifest and the proposed
recordkeeping and notification provisions are weak, this commenter
believed the rule would create a huge opening for waste to be dumped in
the U.S. Another commenter supported imports of hazardous secondary
materials and questioned why the Agency did not address imports in its
proposal. [0119, 0491]

GLOBAL COMPETITION: One commenter argued that EPA should limit
exportation outside of the NAFTA trade area for end-of-life products in
the recycling industry until a system can be developed in the future
that guarantees a level playing field in environmental management,
community protections and occupational health. Another commenter noted
that a shift of the lead-acid battery recycling market overseas could
lead to serious erosion of the technological capabilities of the North
American industry to recycle these materials. This commenter suggested
that, if EPA were to allow exports of lead acid batteries, the Agency
could clarify its export regulations to ensure the exports only occur to
countries with specific bi-lateral agreements, such as NAFTA, where the
parties have detailed appropriate environmental requirements. One
commenter did not support exports of hazardous secondary materials
because exports would constrain the development of our own U.S.
recycling infrastructure. [0143, 0483, 0484]

EXPORT REQUIREMENTS NOT CONSISTENT WITH OTHER EXCLUSIONS: One commenter
noted that a number of the existing exclusions from the definition of
solid waste are not subject to notice and consent procedures for export.
This commenter believed that imposing notice and consent in the proposed
rule is therefore arbitrary and serves no environmental purpose.
Furthermore, where a secondary material is eligible for more than one
exclusion, the generator is likely to choose the exclusion for which no
export requirements apply. [0481]

7.7 - Response

SUPPORT/OPPOSE EXPORTS UNDER EXCLUSION: EPA agrees with those commenters
who support allowing exports of hazardous secondary materials for
reclamation to a foreign country under the transfer-based exclusion. We
believe that hazardous secondary materials exported for reclamation in
accordance with the final rule are not discarded and not solid wastes
and, therefore, we have no basis for prohibiting exports when a
hazardous secondary material generator complies with the regulatory
requirements. We also agree with commenters that the conditions of the
exclusion are sufficient to ensure that hazardous secondary materials
are not discarded, but are not so burdensome so as to prevent exporters
from seeking legitimate recycling opportunities.

Although the final rule mirrors aspects of the hazardous waste export
regulations (notice and consent, annual reports etc.), hazardous
secondary materials managed according to the final rule are not solid
and hazardous wastes and thus 40 CFR 262 Subparts E and H would not
apply.

We are not including exports for hazardous secondary material "applied
to the land" because the scope of our rulemaking is limited to materials
being reclaimed; our rulemaking does not apply to recycling involving
"use constituting disposal" or "burning for energy recovery."

We note that our March 2007 supplemental proposal and the final rule do
not include limitations on reclamation regarding NAICS codes (as
proposed in October 2003). Therefore, there is no condition that
hazardous secondary materials must be reclaimed in a continuous process
within the same industry and thus no need to verify that industries in a
foreign country fall within the same industry as the generator.

EXPORT REQUIREMENTS NOT NECESSARY: We do not agree with commenters who
believe the notice and consent requirements are not necessary given
EPA's export regulations and the laws of receiving countries. We note
that hazardous secondary materials are not solid and hazardous wastes,
provided the conditions of the final rule are complied with, therefore,
the hazardous waste export regulations in 40 CFR 262 Subparts E and H
would no longer apply. Furthermore, we confirm that hazardous secondary
materials reaching the border of a receiving country would be subject to
the receiving country's applicable laws and regulations; however, in
order for the receiving country to apply its regulations, it must be
made aware of the intent to transfer and the nature of the hazardous
secondary material. Therefore, we are requiring notice and consent under
the final rule to provide the receiving country essential information to
enable the receiving country to make an informed decision regarding: 1)
whether the hazardous secondary material can be imported for reclamation
and not discarded; and 2) to determine which of the receiving country's
laws and regulations would apply.

We disagree with commenters who believe the hazardous secondary material
generator conditions are sufficient to ensure the materials will not be
discarded abroad and thus further requirements, such as notice and
consent, are not necessary. U.S. regulatory authorities cannot enforce
conditions on facilities located in foreign countries and thus it is
critical we inform and engage the regulatory authorities in these
foreign nations to enable them to monitor compliance and enforce against
sham recycling operations. Simply relying on the hazardous secondary
material generators to perform reasonable efforts would not provide the
receiving country with information needed to evaluate and assess how the
hazardous secondary material will be reclaimed and regulated within its
borders.

We do not believe the requirements on exports of hazardous secondary
materials are too burdensome so as to discourage overall recycling of
hazardous secondary materials. In fact, the exclusion achieves an
overall net burden reduction than what is required under the existing
export regulations, which these materials were previously subject to. We
also do not believe the regulations are unnecessarily burdensome in
cases where the receiving country considers the materials to be
non-hazardous wastes, since information in the notice and consent
requirement is needed to allow the receiving country to make this
determination in the first place.

We agree to some extent with commenters who believed the proposed notice
and consent requirements for hazardous secondary materials may cause
confusion for receiving countries due to the inconsistency with notice
and consent requirements for hazardous wastes. In the final rule, we
have modified the notice requirements for hazardous secondary materials
to more closely align with the notice requirements for hazardous wastes
under 40 CFR Subpart E. We believe this will reduce confusion on the
part of the receiving country since the notices will appear nearly
alike, regardless of if the material was regulated as hazardous
secondary material or hazardous waste in the U.S. We've also modified
the final rule to allow tacit consent for exports of hazardous secondary
materials to OECD Member countries to better align with current
practices under OECD agreements and our existing 40 CFR Subpart H.

We do not believe we fully understand the comment that EPA's requirement
for hazardous secondary material generators to provide notice of export
for the excluded material was, in effect, applying the "derived-from"
principle to residuals generated from the reclamation of excluded
hazardous waste. The exclusion applies to hazardous secondary materials
sent for reclamation to a reclamation facility located in a foreign
country; therefore, EPA has no authority to apply the "derived-from"
rule to residuals generated from the reclamation process within the
receiving country. Furthermore, for reclamation within the U.S., under
the final rule the "derived-from" rule does not apply since these
hazardous secondary materials are not hazardous waste; however, if any
residuals from the reclamation process exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261, or themselves
are listed hazardous wastes, they are hazardous wastes (if discarded)
and must be managed according to the applicable requirements of 40 CFR
parts 260 through 272.

EXPORTS WILL RESULT IN ENVIRONMENTAL DAMAGE: We believe the exclusion
for hazardous secondary materials exported for reclamation contains the
necessary conditions to ensure the materials will be reclaimed and not
discarded. What EPA can and must do is to ensure that our domestic
hazardous secondary material generators are responsible for performing
reasonable efforts as set forth in 40 CFR 261.4(a)(24)(v)(B) with
respect to a foreign reclamation facility and that proper notice is
given to the regulatory authorities in the receiving country to enable
them to make an informed decision regarding the proper management and
compliance monitoring of the hazardous secondary materials within their
borders. Both of these conditions, in addition to others, such as
recordkeeping, are required for the exclusion of hazardous secondary
materials exported for reclamation. Furthermore, we note that, once
reaching the borders of the receiving country, the hazardous secondary
materials would be subject to all applicable laws and regulations of
that country, including any required labeling and tracking of the
material.

In response to commenters who referenced recent news stories regarding
the mismanagement of electronic waste and batteries abroad, we note that
some of these wastes are not currently subject to notice and consent
requirements under the existing hazardous waste regulations. We believe
the conditions under the final rule, which include notice and consent,
are sufficient to ensure the hazardous secondary materials will be
reclaimed and not discarded. In response to the comment that argued EPA
must regulate export of materials already excluded from the definition
of solid waste, such as scrap metal and circuit boards, we note that
this type of action is outside the scope of the rulemaking (EPA,
however, is planning to propose notice and consent requirements for
spent lead-acid batteries exported for reclamation under a separate
rulemaking). Regarding one commenter's concern that the exclusion would
adversely affect battery recycling; we note the final rule does not
apply to spent lead-acid batteries.

EXPORT REQUIREMENTS INCONSISTENT WITH INTERNATIONAL AGREEMENTS: We
disagree with commenters who believe the final rule runs contrary to
international agreements controlling the movement of hazardous waste. We
note the U.S. is an OECD Member and is, therefore, legally bound to
comply with the OECD's "Decision of the Council C(2001)107/FINAL,
Concerning the Control of Transboundary Movements of Wastes Destined for
Recovery Operations, as amended by C(2004)20," which provides a
framework for OECD Member countries to control transboundary movements
of recoverable waste in an environmentally sound manner. This Amended
2001 Decision recognizes that Member countries may develop their own
regulations to determine whether or not materials are controlled as
hazardous wastes. Specifically, the Amended 2001 Decision states: "[i]n
addition, certain Member countries have developed regulations used to
determine whether or not wastes are controlled as hazardous wastes."
Under the final rule, hazardous secondary materials meeting certain
conditions and exported for reclamation are not solid wastes under U.S.
regulation. The Agency notes, however, that once hazardous secondary
materials reach the border of the receiving country, the hazardous
secondary material is regulated in accordance with the receiving
country's laws and regulations. In other words, such materials that are
not solid and hazardous wastes under U.S. hazardous waste regulations
may be solid and hazardous wastes under the receiving country's
regulations and, therefore, facilities should be aware of the
requirements that competent authorities of receiving countries may
impose.

Additionally, some commenters asserted that the proposed rule was
inconsistent with the Basel Convention, a multilateral international
agreement governing the transboundary movements of hazardous wastes. The
U.S., however, is not a party to the Basel Convention and thus is not
held to the Convention's agreements (although, because the Convention
prohibits exports between a Basel party and a non-Basel party, the U.S.
may not export hazardous waste to any Basel party, absent an acceptable
bilateral or multilateral agreement with that party).

STRENGTHEN EXPORT REQUIREMENTS: In response to comments on the March
2007 supplemental proposal, EPA is requiring, in addition to conditions
already proposed, hazardous secondary materials generators transferring
hazardous secondary materials to another person (including to a
reclamation facility located in a foreign country) to document and
certify reasonable efforts and maintain confirmations of receipt from
the reclamation facility. In addition, EPA is also requiring hazardous
secondary material generators that export hazardous secondary materials
to submit annual reports detailing the types and volumes of hazardous
secondary materials exported abroad. We believe these additional
recordkeeping and documentation requirements are necessary to ensure
hazardous secondary materials are not discarded and will assist
regulatory authorities with monitoring compliance of the exclusion.

We are, however, not limiting exports to certain countries, such as our
bi-lateral partners or countries that are members of the North American
Free Trade Agreement (NAFTA). We consider hazardous secondary materials
exported for reclamation under the conditions of the final rule to be
not discarded and thus not solid wastes. We therefore have no rational
basis to limit exports of these materials to a subset of foreign
countries (however, we do note here, and in the preamble to the rule,
that because the Basel Convention prohibits exports between a Basel
party and a non-Basel party, the U.S. may not export hazardous waste to
any Basel party, absent an acceptable bilateral or multilateral
agreement with that party). We further believe that codification of an
objective standard for reasonable efforts (i.e. the questions included
under 40 CFR 261.4(a)(24) (v)(B)) will ensure that hazardous secondary
material generators evaluate foreign reclaimers according to an
appropriate and consistent standard to ensure the materials will be
managed in a manner that is protective of human health and the
environment and not discarded. Regarding one commenter's concern that
the exclusion would adversely affect battery recycling, we note that the
final rule does not apply to spent lead-acid batteries.

IMPORTS: We have included language in the preamble to the final rule
that clarifies that imports of hazardous secondary materials are
eligible for the transfer-based exclusion, provided that the person who
imports the hazardous secondary material fulfills all requirements and
conditions (e.g., notification, reasonable efforts, recordkeeping) for a
hazardous secondary material generator under 40 CFR 261.4(a)(24) of the
final rule. We believe these conditions will ensure hazardous secondary
material imported into the U.S. will be managed safely and in the same
environmentally protective manner as hazardous secondary materials
generated domestically. We further note that persons who import
hazardous secondary materials are not eligible for the
generator-controlled exclusion since this exclusion applies only to
hazardous secondary materials generated and reclaimed within the U.S. or
its territories. We do not have sufficient information regarding how
imports of hazardous secondary material generated from foreign
manufacturing processes, and thus subject to foreign laws and
regulations, would affect the likelihood of discard under the
generator-controlled exclusion.

GLOBAL COMPETITION: EPA does not have the authority to prohibit, or
limit, exports to foreign countries on the basis that we must prevent
shifts in the recycling market from the U.S. to other foreign countries.
Our authority instead is limited to regulating materials that have been
discarded and are thus solid and hazardous wastes. Furthermore, we
believe that codification of an objective standard for reasonable
efforts (i.e. the questions included under 40 CFR 261.4(a)(24)(v)(B))
will ensure hazardous secondary material generators evaluate foreign
reclaimers according to an appropriate and consistent standard to ensure
the materials will be managed in a manner that is protective of human
health and the environment. Regarding one commenter's concern that the
exclusion would adversely affect battery recycling, we note that the
final rule does not apply to spent lead-acid batteries.

EXPORT REQUIREMENTS NOT CONSISTENT WITH OTHER EXCLUSIONS: EPA, in the
past, has excluded certain types of materials from the definition of
solid waste and has required conditions (such as limits on speculative
accumulation) that are appropriate and necessary for each specific
exclusion. Under the final rule, a wide variety of hazardous secondary
materials from many types of industries are eligible for the exclusions,
and thus EPA has deemed it appropriate and necessary to require notice
and consent for exports in order to provide receiving countries with
essential information about the hazardous secondary material to ensure
it is properly managed within the receiving country's borders. We also
note that requiring notice and consent for a solid waste exclusion is
not without precedent; the Agency currently requires notice and consent
for used cathode ray tubes exported for reclamation. Lastly, hazardous
secondary material generators do not have a choice between the exclusion
and an existing exclusion because the final rule requires that hazardous
secondary materials specifically subject to an existing exclusion from
the definition of solid waste must continue to meet the existing
conditions or requirements of that exclusion.

7.7.1 - Export requirements

7.7.1 - Summary

Some commenters supported the requirements for exports of hazardous
secondary materials as proposed in 40 CFR 261.4(a)(25). These commenters
believed these requirements to be sufficient to ensure proper
management, handling and recycling of hazardous secondary materials, but
not so burdensome so as to prevent exporters from seeking legitimate
recycling opportunities in other countries. [0529, 0545]

One commenter believed that EPA's proposed notice and recordkeeping
requirements would create needless, duplicative and counterproductive
paperwork that will unnecessarily encumber and curtail the exporting of
secondary materials for reclamation. This commenter noted EPA has not
required export and consent procedures for other materials excluded from
the definition of solid waste when recycled and that notice and
recordkeeping are not necessary given existing international agreements
and laws of the importing countries, particularly where the importing
country considers the secondary materials sent for recycling to be
commodities or non-hazardous wastes. Another commenter opposed the
requirement to submit a one-time notification and some commenters
opposed the prohibition against brokers as part of the export
requirements. One commenter did not believe the requirements were
necessary or appropriate since both exporters and importers are capable
of ensuring that applicable laws and regulations for any hazardous
materials are followed; however, this commenter did not object to a
one-time notification or to the submission of an annual report. [0438,
0458, 0518]

Although a few commenters were opposed to allowing exports of hazardous
secondary material under the proposed rule altogether, one commenter
noted that requiring export notification is better than just applying
the conditional exclusion. This commenter also argued that EPA should
strengthen the conditions for recordkeeping, characterization, shipping
procedures and documentation. Another commenter believed that EPA's
notification and recordkeeping requirements for exporters were
inadequate and unenforceable and argued that EPA include export
requirements similar to what is required for exports of hazardous waste
including: use of a manifest; expanded notice of consent requirements;
post-shipment requirements, including requirements for when a shipment
cannot be delivered; exception reporting; annual reports; and
recordkeeping. One commenter argued that EPA's proposed export
requirements were significantly out of step with what will be required
by a Basel Party in order to respond to the consent and included a
comparison of EPA's notice requirements with that of a notification
under the Basel Convention. This commenter also believed that EPA should
require 40 CFR 262 Subparts E and H whenever wastes are exported,
arguing that these subparts were written with existing international
requirements of the OECD in mind and would avoid confusion when
communicating with competent authorities of other countries. [0475,
0502, 0559]

One commenter suggested EPA clarify that imports for transfers to third
parties for the purpose of reclamation be included at proposed 40 CFR
261.4(a)(24), noting that third parties often specialize in certain
reclamation activities (i.e., precious metal recovery) and that
providing for imports would allow legitimate reclamation to occur at
reclamation facilities within the USA. [0486]

Another commenter suggested EPA use an electronic notification form with
the required fields provided. This commenter also asked if EPA will be
required to respond to the notification and, if so, could the
notification be completed within a reasonable time to assure the
shipment takes place as scheduled. A second commenter believed that (D),
(E) and (F) are duplicative with the requirements under 40 CFR
261.4(a)(24)(i)-(iv) and are not necessary and that (G) is covered by
the mandatory reasonable efforts requirement. [0512, 0529]

One commenter said EPA set up an area of potential confusion by not
fully explaining the connection between the 261.4(a)(25) exports of
hazardous secondary materials under the transfer-based exclusion and
non-waste determinations established under 260.30. [0491]

Finally, two commenters specifically supported EPA's proposal to not
place reclaimer conditions (such as financial assurance requirements) on
foreign reclaimers since these reclaimers are not subject to U.S.
environmental laws and should not be forced to meet U.S. specific
requirements as a condition of doing business with U.S. suppliers.
Furthermore, one commenter believed it unnecessary for EPA to assert
RCRA jurisdiction over facilities in a foreign country as long as the
U.S. generator/exporter is made accountable through the reasonable
efforts and recordkeeping requirements as proposed in the supplemental
proposal. Four commenters specifically addressed the importance of
documenting and certifying reasonable efforts since EPA and the states
will not have any access to the overseas reclamation facility. [0475,
0482, 0529, 0545, 0558]

7.7.1 - Response

We agree with those commenters who supported our proposed requirements
for hazardous secondary material exported for reclamation at
261.4(a)(25). We consider these requirements to be necessary to ensure
the hazardous secondary materials are reclaimed and not discarded. This
includes requiring the generator to: notify the regulatory authority; be
responsible for performing reasonable efforts in order to evaluate a
foreign reclaimer's capacity for reclaiming the hazardous secondary
material; maintain records of all off-site shipments and confirmations
of receipt to ensure the hazardous secondary materials reached their
intended destination and were not discarded. We also believe it is
necessary to require the hazardous secondary material generator submit
notice and obtain consent prior to exporting hazardous secondary
material. This provides the foreign receiving country an opportunity to
review and evaluate their ability to properly manage the hazardous
secondary materials being reclaimed so as to avoid environmental damage
resulting from mismanagement of the materials. Therefore, with the
exception of a few changes (e.g., addition of annual reports for
hazardous secondary material generators and use of tacit consent for
exports to OECD Member countries), we are finalizing the export
requirements largely as proposed.

We disagree with the commenter who felt the requirements at 261.4(a)(25)
were unnecessary and would create needless and duplicative paperwork. In
fact, many of the requirements under 261.4(a)(25) relate directly to the
hazardous secondary material generator requirements under 261.4(a)(24),
with the only additional requirements being notice and consent and
annual reports, which are necessary to provide the receiving country
with adequate information in order to make an informed decision
regarding the export. We also disagree that EPA should not require
notice and consent for hazardous secondary materials based on the
argument that EPA has not required notice and consent for other
definition of solid waste exclusions. Rather, when promulgating
exclusions from the definition of solid waste, we codify export
requirements where it is logical and necessary to do so. In this case,
many types of hazardous secondary materials from a number of industrial
processes may take advantage of the exclusion; it is therefore critical
that hazardous secondary material generators provide foreign receiving
countries with sufficient information about the specific hazardous
secondary material being exported so that the foreign receiving country
can apply their relevant laws and regulations regarding its proper
management. Additionally, we note we currently require notice and
consent for some materials excluded from Subtitle C when recycled, such
as for cathode ray tubes exported for recycling under 40 CFR
261.4(a)(22) and for industrial ethyl alcohol being reclaimed under 40
CFR 261.6(a)(3)(i)). Regarding notification, we believe this requirement
is essential to enable regulatory authorities to monitor compliance of
the hazardous secondary material generator with the exclusion and,
therefore, disagree with the commenter who opposed this requirement.
Regarding the use of brokers, we have modified our final rule to allow
the use of intermediate facilities for hazardous secondary materials
exported for reclamation provided that hazardous secondary material
generators can affirmatively answer the reasonable efforts questions for
intermediate facilities at §261.4(a)(24)(v)(B) (excepting (v)(B)(2) of
this section for foreign intermediate facilities). Please see the
section 7.3 of this document for a more detailed discussion of our
rationale for allowing intermediate facilities under the final rule.

Regarding commenters who supported strengthening export requirements, we
have considered the suggested additional conditions and have made
changes in the final rule where appropriate:

Use of a manifest: Under the exclusion, we require hazardous secondary
material generators to maintain records of off-site shipments and
confirmations of receipt for a period of no less than three years. We
believe these conditions are sufficient to allow both hazardous
secondary material generators and regulatory authorities to monitor
off-site shipments to ensure the materials were transferred and received
for reclamation and were not discarded. Furthermore, hazardous secondary
materials managed under the exclusion are managed more akin to valuable
commodities and are not solid and hazardous wastes; we, therefore, do
not believe manifests, which are required for hazardous wastes that
generally have little or no value, are necessary.

Notice of export: From the March 2007 supplemental proposal, we made
slight modifications to the notice requirements to more align with the
notice of export requirements for hazardous wastes so as to reduce
confusion on the part of the foreign receiving country (who otherwise
would receive slightly different information in the notice of export for
the same type of material, depending on if the material was regulated as
hazardous secondary material or hazardous waste in the United States).
For example, in the final rule we require that the hazardous secondary
generator must provide in the notice of export a description of the
hazardous secondary material and the EPA hazardous waste number that
would apply if the hazardous secondary material was managed as hazardous
waste and the U.S. DOT proper shipping name, hazard class and ID number.
Furthermore, we believe this information serves to better identify the
hazardous secondary material to the foreign receiving country so it may
make an informed decision regarding the proper management of the
material.

Post-shipment requirements, including a requirement for when a shipment
cannot be delivered: We require hazardous secondary material generators
to maintain confirmations of receipt from the foreign reclaimer to
ensure the hazardous secondary materials reached their intended
destination for reclamation and were not discarded. Furthermore, as we
proposed in March 2007, we are finalizing a requirement that if a
shipment cannot be delivered for any reason to the reclaimer or
alternate reclaimer, the hazardous secondary material generator must
renotify EPA of a change in the conditions of the original notice of
export and obtain another Acknowledgement of Consent. This is similar to
the process required for hazardous waste exports.

Exception Reporting: In the hazardous waste export regulations, an
exporter must file an exception report with the Administrator if he has
not received a copy of the manifest signed by the transporter within
forty-five days from the date it was accepted; if he has not received
written confirmation within ninety days; or if the waste was returned to
the United States. Under the final rule, hazardous secondary material
generators must maintain confirmations of receipt from the foreign
reclaimer or risk losing the exclusion status of the hazardous secondary
materials. We, therefore, believe there is sufficient incentive for
hazardous secondary materials to ensure confirmation of receipt by the
reclamation facility and thus do not believe a requirement to file an
exception report would add value.

Annual Reports: We agree with commenters who support a requirement for
hazardous secondary material generators to file an annual report with
the Administrator and have therefore added this to the exclusion for
hazardous secondary materials exported for reclamation. These reports
enable EPA to compare actual shipments in the annual report to proposed
shipments in the export notice to ensure that the shipments occurred
under the terms approved by the receiving country. Annual reports also
allow EPA to provide summary information that can help the receiving
country to determine the amount of hazardous secondary materials
received in that country.

Recordkeeping: We have maintained in the final rule the recordkeeping
requirements as proposed in the March 2007 proposal. This includes a
requirement that hazardous secondary material generators keep copies of
notices of export and Acknowledgements of Consent for a period of three
years. Hazardous secondary material generators must also maintain at the
generating facility for no less than three years records of all off-site
shipments of hazardous secondary materials. As more thoroughly discussed
in other relevant sections of this document, we have also expanded
recordkeeping to require that hazardous secondary material generators
maintain documentation and certification of reasonable efforts and
confirmations of receipt for no less than three years. We believe that
the recordkeeping requirements are the minimum necessary to ensure the
hazardous secondary materials are reclaimed and not discarded and will
also assist regulatory authorities with monitoring compliance of
facilities with the exclusions.

We disagree with the commenter who believed our notice of export
requirements should align with notice requirements under the Basel
Convention (a multilateral international agreement governing the
transboundary movements of hazardous wastes). The U.S. is not a party to
the Basel Convention and thus this rulemaking does not address the
status of hazardous secondary materials under the Convention. Regarding
commenters who supported requiring Subparts E and H (export regulations
for hazardous waste) for hazardous secondary materials, although we have
structured the export requirements for hazardous secondary materials to
closely align with the requirements for hazardous waste exports, we
believe we cannot simply require compliance with Subparts E and H. This
is because these Subparts are specific to hazardous wastes and in many
cases base requirements on use of the manifest (e.g., the exception
report), both of which do not apply to hazardous secondary materials.
We, instead, are finalizing an exclusion for hazardous secondary
materials exported for reclamation that adopts requirements that are
both: 1) similar to those within Subparts E and H in order to minimize
confusion on the part of the receiving country; and 2) necessary for
ensuring hazardous secondary materials are properly managed and not
discarded abroad. This strategy also effectively avoids any confusion
that would most certainly result from an attempt to modify Subparts E
and H to accommodate hazardous secondary materials.

In response to the commenter who requested a clarification regarding
imports, we confirm that imports of hazardous secondary materials are
eligible for the transfer-based exclusion, provided that the person who
imports the hazardous secondary material fulfills all requirements and
conditions (e.g., notification, reasonable efforts, recordkeeping) for a
hazardous secondary material generator under 40 CFR 261.4(a)(24) of the
final rule. Persons who import hazardous secondary materials are not
eligible for the generator-controlled exclusion since this exclusion
applies only to hazardous secondary materials generated and reclaimed
within the U.S. or its territories. We do not have sufficient
information regarding how imports of hazardous secondary material
generated from foreign manufacturing processes, and thus subject to
foreign laws and regulations, would affect the likelihood of discard
under the generator-controlled exclusion.

We are not requiring electronic forms for the notice of consent because
we believe any changes to the format of the notice of consent
requirement are best addressed as a separate effort since it would
likely affect both hazardous secondary materials and hazardous wastes.
We also are not requiring EPA to respond to the notice of consent within
a specific amount of time because these notices will likely vary in
complexity (for example, depending on the types of hazardous secondary
materials, the number of shipments, and the number of transit countries)
with some notices requiring more review than others. We instead require
persons exporting hazardous secondary materials to notify EPA of an
intended export at least sixty days before the initial shipment will
ship off-site. Furthermore, we don't understand the comment that
requirements (D), (E), (F) and (G) (information a hazardous secondary
material generator must submit in his notice of export) are duplicative
with requirements under 40 CFR 261.4(a)(24)(i)-(v) (which include
conditions for hazardous secondary material generators, such as,
speculative accumulation, notification, reasonable efforts and
recordkeeping).

We confirm that persons managing hazardous secondary materials that are
granted non-waste determinations under 40 CFR 260.30 do not need to
comply with the requirements under 40 CFR 261.4(a)(25). However,
regulatory authorities, if they so choose, may stipulate conditions
within the non-waste determination as appropriate and relevant on a
case-by-case basis.

Lastly, we agree with commenters who note that foreign reclaimers are
not subject to U.S. law and regulations. We have, therefore, modified
the regulatory language to except hazardous secondary material
generators from having to affirmatively answer if a foreign reclaimer
has notified and has financial assurance since these requirements would
not be applicable to foreign reclamation facilities. We also strongly
agree with those commenters who support documentation and certification
of reasonable efforts and recordkeeping requirements for the hazardous
secondary material generator to ensure that hazardous secondary
materials are not discarded abroad and to enable regulatory authorities
to monitor compliance with the exclusion. We are finalizing both these
requirements in the final rule.

7.7.2 - Exports under the control of the generator

7.7.2 - Summary

Summary of comments that supported allowing exports under the control of
the generator:

Some commenters (mostly industry) supported allowing exports under the
control of the generator. At least two of these commenters also
supported allowing imports under the control of the generator. [0472,
0473, 0481, 0486, 0491, 0492, 0507, 0521, 0537, 0553]

One commenter argued that allowing exports under the control of the
generator would improve its members' ability to efficiently manage
manufacturing and recycling because these members have worldwide
operations and processing and manufacturing operations may occur in more
than one facility, in more than one country. This commenter also argued
that additional controls on exported hazardous secondary materials could
serve as a barrier to the environmentally sound recycling of hazardous
secondary materials in other countries. Additionally, another commenter
argued that allowing exports under the control of the generator would
reflect the globalization of economies and international movement of
feedstocks and end-products. [0481, 0553]

Two commenters questioned what additional information EPA would need to
justify applying the generator-controlled exclusion to exports, given
that the exclusion is conditioned upon retention of control of the
hazardous secondary material generators, evidence of which is to be
established by the generators themselves. Some commenters further argued
that exports should be allowed since the generator would retain control
over its hazardous secondary materials through certification language
and contractually through tolling arrangements and would, therefore,
remain responsible for environmentally sound management of the
materials. One commenter said the limitation has nothing to do with
whether material is actually discarded, and it therefore makes little
sense as part of the RCRA definition of solid waste. EPA has the ability
to require any information it needs from the in-country facility
involved in the recycling activity and such a facility would have the
burden of showing that it really is recycling the material at issue. One
commenter also believed that existing EPA regulations, as well as the
laws of importing countries and international regimes, are sufficient to
ensure that exported hazardous secondary materials will be recycled in
an environmentally sound manner. [0473, 0481, 0492, 0521, 0537, 0553]

Some commenters argued that EPA was inconsistent, since the Agency
proposes to allow exports under the transfer-based exclusion, but not
for the generator-controlled exclusion. One commenter further argued
that hazardous secondary material would be regulated the same, for
example, in Canada, whether or not the commenter was sending the
materials to a facility the commenter owned or to a third party for
reclamation. [0472, 0473, 0486, 0491, 0492]

One commenter suggested restricting international shipments to bilateral
partners, due to the restrictions on shipments of hazardous secondary
material to most other countries governed by the Basel Convention.
Another commenter supported the ability to move hazardous waste across
international boundaries in North America because the environmental
regulations are generally equivalent to those in the U.S. [0507, 0558]

Summary of comments that opposed allowing exports under the control of
the generator:

Some commenters opposed allowing exports under the control of the
generator (at least two commenters opposed a 'blanket extension' of the
exclusion, but supported including exports with additional conditions).
[0462, 0470, 0475, 0479, 0482, 0489, 0558, 0559, 0564]

Some commenters argued that, as currently written, the
generator-controlled exclusion has minimal conditions based on the
premise that the generator will handle the material responsibly at the
facility; however, while this argument may have some merit for U.S.
facilities operating under U.S. laws and liability (e.g., CERCLA), it
certainly is not necessarily the case in other countries. Commenters
further argued that environmental stewardship and protection is ignored
by many industries, or is not enforced by the respective foreign
governments, and that by extending the generator-controlled exclusion to
include exports would result in movement of these materials to countries
that do not have adequate environmental management. Furthermore, once
the material is outside of EPA jurisdiction, the ability of the Agency
and the states to enforce proper management and legitimate recycling of
the material is severely limited or non-existent. Additionally, one
commenter argued that tolling contractors would have little control over
a third-party generator located overseas. [0462, 0475, 0482, 0495, 0558,
0559, 0564]

Several of these commenters agreed with EPA that there is not sufficient
information available about recycling activities outside of the United
States to allow exports under the control of the generator. Some
commenters further argued that there is no resource or information
available to regulatory authorities to determine who owns an "out of
country" business and if the foreign reclaimer has the ability to reuse,
recycle or reclaim the hazardous secondary material. Furthermore,
foreign receiving countries would only have minimal information about
the materials being imported. Moreover, one commenter noted that EPA
does not have a record on which to base its decision and, thus, by law
cannot extend its exclusion to materials reclaimed outside the U.S. or
its territories. [0470, 0475, 0489, 0495, 0559, 0564]

Two commenters argued for a provision that requires generators who
recycle hazardous material in processes under their control to perform
reasonable efforts to ensure the hazardous secondary material is managed
at least as stringent as is required in the U.S. One commenter believed
that generators that want to export these hazardous materials should
follow the hazardous waste rules for exports in all cases so the
receiving country can determine upon receipt how they want to regulate
these materials and whether special conditions should apply. Another
commenter suggested requiring the generator to demonstrate the inherent
safety of the material on a case-by-case basis. [0475, 0479, 0482, 0558]

7.7.2 - Response

We have structured the generator-controlled exclusion to contain few
requirements on the basis that we believe hazardous secondary materials
are unlikely to be discarded because they would be closely managed and
monitored by a single entity. However, with exports of hazardous
secondary materials, as commenters have argued, management and
monitoring by a single entity would likely be hindered by international
differences in waste management policy. We further agree with commenters
who note that U.S. law (e.g., CERCLA liability), while providing a
strong incentive not to mismanage waste domestically, would not apply to
hazardous secondary material exported for reclamation. Furthermore, we
understand the validity of arguments regarding limitations of the Agency
and the states to enforce proper management and legitimate recycling of
the hazardous secondary material at foreign reclamation sites.

Based on these arguments, we strongly believe that hazardous secondary
material generators must perform reasonable efforts to ensure the
foreign reclaimer intends to reclaim, and not discard the material. We
also believe that generators must provide notice and receive consent
prior to exporting the hazardous secondary material in order to allow
the foreign receiving country to evaluate if it can accept and
legitimately reclaim the material. Therefore, we are not allowing
exports under the control of the generator exclusion because we consider
the requirements found in the conditional transfer-based exclusion for
hazardous secondary material exported to foreign reclamation facilities
to contain the minimum conditions necessary to ensure the materials are
reclaimed and not discarded.

We disagree with commenters who believed that exports should be allowed
under the generator-controlled exclusion since, in order to claim the
exclusion, the generator would be required to retain control over the
hazardous secondary materials and, thus, could ensure the materials were
not discarded abroad. Under the generator-controlled exclusion,
hazardous secondary material generators are subject to very few
requirements based on the premise that they are unlikely to discard
their materials because they find value in the materials, retain control
over them, and intend to use them. However, we do not have sufficient
information on whether this principle extends to reclamation in a
foreign country. Most importantly, generator control could be severely
challenged by differences in waste regulation among foreign nations.
Furthermore, we believe it would be difficult for regulatory authorities
to monitor a foreign reclamation facility in order to ensure the
hazardous secondary material generator is complying with the exclusion
and is maintaining control of his materials. We, therefore, believe the
transfer-based exclusion contains the minimum conditions necessary to
ensure hazardous secondary materials are not discarded abroad.

Furthermore, we disagree with commenters who argue that additional
controls on exported hazardous secondary materials could serve as a
barrier to recycling because the conditional exclusion for hazardous
secondary materials exported to foreign reclamation facilities
constitutes a reduction in burden than what is currently required under
Subtitle C for hazardous waste exports.

We also see no basis in arguments that we should allow exports under the
control of the generator exclusion simply because we allow exports under
the transfer-based exclusion. We believe the transfer-based exclusion
contains the minimum conditions necessary to ensure hazardous secondary
materials are not discarded abroad and see no reason to allow exports
under both exclusions just for the sake of consistency.

Although we understand commenters' rationale for suggesting that we
restrict exports to our bilateral partners (Canada and Mexico), we
believe that hazardous secondary materials exported for reclamation in
accordance with the final rule are not discarded and, thus, not solid
waste. Therefore, we have no authority to restrict exports when a U.S.
hazardous secondary material generator complies with the regulatory
requirements.

7.7.3 - Exports to OECD countries

7.7.3 - Summary

Two commenters noted that the proposed notice and consent procedures are
inconsistent with EPA's existing regulations for exports of hazardous
wastes to countries that are members of the Organization for Economic
Cooperation and Development ("OECD").  40 CFR part 262, Subpart H, which
implements OECD Council Decision C (92)(39), allows for tacit consent;
however, EPA's proposal for the excluded secondary materials would
require affirmative consent. These commenters argued that EPA should
adopt the equivalent of OECD 262 Subpart H 262.83(a)(1)(ii) "Tacit
consent" for export of hazardous secondary materials under a
transfer-based option. [0438, 0481, 0491]

One commenter supported requiring 40 CFR Subpart H for all hazardous
secondary materials exported to OECD countries in order to be consistent
with the 1986 OECD Decision governing all exports of OECD listed
hazardous wastes to non-OECD countries. Another commenter suggested
adding discussion, with examples, of materials that are not solid or
hazardous wastes in the U.S. being shipped for recovery to countries
within the OECD where these materials are deemed hazardous wastes (e.g.,
Amber List). This commenter further noted that it may have been simpler
for EPA to follow 262 Subpart H exclusively through conforming changes
to 262.58 International Agreements and/or Subpart H, 262.80
Applicability, in order to avoid setting up duplicative requirements
between 262 Subpart H (recovery operations) and 261.4(a)(5), which
mirrors 262 Subpart E (hazardous waste) export requirements. [0491,
0502]

7.7.3 - Response

We agree with commenters who found it confusing that fully regulated
hazardous wastes are eligible for tacit consent, whereas excluded
hazardous secondary materials would require consent in writing. To
eliminate this confusion, EPA has added a provision to the regulations
that allows hazardous secondary materials exported to OECD countries to
be eligible for tacit consent, similar to that allowed for hazardous
wastes under 40 CFR Part 262, Subpart H. We note that Canada and Mexico,
though they are OECD Member countries, typically require written consent
for exports to their countries.

We also note that 40 CFR Part 262 Subpart H (regulations for exporting
hazardous waste to OECD countries) includes additional export
requirements (such as requiring a manifest and exception reports) that
are not required for hazardous secondary material exports. Thus, we
could not exclusively follow part 262 Subpart H as one commenter
suggested.

Furthermore, we disagree with commenters who believe the final rule runs
contrary to international agreements controlling the movement of
hazardous waste. We note the U.S. is an OECD Member and is, therefore,
legally bound to comply with the OECD's "Decision of the Council
C(2001)107/FINAL, Concerning the Control of Transboundary Movements of
Wastes Destined for Recovery Operations, as amended by C(2004)20," which
provides a framework for OECD Member countries to control transboundary
movements of recoverable waste in an environmentally sound manner. This
Amended 2001 Decision recognizes that Member countries may develop their
own regulations to determine whether or not materials are controlled as
hazardous wastes. In the final rule, we have added discussion that
explains hazardous secondary materials meeting certain conditions and
exported for reclamation are not solid wastes under U.S. regulation,
but, once hazardous secondary materials reach the border of the foreign
receiving country, the material is regulated in accordance with the
foreign receiving country's regulations. This includes foreign countries
that import hazardous secondary material for reclamation, but would
regulate these materials as "amber wastes" under the OECD's Amended 2001
Decision.

7.8 - Enforcement

7.8 - Summary

2003 Proposal Enforcement Language

Several commenters opposed EPA's language in the October 2003 proposal
that stated "If a material is not managed within these boundaries, the
material is not excluded and is a hazardous waste for Subtitle C
purposes from the time the generator first generated it. Therefore, each
person who manages a hazardous secondary material that loses its
exclusion would have to manage it consistently with hazardous waste
management requirements from the point when the material was first
generated, regardless of whether the person is the one who actually
causes the loss of the exclusion. [footnote omitted] EPA could choose to
bring an enforcement action under RCRA section 3008(a) for all
violations of Subtitle C requirements occurring from the time the
material is generated through the time that it is finally disposed." (68
FR 61581)

Commenters stated that EPA's enforcement scheme would go against the
prospective nature of RCRA and the admonition of the D.C. Circuit not to
regulate materials that "have not yet become part of the waste disposal
problem." See, AMC I, 824 F.2d at 1186. It also would impose liability
without regard to fault, despite clear evidence that Congress did not
intend such a liability regime. Commenters stated that the approach
proposed by EPA would be fundamentally unfair and represent a serious
violation of due process. The resulting risks that generators would face
would discourage legitimate recycling and thereby undermine the goals of
RCRA.

Commenters stated that as a general matter, retrospective regulatory
measures are "decidedly" disfavored absent clear legislative approval.
Ralis v. RFE/RL,, Inc., 770 F.2d 1121,1126-28 (D.C. Cir. 1985). In the
case of RCRA, there has been no such legislative approval of
retroactivity. On the contrary, RCRA clearly establishes a prospective
regulatory regime.  [See, e.g., United states v. Aceto Agric. Chems.
Corp., 872 F.2d 1373, 1377 (8th Cir. 1989) (citing H.R. Rep. No. 1016,
Part I, 96th Cong., 2d Sess. 17, reprinted in U.S.C.C.A.N. 6119, 6120);
United states v. Bliss, 667 F. Supp. 1298, 1313 (E.D. Mo. 1987) (citing
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 1, reprinted in 1976
U.S.C.C.A.N. 6238-39); 45 Fed. Reg. 33,154, 33,170 (May 19, 1980) ("RCRA
is written in the present tense and its regulatory scheme is
prospective.").]

Commenters assert that the D.C. Circuit, in fact, has made clear that
the definition of solid waste is forward-looking. According to the
court, material that is "'destined' - denoting the future" - for
beneficial reuse or recycling is not "discarded" and therefore cannot be
regulated as a solid waste. See ABR, 208 F.3d at 1053. For a material to
be discarded, there must be an "intent to abandon."  [See API II, 216
F.3d at 57 ("Legal abandonment of property is premised on determining
the intent to abandon"); see also Webster's 3rd New International
Dictionary (Unabridged) 614-15 (1981) ("destine" means "to designate,
assign, or dedicate in advance: intend''; "to direct, devise, or set
aside for a specific purpose or end").]

Commenters also note that "under RCRA, material must be thrown away or
abandoned before EPA may consider it to be 'waste.'" See ABR, 208 F.3dat
1053. The Agency cannot regulate materials that "have not yet become
part of the waste disposal problem." Id. at 1053 (quoting AMC I, 824
F.2d at 1186). Commenters believe EPA's proposed enforcement scheme
would effectively rewrite the statute by imposing penalties for the
handling of materials that were, at the time, not discarded but rather
intended for recycling. This would be contrary to the plain language of
RCRA and the rulings of the D.C. Circuit, and therefore must be
rejected.

Commenters assert that EPA's proposed enforcement approach would
establish a "strict liability" scheme under which a generator who does
everything right could nevertheless be penalized due to the subsequent
actions of others that the generator has no knowledge of or control
over.  [Indeed, EPA's proposal would go beyond traditional notions of
strict liability, because it would hold a generator responsible for
''violations" created by the actions of a recycler that are not
proximately caused by the generator. See. e.g., Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 115 S.Ct. 2407, 2419-20
(1995) (O'Connor, J., concurring) ("[P]rinciples of proximate cause
routinely apply in the ... strict liability context[ 1. . . . Strict
liability means liability without regard to fault; it does not normally
mean liability for every consequence, however remote, of one's
conduct."). Strict liability statutes generally should not be
interpreted so as to eliminate the proximate causation requirement. Id.
at 2420 ("I would not lightly assume that Congress, in enacting a strict
liability statute that is silent on the causation question, has
dispensed with this well-entrenched principle."). It is even more
inappropriate to ignore causation where, as here, the statutory scheme
is not based on strict liability.]

Although such liability has been imposed by Congress under certain
remedial programs (e.g., CERCLA and the "imminent and substantial
endangerment" provision of RCRA 0 7003(a)), it has never been authorized
under the hazardous waste regulatory program of RCRA Subtitle C. EPA
also cannot, on its own, decide to impose strict liability. See, e.g.,
Fort Worth and Denver Ry. Co. v. Lewis, 693 F.2d432, 435 andn.8 (5th
Cir. 1982) (refusing to interpret a statute so as to allow an agency to
select strict liability above other standards of liability, because
doing so would raise constitutional questions of overbroad delegation).

Commenters also note that under CERCLA - which, as noted above,
generally does impose strict liability - Congress has explicitly carved
out an exception for generators and other persons who arrange for the
recycling of scrap metal, batteries, and other items. In particular, the
Superfund Recycling Equity Act of 1999 ("SREA") excepts generators from
liability if they exercise "reasonable care" to ensure that the
receiving facility is in compliance with the substantive provisions of
applicable environmental laws and regulations. See CERCLA § 127(c)(5),
(d)(l), (e)(l). The SREA also specifies that the exception does not
apply if the arranger lacks "an objectively reasonable basis" to believe
that the material will be recycled or fails to exercise "reasonable
care" with respect to the management and handling of the material. See
CERCLA §127(f).  Congress enacted these provisions so that generators
of recyclable materials would no longer face the specter of being held
"responsible for the actions of those who purchase their goods." See 145
Cong. Rec. SI3086 (October 25, 1999) (statement of Sen. Lott); see also
id. at S10391, SI0431 (August 5, 1999). Congress recognized that such
liability would discourage generators from sending their recyclable
materials to recyclers and therefore was inconsistent with the goal of
"maintain[ing] a successful recycling effort nationwide." Id. at S13086.

In addition, commenters believe that such penalties against generators
would be fundamentally unfair and therefore would violate the due
process guarantees of the U.S. Constitution. As the Supreme Court has
noted, "In our jurisprudence guilt is personal." See Scales v. United
states, 367 U.S. 203, 224 (1961). "Implicit within the concept of due
process is that liability may be imposed on an individual only as a
result of that person's own acts or omissions." See Tyson v. New York
City Housing Authority, 369 F. Supp. 513,519 (S.D.N.Y. 1974).

At the time of their actions, the generator might have every reason to
believe that the materials are being properly handled. Indeed, the
generator may have exercised reasonable care, or even greater care, to
ensure that the receiving facility will recycle the material in
conformance with the exclusion. Nevertheless, under EPA's
regardless-of-fault, after-the-fact enforcement scheme, the generator
could be penalized anyway, if the recycler ultimately fails to satisfy
the requirements of the exclusion. Commenters believe that this approach
would destroy any meaningful relationship between the liability and the
actions of the generator.

Commenters stated that it is manifestly unfair to impose punishment on
an individual for actions that he or she has no power to avoid.  [See,
e.g., Spence v. Govrnley, 439 N.E. 2d 741, 748 (Mass. 1982) ("punitive
action must be based on personal responsibility") (citing Plyler v.
Doe., 457 U.S. 202, 219-22 (1982)); Weber V. Aetna Cas. & SW, CO., 406
U.S. 164, 174-5 (1972)).]  Thus, the commenters believe that proposal's
enforcement scheme simply cannot be sustained.

Commenters believe that EPA's enforcement scheme would discourage
generators from sending their materials for recycling. Congress
recognized a similar danger under CERCLA and reacted by amending that
statute's liability scheme for generators of recyclable materials.
Commenters believe that if the Agency now implements the same liability
scheme under RCRA, it will be undermining the resource conservation and
recovery goals of the statute. The generators will have no way of
knowing how the enforcing agencies will exercise their discretion until
well after the generators transfer their materials off-site. Moreover,
none of the enforcement options mentioned by EPA are likely to be deemed
acceptable risks by generators who are concerned about the Agency's
regardless-of-fault, after-the-fact enforcement scheme.

Commenters stated that if EPA believes that it would not be appropriate
to initiate an enforcement action against a generator who acts in
reasonable reliance on the new exclusion, it should say so explicitly in
the final rule. This approach would help to reduce impediments to
recycling. In addition, it would be more consistent with the structure
of RCRA, the requirements of due process, and the decision of the D.C.
Circuit in ABR.

Commenters offered specific examples of situations where they believe
the generator would be unfairly treated under the proposed enforcement
approach.

[0048, 0060, 0090, 0091, 0093, 0096, 0102, 0112, 0149, 0152, 0169, 0173,
0174, 0178, 0181, 0184, 0197, 0199, 0204, 0205, 0212, 0216, 0222, 0225]

2007 Supplemental Proposal Language

In contrast, many commenters supported the approach in the March 2007
proposal that stated "that the failure of the reclaimer to meet
conditions or restrictions does not mean the material was considered
waste when handled by the generator, as long as the generator can
adequately demonstrate that he has met his obligations" (72 Fed. Reg.
14197 (March 26, 2007)). Commenters agreed that as long as the generator
meets their duty to ensure that the secondary hazardous material sent
for reclamation will be safely and legitimately recycled, events out of
the generators control once that material is transferred should not be
attributed to them.  Commenters requested that this language be codified
in the regulatory language itself, and not just in the preamble to the
final rule, thus removing any regulatory uncertainty.

[0452, 0468, 0472, 0474, 0476, 0478, 0481, 0486, 0492, 0521, 0529, 0534,
0535]

One commenter also requested that the parallel situation should be
treated the same way (i.e., a reclaimer that has met its obligations
under 40 C.F.R. 261.4(a)(24)(v) should not be deemed to have discarded
the secondary material or to have forfeited the exclusion just because
the generator failed to meet one of the conditions applicable to
generators). Apart from raising due process concerns, it would be unfair
and unduly harsh to penalize a reclaimer who has managed conditionally
excluded secondary material in accordance with all the conditions and
restrictions applicable to reclaimers and in a good faith belief that
the generator has met all his applicable conditions as well.  Moreover,
as a practical matter, it would be impossible for a reclaimer that has
given up its RCRA hazardous waste permit (and now reclaims only excluded
secondary materials) to comply with RCRA waste management requirements
if the exclusion for the material being reclaimed is deemed to have been
lost without the reclaimer's knowledge and before the reclaimer even
received it due to the actions or inactions of the generator. To avoid
such an unfair outcome, the commenter believes that EPA should make
clear that a reclaimer of hazardous secondary material who abides by all
conditions and restrictions applicable to reclaimers-and has no reason
to believe that the generator of the material has violated any of his
conditions-will continue to qualify for the "transferred materials"
exclusion under 40 C.F.R. 261.4(a)(24). [0452]

Other commenters disagreed with the 2007 proposed enforcement approach.
Commenters stated that persons who fail to meet the proposed exclusion
requirements should be subject to enforcement actions under RCRA section
3008(a) for all violations occurring from the time such materials are
generated through the time they are actually disposed or reclaimed.
Likewise, if a reclaimer were to fail to meet any of the pre-conditions
or restrictions on the management of hazardous secondary material that
are applicable to the reclaimer, then the material should be considered
discarded by the reclaimer and subject to RCRA subtitle C regulation
from the point at which the reclaimer failed to meet a condition or
restriction, thereby discarding the material. Commenters believe that
this approach will provide generators and recyclers with an incentive to
handle hazardous secondary materials pursuant to the applicable
regulatory requirements. Commenters specifically stated that although a
generator may satisfy the "reasonable efforts" provisions of the
proposed rule, this should not alleviate his (her) "cradle-to-grave"
responsibility for the hazardous secondary material being sent to a
recycler. This "cradle-to-gave" accountability has been one of the
basic, single-most effective guarantees under RCRA to insure generators
manage their wastes properly. The concepts behind allowing hazardous
secondary materials to be recycled, is predicated on the generator
making the correct decisions on the management and use of the hazardous
secondary materials. Commenters believe that if the generator is not
absolutely sure that the hazardous secondary materials are going to be
legitimately recycled and properly managed, they should not be sent to
the recycler and that removing this responsibility undermines RCRA,
increases the potential for mismanagement of hazardous secondary
materials, and creates a higher probability of future CERCLA sites
without responsible parties to clean them up. In addition, commenters
stated that because a recycling facility will be managing the same types
of hazardous secondary materials which are also handled by TSDF as
hazardous waste, the recycle facility should be subject to the same
level of Agency scrutiny and oversight.

One commenter stated that once hazardous secondary material becomes a
hazardous waste, the generator also becomes liable for any harm to human
health or the environment under the liability schemes of RCRA and
Superfund, even if the damage results from actions by a third-party
reclaimer.  Of course, the reclaimer would also be liable and would be
the party with primary liability for cleanup costs and civil penalties
for violations.  But under the strict liability schemes of RCRA and
Superfund, the generator is liable for its hazardous waste from "cradle
to grave," and EPA should not subvert that statutory liability scheme in
preamble statements.   The enforcement statement, read narrowly, means
only that the generator himself did not commit a violation of RCRA
regulations.  If EPA meant that the generator would then have no
liability under RCRA, Superfund, or state laws for response and remedial
costs related to the generator's material - which was a hazardous waste
at the time of improper disposal -  then the commenter believes that
this preamble is wrong.  The generator's "good faith" and "circumstances
beyond his control" may mitigate culpability, but are not relevant to
the strict liability schemes of the environmental statutes.  EPA needs
to clarify these statements in the final rule, consistent with the
positions taken in compliance cases by the Office of Enforcement and
state enforcement agencies.

In addition, commenters believe that EPA's preamble language would
severely undercut the effectiveness of the reasonable efforts inquiry.
The fundamental reason that a generator conducts a due diligence audit
of a reclamation facility is to minimize future liability.  That
potential liability is what motivates the generator to conduct a careful
and thorough audit.  If EPA by preamble fiat declares that a generator
has no future liability, then that incentive is lost.  The generator
will conduct an audit to satisfy the regulatory condition for the
exclusion, but the true incentive to minimize potential liability will
be vitiated.  In business, this is called "shooting yourself in the
foot."

[0457, 0488, 0558, 0564]

7.8 - Response

In response to those commenters who addressed our enforcement criteria,
especially for retrospective liability, we note that the criteria are
explained in sections VII, VIII, and IX of the preamble of this final
rule.

Specifically, we note that hazardous secondary materials transferred to
a third party for the purpose of reclamation are excluded from RCRA
Subtitle C regulation under certain conditions and restrictions. If a
reclaimer or an intermediate facility failed to meet any of the
above-described conditions, then the hazardous secondary materials would
be considered discarded by the reclaimer or intermediate facility and
would be subject to RCRA Subtitle C requirements from the point at which
the reclaimer or intermediate facility failed to meet a condition or
restriction, thereby discarding the material.

However, we also note that the failure of the reclaimer or intermediate
facility to meet the conditions of the exclusion does not mean that the
hazardous secondary material was considered waste when handled by the
generator, as long as the generator can adequately demonstrate that it
has met its obligations, including the obligation under 40 CFR
261.4(a)(24)(v)(B) to make reasonable efforts to ensure that the
hazardous secondary material will be recycled legitimately and properly
managed. A hazardous secondary material generator that met its
reasonable efforts obligations could, in good faith, ship its excluded
materials to a reclamation facility or intermediate facility where, due
to circumstances beyond its control, they were released and caused
environmental problems at that facility. In such situations, and where
the generator's decision to ship to that reclaimer or intermediate
facility is based on an objectively reasonable belief that the hazardous
secondary materials would be reclaimed legitimately and otherwise
managed in a manner consistent with this regulation, the generator would
not have violated the terms of the exclusion.

However, if a hazardous secondary material generator fails to meet any
of the above-described conditions that are applicable to the generator,
then the hazardous secondary materials would be considered discarded by
the generator and would be subject to the RCRA Subtitle C requirements
from the point at which such material was generated. This approach is
long-standing EPA policy, which we did not propose to amend in our March
26, 2007 supplemental proposal.

EPA notes that such a determination would only be for the purposes of
determining compliance with the exclusions in the final rule and would
not affect liability under CERCLA.  To see further discussion on how
today's rule is not intended to affect CERCLA liability, see section
10.3 of this document.

Finally, EPA disagrees with the commenter who states that this
regulation, somehow, "subverts" strict liability schemes of RCRA and
Superfund or is inconsistent with positions taken in compliance cases.
While RCRA, itself, provides for a "cradle to grave" regulation of
hazardous wastes, that does not mean that every generator, even if he
complies with all RCRA hazardous waste regulations, is liable for
whatever happens to a waste when a person later causes releases to the
environment.  In this case, materials may not even be solid wastes when
shipped.  Further, even under CERCLA, not every person who ships
material to another person who eventually disposes of it becomes an
arranger for disposal.  This regulation is entirely consistent with the
statutory schemes of both statutes and no specific instances of
inconsistency have been provided by the comment.

8 - Non-waste determination

8.1 - Purpose/intent of non-waste determination

8.1 - Summary

SUPPORT NON-WASTE DETERMINATIONS: Some commenters supported a non-waste
determination process to allow companies to receive formal
determinations on a case-by-case basis that the material being reclaimed
is not a solid waste and thus not subject to RCRA regulation. Commenters
supported the process as a formal mechanism to give not only the
regulated community, but the regulators themselves, certainty in those
cases where there is some question of whether or not the material is
being legitimately recycled. This reaffirms the importance of
maintaining a flexible approach to regulatory controls. One commenter
believed the petition process served as a mechanism for waste streams
that can be legitimately reclaimed but do not meet all four legitimacy
criteria. This commenter believed that this is an environmentally
protective way to allow the maximum number of waste streams to take
advantage of the exclusion without threatening human health or the
environment; however, EPA needs to be more explicit about this process -
either through regulation or guidance. One state commenter conditionally
supported the non-waste determination process; this commenter
recommended that EPA amend the proposal to place the financial burden on
the petitioning facility that will benefit from the process. Another
commenter agreed that a formal administrative process is desirable for
EPA and the states to make defensible non-waste determinations, provided
the process is transparent and allows for adequate notice and
opportunity for public comment. This petition process should then
replace the informal, private letters that have been issued by EPA and
states in the past, usually without any public notice. Furthermore, this
commenter believed the petition process will serve as a "relief valve'
to take corrosive pressure off the new regulatory system while EPA,
states, the regulated community and other interested parties gain