[Federal Register Volume 79, Number 166 (Wednesday, August 27, 2014)]
[Notices]
[Pages 51149-51150]
[FR Doc No: 2014-20396]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

    Take notice that the Commission received the following electric
rate filings:

    Docket Numbers: ER10-2400-003.
    Applicants: Blue Canyon Windpower LLC.
    Description: Notice of Non-Material Change in Status of Blue Canyon
Windpower LLC.
    Filed Date: 8/19/14.
    Accession Number: 20140819-5177.
    Comments Due: 5 p.m. ET 9/9/14.

    Docket Numbers: ER11-3391-002.
    Applicants: Dempsey Ridge Wind Farm, LLC.
    Description: Dempsey Ridge Wind Farm, LLC Market-Based Rate Tariff
Revision for Ancillary Services to be effective 8/20/2014.
    Filed Date: 8/20/14.
    Accession Number: 20140820-5124.
    Comments Due: 5 p.m. ET 9/10/14.

    Docket Numbers: ER14-1711-004.
    Applicants: TC Ravenswood, LLC.
    Description: Oil Burn Rate Schedule to be effective 5/1/2014.
    Filed Date: 8/20/14.
    Accession Number: 20140820-5057.
    Comments Due: 5 p.m. ET 9/10/14.

    Docket Numbers: ER14-2609-000.
    Applicants: 3 Phases Energy Services, LLC.
    Description: The California Independent System Operator submits
amended Request of 3 Phases Energy Services, LLC for Waiver of Section
37.11.1.
    Filed Date: 8/12/14.
    Accession Number: 20140812-5101.
    Comments Due: 5 p.m. ET 9/2/14.

    Docket Numbers: ER14-2678-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: 2014-08-19SA 2684 GRE-MP Ortman T-T (J278) to
be effective 8/20/2014.
    Filed Date: 8/19/14.
    Accession Number: 20140819-5173.
    Comments Due: 5 p.m. ET 9/9/14.

    Docket Numbers: ER14-2679-000.
    Applicants: Southern California Edison Company.
    Description: Service Agreement for Wholesale Distribution Service
with City of Moreno Valley to be effective 8/21/2014.
    Filed Date: 8/20/14.
    Accession Number: 20140820-5000.
    Comments Due: 5 p.m. ET 9/10/14.

    Docket Numbers: ER14-2680-000.
    Applicants: Energia Sierra Juarez U.S. Transmission, LLC.
    Description: Energia Sierra Juarez U.S. Transmission, LLC
Facilities Agreement to be effective 10/20/2014.
    Filed Date: 8/20/14.
    Accession Number: 20140820-5037.
    Comments Due: 5 p.m. ET 9/10/14.

    Docket Numbers: ER14-2681-000.
    Applicants: Midcontinent Independent System Operator, Inc.
    Description: Midwest Independent Transmission System Operator, Inc.
submits Notice of Termination of Generator Interconnection Agreement
No. 2333 for Project G520.
    Filed Date: 8/20/14.
    Accession Number: 20140820-5161.
    Comments Due: 5 p.m. ET 9/10/14.

    Docket Numbers: ER14-2682-000.
    Applicants: American Transmission Systems, Incorporated, PJM
Interconnection, L.L.C.
    Description: ATSI submits First Revised SA No. 2853; SA No. 3926
and SA No. 3927 to be effective 10/20/2014.

    Filed Date: 8/20/14.
    Accession Number: 20140820-5163.
    Comments Due: 5 p.m. ET 9/10/14.

    The filings are accessible in the Commission's eLibrary system by
clicking on the links or querying the docket number.
    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014-20396 Filed 8-26-14; 8:45 am]
BILLING CODE 6717-01-P


longer be subject to hazardous waste regulations. A somewhat different
scenario could involve a facility whose hazardous secondary materials
would all become excluded from regulation when this rule takes effect
(i.e., the facility is no longer a hazardous waste management
facility).
    For permitted facilities that would be managing hazardous secondary
materials excluded under this rule in addition to regulated hazardous
wastes, changes to the facility's permit would be necessary. These
facilities would need to maintain their permits, but the units used
solely to manage hazardous secondary materials would no longer be
regulated solid waste management units subject to permit requirements.
(Of course, to the extent that the exclusion were conditional, the
owner/operator of the facility would need to comply with the applicable
conditions to maintain the exclusion.) In such cases, the facility
owner/operator could seek a permit modification from EPA or more
typically the authorized state agency to remove the formerly subject
unit(s) from the permit.
    The Agency believes that owners and operators modifying their
permits to remove units managing only wastes excluded by this rule
should comply with the requirements of section 270.42(a) for Class 1
permit modifications, with prior Agency approval. Under this approach,
owners and operators would be required to submit notification of the
permit modification to the implementing agency, along with
documentation demonstrating that the operations at the unit meet the
conditions of the exclusion, and that the unit is used solely to manage
excluded hazardous secondary materials. In addition, the owner or
operator would be required to comply with the requirements of section
270.42(a)(ii) for public notification. Under section 270.42(a)(2), the
permit modification would not become effective until the owner or
operator received written approval by the implementing agency. The
implementing agency would approve the permit modification so long as
the owner or operator complied with the procedural requirements of
section 270.42(a), that the operations met the conditions of the
exclusion, and adequately demonstrated that the unit did not manage
non-excluded hazardous wastes. EPA believes that Class 1 permit
modifications with approval are appropriate in this case even though
the proposal would establish a self-implementing exclusion, which does
not require a regulatory agency's approval. In this case, the unit in
question has been through a formal permit process, and the Agency
believes it appropriate that the regulatory agency have the opportunity
for a brief review before the permit conditions it imposed are removed.
For example, the unit might be intimately tied into other waste
management operations at the facility, or perhaps the regulatory agency
imposed special provisions under the omnibus provision, which it would
want to consider. EPA seeks comment on this approach.
    A permitted facility that would no longer be considered a hazardous
waste management facility under the exclusion (e.g., a facility
managing only hazardous secondary materials that become excluded under
today's supplemental proposal) would no longer need a hazardous waste
operating permit nor need to comply with the existing hazardous waste
regulations governing permitted facilities. (Again, to the extent that
the exclusion is conditional, the owner/operator of the facility would
need to comply with the applicable conditions to maintain the
exclusion.) Owners or operators of such facilities could, therefore,
apply to the overseeing agency to terminate the permit by modifying the
permit term. The Agency believes that owners or operators seeking to
terminate the facility's permit by modifying the permit term should
comply with the requirements of section 270.42(a) for Class 1
modifications with prior Agency approval, as described above. To
support a request for permit termination by modifying the permit term,
the owner or operator would have to demonstrate that the operations
meet the conditions of the exclusion, and that the facility does not
manage non-excluded hazardous wastes. Further, as discussed below, the
owner or operator would have to demonstrate that corrective action
obligations at the facility have been addressed, or, where

corrective action obligations remain, that continuation of the permit
is not necessary to assure that they will be addressed (e.g., where the
facilities cleanup obligations will be addressed under an alternative
federal or state enforcement mechanism, or other federal or state
cleanup authority). The Agency seeks comment on this approach.
    As was explained in the October 2003 proposal (68 FR 61580), where
a permitted facility has not yet completed facility-wide corrective
action, but manages only hazardous secondary materials that would
become excluded under this proposed rule (see 40 CFR 264.101), the
obligation to address facility-wide corrective action would remain in
effect.
    At some facilities, corrective action obligations will likely
continue to be addressed through the corrective action provisions of
the permit. In these cases, maintenance of the permit would ensure that
facility-wide corrective action will be addressed. Thus, in these
cases, the permit would not be terminated by modifying the permit term,
but would be modified to remove the provisions that applied to the now-
excluded hazardous secondary material. The facility's permit would,
thereafter, only address corrective action.
    In other cases, however, EPA or an authorized state may have
available an alternative federal or state enforcement mechanism, or
other federal or state cleanup authority, through which it could choose
to address the facility's cleanup obligations, rather than continue to
pursue corrective action under a permit. In these cases, where the
alternate authority would ensure that facility-wide corrective action
will be addressed, maintenance of the permit would not be necessary.
    A facility that is operating under interim status would be affected
by promulgation of today's supplemental proposal in much the same way
as would a permitted facility, and the issue of corrective action would
be addressed in a similar manner. At an interim status facility
managing only hazardous secondary materials that become excluded under
today's supplemental proposal, the Part 265 interim status standards
that applied to the hazardous waste management units at the facility,
as well as the general facility standards in Part 265, would no longer
apply. At the same time, the owner or operator would retain
responsibility for unaddressed corrective action obligations at the
solid waste management units.
    Owners and operators of permitted and interim status facilities
with corrective action obligations should refer to the Agency's
February 25, 2003 guidance entitled ``Final Guidance on Completion of
Corrective Action Activities at RCRA Facilities,'' (68 FR 8757) for a
detailed discussion of corrective action completion.
    In addition to the above described issues relating to permits and
corrective action, today's supplemental proposal also may have
implications with regard to closure of hazardous waste storage units at
affected facilities. In cases where hazardous waste storage units would
only be managing excluded hazardous secondary material pursuant to
today's supplemental proposal, the current regulations could be read as
triggering the closure requirements for those units, since owners/
operators of non-land-based hazardous waste units (e.g., tanks,
containers, containment buildings) must begin closure within 90 days of
receiving a unit's final volume of hazardous wastes. See 40 CFR
264.113(a) and 265.113(a).
    In the October, 2003 proposal (68 FR 61580-61581), EPA expressed
the view that requiring closure of units in these situations would
serve little environmental purpose, since after closure the unit would
be immediately reopened and used to store the same (now excluded)
hazardous secondary material. In that notice, the Agency proposed that
closure of storage units would not be required when the wastes in such
units were excluded under the proposal.
    In response to that proposal, several commenters stated that one of
the main purposes of the RCRA subtitle C closure requirements is to
identify and remediate any releases originating from the units. The
Agency notes that releases from these units are discarded and solid and
hazardous wastes, and agrees with commenter's concern that such
releases should be addressed. The Agency does not agree, however, that
the specific subtitle C closure requirements are most appropriate to
address cleanup of releases from these units, if any have occurred.
Rather, the Agency believes that a better approach would be to address
potential releases from these units as part of corrective action for
all releases at the facility. This approach would achieve the same
environmental results, and would provide the owner or operator the
option of integrating the cleanup more closely into the broader
facility response.
    When considering the issue of addressing releases from these units,
the question arises about what happens to the funds that provide
financial assurance for closure. The requirements in Part 264 and 265
Subpart H, which apply at these units prior to the exclusion taking
effect, provide for release of financial assurance upon certification
by the owner or operator that closure has been completed in accordance
with the approved closure plan, and Agency verification of that
certification (see 264.143(i) and 265.143(h)). Similar provisions at
sections 264.145(i) and 265.145(h) provide for release of financial
assurance for post-closure care.
    Under the approach to closure discussed above, owners and operators
of units that manage only wastes that would be excluded under this
supplemental proposal would not be subject to closure requirements and,
therefore, would not submit a certification of closure, and thus would
not trigger release of financial assurance. As discussed in section
X.C.2 of today's preamble, reclaimers who receive hazardous secondary
materials that have been excluded under the proposed 40 CFR
261.4(a)(24) would still be required to meet Subpart H financial
assurance requirements as a condition of the exclusion. In this case,
the financial assurance provided for closure would satisfy that
requirement (perhaps with some modification).
    However, persons who recycle materials under the proposed
exclusions for materials recycled under the control of the generator
(40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) would not be required
to meet Subpart H financial assurance requirements as a condition of
the exclusion. The Agency believes that those owners and operators
should be released from financial assurance requirements upon
demonstrating that no releases from the unit remain to be addressed. In
complex facilities, that demonstration might be difficult, or it might
be inconsistent with broader corrective action strategy (for example,
if historical releases from the unit were mingled with other general
facility contamination). Where such a situation exists, the Agency
believes that financial assurances obtained for closure and/or post-
closure should be redirected to address the corrective action needs at
the unit. (In general, however, EPA believes that these situations will
be the exception rather than the rule, since the overwhelming majority
of units in question would have upgraded to current subtitle C
standards, e.g., secondary containment for tanks, etc.). The Agency
requests comment on modifying the regulations to allow financial
assurances obtained for closure and/or post-closure to be redirected to
address the corrective action needs at units that manage only

wastes that would be excluded by this proposal.

C. Imports and Exports

    The proposed exclusion for hazardous secondary materials recycled
under the control of the generating facility is limited to recycling
performed in the United States or its territories. However, the
transfer-based recycling exclusion and non-waste determinations
included in today's supplemental proposal do not place any geographic
restrictions on movements of such hazardous secondary materials,
provided they meet the description of the exclusion. It is therefore
possible that in some cases excluded hazardous secondary materials
could be generated in the United States or its territories and
subsequently exported for reclamation to a facility in a foreign
country. Under today's supplemental proposal, the exclusion would be
effective while the hazardous secondary material is within the United
States or its territories. However, such excluded hazardous secondary
materials may be subject to regulation as hazardous wastes in the
receiving country, even if they are excluded from the definition of
solid waste domestically (i.e., under RCRA). If this is the case, the
U.S. exporter of the hazardous secondary material will need to comply
with any applicable requirements of the importing country. (For further
discussion, see section X.C.1 of today's preamble regarding specific
export/import conditions for hazardous secondary materials excluded
under this proposal.)

D. Superfund

    A primary purpose of today's supplemental proposal is to encourage
the safe, beneficial recycling of hazardous secondary materials. In
1999, Congress enacted the Superfund Recycling Equity Act (SREA),
explicitly defining those hazardous substance recycling activities that
potentially may be exempted from liability under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA). CERCLA
section 127. Today's supplemental proposal does not change the universe
of recycling activities that could be exempted from CERCLA liability
pursuant to CERCLA section 127. Today's supplemental proposal only
changes the definition of solid waste for purposes of RCRA subtitle C
requirements. The supplemental proposal also does not limit or
otherwise affect EPA's ability to pursue potentially responsible
persons under section 107 of CERCLA for releases or threatened releases
of hazardous substances.

E. National Partnership for Environmental Priorities

    If today's proposed changes to the RCRA definition of solid waste
are promulgated, the Agency expects that affected companies will take
advantage of this new regulatory framework by exploring new
opportunities to recycle their hazardous secondary materials. We
believe that these regulatory changes are consistent with EPA's efforts
to encourage and promote sustainable methods and practices by
manufacturers and other businesses. In this context, ``sustainability''
is defined as economic development that meets the needs of the present
without compromising the ability of future generations to meet their
own needs.
    The National Partnership for Environmental Priorities (NPEP) is a
voluntary program administered by EPA that fosters the establishment of
a new corporate/federal partnership in which both work collaboratively
towards voluntary reductions in the use of certain chemicals. Recycling
is one means of achieving such reductions in chemical use. The NPEP can
provide technical assistance and expertise to assist companies in
successfully achieving these goals, while at the same time saving money
or increasing production. NPEP members' successes are voluntarily
reported to EPA, and members are publicly recognized and rewarded for
their accomplishments. For further information on the NPEP program,
visit the NPEP Web site at Http://http://www.epa.gov/epaoswer/hazwaste/minimize/partnership.htm
.

XIV. Measurement of the Performance Outcomes of This Supplemental
Proposal

A. Need for Performance Measurement

    Since today's supplemental proposal, if finalized, would make
important changes to the Agency's current RCRA regulatory framework for
industrial recycling of hazardous secondary materials, and is designed
to encourage industrial recycling of such materials, the Agency has a
strong interest in being able to measure the performance outcomes that
these regulatory changes may have on the regulated community. In
general, it is important for the Agency to be able to quantify,
monitor, and report to the public the actual performance outcomes of
this supplemental proposal. In general, performance measurement of
federal programs is expected of by Congress according to the 1993
Government Performance and Results Act (http://www.whitehouse.gov/omb/mgmt-gpra
) and the 2005 Government Reorganization and Program

Performance Improvement Act (http://www.whitehouse.gov/omb/legislative/grppi_act_2005.pdf
), as well as by the 2002 President's Management

Agenda (http://www.whitehouse.gov/omb/budget/fy2002/mgmt.pdf), and by

the Office of Management and Budget according to the annual Program
Assessment Rating Tool (http://www.whitehouse.gov/omb/part) initiated

in 2003. In particular, measurement of the performance outcomes for
this supplemental proposal will enable EPA to evaluate the actual
effectiveness with regard to encouraging industrial recycling,
affecting future industrial recycling trends, and targeting possible
future regulatory and non-regulatory initiatives directed at furthering
safe and beneficial industrial recycling practices. As discussed
elsewhere in today's preamble, we expect that the regulatory changes
being proposed will have the effect of reducing regulatory
disincentives to industrial recycling, thereby encouraging new
recycling initiatives by the regulated community.
    To measure performance outcomes, the Agency is interested in being
able to measure the numbers of existing and new industrial facilities
that actually take advantage of these regulatory changes, as well as
the quantities and types of hazardous secondary materials that are
affected, and the specific types of industries that are affected. We
also are interested in measuring the extent to which industrial
recycling that is affected by today's supplemental proposal occurs
onsite or offsite, and the extent to which small quantity and large
quantity hazardous waste generators (i.e., SQGs and LQGs) are able to
take advantage of an exclusion. Such information on the actual outcomes
of these regulatory changes could enable the Agency to measure, rather
than estimate, the actual cost savings benefits to industries affected
by the regulatory changes, as well as to measure environmental benefits
(e.g., annual quantities of specific materials conserved, avoided raw
material inputs, reduced pressure on landfill capacity, water and
energy conserved).

B. Approaches to Performance Measurement

1. Use of the Proposed Notification Requirements
    Today's supplemental proposal includes a requirement that
facilities (both generators and recyclers) taking advantage of an
exclusion provide regulatory authorities with certain basic items of
information through a one-time

notification. This information would allow EPA to track the number of
facilities and the types of hazardous secondary materials affected by
the proposed rulemaking, but would not allow us to estimate the amount
of material affected. We request comment on whether additional data
elements could be added that would help inform EPA and the public about
the effect of the proposed exclusions without imposing a significant
additional burden on the regulated community.
2. Use of Existing EPA Data Systems
    There are two existing data systems which may be of limited utility
to EPA for measuring the performance outcomes of this supplemental
proposal.
    (a) RCRA Biennial Report. Under 40 CFR 262.41, large quantity
hazardous waste generators and hazardous waste treatment, storage,
recycling and disposal facilities (TSDRFs) are required to prepare and
submit Biennial Reports to RCRA-authorized states on the types and
quantities of hazardous wastes generated and managed during the
reporting year (http://www.epa.gov/epaoswer/hazwaste/data/biennialreport
). In the past, the Agency has used data from the

Biennial Report (BR) for analytic purposes such as establishing
baselines for estimating the potential economic impacts on industries
and facilities potentially affected by RCRA rulemaking initiatives.
While the BR has provided the Agency with considerable valuable data
regarding the types and quantities of hazardous wastes that are
generated, and where and how they are treated, stored or disposed, this
system has a number of limitations, particularly with regard to: (i)
How small quantity generators are not required to report to the BR and
(ii) how generation and management of hazardous secondary materials
that are not regulated as hazardous wastes are not covered in the BR.
Under today's supplemental proposal, these limitations may be
exacerbated, since current RCRA-regulated hazardous wastes subject to
BR reporting will become excluded as recycled hazardous secondary
materials. As a result, in the future we expect the BR will provide
less data relevant to measuring hazardous secondary materials recycling
trends, and thus will be inadequate for measuring the future outcomes
and success of this supplemental proposal. Therefore, we request
comment on modifying the BRS to require or continue to require that
such information be submitted to EPA.
    (b) Toxic Release Inventory. Compared to the BR, the Toxic Release
Inventory (TRI) may provide greater utility for the purpose of
measuring future performance outcomes of today's supplemental proposal,
because the TRI is not limited to hazardous waste and not limited to
LQGs, but includes annual reporting on industrial materials
manufactured, imported, processed, otherwise used, transferred offsite,
treated or disposed as waste, or recycled by certain industries.
Consequently, by its design and relatively broader scope, the TRI (Form
R; http://www.epa.gov/tri) contains limited information on RCRA

hazardous wastes (as well as more information about other types of
industrial materials such as secondary by-products) and it is probably
more on-point for the Agency to attempt to use for measuring future
outcomes of today's supplemental proposal.
    In combination, both the BR and TRI data systems may provide a
skeletal but complementary framework for measuring future performance
outcomes.
3. Surveys
    Another option, either as a stand-alone option or used in
combination with the BR/TRI option above, could be to conduct a mail or
phone survey of affected facilities. The main advantage of a survey
would be the ability to collect data on targeted performance measures
that would not be available through either the BR or TRI. Moreover, a
survey mechanism could potentially serve a dual purpose as a form of
communications outreach to industrial facilities that are not recycling
or are unaware of today's supplemental proposal, which would assist EPA
in better understanding why some generators are unable or unwilling to
recycle their hazardous secondary materials. Such a survey could be
voluntary or mandatory, and could involve a statistically-valid sample
of industrial facilities, or could focus on particular industries or
affected materials. It could be conducted as a one-time effort or
periodically (e.g., once every four years) to capture recycling trends
over time. To minimize burden, it could also be conducted
electronically over the internet. It should be noted, however, that
with some exceptions (e.g., surveys of fewer than 10 respondents),
conducting a survey of this nature would need OMB approval in
accordance with the provisions of the Paperwork Reduction Act.
4. Voluntary Partnerships With Affected Industries
    Measuring the impact of today's supplemental proposal might also be
done with the voluntary assistance of stakeholder industry and trade
associations, many of which also may have a vested interest in
assessing their success, or lack thereof. We are aware that some trade
associations may maintain data on the recycling activities of their
member companies; such associations might be willing to share some of
that existing information with the Agency. Another option could be to
partner with certain trade associations that may be willing on a
voluntary basis to gather relevant information from their members.
5. NPEP Voluntary Program
    As discussed in the preceding section of this preamble, EPA's
National Partnership for Environmental Priorities (NPEP) is a voluntary
program that encourages companies and federal facilities to reduce
priority chemicals through waste minimization, reuse, recycling, and
reclamation, and to report achievements in reductions. Companies that
choose to change their materials management practices from disposal to
recycling as a result of today's supplemental proposal could be
eligible for membership in NPEP. Companies that join NPEP could
identify voluntary goal(s) to initiate new recycling or to increase
current recycling at their facility of priority chemicals. Upon
completion of their goal(s), the partners can submit a success story of
their accomplishments. In turn, these partners will receive EPA support
and assistance for reducing priority chemicals and award recognition
for their success. Thus, information from NPEP partners might also be
of assistance to EPA in evaluating the impacts of today's proposed
rule.

C. Request for Comment on Performance Measurement Approaches

    The Agency requests comment on the alternative performance
measurement approaches described above for enabling the Agency to
measure the actual performance outcomes of today's supplemental
proposal. In addition to satisfying federal performance measurement
requirements, we are also interested in stakeholder views as to the
potential utility of measuring the effectiveness of today's proposed
exclusions in achieving their intended induced new recycling and
industry cost-savings objectives, and how such information might
benefit stakeholders and the regulated community. Finally, we also
solicit comment on other performance measurement approaches than those
described above, that may be more effective in enabling EPA to

measure the actual future outcomes of today's supplemental proposal.

XV. How Would These Proposed Regulatory Changes Be Administered and
Enforced in the States?

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to
administer the RCRA Subtitle C hazardous waste program within the
state. Following authorization, EPA retains Subtitle C enforcement
authority, although authorized states have primary enforcement
responsibility. EPA retains authority under sections 3007, 3008, 3013,
3017 and 7003. The standards and requirements for state authorization
are found at 40 CFR part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new federal requirements did
not take effect in an authorized state until the state adopted the
federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
    Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than existing federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.

B. Effect on State Authorization

    Today's proposed rule would eliminate specific requirements that
apply to materials currently managed as hazardous waste, and is being
proposed, at least in part, in response to recent court decisions on
the definition of solid waste. Specifically, in several decisions,
courts have held that EPA's current definition of solid waste at 40 CFR
261.2 is overly broad and would lead to the regulation of some
hazardous secondary materials that are not discarded and, therefore,
are not solid wastes. In this rulemaking, the exclusion for materials
reclaimed under the control of the generator (proposed 40 CFR
261.2(a)(2)(ii)) identifies those hazardous secondary materials that
are not discarded and, therefore, are not solid wastes under RCRA. EPA
also recognizes that there may be some hazardous secondary materials
that are not recycled under the control of the generator, but are not
solid wastes because they are reclaimed in a continuous industrial
process. Because it was not possible to identify all of the continuous
industrial process recycling fact patterns, EPA has proposed a petition
process for non-waste determinations at proposed 40 CFR 260.30 (see
Section VII above).
    EPA believes that the proposed rule describes the appropriate scope
of the federal program under RCRA. Thus, reclamation under the control
of the generator and recycling in a continuous process, as described
herein, are not activities associated with discarded materials and
would not be subject to RCRA. In addition, today's proposal also
conditionally excludes from the definition of solid waste reclaimed
materials that are not under the control of the generator and are not
recycled in a continuous industrial process. EPA believes that these
exclusions will encourage recycling and that they are consistent with
RCRA's statutory objective of conserving valuable material and energy
resources.
    EPA would strongly encourage states to adopt the regulations being
proposed today. When EPA authorizes a state to implement the RCRA
hazardous waste program, EPA determines whether the state program is
consistent with the federal program, and whether it is no less
stringent. This process, codified in 40 CFR 271, ensures national
consistency and minimum standards, while providing flexibility to
states in implementing rules. In making this determination, EPA
evaluates the state requirements to ensure they are no less stringent
than the federal requirements. Because today's rule would eliminate
specific requirements for hazardous secondary materials that are
currently managed as hazardous waste, state programs would no longer
need to include those specific requirements in order to be consistent
with EPA's regulations, when and if today's rule is finalized.
    However, under RCRA section 3009, a state may adopt standards that
are more stringent than the federal program. Thus, a state is not
required to adopt today's proposal, or a state may choose to adopt only
part of today's proposal. Some states incorporate the federal
regulations by reference or have specific state statutory requirements
that their state program can be no more stringent than the federal
regulations. In those cases, EPA anticipates that the exclusions in
today's proposal, when and if finalized, would be adopted by these
states, consistent with state laws and state administrative procedures,
unless they take explicit action as specified by their respective state
laws to decline the proposed revisions. We note that if states choose
not to adopt the provisions of today's proposal concerning exports, the
provisions of 40 CFR 262 Subparts E or H would apply to hazardous
secondary materials that are exported.

C. Interstate Transport

    Because some states may choose not to seek authorization for
today's supplemental proposal, there will probably be cases where the
hazardous secondary materials in question will be transported through
states with different regulations governing them.
    First, a hazardous secondary material which is subject to an
exclusion from the definition of solid waste regulations may be sent to
a state, or through a state, where it is subject to the hazardous waste
regulations. In this scenario, for the portion of the trip through the
originating state, and any other states where the hazardous secondary
material is excluded, neither a hazardous waste transporter with an EPA
identification number per 40 CFR 263.11 nor a manifest would be
required. However, for the portion of the trip through the receiving
state, and any other states that do not consider the hazardous
secondary material to be excluded, the transporter must have a
manifest, and must move the hazardous secondary material in compliance
with 40 CFR part 263. In order for the final transporter and the
receiving facility to fulfill the requirements concerning the

manifest (40 CFR 263.20, 263.21, 263.22, 264.71, 264.72, 264.76 or
265.71, 265.72, and 265.76), the initiating facility should complete a
manifest and forward it to the first transporter to travel in a state
where the hazardous secondary material is not excluded. The receiving
facility must then sign the manifest and send a copy to the initiating
facility.
    Second, a hazardous secondary material generated in a state that
does not provide an exclusion for the hazardous secondary material may
be sent to a state where it is excluded. In this scenario, the
hazardous secondary material must be moved by a hazardous waste
transporter while the hazardous secondary material is in the
generator's state or any other states where it is not excluded. The
initiating facility would complete a manifest and give copies to the
transporter as required under 40 CFR 262.23(a). Transportation within
the receiving state and any other states that exclude the hazardous
secondary material would not require a manifest and need not be
transported by a hazardous waste transporter. However, it is the
initiating facility's responsibility to ensure that the manifest is
forwarded to the receiving facility by any non-hazardous waste
transporter and sent back to the initiating facility by the receiving
facility (see 40 CFR 262.23 and 262.42).
    One final point is that RCRA-regulated hazardous wastes, when
transported, require an EPA hazardous waste manifest, and are
incorporated by reference in Department of Transportation (DOT)
regulations in the DOT definition of hazardous material (49 CFR 171.8).
Under today's supplemental proposal, a hazardous secondary material
that is not a solid waste would no longer need an EPA manifest when
transported off-site for recycling, and therefore would not
automatically be considered a DOT hazardous material (hazmat). However,
if the material contains a chemical or falls into a class of substances
that DOT has determined to pose an unacceptable hazard during
transportation, it would still be regulated as a DOT hazardous material
(a table at 49 CFR 172.101 lists materials considered ``hazardous'' by
DOT, according to 23 DOT hazard classes). If it does not, then it would
not be so regulated by DOT. EPA believes this is appropriate, since
when sent to recycling rather than disposal, these hazardous secondary
materials pose no greater risk than similar types of non-waste
materials already in transportation for commerce under non-hazmat DOT
status. Moreover, regardless of a hazardous secondary material's EPA
manifest and DOT hazmat status, EPA believes that today's supplemental
proposal is likely to result in a net reduction in annual
transportation accident risks during transport of affected materials,
due to the expected net reduction in annual miles transported, as a
result of the companies which would choose to switch from current
offsite hazardous waste management to recycling at either on-site or
closer facilities to the generating facility.\10\
---------------------------------------------------------------------------

    \10\ As explained in the ``Economics Background Document,'' in
the docket for today's rule, EPA expects that as a result of this
rule, transportation distances for hazardous secondary materials
that are affected by today's rule are expected to be reduced from
averages of about 340 miles for disposal at hazardous waste
landfills and between 400 to 520 miles for offsite hazardous waste
recycling to 0 miles for on-site recycling (for about 9% of the
affected facilities) and an average of about 50 miles for non-
hazardous waste recycling (for about 91% of the affected
facilities). Because, on an annual nationwide basis, 91% of RCRA
hazardous waste is transported by truck, transportation risk is
predominantly roadway crash risks involving property damage crashes,
personal injury crashes, or fatal crashes. Because of the fact that
transportation accident risks positively correlate with travel
distances, EPA expects a minimum 85% to 90% reduction in baseline
annual transport accident risk for affected materials, as a rough
estimate, regardless of DOT regulatory status (i.e., 340 to 520
miles average transport distance baseline, compared to 0 to 50 miles
hypothetical average post-promulgation distance).
---------------------------------------------------------------------------

XVI. How Has EPA Fulfilled the Administrative Requirements for This
Rulemaking?

A. Executive Order 12866: Regulatory Planning and Review

    Under section 3(f)(1) of Executive Order (EO) 12866 (58 FR 51735,
October 4, 1993), this action is an ``economically significant
regulatory action'' because the annual effect on the economy of this
proposed action is expected to be greater than $100 million, and the
proposed action contains novel policy issues. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866 and any changes made in response to OMB
recommendations have been documented in the docket for this action.
    EPA prepared an analysis of the potential national economic costs
and benefits associated with this proposed action. The analysis is
contained in our ``Economics Background Document: Regulatory Impact
Analysis (RIA) for EPA's 2007 Supplemental Proposed Revisions to the
Industrial Recycling Exclusions of the RCRA Definition of Solid Waste''
(January 22, 2007, 284 pages) which is available for public review and
comment in the EPA Docket (http://www.regulations.gov) and is briefly

summarized below. If the exclusions are promulgated as proposed today,
(i.e., the two generator controlled exclusions involving land- and non-
land based units, plus the offsite transfer exclusion, plus the case-
by-case petition process) and are adopted by all state governments, EPA
expects this action to result in a net effect of $107 million in
average annual net cost savings to about 4,600 facilities in 530
industries, and is expected to remove from RCRA regulation 0.65 million
tons per year of hazardous secondary materials currently managed as
RCRA hazardous waste. These materials consist of 0.59 million tons
(91%) that are currently recycled as RCRA hazardous waste, and 0.06
million tons (9%) of hazardous waste that is currently disposed (i.e.,
landfilled, or incinerated), which EPA expects may switch from disposal
to recycling as a result of this action, if promulgated. With respect
to each of the proposed exclusions, the $107 million per year best
estimate net cost savings effect consists of additive components: (a)
$87 million per year for hazardous secondary materials recycled under
the control of the generating facility in either land or non-land based
units (which includes the onsite, within same-company, and tolling
arrangement exclusions), plus (b) $19 million cost savings for
conditional exclusion of other offsite transfers, plus (c) $1 million
per year cost savings for case-by-case non-waste determinations.
    These impact estimates are EPA's best estimates within the economic
impact estimation uncertainty range of $93 million to $205 million in
annual materials management cost savings, and 0.33 to 1.70 million tons
per year in affected hazardous secondary materials, respectively, for
the net effect of the proposed regulatory exclusions. The purpose of
these impact ranges is to reveal two major sources of uncertainty at
the launch of our RIA prior to the final draft of this proposal: (1)
Our RIA assigned eight implementation conditions to the best estimate
impact for the proposed exclusions from a list of 18 possible
conditions formulated at the launch of the RIA. In comparison, today's
notice proposes nine conditions which differ by five conditions and
standards (i.e., recycling legitimacy criteria, reasonable effort by
generators, onsite recordkeeping, land placement, and offsite shipment
tracking); the impact uncertainty range lower and upper bounds reflect
inclusion of two conditions and of 17 conditions, respectively; and (2)
the main underlying data in the RIA is the RCRA Biennial Report
database about RCRA

hazardous waste activity, which includes numerical outliers; to address
these statistical outliers, the impact uncertainty ranges reflect
inclusion of 99% and 100% of the data, respectively, whereas our best
estimate includes 99.5% of the data (i.e., 0.5% of the largest
hazardous waste streams removed from the impact estimate).
    In addition to these uncertainty factors which the RIA attempted to
address directly in the impact computations, there are five other
sources of impact uncertainty that our RIA describes as sensitivity
analyses and provides estimates of potential overall magnitude: (1)
Based on extrapolating the adverse comments by some state governments
on exclusion options described in the October 2003 proposal, the
economic impacts could be 4% to 46% less than estimated in the RIA from
state non-adoption of this rule if promulgated; (2) the RIA is based on
a single year 2003 snapshot of RCRA hazardous waste data, but recent
(1997-2003) trend data show -17% to +38% fluctuation about mean in
annual waste tonnages recycled and disposed, and -54% to +54%
fluctuation in annual count of hazardous waste facilities;
consequently, future annual impacts could fluctuate rather widely
relative to the average annual impact estimates of our RIA based on
2003 data; (3) our RIA is based on hazardous waste tonnages reported as
managed in 2003 rather than reported as generated; however, recent
trend (1997-2003) data show -34% to +39% annual fluctuations between
management and generation quantities; (4) to a large degree macro
economic conditions determine the quantity of hazardous waste and
secondary industrial materials generated and managed in any given year;
for example, although our RIA is built upon a single year 2003
snapshot, one of the top-5 industries generating such materials is
NAICS 3241 petroleum refining which is expected to grow almost 6%
annually through 2010, which could increase future impacts; and (5) our
RIA is founded on the ``large quantity generator'' (LQG) and the
``treatment, storage, disposal, recycler facility'' (TSDRF) data from
the RCRA Biennial Report, and therefore to some degree if not double-
counted in the TSDRF data, excludes from the impact estimates the RCRA
regulatory class of ``small quantity generators'' (SQGs), which may
represent a 2% to 3% impact underestimation.
    Furthermore, our RIA estimate of potential new induced recycling as
a result of this proposal if promulgated, does not include an
evaluation of whether the U.S. or global markets for recycled
industrial secondary materials are large enough to absorb a potential
increase in supply of recycled materials. Market conditions for
recycled secondary materials can vary considerably over time. Demand
for recycled solvents, for example, is largely dependent on the
petroleum market: because virgin solvents are made from petroleum
products, high petroleum prices encourage solvent recycling. Similarly,
high metals prices obviously favor the recycling of metal-bearing
secondary materials. In addition, there are four physical factors that
suggest U.S. industries may be near their current technical and
economic limits for recycling RCRA hazardous wastes: (1) The recent
hazardous waste generation trend shows a 25% decline between 1999 and
2003; (2) the recent hazardous waste recycling trend shows a 73%
increase in baseline recycling between 1999 and 2003 accounting in
aggregate for metals recycling plus solvents recycling plus other
materials recycling (e.g., acid regeneration, non-solvent liquid
recycling); (3) recycling of RCRA hazardous wastes and secondary
industrial materials is technically difficult in some cases because of
numerous chemical co-contaminates in the materials; for example, based
on a national survey of large RCRA hazardous waste TSDRFs, 90% of
facilities reported between 10 and 60 hazardous chemical constituents
in wastes, with 287 constituents reported for a single wastestream, and
a total of 724 different chemical constituents reported in surveyed
wastes; this survey suggests that most LQGs must address a relatively
high number of hazardous chemical constituents in evaluating the
feasibility of their waste management options such as recycling; and
(4) some RCRA hazardous wastes have relatively low (e.g., less than 1%)
assay values for constituents with market value.
    EPA requests comment on the regulatory impact analysis, including
both the estimates of additional recycling and the cost savings that
may result from this proposed rule, and welcomes data from the public
about the possible impacts of the uncertainty factors. For example, EPA
is seeking comments about whether the codification of the legitimacy
criteria, while not intended to impose any additional requirements as
compared to the current practice, may result in additional costs or
benefits that are not included in the RIA, and, if so, what those
additional costs or benefits would be.
    In addition to estimating the potential impact of this proposal,
EPA's economic analysis also examined three other alternative
approaches for recycling exclusions: On-site-only exclusion, intra-
industry offsite exclusion, and broad inter-industry transfer exclusion
with few conditions, as discussed in EPA's October 2003 proposed rule.
Our best estimates of the potential net cost savings for these three
other approaches are $63 million, $72 million, and $129 million per
year, associated with 0.35 million tons, 0.38 million tons, and 0.67
million tons per year secondary materials potentially affected,
respectively. Accounting for estimation uncertainty factors, net cost
savings and potentially affected materials for these three options
could range between $45 million to $147 million per year and 0.24
million to 0.91 million tons per year for the on-site option, between
$56 million to $156 million per year and 0.27 million to 0.98 million
tons per year for the intra-industry option, and between $114 million
to $206 million per year and 0.46 million to 1.57 million tons per year
for the broad inter-industry transfer option. In comparison to these
three options, and taking account of impact uncertainty factors, the
proposed approach is expected to result in approximately the same range
in annual cost savings as the highest impact broad inter-industry
transfer option of these three alternatives, because it consists of
four components: a broad transfer option with certain conditions plus
the two generator controlled options plus the case-by-case petition
option, but is expected to affect slightly more waste quantities
annually from addition of the case-by-case exclusion.
    In selecting the options for today's proposal, EPA considered both
the cost and benefits of the different options and the potential for
each option to result in materials being discarded and then resulting
in remediation or environmental damages. The proposed combination
option of excluding materials recycled under the control of the
generator, hazardous secondary materials transferred for recycling with
certain conditions, and a case-by-case non-waste determination results
in the second highest estimated cost savings, number of entities
affected and amount of material expected to be induced to new
recycling. EPA chose not to pursue the option with the highest
estimated annual cost savings ($129 million versus $107 million per
year for today's proposed approach) because the lack of conditions for
materials transferred to a third-party recycler may result in material
being discarded and increase the likelihood of new cleanup sites that
would need to be funded by public

funds. See our ``Economics Background Document,'' which is in the
docket for today's supplemental proposal, for a more detailed
discussion regarding the estimated impacts of the proposed approach, as
well as the impact uncertainties, and exclusion option alternatives
that we evaluated.

B. Paperwork Reduction Act (ICR)

    The information collection requirements in this supplemental
proposal have been submitted for approval to the Office of Management
and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. An Information Collection Request (ICR) document prepared by EPA
has been assigned EPA ICR number 1189.19.
    The information requirements established for this action, and
identified in the ICR supporting today's supplemental proposal, are
largely self-implementing, except for notice and consent requirements
for hazardous secondary materials exported for recycling. This process
will ensure that (1) Regulated entities are held accountable to the
applicable requirements; (2) state inspectors can verify compliance
when needed; and (3) hazardous secondary materials exported for
recycling are actually handled as commodities abroad.
    EPA has carefully considered the burden that would be imposed upon
the regulated community by the regulations. EPA is confident that those
activities required of respondents are necessary, and, to the extent
possible, has attempted to minimize the burden imposed. EPA believes
that if the minimum requirements specified under the proposed
requirements are not met, neither the facilities nor EPA can ensure
that hazardous secondary materials sent for recycling are being managed
in a manner protective of human health and the environment.
    For the recordkeeping and reporting requirements applicable to
hazardous secondary materials sent for recycling, the aggregate annual
burden to respondents over the three-year period covered by this ICR is
estimated to be 11,552 hours, with a cost to affected entities (i.e.,
industrial facilities) of $1,417,242. However, this represents an
annual reduction in burden to respondents of 52,050 hours, representing
a cost reduction of $3,474,035 per year. The estimated annual operation
and maintenance costs to affected entities are $739,469 per year,
primarily for purchasing audit reports. There are no startup costs and
no costs for purchases of services. Administrative costs to the Agency
are estimated to be 1,257 hours per year, representing an annual cost
of $49,891.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust existing systems to comply
with any previously applicable instructions and requirements; train
personnel to be able to respond to a collection of information; search
data sources; complete and review the collection of information; and
transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID No. EPA-HQ-RCRA-2002-0031. Submit
any comments related to the ICR for this proposed rule to EPA and OMB.
See the ADDRESSES section at the beginning of this notice for where to
submit comments to EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Attn: Desk Officer for EPA, 725 17th Street, NW., Washington, DC 20503.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et. seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions. Because this action is designed
to lower the cost of waste management for industries subject to the
supplemental proposal, this proposal will not result in an adverse
economic impact effect on affected small entities. Consequently, I
hereby certify that this supplemental proposal will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives which minimize any significant
economic impact of the proposed rule on small entities (5 U.S.C.
Sections 603 and 604). Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on small entities subject to the rule. For
more information regarding the economic impact of this supplemental
proposal, please refer to the ``Economics Background Document''
available from the EPA Docket (http://www.regulations.gov).

    EPA therefore concludes that today's supplemental proposal will
relieve regulatory burden for all size entities, including small
entities. The Agency continues to be interested in the potential
impacts of the proposed rule on small entities and welcomes comments on
issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
must prepare a written analysis, including a cost-benefit analysis, for
proposed and final rules with Federal mandates that may result in
expenditures to State, local, and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost effective or least

burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted.
    Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials to have
meaningful and timely input in the development of regulatory proposals,
and informing, educating, and advising small governments on compliance
with the regulatory requirements.
    EPA has determined that this rule does not include a Federal
mandate that may result in expenditures of $100 million or more for
State, local, or tribal governments, in the aggregate, or the private
sector in any one year. This is because this supplemental proposal
imposes no enforceable duty on any State, local, or tribal governments.
EPA also has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. In addition, as discussed above, the private sector is not
expected to incur costs exceeding $100 million. Therefore, today's
supplemental proposal is not subject to the requirements of sections
202 and 205 of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure a
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
Policies that have federalism implications are defined in the Executive
Order to include regulations that have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
    This supplemental proposal does not have federalism implications.
It will not have substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132. There are no State
and local government bodies that incur direct compliance costs by this
rulemaking. State and local government implementation expenditures are
expected to be less than $500,000 in any one year. Thus, the
requirements of Section 6 of the Executive Order do not apply to this
supplemental proposal. In addition, because this rule is less stringent
than the current federal program, states are not required to adopt it.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this supplemental
proposal from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure a meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications. This supplemental proposal does not have
tribal implications, as specified in Executive Order 13175. It does not
significantly or uniquely affect the communities of Indian tribal
governments, nor would it impose substantial direct compliance costs on
them. Thus, Executive Order 13175 does not apply to this supplemental
proposal.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to any rule that EPA determines (1) is economically
significant as defined under Executive Order 12866, and (2) the
environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children; and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This supplemental proposal is not subject to the Executive Order
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this proposed rule present a
disproportionate risk to children.

H. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use

    This supplemental proposal is not a ``significant energy action''
as defined in Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. This
supplemental proposal reduces regulatory burden and as explained in our
Economics Background Document, may possibly induce fuel efficiency and
energy savings from voluntary shifting of some types of secondary
industrial materials, where cost-effective for firms to do so, from
current landfill and incineration disposal, to industrial recycling. It
therefore should not adversely affect energy supply, distribution, or
use.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (ANTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
Today's supplemental proposal does not contain technical standards and
therefore the NTTAA is not applicable.

J. Executive Order 12898: Environmental Justice

    Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations (February
11, 1994), is designed to address the environmental and human health
conditions of minority and low-income populations. EPA is committed to
addressing environmental justice concerns and has assumed a leadership
role in environmental justice initiatives to enhance environmental
quality for all citizens of the United States. The Agency's goals are
to ensure that no segment of the population, regardless of race, color,
national origin, income, or

net worth bears disproportionately high and adverse human health and
environmental impacts as a result of EPA's policies, programs, and
activities. Our goal is to ensure that all citizens live in clean and
sustainable communities. In response to Executive Order 12898, and to
concerns voiced by many groups outside the Agency, EPA's Office of
Solid Waste and Emergency Response (OSWER) formed an Environmental
Justice Task Force to analyze the array of environmental justice issues
specific to waste programs and to develop an overall strategy to
identify and address these issues (OSWER Directive No. 9200.3-17).
    This supplemental proposal would streamline hazardous waste
management requirements for certain hazardous secondary materials sent
for recycling. Facilities that would be affected by today's proposal
include those generating hazardous secondary materials, as well as
facilities which recycle such materials. Disposal facilities would not
be affected by this proposal. The wide distribution of affected
facilities throughout the United States does not suggest any
distributional pattern around communities of concern. Specific impacts
on low income or minority communities, therefore, are undetermined.
Overall, no disproportionate impacts to minorities or low income
communities are expected.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

    Dated: March 15, 2007.
Stephen L. Johnson,
Administrator.
    For the reasons stated in the preamble, title 40, Chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

    1. The authority citation for part 260 continues to read as
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6935, 6937,
6938, 6939 and 6974.

Subpart B--Definitions

    2. Section 260.10 is amended by adding in alphabetical order the
definitions of ``Land-based unit'' and ``Hazardous secondary materials
generated and reclaimed under the control of the generator'' to read as
follows:

Sec.  260.10  Definitions.

* * * * *
    Hazardous secondary material generated and reclaimed under the
control of the generator means:
    (1) That such material is generated and reclaimed at the generating
facility (for purposes of this paragraph, generating facility means all
contiguous property owned by the generator); or
    (2) That such material is generated and reclaimed by the same
``person'' as defined in Sec.  260.10, if the generator certifies the
following: ``on behalf of [insert company name] I certify that the
indicated hazardous recyclable material will be sent to [insert company
name], that the two companies are under the same ownership, and that
the owner corporation [insert company name] has acknowledged full
responsibility for the safe management of the hazardous recyclable
material,'' or
    (3) That such material is generated pursuant to a written contract
between a tolling contractor and a batch manufacturer and are reclaimed
by the tolling contractor, if the tolling contractor retains ownership
of, and responsibility for, the recyclable material that is generated
during the course of the production of the product. For purposes of
this paragraph, tolling contractor means a person who arranges for the
production of a product made from raw materials through a written
contract with a batch manufacturer. Batch manufacturer means a person
who produces a product made from raw materials pursuant to a written
contract with a tolling contractor.
* * * * *
    Land-based unit means a landfill, surface impoundment, waste pile,
injection well, land treatment facility, salt dome formation, salt bed
formation, or underground mine or cave.
* * * * *

Subpart C--[Amended]

    3. Section 260.30 is amended as follows:
    a. By revising the section heading.
    b. By revising paragraph (b).
    c. By adding paragraphs (d), (e), and (f).

Sec.  260.30  Non-waste determinations and variances from
classification as a solid waste.

* * * * *
    (b) Materials that are reclaimed and then reused within the
original production process in which they were generated;
* * * * *
    (d) Materials that are reclaimed in a continuous industrial
process;
    (e) Materials that are indistinguishable in all relevant aspects
from a product or intermediate; and
    (f) Materials that are reclaimed under the control of the
generator, including control through contracts, such as tolling
arrangements.
    4. Section 260.33 is amended by revising the section heading, the
introductory text, and paragraph (a) to read as follows:

Sec.  260.33  Procedures for variances from classification as a solid
waste, for variances to be classified as a boiler, or for non-waste
determinations.

    The Administrator will use the following procedures in evaluating
applications for variances from classification as a solid waste,
applications to classify particular enclosed controlled flame
combustion devices as boilers, or applications for non-waste
determinations.
    (a) The applicant must apply to the Administrator for the variance
or non-waste determination. The application must address the relevant
criteria contained in Sec.  260.31, Sec.  260.32, or Sec.  260.34 as
applicable.
* * * * *
    5. Section 260.34 is added to Subpart C to read as follows:

Sec.  260.34  Standards and criteria for non-waste determinations.

    (a) An applicant may apply to the Administrator for a formal
determination that a material is clearly not discarded and therefore
not a solid waste. The determinations will be based on the criteria
contained in paragraphs (b), (c), or (d) of this section as applicable.
If an application is denied, the material might still be eligible for a
solid waste variance or exclusion (for example, one of the solid waste
variances under Sec.  260.31 or solid waste exclusions under Sec.
261.4). Determinations may also be granted by the State if the State is
either authorized for this provision or if the following conditions are
met:
    (1) The State determines the material meets the criteria in
paragraphs (b), (c), or (d) of this section;
    (2) The State requests that EPA review its determination; and

    (3) EPA approves the State determination.
    (b) The Administrator may grant a non-waste determination for
material which is reclaimed in a continuous industrial process if the
applicant demonstrates that the material is a part of the production
process and is not discarded. The determination will be based on the
following criteria:
    (1) The extent that the management of the material is part of the
continuous primary production process and is not waste treatment;
    (2) Whether the capacity of the production process would use the
material in a reasonable timeframe and ensure that the material will
not be abandoned (for example, based on past practices, market factors,
the nature of the material, and any contractual arrangements);
    (3) Whether the hazardous constituents in the secondary material
are reclaimed rather than discarded to the air, water or land at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released by
the primary production process; and
    (4) Other relevant factors that demonstrate the material is not
discarded.
    (c) The Administrator may grant a non-waste determination for
material which is indistinguishable in all relevant aspects from a
product or intermediate if the applicant demonstrates that the material
is comparable to a product or intermediate and is not discarded. The
determination will be based on the following criteria:
    (1) Whether market participants treat the material as a product
rather than a waste (for example, based on the current positive value
of the material, stability of demand, and any contractual
arrangements);
    (2) Whether the chemical and physical identity of the material is
comparable to commercial products or intermediates;
    (3) Whether the hazardous constituents in the material are
reclaimed rather than discarded to the air, water or land at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released by
the production process.
    (4) Other relevant factors that demonstrate the material is not
discarded.
    (d) The Administrator may grant a non-waste determination for
material which is reclaimed under the control of the generator,
including control through contracts such as tolling arrangements, if
the applicant demonstrates that the generator retains control of the
production and the residuals, and that the material is not discarded.
The determination will be based on the following criteria:
    (1) Whether the generator retains ownership and liability via a
contract or other mechanism for the material and the residuals
resulting from its recycling.
    (2) Whether the hazardous constituents in the material are
reclaimed rather than discarded to the air, water or land at
significantly higher levels from either a statistical or from a health
and environmental risk perspective than would otherwise be released by
a production process.
    (3) Other relevant factors that demonstrate the material is not
discarded.
    6. Section 260.42 is added to Subpart C read as follows:

Sec.  260.42  Notification requirement for generators of hazardous
secondary materials generated and reclaimed under the control of the
generator.

    Generators of hazardous secondary material that has previously been
subject to regulation as hazardous wastes, but which will be excluded
from regulation under Sec.  261.2(a)(2)(ii) must send a one-time
notification to the Regional Administrator. Such notices must identify
the name, address, and EPA ID number of the generator (if applicable);
the name and phone number of a contact person; the type of material
that will be managed according to this exclusion; and when the material
will begin to be managed in accordance with this exclusion. A revised
notice must be sent to the Regional Administrator in the event of a
change to the name, address or EPA ID number of the generator, or a
change in the type of material generated. If reclamation takes place at
a facility other than the generating facility, the reclaimer must also
send a one-time notification to the Regional Administrator. Such
notices must identify the name, address, and EPA ID number of the
reclamation facility (if applicable); the name and phone number of a
contact person; the type of material that will be managed according to
the exclusion; and when the material will begin to be managed in
accordance with this conditional exclusion. A revised notice must be
sent to the Regional Administrator in the event of a change to the
name, address or EPA ID number of the reclamation facility, or a change
in the type of material reclaimed.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    7. The authority citation for part 261 continues to read as
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.

Subpart A--[Amended]

    8. Section 261.2 is amended as follows:
    a. By revising paragraph (a)(1).
    b. By revising paragraph (a)(2).
    c. By revising paragraph (c)(3).
    d. By revising Table 1 in paragraph (c)(4).
    e. By adding paragraph (g).

Sec.  261.2  Definition of solid waste.

* * * * *
    (a)(1) A solid waste is any discarded material that is not excluded
under Sec.  261.4(a) or that is not excluded by a variance granted
under Sec. Sec.  260.30 and 260.31 or that is not excluded by a non-
waste determination under Sec. Sec.  260.30 and 260.34.
* * * * *
    (2)(i) A discarded material is any material which is:
    (A) Abandoned, as explained in paragraph (b) of this section; or
    (B) Recycled, as explained in paragraph (c) of this section; or
    (C) Considered inherently waste-like, as explained in paragraph (d)
of this section; or
    (D) A military munition identified as a solid waste in 40 CFR
266.202.
    (ii) A hazardous secondary material is not discarded if it is
generated and reclaimed within the United States or its territories,
provided that the material is only handled in non-land-based units, it
is a hazardous secondary material generated and reclaimed under the
control of the generator as defined in Sec.  260.10, and it is not
speculatively accumulated as defined in Sec.  261.1(c)(8). (See also
Sec.  260.42)
* * * * *
    (c) * * *
    (3) Reclaimed. Materials noted with a ``--'' in column 3 of Table 1
are not solid wastes when reclaimed. Materials noted with an ``*'' in
column 3 of Table 1 are solid wastes when reclaimed unless they meet
the requirements of Sec. Sec.  261.2(a)(2)(ii), or 261.4(a)(17), or
261.4(a)(23), or 261.4(a)(24) and 261.4(a)(25).
* * * * *
    (4) * * *

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                                Reclamation
                                                                                (261.2(c)(3)),
                                                                                except as
                                                    Use                           provided in      Speculative
                                                constituting   Energy recovery/    Sec.  Sec.      accumulation
                                               disposal (Sec.     fuel (Sec.     261.4(a)(17),        (Sec.
                                                261.2(c)(1))     261.2(c)(2))   261.4(a)(23) or    261.2(c)(4))
                                                                                261.4(a)(24),
                                                                                and
                                                                                261.4(a)(25)
----------------------------------------------------------------------------------------------------------------
                                                           1                2                3                4
----------------------------------------------------------------------------------------------------------------
Spent Materials.............................             (*)              (*)              (*)              (*)
Sludges (listed in 40 CFR Part 261.31 or                 (*)              (*)              (*)              (*)
 261.32.....................................
Sludges exhibiting a characteristic of                   (*)              (*)               --              (*)
 hazardous waste............................
By-products (listed in 40 CFR 261.31 or                  (*)              (*)              (*)              (*)
 261.32)....................................
By-products exhibiting a characteristic of               (*)              (*)               --              (*)
 hazardous waste............................
Commercial chemical products listed in 40                (*)              (*)               --               --
 CFR 261.33.................................
Scrap metal other than excluded scrap metal              (*)              (*)              (*)              (*)
 (see 261.1(c)(9))..........................
----------------------------------------------------------------------------------------------------------------
Note: The terms ``spent materials,'' ``sludges,'' ``by-products,'' and ``scrap metal'' and ``processed scrap
  metal'' are defined in 261.1.

* * * * *
    (g) Legitimate Recycling.
    (1) Hazardous secondary material that is not legitimately recycled
is discarded material and is a solid waste. Persons who recycle such
material, as well as persons claiming to be excluded from hazardous
waste regulation under Sec.  260.31, Sec.  260.34, Sec.  261.2 or Sec.
261.4 because they are engaged in recycling, must be able to
demonstrate that the recycling is legitimate. Moreover, hazardous
secondary material must be legitimately recycled to qualify for special
management standards under Sec.  261.6 and 40 CFR Part 266.
    (2) Legitimate recycling must involve a hazardous secondary
material that provides a useful contribution to the recycling process
or to a product of the recycling process, and the recycling process
must produce a valuable product or intermediate.
    (i) The hazardous secondary material provides a useful contribution
if it:
    (A) Contributes valuable ingredients to a product or intermediate;
or
    (B) Replaces a catalyst or carrier in the recycling process; or
    (C) Is the source of a valuable constituent recovered in the
recycling process; or
    (D) Is recovered or regenerated by the recycling process; or
    (E) Is used as an effective substitute for a commercial product.
    (ii) The product or intermediate is valuable if it is:
    (A) Sold to a third party; or
    (B) Used by the recycler or the generator as an effective
substitute for a commercial product or as an ingredient or intermediate
in an industrial process.
    (3) The following factors need to be considered in making a
determination as to the overall legitimacy of a specific recycling
activity. If these factors are not met, then this fact may be an
indication that the material is not legitimately recycled:
    (i) How the hazardous secondary material to be recycled is managed.
The generator and the recycler should manage such material as a
valuable commodity. Where there is an analogous raw material, the
hazardous secondary material should be managed, at a minimum, in a
manner consistent with the management of the raw material. Where there
is no analogous raw material, the hazardous secondary material should
be contained. Materials that are released to the environment and are
not recovered in a timely manner are discarded. If the material is not
managed as a valuable commodity, that fact may be an indication that
the material is not legitimately recycled.
    (ii) Whether the product of the recycling process:
    (A) Contains significant concentrations of any Appendix VIII of
Part 261 hazardous constituents that are not found in analogous
products; or
    (B) Contains concentrations of any Appendix VIII of Part 261
hazardous constituents at levels that are significantly elevated from
those found in analogous products; or
    (C) Exhibits a hazardous characteristic (as defined in Part 261
subpart C) that analogous products do not exhibit. If a product
contains any of these concentrations or exhibits a hazardous
characteristic, that fact may be an indication that the material is not
legitimately recycled.
    9. Section 261.4 is amended by adding new paragraphs (a)(23), (24),
and (25) to read as follows:

Sec.  261.4  Exclusions.

    (a) * * *
    (23) Hazardous secondary material generated and reclaimed within
the United States or its territories is not a solid waste provided
that:
    (i) If it is managed in a land-based unit as defined in Sec.
260.10, the material must be contained; and
    (ii) It is a hazardous secondary material generated and reclaimed
under the control of the generator as defined in Sec.  260.10; and
    (iii) It is not speculatively accumulated, as defined in Sec.
261.1(c)(8); and
    (iv) Generators of hazardous secondary material that has previously
been subject to regulation as hazardous wastes, but which will be
excluded from regulation under this paragraph (a)(23) must send a one-
time notification to the Regional Administrator. Such notices must
identify the name, address, and EPA ID number of the generator (if
applicable); the name and phone number of a contact person; the type of
material that will be managed according to this exclusion, and when the
material will begin to be managed in accordance with this exclusion. A
revised notice must be sent to the Regional Administrator in the event
of a change to the name, address or EPA ID number of the generator, or
a change in the type of material generated. If reclamation takes place
at a facility other than the generating facility, the reclaimer must
send a one-time notification to the Regional Administrator. Such
notices must identify the name, address, and EPA ID number of the
reclamation facility (if applicable); the name and phone number of a
contact person; the type of material that will be managed according to
the exclusion, and when the material will begin to be managed in
accordance with this conditional exclusion. A revised notice must be
sent to the Regional Administrator in the event of a change to the
name, address

or EPA ID number of the reclamation facility, or a change in the type
of material reclaimed.
    (24) Hazardous secondary material that is generated and then
transferred to another person for the purpose of reclamation is not a
solid waste, provided that:
    (i) The material is not speculatively accumulated, as defined in
Sec.  261.1(c)(8); and
    (ii) The material is not handled by any person or facility other
than the generator, the transporter, or a reclaimer; and
    (iii) The generator and each reclaimer of hazardous secondary
material that has previously been subject to regulation as hazardous
wastes, but which will be excluded from regulation under this
paragraph, must send a one-time notification to the Regional
Administrator. Such notices must identify the name, address, and EPA ID
number of the generator or reclaimer (if applicable); the name and
phone number of a contact person; the type of material that will be
managed according to the exclusion, and when the materials will begin
to be managed in accordance with this conditional exclusion. A revised
notice must be sent to the Regional Administrator in the event of a
change to the name, address or EPA ID number of the generator, or a
change in the type of material generated, and
    (iv) Generators of hazardous secondary materials that are eligible
for this exclusion must satisfy the following conditions:
    (A) Prior to arranging for transport of excluded material to a
reclamation facility that is not operating under a RCRA Part B permit
or interim status standards, the generator must make reasonable efforts
to ensure that the reclaimer intends to legitimately recycle the
material and not discard it pursuant to the criteria in Sec.  261.2(g),
and that the reclaimer will manage the material in a manner that is
protective of human health and the environment. In making these
reasonable efforts, the generator may use any credible evidence
available, including information gathered by the generator, provided by
the reclaimer, and/or provided by a third party.
    (B) The generator must maintain at the generating facility for no
less than three years records of all off-site shipments of excluded
material. For each shipment, these records must at a minimum contain
the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of the reclamation facility to which it was
sent, and
    (3) The type and quantity of excluded material in the shipment.
    (C) If it is managed in a land-based unit as defined in Sec.
260.10, the material must be contained.
    (v) Reclaimers of hazardous secondary material excluded from
regulation under this exclusion must satisfy the following conditions:
    (A) The reclaimer must maintain at the reclamation facility for no
less than three years records of all shipments of excluded material
that were received at the facility. For each shipment, these records
must at a minimum contain the following information:
    (1) Name of the transporter and date the shipment was received;
    (2) Name and address of the generating facility from which it was
sent; and
    (3) The type and quantity of excluded material in the shipment.
    (B) The reclaimer must manage the hazardous secondary material in a
manner that is at least as protective as that employed for analogous
raw material or is otherwise contained. An ``analogous raw material''
is a raw material for which a hazardous secondary material is a
substitute and serves the same function and has similar physical and
chemical properties as the hazardous secondary material. Where there is
no analogous raw material, or if the secondary hazardous material is
managed in a land-based unit as defined in defined in Sec.  260.10, the
material must be contained.
    (C) Any residuals that are generated from reclamation processes
will be managed in a manner that is protective of human health and the
environment. If any residuals exhibit a hazardous characteristic
according to subpart C of 40 CFR part 261, or if they themselves are
specifically listed in subpart D of 40 CFR part 261, such residuals are
hazardous wastes and must be managed according to the applicable
requirements of 40 CFR parts 260 through 272.
    (D) The reclaimer must comply with the financial requirements of 40
CFR part 264, subpart H.
    (vi) A reclamation facility at which hazardous secondary materials
are managed in accordance with the provisions of this exclusion may
also accept and manage fully regulated hazardous wastes from generators
who do not use this exclusion. Such materials are not solid wastes, and
the RCRA regulatory status of the reclamation facility will not be
affected, provided that the reclamation facility complies with the
requirements specified in Sec.  261.4(a)(24)(i), (ii), (iii) and (v).
    (25) Exports. Hazardous secondary material that is exported from
the United States and recycled at a reclamation facility located in a
foreign country, provided that the exporter complies with the
requirements of Sec.  261.4(a)(24)(i)-(iv) and also with the following
requirements:
    (i) Notify EPA of an intended export before the hazardous secondary
material is scheduled to leave the United States. A complete
notification must be submitted at least sixty (60) days before the
initial shipment is intended to be shipped off-site. This notification
may cover export activities extending over a twelve (12) month or
lesser period. The notification must be in writing, signed by the
exporter, and include the following information:
    (A) Name, mailing address, telephone number and EPA ID number (if
applicable) of the exporter.
    (B) The estimated frequency or rate at which the materials is to be
exported and the period of time over which it is to be exported.
    (C) The estimated total quantity of material specified in
kilograms.
    (D) All points of entry to and departure from each foreign country
through which the material will pass.
    (E) A description of the means by which each shipment of the
material will be transported (e.g., mode of transportation vehicle
(air, highway, rail, water, etc.), type(s) of container (drums, boxes,
tanks, etc.)).
    (F) The name and address of the reclaimer and any alternate
reclaimer.
    (G) A description of the manner in which the material will be
recycled in the foreign country that will be receiving it.
    (H) The name of any transit country through which the material will
be sent and a description of the approximate length of time it will
remain in such country and the nature of its handling while there.
    (ii) Notifications submitted by mail should be sent to the
following mailing address: Office of Enforcement and Compliance
Assurance, Office of Federal Activities, International Compliance
Assurance Division, (Mail Code 2254A), Environmental Protection Agency,
1200 Pennsylvania Ave., NW., Washington, DC 20460. Hand-delivered
notifications should be sent to: Office of Enforcement and Compliance
Assurance, Office of Federal Activities, International Compliance
Assurance Division, (Mail Code 2254A), Environmental Protection Agency,
Ariel Rios Bldg., Room 6144, 1200

Pennsylvania Ave., NW., Washington, DC. In both cases, the following
shall be prominently displayed on the front of the envelope:
``Attention: Notification of Intent to Export.''
    (iii) Upon request by EPA, the exporter shall furnish to EPA any
additional information which a receiving country requests in order to
respond to a notification.
    (iv) EPA will provide a complete notification to the receiving
country and any transit countries. A notification is complete when EPA
receives a notification which EPA determines satisfies the requirements
of paragraph (a) (5) (i) of this section. Where a claim of
confidentiality is asserted with respect to any notification
information required by paragraph (a)(5)(i) of this section, EPA may
find the notification not complete until any such claim is resolved in
accordance with 40 CFR 260.2.
    (v) The export of hazardous secondary material under this paragraph
is prohibited unless the receiving country consents to the intended
export. When the receiving country consents in writing to the receipt
of the material, EPA will forward an Acknowledgment of Consent to the
exporter. Where the receiving country objects to receipt of the
material or withdraws a prior consent, EPA will notify the exporter in
writing. EPA will also notify the exporter of any responses from
transit countries.
    (vi) When the conditions specified on the original notification
change, the exporter must provide EPA with a written renotification of
the change, except for changes to the telephone number in paragraph
(a)(5)(i)(A) of this section and decreases in the quantity indicated
pursuant to paragraph (a)(5)(i)(C) of this section. The shipment cannot
take place until consent of the receiving country to the changes has
been obtained (except for changes to information about points of entry
and departure and transit countries pursuant to paragraphs (a)(5)(i)(D)
and (a)(5)(i)(H) of this section) and the exporter receives from EPA a
copy of the Acknowledgment of Consent to Export reflecting the
receiving country's consent to the changes.
    (vii) A copy of the Acknowledgment of Consent to Export must
accompany the shipment. The shipment must conform to the terms of the
Acknowledgment.
    (viii) If a shipment cannot be delivered for any reason to the
recycler or the alternate recycler, the exporter must renotify EPA of a
change in the conditions of the original notification to allow shipment
to a new recycler in accordance with paragraph (a)(5)(vi) of this
section and obtain another Acknowledgment of Consent to Export.
    (ix) Exporters must keep copies of notifications and
Acknowledgments of Consent to Export for a period of three years
following receipt of the Acknowledgment.

[FR Doc. E7-5159 Filed 3-23-07; 8:45 am]

BILLING CODE 6560-50-P