to ship to that reclaimer is based on an objectively reasonable belief
that the hazardous secondary materials would be recycled legitimately
and otherwise managed in a manner consistent with this regulation, the
generator would not have violated the terms of the exclusion." (72 FR
14197)

Commenters state that, at the very least, EPA must expect that arranger
liability under Superfund will be vigorously contested and litigated
under the proposed rule.  The incentive under Superfund for companies to
carefully manage their secondary materials that EPA has relied on as a
fundamental assumption of the proposed rule is at least arguably
weakened or eliminated.  Without strong and undisputed Superfund
liability, the overbroad exclusion of secondary materials from the
definition of solid waste in the proposed rule will severely undermine
the ability of EPA and states to prevent marginal recycling facilities
from becoming insolvent contamination sites, which the states will have
to clean up without the benefit of contributions from those entities
whose wastes have created the environmental damage in the first place.

Comments said that because the proposal could significantly reduce or
even altogether eliminate facility and particularly generator liability
at some Superfund sites, thereby requiring taxpayers, through EPA, to
pay for cleanups. EPA should conduct a thorough examination of the
potential impact of such a major release of liability.  The
Environmental Assessment completed for the proposed rulemaking does not
provide the data necessary to evaluate the broad impacts on CERCLA of
EPA's proposal.  EPA admits that their assessment is particularly
incomplete regarding cleanup costs at the 208 sites. 72 Fed. Reg. at
14196. EPA must gather the data necessary to estimate the total amount
of federal funding that EPA may be required to spend to  conduct current
and future remedial and removal actions at sites related to recycling
activities where liability is likely to be affected by the proposed
rulemaking.

[0119-59, 0119-60, 0119, 80, 0191-4, 0231-6, 0343-5, 0343-7, 0559-40,
0559-91, 0564-10]

One commenter noted that the proposal appears to provide significantly
broader liability relief than that provided by Congress under the
Superfund Recycling Equity Act of 1999.  Many in the Congress supported
this Act because it promoted the reuse and recycling of scrap material
with positive economic value, and included specific safeguards to ensure
that handling, processing, reclamation and other management activities
were conducted with reasonable care.  The commenter was concerned that,
in contrast, this proposal would effectively exempt by administrative
fiat a much broader universe of hazardous waste from Superfund
liability, without subjecting the material to any tracking or management
safeguards, and requested that EPA evaluated whether the proposal is
consistent with and satisfies the criteria established for legitimate
recycling under SREA.

[0073-11, 0343-7, 0343-8]

One commenter said that another commenter's concerns about possible new
Superfund sites had no basis in fact because of the continuing impact of
CERCLA liability.

[0091-36]

One commenter recommended that EPA clarify that the change also does not
affect reporting obligations for releases of hazardous substances under
CERCLA section 103.

[0067-18]

10.3 - Response

EPA disagrees with comments that assert the final rule would negatively
impact CERCLA arranger liability.  Today's final rule only changes the
definition of solid waste for purposes of RCRA Subtitle C requirements.
Under the final rule, hazardous secondary materials released to the
environment would constitute disposal under both RCRA and CERCLA. The
final rule 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 or change the
universe of recycling activities that could be exempted from CERCLA
liability per the Superfund Recycling Equity Act (SREA).   EPA agrees
with comments that that the final rule does not affect reporting
obligations for releases of hazardous substances under CERCLA section
103.  Finally, EPA does not expect Superfund sites to be created if a
person complies with this regulation and responsibly ships for recycling
a secondary material that is a commodity to a legitimate recycler.

There are numerous CERCLA cases in which persons have sent material for
recycling and have been held to be arrangers for disposal because the
recyclers have handled material improperly resulting in a Superfund site
being created.  Courts generally evaluate whether the shipper either had
control over the process or knowledge of potential disposal, or whether
the shipper was actually sending a commodity to be recycled.  See,
Morton International, Inc. v. A.E. Staley Manufacturing Co., 343 F.3d
669 (3rd Cir. 2003) (CERCLA liability for a company that sent material
for mercury processing that became a Superfund site; liability did not
depend on ownership or possession alone); Cadillac Fairview/California,
Inc. v. United States, 41 F.3d 562 (9th Cir. 1994) (liability for
recycling of sulfur tar bottoms); Catellus Development Corp. v. United
States, 34 F.3d 748 (9th Cir. 1994) (liability for recycling of
automotive batteries); United States v. Montana Refining Co., 1994 U.S.
App. LEXIS 22633, (9th Cir. Aug. 17, 1994) (confirming Catellus,
remanding PolyCarb); United States v. PolyCarb, Inc., 951 F. Supp. 1518
(D. Nev. 1996) (liability for sending caustic for reclamation); Chatham
Steel Corp. v. Brown, 858 F. Supp. 1130 (N.D. Fla. 1994) (liability for
sale for recycling of spent batteries); California v. Summer Del Caribe,
Inc., 821 F. Supp. 574 (N.D. Cal. 1993) (liability for recycling of
solder dross produced as a by product of manufacturing process);
Chesapeake & Potomac Tel. v. Peck Iron & Metal, 814 F. Supp. 1269 (E.D.
Va. 1992) (liability for recovery of lead from used batteries);  United
States v. Pesses, 794 F. Supp. 151 (W.D. Pa. 1992) (sellers of scrap
metal to a reprocessor); United States v. A & F Materials, 582 F. Supp.
842 (S.D.Ill. 1984) (liability for caustic solution produced in the
course of the manufacture of jet aircraft to a company which used it to
neutralize acidic oil); but see Pneumo Abex Corp. v. High Point,
Thomasville and Denton R.R. Co., 142 F.3d 769 (4th Cir. 1998) (used rail
car bearings were commodities and recyclers paid a competitive price).

The CERCLA cases show that arrangers cannot turn a blind eye to the
activities of the reclaimer, and through the reasonable efforts
condition, today's rule echoes that same principle.  See, Catellus
Development Corp. v. United States, 34 F.3d 748, 752 (9th Cir. 1994)
(rejecting the argument of a company that it could not be liable as an
arranger under CERCLA because it sent materials released to the
environment to be recycled because such a formulation "would allow
defendants to simply 'close their eyes' to the method of disposal of
their hazardous substances, a result contrary to the policies underlying
CERCLA"); accord United States v. Aceto Agr. Chemicals Corp., 872 F.2d
1373, 1382 (8th Cir. 1989).   There is no CERCLA case, nor would we
expect one in the future, where courts simply said that a material sent
for recycling is not a RCRA solid waste without examining the conditions
under which the material was sent. The fact is that a person who sends
material for recycling will, in fact, become an arranger for disposal if
that person does not comply with the regulations established today and
does not make reasonable efforts to ensure that material will be
responsibly recycled.

11 - Applicability of rules in authorized states

11 - Summary

Many commenters said that EPA should strongly encourage authorized
states to adopt this final rule, in the interest of national uniformity
of regulatory requirements, reducing burdens on industry, or to
encourage recycling (0152-34, 0199-30, 0222-11, 0438-5, 0463-19,
0468-20, 0468-27, 0471.2-66, 0476-1, 0476-22, 0478-23, 0501-4, 0519-4).
Some commenters urged EPA to weigh state comments on the proposal
carefully, since states will be the ultimate implementers of the rule
(0219-1, 0531-6).  One commenter noted that state reaction to the
proposal was mixed, with the largest number of states who responded to a
survey indicating that they would adopt the rule if changes were made
from the proposal (0543-43).

However, another commenter said that EPA should not encourage states to
adopt the rule, since this commenter preferred states to impose more
stringent requirements, or regulate hazardous secondary materials under
full Subtitle C controls. This commenter believed that the Agency should
eschew its proposal and maintain or strengthen regulatory provisions
governing hazardous secondary materials (0231-57).

One commenter urged EPA to establish a process whereby incorrect
interpretations (particularly of variance provisions) by authorized
states that result in competitive imbalances are corrected promptly.
This commenter also said that states should be required to follow
federal standards more closely in general (0450-1).  Another commenter
said that the Agency should consider an "automatic" authorization
process as an incentive for states to expedite the transition (0044-13).
Another commenter said that EPA should administer the rule using HSWA
authorities to enable immediate applicability nationwide; if this
approach were not possible, the commenter said that EPA should provide
incentives and encouragement to states to adopt the rule (0518-14).
Still another commenter said that the Agency should establish a
clearinghouse to provide information about the current regulatory status
of the rule in each state (0044-14).

One commenter disagreed with the Agency's statement that the proposed
rule was less stringent than current regulations; this commenter said
that the proposal was in fact a clarification that made the federal
regulations narrower in scope.  This commenter suggested that EPA should
explicitly state in the final rule that it cannot and will not enforce
state rules that are broader in scope than the federal rules because the
state has not adopted these revisions to the definition of solid waste
(0152-34). Another commenter said that the Agency should explicitly
recognize in the rule that States with authorized RCRA programs are free
to adopt written policies regarding the management of recycled materials
that are consistent with the ABR decision, without fear of EPA
intervention (0126-1).

Some commenters said that if many states did not adopt this rule, the
complexity of interstate transportation would be greater, thus
increasing transportation costs on companies (0073-12, 0117-9, 0468-21,
0199-31). Other commenters said that such increased complexity would be
undesirable because it could lead to an increased likelihood of releases
and ensuing environmental harm (0095-18, 0098-42, 0109-10, 0130-11,
0231-57, 0462-16, 0462-39, 0541-5, 0548-4, 0562-4, 0559-96, 0559-97).
One commenter stated that hazardous secondary materials could be
abandoned at a state border because the next state regulates them as
hazardous wastes (0119-61). Some commenters suggested that some states
might adopt the rule to attract recycling businesses (0073-13), or that
generators might seek out reclaimers located in states that had adopted
the rule (0551-3). Another commenter said that generators and reclaimers
of hazardous secondary materials could face jeopardy of enforcement if
they are located in different states, with one state adopting the rule
and the other state not adopting it (0543-65).

Some commenters urged retention of the hazardous waste manifest, saying
that facilities are familiar with these documents and they would
therefore not impose a burden. One commenter (0462) said that the
manifest helped states to calculate various fees used to pay for state
programs. Other commenters said that the return copy provides assurance
to generators that their waste has been accepted (0462-16, 0462-21,
0130-11). One commenter said that our rule violated states' rights to
require the use of a manifest, since some states require their
environmental agencies to adopt by reference rules promulgated by EPA.
Therefore, this commenter said, our rule was a violation of 42 USC 6929
(Retention of State Authority), which says that states may require
copies of manifests for hazardous waste generated within that state or
transported to a TSDF within the state (0561-6).

Some commenters objected to the use of a manifest when a hazardous
secondary material was in transit in a "pass-through" state between two
states that had adopted the rule (0070-16, 0083-18, 0153-30, 0162-7,
0194-9). One commenter also suggested that under this rule some state
transportation requirements may be preempted under the Hazardous
Materials Transportation Act and urged EPA to consult with the
Department of Transportation and clarify the issue (0152-35, 0481-114).
One commenter suggested placing EPA's preamble discussion of interstate
transport requirements in the regulatory language of the final rule
(0536-14).

Some commenters stated that if hazardous secondary materials met the
definition of a DOT hazardous material, they should be transported in
accordance with DOT requirements even if they are excluded under RCRA
(0457-20, 0523-6, 0558-19). One commenter said that EPA's rule could
result in DOT enforcement issues because DOT rules prohibit the use of
"waste" or "hazardous waste" in the shipping name for state-only
hazardous waste (0083-20).

One commenter suggested using a "Recycle Material" manifest for tracking
and recordkeeping (0176-5). Another commenter suggested developing a
shipping paper that would be signed and retained by generators,
transporters, and reclaimers, and which state agencies could use to
track materials and ensure compliance (0495-7).  One commenter urged EPA
to adopt minimum operational standards for recycling units, thus
ensuring that the rule is not deregulatory in nature and would have to
be adopted nationally (0551-3, 0551-4).

Two commenters objected to the use of the land disposal restrictions
notification form (0083-19, 0462-16, 0462-21).

Some commenters feared that states would not have enough resources to
effectively enforce the requirements of this final rule (0213-2,
0541-5). One commenter said that EPA must back its standards with
resources and resolve sufficient to enforce the standards (0450-2).

11 - Response

EPA strongly agrees with those commenters who said that we should
encourage states to adopt this final rule, and we also agree that
uniform adoption of this rule would confer many benefits.  We plan to
urge states to pick up the rule as soon as possible, and we will conduct
vigorous  outreach to accomplish that purpose. In response to the
commenter who suggested careful evaluation of state views, we note that
we have carefully considered state comments on both the 2003 and 2007
proposals, and we have incorporated many suggestions from states in
developing this final rule.

We do not agree with the commenter who said that states should not adopt
the rule because full Subtitle C requirements are necessary. For the
reasons stated at numerous places in the preamble to this rule, we
believe that the requirements of this rule are appropriate to
demonstrate lack of discard, and that the conditions or restrictions are
sufficient to protect human health and the environment.

We also do not agree with those commenters who believed that special
procedures are needed for states to adopt this rule. States and EPA
Regions are very familiar with the existing process and implement it
successfully.  In response to the commenter who was concerned about
incorrect state interpretations, we note  that where there exists a
concern about such interpretations, the Agency's practice is to work
with the individual state to resolve the issue in light of the
particular circumstances.  We do not believe a generic procedure would
be appropriate for highly variable situations.  Nor do we believe that
an "automatic" authorization process is necessary to expedite state
adoptions of this rule; we have no reason to believe that state
authorizations will be delayed. In response to the comment about HSWA
authority, the statutory authority upon which this rule is being
promulgated is not part of the Hazardous and Solid Waste Amendments of
1984 (HSWA). Therefore, the Agency cannot use HSWA authorities to
administer this rule.  However, as noted above, we intend to work with
states and encourage them to adopt this final rule as soon as possible.
In response to the commenter who suggested a clearinghouse to provide
information about the status of the rule in different states, the Agency
notes that we will be tracking state adoptions of the rule, and will
make that information available on EPA’s website. Interested parties
may also contact the relevant state agency or EPA Regional office.

In response to the commenter who mentioned state rules that are broader
in scope than this rule, we note that the Agency makes such
determinations on a case-by-case basis depending on the relevant facts
of the state and federal rules.  We therefore do not believe it is
appropriate to address this issue as a general matter in this final
rule. In response to the commenter who mentioned state policies that are
consistent with the ABR decision, we are unclear about the  commenter's
point. We believe that this final rule is consistent with all relevant
court decisions.  We do not agree that states are free to institute less
stringent RCRA rules on the grounds that the Agency has misinterpreted
those decisions.

We agree with those commenters who noted that uniformity in interstate
transportation may be desirable from a policy perspective, and, partly
for this reason, we are urging all states with authorized programs to
adopt this rule.  However, we are skeptical about the comments saying
that lack of uniformity is very likely to lead to environmental harm, or
to enforcement problems. We have no evidence that hazardous secondary
materials would be abandoned at a state border because they are more
strictly regulated in a contiguous state. Similarly, we have no reason
to think that differential state regulation of recycling is a major
factor in business decisions of generators and reclaimers, although it
may sometimes be one of many circumstances that are considered. In
response to the commenter who raised the possibility of enforcement
jeopardy if generators and reclaimers are located in states with
different approaches to this rule, we believe that generators will be
able to obtain the necessary information about states’ programs to
comply. As part of our outreach efforts, EPA will assist with providing
this information in an easily accessible way.

We do not agree with those commenters who said that we should continue
to require use of the hazardous waste manifest for hazardous secondary
materials being transported.  We do not believe that this manifest is
necessary for materials that are not discarded. The use of the manifest
to calculate state fees cannot enter into the Agency's decision about
whether use of the manifest is needed to demonstrate lack of discard. In
response to the commenter who suggested the convenience of return
copies, we note that this rule requires intermediate facilities and
reclaimers to send confirmations of receipt to generators. In response
to the commenter who said that this rule violates states' rights to
require a manifest, we note that if a state has enacted a legislative
requirement to adopt by reference rules promulgated by EPA, that state
has in effect voluntarily chosen to refrain from instituting more
stringent requirements.

In response to those commenters who objected to the use of a hazardous
waste manifest for hazardous secondary materials in states that do not
adopt this rule, we note that the Agency did not propose to change this
long-standing policy, in either the 2003 or the 2007 proposal.  Measures
to amend the policy are therefore outside the scope of this rulemaking.

We agree with those commenters who said that hazardous secondary
materials meeting the definition of a DOT hazardous material must be
transported in accordance with DOT requirements. We do not agree that
DOT rules prohibit the use of "state-only" hazardous waste in shipping
names. Such labels are allowed as long as they specify that it is a
state waste.

We do not agree with those commenters who suggested special manifests or
shipping papers for hazardous secondary materials being transported. We
believe the confirmations of receipt and recordkeeping for off-site
shipments sent and received that are required under this rule are
sufficient to assure that hazardous secondary materials were received by
the intermediate facility or the reclamation facility and not discarded.
 In response to the commenter who suggested operational standards for
recycling units, we note that such standards were not proposed either in
2003 or 2007, and thus are outside the scope of this rulemaking.  In any
event, we do not believe that operating standards for recyclers are
related to discard.

In response to the commenters who mentioned the land disposal
restrictions notice, we note that 40 CFR 268.7(a)(7) requires such
notices only when wastes are excluded "subsequent to the point of
generation.” Because the materials excluded under today's rule are
excluded from (what used to be) the point of generation, they are not
covered by these notices.

In response to the commenters who expressed concern about state
resources and enforcement of the requirements in this rule, the Agency
has full confidence in the willingness and ability of states to enforce
these requirements. In addition, assistance from EPA is available in
many circumstances.

12 - Administrative Rulemaking requirements

12.1 - EO 12866: Reg planning and review

12.1 - Summary

Potential Adverse Impacts

EPA received many comments on the need to assess potential adverse
impacts of the rule. Executive Order 12866 entitled Regulatory Planning
and Review (58 FR 51735, October 4, 1993), requires EPA to assess the
costs of significant regulatory actions both to health, safety, and the
environment and to government programs responsible for administering the
regulatory program. (The Executive Order does not differentiate between
"regulatory" and "de-regulatory" actions.) EPA has determined that the
proposed revisions to the definition of solid waste constitute a
significant regulatory action in that they are expected to have an
annual effect on the economy of $100 million or more. EPA is therefore
required to conduct a cost analysis, not only by the Executive Order but
also by the well-established principles of sound regulatory policy. The
commenters recommended that EPA consider and quantify to the extent
possible the following potential costs:

- increases in spills and other releases to the environment

- increases in human exposure to hazardous materials

- increases in misdirected, abandoned, and lost shipments

- the costs of ensuring compliance with and enforcing the exclusion

- the costs of investigating and stabilizing abandoned sites

- the costs of assessing and remediating contaminated sites

- the impacts to cost recovery under CERCLA section 107 and to the
Superfund   Recycling Equity Act of 1999

- the impacts to the corrective action program and 7003 enforcement
authorities

- impacts on other environmental programs

- impacts on the mixture and derived from rules

- impacts on traffic accidents

One commenter stated that several of the largest cost-savings cited in
the Economic Assessment of the 2003 Proposed Rule are for training,
testing and disposal costs. The reduced testing and hazardous waste
disposal costs suggests there will be less assurance that residual
secondary materials will be adequately tested to determine if they are
hazardous.  The commenter believed that wastes formerly sent to secure
landfills may now be disposed of at other facilities where there is less
monitoring to ensure there is no impact to the surrounding communities
and groundwater. Reduced training of workers represents increased risk
during handling and transport of exempted hazardous materials, because
untrained workers are often involved in accidental or deliberate
releases to the environment, without knowing the activity was improper.
A large percentage of the hazardous waste transported through the state
would move to exempt status and reduced oversight, with the increased
risk of taxpayer liability for future environmental cleanups.  One
commenter provided specific examples of environmental damages from
recycling.

[0067-13, 0095-1, 0095-19, 0095-22, 0095-22, 0098-46, 0119-62, 0119-63,
0119-77, 0130-1, 0172-22, 0193-1, 0193-2, 0231-58, 0231-59, 0231-61,
0231-62, 0231-63, 0231-64, 0343-6, 0343-7, 0548-25, 0548-27, 0558-51,
0558-520559-2, 0559-16, 0559-99, 0561-4]

Impact of Codifying Legitimacy

One commenter asserted that the ambiguous wording and the absolute
nature of EPA criteria numbers 1 and 4 could discourage long-standing
legitimate recycling that takes place in the precious metals industry.
This would result in the loss of enormous revenues derived by precious
metals producers from the recovery of gold and other metals from their
secondary materials and lead to the incurrence of enormous costs to
dispose of these valuable secondary materials.  EPA has not in its
October 28 Proposal sought to analyze these costs and lost benefits.
they submit, however, that such an analysis was done in connection with
EPA's promulgation of the Phase IV LDR rule in 1998 (including the
promulgation of 40 C.F.R. § 261.4(a)(17)), and EPA there concluded that
recycling of these metal-bearing secondary materials was entirely
legitimate and appropriate.

[0089-4]

Onsite Recycling Overestimated

Several comments to the 2003 proposal disagreed with EPA's analysis of
potential increases in intra-industry recycling.  One commenter
disagreed with EPA's assumption that the generating industry is the best
equipped to handle and reclaim secondary materials that it produces. The
commenter believes that facilities within an industry are likely to
produce very similar secondary materials and if they cannot recycle them
in an already permissible, closed-loop method, they are unlikely to be
able to recycle them at all.  It is much more likely that a different
industrial operation, with needs for input material different from that
of the generating industry, will find a use for the output of the
generator.  For example, pharmaceutical manufacturers (NAICS code 3254)
submit that the Agency assumptions used in the Economic Assessment
regarding their industry sector are not correct.  Because of the US Food
and Drug Administration's (FDA) regulatory food/drug purity
requirements, all of the potential secondary materials identified by the
Economic Assessment for reclamation within the industry are prohibited
from being recycled for pharmaceutical use unless extensive testing and
FDA approval is granted. The Economic Assessment did not include this
cost, which would easily diminish the estimated $ 57,330 per affected
facility (124), or $7,108,920 savings (see Table 6-27 in the Economic
Assessment) attributed to this industry sector. These costs would not be
incurred if these materials could be moved to other industries (outside
pharmaceutical manufacturing) for recycling.

The commenter also disagreed with the assumption that generator
facilities will create industrial operations, not linked to their
existing operations, to process and reclaim secondary materials in a
continuous process.  In actuality, like all industrial processes,
reclamation is cost effective only with certain economies of scale.
Thus it is more likely that a company in another industry will have the
expertise and industrial infrastructure to reclaim significant secondary
materials from a different generating industry.  For example, chemical
operations generate secondary metals in catalyst production, but no
chemical plant is likely to build a metal processing, beneficiation or
smelting operation to address its material flows.  It is more likely to
seek out a company in the metal processing industry that also accepts
and reclaims the secondary materials that others in its generating
industry generate.

Another example might involve a large company generating many different
spent solvent streams at many U.S. sites.  While at some sites the
volume and quality of spent solvents justifies the expense of installing
on-site reclamation facilities, at most sites, the volumes would be too
small to justify the capital investment required to reclaim these
materials.  It is more likely that the materials would be sent off-site
for commercial reclamation.  Removal of the RCRA regulatory barriers
from these streams will not change the economics such that reclamation
facilities will be built on site.  However, it may make the economics
more favorable for commercial reclamation instead of disposal by
lowering the transportation and management costs now associated with
handling the material as a hazardous waste.

[0093-24, 0093-25, 0112-10, 0203-8]

Conversion of LQGs to SQGs Unlikely

Some commenters asserted that EPA's analysis is based on a false
assumption that most large quantity hazardous waste generators will
become small quantity generators because of the regulatory changes and
thus experience significant relief. The commenters do not expect this to
happen in their operations.  This is because the regulatory proposal is
too narrowly scoped to accommodate a significant increase in reclamation
of secondary materials, and because the volumes of secondary materials
produced are such that the small quantity generator status will not be
attainable at most facilities. [0093-26, 0119-70, 0203-8]

Impact on State Fees

Some commenters noted that the proposed rule could have an indirect
impact on state fees. For many states like Maine that collect fees on
hazardous waste, the result of the proposal will be a reduction of
revenue needed to perform these cleanups.  The problem will be
exacerbated by a framework of reduced oversight and tracking, which will
make it very difficult to discover problems until impacts have occurred.
Prior experience has demonstrated that the expenditures required for
prevention of releases are less than those required for remediation.
The commenters believe that the offsite recycling options should not be
proposed without a thorough evaluation of the environmental and
financial costs of this proposal.   For example, typical wastes that may
be recovered in Maine include F-listed solvents, liquid acid wastes, and
F006 metal waste. Based on 1999 manifest records these wastes represent
8.1, 3.1 and 3.5 % respectively, for a total of 14.7% (by weight) of the
total waste shipped and of the shipping fees collected. The percentage
increases to a total of 28.7% (by weight) of total waste for solvents
and spent acids when the 1999 Biannual Hazardous Waste Report figures
are used.  Exempting these sectors alone could represent a significant
reduction in funding for Maine's program and curb our ability to oversee
compliance and provide technical assistance.

Once commenter noted that the January 22, 2007 Economics Background
Document, Regulatory Impact Analysis, in Chapter 9, page 173, comments
on state programs.    It noted, "At the same time, certain state
government hazardous waste programs may have reductions in program
revenues from collected taxes and fees.  Transfer payments are not
treated as social costs when estimating the total cost and benefits of
the proposed rule because they reflect redistribution of income/wealth
and not the social value of a good or service (i.e., resource)."  The
commenter thanked EPA for considering the impact on the state programs.

[0095-1, 0095-22, 0488-8]

Impacts on Printed Circuit Board Industry

One commenter states that EPA has overestimated the benefits of the
proposed rule on the printed circuit board industry.  The commenter
believes that significant errors in the underlying assumptions render
the results extremely questionable. In evaluating recycling and recovery
costs for metals containing liquid wastes generated by the printed
circuit board industry, EPA incorrectly assumed that copper is the
primary metal recovered. A thorough examination of metal containing
liquids shipped off-site for recycling and reclamation from the printed
circuit industry would reveal that a significant portion is comprised of
nickel and tin-bearing liquids. Casual examination of the receivers and
secondary receivers reveals that a significant portion of the identified
streams are sent to tin, lead, and nickel recovery operations such as
ECS Refining Texas LLC and Envirite Inc. Most on-site precipitation
recovery systems are equipped to handle copper based solutions, but have
difficulty with concentrated nickel and tin solutions, particularly when
combined with chelating agents or fluorides. Facilities desiring to
undertake on-site recovery of chelated nickel and tin solutions would
face technical challenges in addition to the effort needed to separately
package, label, store, and ship these additional metals.  The 2003
economic assessment's analysis of facility impacts for major industry
groups also appears to have mathematical errors. The printed circuit
board industry (NAICS 334412) is identified again on page 6-1 as a major
beneficiary of the proposed rule. Table 6-27 lists NAICS Code 3344 as
having 464 facilities affected with annual average savings of $24,860
per facility. Yet clearly this aggregate industry benefit of $11.5
million far exceeds the benefits ascribed to this industry sector
(identified both by NAICS 3344 and SIC 3672) in Tables 5-20, 5-21, and
5- 22 ($527,843, $2,884,000, and $254,000, respectively). It is unclear
as to the source of the additional benefits.

[0112-11]

Impacts on Recycling Infrastructure

Some commenters stated that the proposed rule may have a negative effect
by undercutting the existing recycling infrastructure. While EPA's
economic assessment identified potential economic and environmental
benefits through increased onsite recycling of secondary materials that
are currently managed offsite, the commenters asserted that the analysis
failed to consider the potential adverse economic impacts on existing
recycling and reclamation facilities. As current recycling and
reclamation facilities lose access to significant streams of valuable
secondary materials and feedstocks, many recycling operations will no
longer prove economically viable. For many recycling operations, the
result of this economic pressure will be to either raise prices for
handling materials or close their doors. This is unfortunate, as
recycling businesses, which have recycling operations as their core
business activity, may be the most qualified to efficiently and safely
recycle many secondary materials. Furthermore, as recyclers exit the
business, the lack of competition and geographic availability will
result in increased costs for generators. Consequently, fewer materials
will be recycled and more materials will be permanently disposed of in
landfills.

Although economic assessments do not generally evaluate the impact of
deregulatory proposals on those companies that provided the no-longer
required services, they believe the Economic Assessment should do so in
this case. There is a point, well above zero, where the volume of
remaining hazardous waste does not justify the infrastructure and
operating costs that private enterprise expends to meet the Subtitle C
requirements. This impact should be part of this economic assessment.
When this impact is evaluated, EPA will see that the lost capacity and
jobs will far exceed the savings predicted from this rule.

[0112-12, 0117-76, 0146-12, 0548-5]

Analyze Impact of Excluding All Legitimately Recycled Materials

One commenter suggested that EPA should conduct an analysis to quantify
the potential economic and environmental benefits of a rule that
excluded from RCRA all legitimately recycled materials. [0112-15]

Additional New Recycling is Likely to be Small

Some commenters noted that that the amount of new recycling induced by
the rule is estimated to be small.  Although EPA implies that current
regulations discourage recycling and that the proposed rule is needed to
"encourage safe, beneficial recycling of hazardous waste," the Agency's
own Economic Assessment that was conducted to support the proposed
rulemaking indicates that 597,000 tons of metal bearing waste and
268,000 tons of solvent waste are already being recycled by industry.
According to the assessment document, the proposed rule will only
"encourage" the recovery of an additional 3,000 tons of metal bearing
waste and 12,000 tons of solvent waste. This represents an additional
0.5% and 4.5% of metal-bearing and solvent waste, respectively, that
will be recycled.  The commenter states that the quantity of additional
recycling that may occur is insignificant when compared to the potential
impact on the environment that the removal of protective controls will
have.

[0117-4, 0119-68]

Volume Error in 2003 Regulatory Impact Analysis

Some commenters stated that the 2003 economic assessment is flawed in
that the base assumptions on which it is constructed are entirely
erroneous, arbitrary and biased. The fundamental assumption made by EPA
is that the differential in waste volumes recovered in 1997 versus 1999
is a measure in some way of the wastes that can potentially be exempted
under this proposed rule.  EPA makes the following statement at the
outset of the Economic Assessment: A total of 1,749 plants recovering
approximately 1,570,000 tons either on site or within the same Industry
Group may benefit from the exclusion from RCRA jurisdiction.  Yet there
is no logical or factual basis given to support this volume, which is
based entirely on a delta between 1997 and 1999 reclaimed volumes,
followed by unsubstantiated assumptions that wastes currently landfilled
and/or treated will be recovered as a result of this rule.  In addition,
905,000 tons of the cited 1,570,000 tons (58%) is already being recycled
on-site and off-site, yet the economic analysis treats this as if it
were a new volume of waste gaining the economic advantages of being
recycled. In addition, a large amount of waste volumes are eliminated
from the 1999 data set, but not from the 1997 data set, arbitrarily
inflating the 1997 to 1999 delta on which the analysis is based.
[0119-63, 0119-64, 0119-66, 0231-20, 0231-65]

Statistical Treatment of Outliers in 2003 Analysis

One commenter objected to how EPA's 2003 economic analysis dealt with
outliers.   The commenter believes that the methodology was stacked in
favor of biasing the 1999 volumes recycled to a lowest value.  A
statistical outlier analysis was done on the 1999 data simply based on a
criterion of two standard deviations.  This is not a valid statistical
outlier test, as can be seen from any statistical text. A valid test
would have been based on a Student "t" test or another test like
Rosner's Test or the Shapiro-Wilk Test.  Several other tests can be
found in the reference: "Outliers in Statistical Data," by Barnett and
Lewis (1984, Wiley, New York).  By using an arbitrary criterion of 2
standard deviations, a method that is not even considered a valid
outlier test, EPA eliminates over 60% of the volumes from the 1999 data.
Keep in mind that the economic analysis is predicated on showing a lower
volume of recovery in 1999 versus 1997, so a biased approach would
attempt to deflate 1999 volumes in any way possible.  Eliminating 60% of
the volumes for 1999 would certainly work in favor of biasing the data.
If EPA did the same outlier analysis with the 1997 data, this would help
keep some level of credibility in the analysis.  However, for no clear
reason, they did not.  No statistical outlier approach or any outlier
adjustment was assigned to the 1997 data.  Instead, EPA states on page
3-6 "a more abbreviated QA/QC was conducted" on the 1997 data. This
QA/QC consisted of merely looking at records with incremental cost
savings above $500,000: a completely different QA/QC criterion than was
applied to the 1999 data. What is the significance of $500,000?  Why not
$100,000 or $50,000? EPA just picks a number.  The result is that only
15 records were eliminated for QA/QC for the 1997 data, versus 111 for
the 1999 data treated in a totally different fashion. [0119-65, 0119-66,
0119-67, 0231-65]

Other Technical Comments on 2003 Analysis

Commenters provided additional detailed technical comments on the 2003
economic analysis.   For example, a savings of $1.49 million is assigned
to "one-time contingency plan."  The commenter had two issues with this.
 First, if the generators are currently regulated, this "one-time" plan
is already done.  Secondly, generators have other similar requirements
to complete emergency response plans under EPCRA and other local laws.
No savings should have been assigned for this item.  Likewise, EPA
assigns a savings of $42.3 million to waste characterization testing.
Yet few generators use laboratory analysis to characterize their waste,
relying instead on "process knowledge" which is allowable under RCRA.
In addition, any testing that is done is usually performed once until
such time that a process changes.  Finally, this savings assumes that
the generator will no longer need to characterize their waste. This
hopefully is wrong, as any off-site or on-site reclamation operator will
need to know the waste characteristics in order to properly manage the
secondary material.  In fact, it is more probable that waste
characterization testing will need to be increased in order to ensure
that the feed materials to a recovery process are compatible with the
process and to confirm the presence of recoverable constituents at
proper yields.  Therefore, no savings should be assignable to waste
analysis.

Another cost factor the commenter believes was inappropriate to assume
is hazardous materials and manifest training. The EPA analysis assumes
$5.7 million savings for hazardous materials and manifest training. This
is wrong for two reasons. First, it is predicated on the assumption that
the generator’s plant has no other hazardous materials or hazardous
waste that will need to be manifested. In reality, there will likely be
other wastes and hazardous materials, and the incremental cost savings
for the exempted waste are insignificant once the training for
non-exempted hazardous materials and waste is done.  (In addition,
manifests will be required for any shipment entering a state which has
not adopted the features of this rule, undermining still further the
alleged cost savings caused by the rule.) Secondly, the costs are highly
inflated and insufficient information is provided to justify where such
a number came from.  No savings should be assignable to these two items.

The commenter also asserted there are additional flaws to the 2003
analysis, including (1) underestimating of cost of residuals management,
(2) the on-site recycling technologies assumed are capital intensive and
have high operating costs, and (3) no costs are assumed related to other
air permitting issues associated with technologies like smelting,
fractional distillation, carbon regeneration, acid regeneration and
fluoride recovery.  These technologies are significant sources of air
emissions, and air permitting operating controls, testing and other air
permit compliance has not been accounted for.

The commenter also notes that the technologies, which EPA assumes will
be applied to the exempted waste, consist of HTMR, the HIsmelt process,
secondary smelting, fractionation/distillation, acid regeneration,
carbon regeneration, and ion exchange for aqueous wastes. In addition,
fluoride recovery using the Vortec Technology is assumed for spent
aluminum potliners. The capital costs of design and construction of
these units on-site are estimated in the EPA analysis, but the estimates
appear low.  Most importantly, the commenter had trouble seeing where
the capital costs are included in the analysis.  For a company to build
a reclamation or recycling system as EPA predicts, the biggest question
is whether the up-front capital expenditure will be invested.

The commenter believes that information on which technologies would be
used for recycling and the break-even points that EPA estimates appear
questionable and provided several specific examples.  The commenter also
asserted that there is no analysis of the cost or environmental impact
of residues of these processes. Using EPA's estimate of 15% zinc
(average), this would mean that the remaining 85% of residues would have
to be dealt with somehow.

The commenter also asserted that the salvage values for secondary sale
of recovered materials on page 5-30 appear to be high, and the 90%
purity factor applied by EPA is also high.  These salvage values were
mostly extracted from a reference document called the London Metals
Exchange published in the UK.  The commenter said EPA should instead
survey actual U.S. data from cases where recovered solvents and metals
are sold, and survey actual purities and provide specific examples.

[0119-69, 0119-70, 0119-71, 0119-72, 0119-73, 0119-74, 0119-75, 0193-3]

Physical/Chemical Properties of Wastes

One commenter stated that there was no engineering judgment or waste
characteristic considerations applied to the EPA analysis and that EPA
did a "desk top" analysis looking at BRS numbers and made assumptions of
industry sectors that if X% was recovered in one year from a given NAICS
code, than maybe another X+N % would be recoverable under this rule.
There was no engineering judgment or waste characteristic consideration
applied to the EPA analysis.    The commenter asserted that of the
596,000 tons that is traceable and not being recovered currently
according to the 2003 analysis, 183,000 tons is being managed by energy
recovery.  In addition, 266,000 tons is being managed in aqueous
treatment systems.  There is no reason to believe that generators will
be encouraged to shift the management practices for these types of
wastes.  The aqueous inorganic treatment already realizes RCRA
exemptions associated with the wastewater treatment exemptions.  In
addition, wastewater streams are often dilute and do not contain
significant quantities of recoverable constituents.  It is therefore
doubtful that any of this volume will go to recovery.  Likewise, the
volumes currently managed by energy recovery are being done so at a
savings and also as a recycling practice.  Many states and TRI view
energy recovery as recycling.  There will be little incentive for
generators to switch their management practices and invest capital in
alternate recovery processes for these streams.

In addition, other than the BTU value, these wastes contain few
components that have recovery value, which is why they are managed by
energy recovery or fuel blending currently, as opposed to solvent
recovery.  The average solids content of fuel-blended waste is about
30%, and many cement kilns are feeding other higher-solids content waste
through pails or coal injection systems.  In addition, many fuel-blended
streams have substantial water content and other organic liquid
components that form azeotropes and are not amenable to solvent
recovery.   At most, 50,000 tons of this volume might be routed to other
recovery, but even this is doubtful. Therefore the aqueous 266,000 tons
and 133,000 tons of the energy recovery wastes should not be included in
the 596,000 tons, making the total adjusted EPA assumed potential
recovery portion 197,000 tons.

Of this remaining 197,000 tons, 48,600 are currently incinerated.  Such
wastes tends to be high in solids content and to have no recoverable
constituents.  Very little of this volume should be assumed to be
amenable to recovery.  This leaves about 100,000 tons that is stabilized
and landfilled.  Likewise, EPA has assumed too high a percentage (60%)
as being amenable to some form of recovery.  Wastes such as F006
hydroxide sludges have mixture of metals and it is not economical to
recover them.  At most potential 50,000 tons of landfill waste and
50,000 tons from the above energy recovery sector may be amenable to
recovery under this proposed rule.  This makes the net impact 100,000 to
150,000 tons, not 1,570,000 tons as assumed by EPA.  The approximate
number of facilities impacted is potentially 100 to 150, adjusting for
the proportional volume.

Another commenter provided detailed information on potential recycling
of materials used in electronics manufacturing, including electroplating
sludge sent to etchant suppliers, spent cupric chloride etchant used in
the manufacture of copper hydroxide fungicides, copper sulfate and
tribasic copper chloride for use as mineral supplements in the hog and
chicken feedstock industries, and copper oxide for the pigment market as
well as for the treated wood industry.  In addition, The ammonium
chloride portion of spent ammoniacal etchant (also used to remove copper
from printed circuit boards) can be recycled by chemical
suppliers/manufacturers into new etch solution and returned to the
electronics industry.  The copper constituent is incorporated into
copper sulfate, copper oxide, and a variety of other specialty
formulations as discussed above.

Other spent plating baths, such as electroless copper, electroless
nickel, and gold can be reclaimed by suppliers or other chemical
processors.  Spent cyanide baths, which contain gold, are a listed RCRA
waste (F007), thereby requiring shipments of mainly gold baths on
hazardous waste manifests. Any precious metals are typically recovered
by chemical suppliers/ manufacturers and returned to the market.  High
chloride micro-etches can be sent to a mine as a feedstock to the mining
process.  Solder dross, a byproduct of the soldering process, is sent
back to the solder manufacturers and returned to electronics facilities
and other solder users.  Sludge from the stencil wash evaporator process
can also be sent to the solder manufacturer for reclamation and would be
done more frequently under less burdensome regulatory schemes.  Copper
containing drill dust (approximately 10 percent copper) and edger dust
(20-25 percent copper) generated during the manufacture of PCBs is
generally not recycled because of the high cost of shipment as compared
to landfill disposal. Under the Supplemental Proposal, this secondary
material could be easily combined with copper containing sludge for more
efficient shipment and recycling.

Another commenter provided an example of an inter-industry manufacturing
chain that has been significantly hindered by the current regulatory
system. The primary manufacturing process for vanadium production in the
U.S. is to adsorb raw vanadium from oil, extract the vanadium from the
adsorbent, and produce vanadium products. This sequence of processes
occurs at multiple industry sites as do many manufacturing chains today.
However, since the adsorbent was also considered to be "spent" in its
function as a petroleum catalyst, it was listed as a hazardous waste
whether or not it was disposed or processed in the vanadium
manufacturing chain. The result of the listing has been that the
manufacturing chain became uneconomical for many vanadium sources and
the adsorbent containing raw vanadium has been increasingly disposed of
as hazardous spent catalyst (K172). Under EPA's proposal, the commenter
believes the adsorbent containing vanadium would not be considered a
waste when processed in the vanadium production chain. Thus, EPA will
reverse the negative consequences of the listing with its proposal to
clarify when a material is not a waste. Over time they anticipate more
material containing vanadium will leave the disposal stream and enter
the manufacturing chain. The commenter believes this is but one example
demonstrating the value of this proposal.

 [0119-67, 0458-8, 0458-9, 0464-3]

Cost Saving Underestimated

Some commenters believe that the EPA has greatly underestimated the
potential benefits, both environmental and economic.  While it may not
be possible to quantitatively measure expected benefits from a complete
change in the landscape of materials use, it is important to recognize
that the potential and likely benefits of the Supplemental Proposal far
exceed those identified in the Regulatory Impact Analysis (RIA).
Because the RIA focused only on the impacts that could be predicted from
existing RCRA biannual reporting, it underestimated the full potential
of the Supplemental Proposal.  The RIA failed to include both the wastes
generated by Conditionally Exempt Small Quantity Generators (CESQGs),
which are exempt from reporting, as well as many waste streams that are
not currently recycled but could be under a broader, more competitive
recycling marketplace made possible by the Supplemental Proposal.

Another commenter stated that the economic benefits to the specialty
batch chemical manufacturing industry will exceed the projections in the
background documents for the Proposed Rule.  Furthermore, assessing the
aggregate economic impact does not necessarily measure the incremental
benefit that the Proposed Rule will have on smaller businesses.  Even
small cost savings on individual production runs can be very
significant, given the relatively smaller profit margins in the
specialty batch chemical manufacturing sector and the significant
foreign competition that U.S. industry faces in this essential
manufacturing sector.

Another commenter provided specific examples of why the rule would be
likely to increase recycling of K061 more than estimated.

[0458-7, 0471.2-4, 0471.2-25, 0529-32]

Include Incineration in Baseline Costs

One commenter requested that EPA consider the cost of incineration in
the baseline.   Both due to general bans on liquid in landfills and due
to the need to consider actual industry practices in order to have an
effective impact analysis, it is important to note that the relevant
industry disposal cost and disposal practice is incineration. The
current costs of incineration of waste solvents can be particularly
significant for small businesses and small sites.  Smaller businesses
have little leverage with or access to the larger reclamation
facilities.  In addition, absent use of a closed-loop system, this type
of reclamation cannot currently be conducted in-house absent a RCRA
permit.  In addition, smaller facilities often bear comparatively higher
transportation costs because transporters are less willing to manage
small volumes of hazardous wastes.

Overall, the cleaner a waste solvent is the more value it has either for
subsequent use and application as a solvent or for energy recovery.
Thus, the ability of a toll contractor to use existing equipment to
reclaim even smaller volumes of solvents from toll manufacturing
operations is economically a meaningful option to pursue.  Relatively
cleaner solvents also typically have a higher BTU value and hence can
have greater value for energy recovery.  Under the best scenarios, for
relatively cleaner solvents, sites may pay $0.25/gallon for local
incineration and up to 0.50 dollar/gallon if the material has to be
transported 1,000 miles.  This converts to about 0.24 dollar/lb and 0.48
dollars/lb respectively.  The incineration prices increase from those
levels, based on percent water, halogen or other constituents that may
be present in the solvents.  For example one member has an incinerator
cost of $1.80 per gallon of waste stream, where transporting a full
tanker truck to an incinerator would cost 2,050.00 dollars.  Other
members have full tank load costs of up 2,640.00 dollars to an
incinerator.  Considering the number of waste streams a specialty batch
chemical manufacturer may produce, and the fact they will have to pay
the cost of a full load to have the waste leave their site within 90
days, an ability to use existing equipment to reclaim these solvents can
make a significant difference in terms of handling costs and options for
the solvents. [0471.2-26]

Consideration of Transport Costs

One commenter stated that concept that increased recycling would spur
the growth of the recycling infrastructure and therefore, contribute to
the reduction of the distance that these hazardous materials must be
transported fails to consider that in some instances over capacity for
certain forms of reclamation exists already, and that generators who are
recycling for reuse likely will continue to ship their materials long
distances because of the preference for the quality of the product they
are accustomed to receiving from the facilities that have been providing
such products for years and have the institutional expertise to work
closely with generators to produce such quality. As with any consumer,
generators purchase not only on price but also on the reclaimer's
ability to meet their specifications.   This commenter believes that the
mishandling that this rule invites, as proposed, associated with poor
quality recycling or poor facility management by potentially
ill-prepared entrants, will eventually be self-correcting resulting in
the best operators ultimately acquiring a larger share of the market,
and the startups that could not meet generator expectations will litter
the landscape as reminders of bad policy, some, however, possibly may
have contributed significant environmental damage during that process to
be discovered now or in the future. [0479-15]

Impacts to the Cement Kiln Recycling Industry and to Energy Recovery

One commenter had extensive comments on their concerns about impacts to
the cement kiln recycling industry and to energy recovery.  The
commenter identified eight areas in which they believe the supporting
analyses for the proposed DSW rule do not fully address its potential
adverse consequences. They believe that EPA, if it were to fully analyze
these consequences, might wish to reconsider the options selected in the
supplemental proposal in order to reduce the impact on energy recovery
at cement kilns and avoid some of the negative consequences.  The eight
areas are:

1. EPA incorrectly assumes that the revised definition of solid waste
will not affect the volume of hazardous wastes going to cement kilns for
energy recovery.

2. EPA lays out a "worst case" scenario for cement plants, but
underestimates the potential for this "worst case" to occur as well as
the magnitude of its impact.

3. EPA does not consider the joint impact with another recently proposed
EPA rule -- the Expansion of the RCRA Comparable Fuel Exclusion -- that
will also reduce energy recovery at kilns.

4. The cost of the additional coal that cement plants will burn as a
result of the DSW rule is a real resource cost, not a "transfer effect,"
and as such should be counted among the costs of the rule.

5. There are health and safety impacts associated with the increased use
of coal that should be considered.

6. EPA should complete an analysis of the lifecycle impacts of diverting
waste solvents from cement kilns to other kinds of recycling.

7. EPA has not quantified the degree to which the proposed rule may
cause increased mismanagement of waste or sham recycling, and has not
estimated the impacts if this occurs.

8. EPA has not evaluated the adverse consequences if some states do not
adopt this rule.

The commenter discussed each of these points in detail.  First, the
commenter outlined the shift in hazardous waste management - away from
energy recovery in cement kilns and toward other forms of recycling -
that they expect would occur if the proposed rule were promulgated.

Fourteen cement plants currently burn for energy recovery some 1 - 1.2
million metric tons per year of hazardous waste-derived fuels (HWDF).
This beneficial waste management practice is highly regulated.  The
cement plants procure this HWDF in a variety of ways, from a variety of
sources.  Some plants contract with independent fuel blenders who
acquire wastes from generators and blend it to the plants'
specifications; other plants perform the fuels management function
themselves and acquire the wastes directly from generators as well as
from independent fuel blenders.  The typical Btu content of the HWDF as
fired in the kilns is between 10,000 and 12,500 Btu/lb, with regulated
metals content of less than 2 percent, halogens at less than 3 percent,
and moisture content of less than 25 percent.  The composition of
individual waste streams that comprise the eventual HWDF burned in
kilns, however, can diverge substantially from this overall as-fired
average.  Individual waste streams that eventually become a part of the
HWDF may have lower Btu content and higher metals, halogen or moisture
content.  In general, waste streams that are not directly usable as fuel
in cement kilns (i.e., because they have lower Btu content, higher
metals, halogen or moisture content, or do not have the necessary
physical characteristics) may be accommodated as part of the HWDF if
they are blended with a sufficient quantity of waste streams that have
higher Btu content, lower levels of impurities, and appropriate physical
properties, resulting in an acceptable average quality for the HWDF
as-fired. Kiln operators and/or their fuels managers charge fees for
acceptance of different waste streams that reflect their relative
utility as components of HWDF - lower prices, for example, are charged
for high Btu, relatively "clean" waste solvents, and higher prices are
charged for lower Btu wastes with higher levels of impurities or that
have difficult physical properties (e.g., higher solids content, higher
viscosity, or are non-pumpable).  Kiln operators manage their tipping
fees ("price sheets") and fuel acquisition efforts to obtain a mix of
wastes that enables them to meet their overall HWDF quality and quantity
requirements.

Because EPA has not chosen to apply the deregulatory provisions of the
proposed DSW rule to wastes that are burned for energy recovery, the
commenter expects that the proposed regulation will encourage competing
forms of recycling and draw away from kilns the particular sorts of
waste streams that are most valued by the kilns as components of their
HWDF.  EPA provides estimates in the RIA suggesting that organic liquids
(primarily spent solvents) is the waste type that will most extensively
be shifted by the proposed rule from disposal to recycling.  Spent
solvents, particularly those that have high Btu content and that are
minimally contaminated with metals, suspended solids and water, are
especially desirable as blending stock for the production of HWDF for
cement kilns.  Most of the characteristics of these wastes that make
them desirable for use in kilns also make them prime candidates for
other forms of recycling such as solvent recovery and reclamation.  A
regulation that materially reduces the cost of solvent recycling will
shift the terms of this competition, drawing spent solvents away from
kilns.

Because kilns need to maintain a certain quality in their as-fired HWDF,
a loss to kilns of high Btu, relatively "clean" solvent wastes will mean
that kilns can no longer accept some amount of other, lower Btu, less
"clean" wastes.  These lower Btu wastes still have recoverable energy,
but the opportunity to recover this energy will be lost if the high Btu
waste streams are diverted from cement kilns to other types of
reclamation processes.  Loss of higher quality solvent wastes from kilns
to other recyclers thus has a leveraged effect - the commenter estimates
that one ton less of solvent waste available to kilns for HWDF likely
means that kilns will burn roughly two fewer tons of total wastes; they
will no longer burn both the ton of solvent waste and the ton or so of
other, less desirable wastes that would have been burned had the solvent
waste been available.

Cement kilns realize two major benefits from burning HWDF.  They are
typically paid a tipping fee for accepting the waste, and the energy
content of the waste when burned in the kiln reduces the amount of
fossil fuel energy (nearly always from coal) needed in their production
process. Various costs partly offset these benefits: the kiln operator
will incur costs to acquire the waste (e.g., sharing the tipping fee
with a HWDF fuel blender/manager), costs to manage hazardous wastes as a
RCRA-regulated facility, and some costs in terms of reduced production
efficiency (e.g., a "clinker penalty").  In terms of environmental
impacts, burning HWDF will typically substantially reduce a kiln's
emissions of NOx and SO2 compared to kilns that do not utilize HWDF, and
will leave emissions of other air pollutants and generation of solid
waste relatively unchanged.

The commenter is concerned about both the negative financial and
environmental impacts that the proposed DSW regulation will cause as
some of the most desirable wastes are shifted away from energy recovery
at kilns.  Recovering the energy content of hazardous wastes in cement
kilns has substantial environmental advantages relative to other means
of managing the wastes and relative to other means of meeting cement
kilns' energy needs. The commenter estimates that the cement kiln
recycling industry has invested hundreds of millions of dollars in
meeting regulatory requirements as permitted RCRA storage facilities
that also comply with the Maximum Available Control Technology (MACT)
standards under the Clean Air Act.  If they are to remain in this
business and provide the associated environmental and energy advantages,
the cement companies that burn HWDF must acquire and use a sufficient
amount of suitable wastes to cover the continuing costs of meeting these
regulatory requirements.  The leveraged impact of the proposed
regulation - shifting some of the highest quality hazardous wastes away
from energy recovery and thus also reducing the quantity of other
hazardous wastes that kilns will burn - may jeopardize some kilns'
continuing participation in this activity.  EPA should thoroughly
analyze the degree to which the proposed rule will shift wastes away
from energy recovery in cement kilns, and the economic, environmental
and health impacts that will result.

The commenter discussed in detail each of the eight concerns about
impacts on the cement kiln recycling industry identified earlier in the
comment.

1. EPA incorrectly assumes that the revised definition of solid waste
will not affect the volume of hazardous wastes going to cement kilns for
energy recovery.

If this important effect were properly evaluated in the RIA, it could
significantly affect the Agency's choice among regulatory options. The
RIA assumes that energy recovery at cement kilns will be unaffected by
the DSW rule.  EPA's basis for making this assumption is incorrect, and
EPA's analysis in the RIA appears to suggest the opposite -- the DSW
rule likely will adversely affect energy recovery at cement kilns.  As a
consequence of this incorrect assumption, the RIA fails to evaluate a
wide range of adverse impacts that will result from reducing energy
recovery at cement kilns.  These unexamined impacts would likely have a
material impact on the relative desirability of the various regulatory
options being considered.

EPA assumes that the DSW rule will not lead to any shift of hazardous
wastes from energy recovery at cement kilns to other forms of recycling:

"this RIA excludes from the baseline…waste quantities currently
managed by energy recovery…and fuel blending….assuming that wastes
currently (pre-rule) managed by these two methods will continue post
rule," (USEPA OSW, "Regulatory Impact Analysis for USEPA's 2007
Supplemental Proposed Revisions to the Industrial Recycling Exclusions
of the RCRA Definition of Solid Waste." January, 2007. Page 132.).

Because the Agency simply assumes that such a shift will not occur, the
RIA analyzes neither the magnitude of such a potential shift nor the
environmental impacts of such a potential shift.  EPA assumes there will
be no such shift despite the fact that "… the RIA acknowledges that
… there could be economic incentive under the DSW options to induce
switchover from energy recovery and fuel blending to recycling," (USEPA
OSW, DSW RIA.  Page 132.).

Clearly, generators will tend to select the lowest cost option, and a
deregulated reclamation facility has much lower compliance costs than a
highly regulated permitted cement kiln operation.  As is recognized by
EPA, the DSW options will create an economic incentive to shift wastes
from energy recovery to deregulated reclamation.

EPA's rationale for assuming that the DSW proposed rule will not cause
wastes to shift from energy recovery to recycling is apparently the high
energy prices in recent years:

References that EPA cites on page 167 of the RIA ("see item 5A, 5B and
5C in 'Step 5' of Section 2E, and Section 5B") in an explanation for the
expectation that the cement industry would not suffer adverse effects
from the DSW rule are incorrect and not relevant.

"RCRA solvents currently disposed for fuel blending and energy recovery
are not expected to shift to solvent recycling under the DSW rule
(because of US market conditions favorable for waste-to-energy systems
the last couple years …)," (USEPA OSW, DSW RIA.  Page 17.).

However, the high energy prices that increase the attractiveness of fuel
blending and energy recovery also cause solvent recovery to be
increasingly attractive for waste solvents.  The price of solvents is
high when energy prices are high due to the high cost of petrochemical
feedstocks used in making the solvents.  High solvent prices mean high
value for solvents recovered from recycling; high energy prices thus
boost the economic competitiveness of recycling as an alternative to
energy recovery as a means of managing waste solvents  (EPA indicates
that the price of the recovered materials represents a primary driver of
any recycling market.  USEPA OSW, "A Study of Potential Effects of
Market Forces on the Management of Hazardous Secondary Materials
Intended for Recycling." November, 2006).  Or, as EPA states succinctly:

"Demand for recycled solvent … is largely dependent on the petroleum
market: because virgin solvent is made from petroleum products, high
petroleum prices encourage solvent recycling," (USEPA OSW, DSW RIA. Page
99.).

High energy prices increase the attractiveness of both energy recovery
and recycling as competing means of managing waste solvents.  It is not
clear to us why the RIA concludes that high energy prices would make
energy recovery so economically preferred that a reduction in the cost
of other types of recycling, as will result from the DSW rule, will have
absolutely no impact on this competition.

Analyses in the RIA strongly suggest that the regulatory options will
reduce the volume of hazardous wastes going to cement kilns for energy
recovery.

The analysis in the RIA suggests the opposite of what EPA concludes.
The reduction due to the DSW rule in costs of recycling organic liquids
will have a substantial impact in increasing the competitiveness of
recycling vs. energy recovery.  Exhibits 5M and 5N in the RIA indicate
that Regulatory Options 4 or 7 (both of which were selected for the
proposed regulation) in the "Medium Uncertainty Estimation Range" will
result in an annual cost savings of roughly 20 million dollars for a
little more than 40,000 tons of organic liquids that will shift from
offsite disposal to onsite recycling.  The RIA's estimated cost savings
due to the DSW rule thus amounts to roughly 500 dollars/ton of shifted
organic liquids. Embedded in this estimated cost savings are the RIA's
assumptions regarding the current baseline to the effect that the
average cost of organic liquid waste disposal is 218 dollars/ton and
disposal occurs via incineration. (USEPA OSW, DSW RIA. Page 112.
"Incineration was assumed as the management method for … the disposal
of organic liquid wastes. … The reported costs were averaged for an
estimated unit cost of 218 dollars per ton (2005 dollars).").  If the
RIA were to extend this cost savings analysis to solvents managed in the
baseline through energy recovery at cement kilns, the rule would be
projected to result in cost savings per ton of 500 dollars - 218
dollars+ 67 dollars or 349 dollars per ton.

In sum, EPA calculates that the 500 dollars/ton average reduction in the
cost of recycling organic liquids relative to the cost of disposing them
will shift a substantial amount of these wastes away from incineration
and to recycling.  This shift of these wastes is the largest waste shift
from disposal that EPA expects from the rule.  In contrast, EPA assumes
that an estimated 349 dollars/ton average reduction in the cost of
recycling organic liquids relative to the cost of burning them for
energy recovery in kilns will shift none of these wastes away from kilns
and to recycling.  EPA's assumption regarding the potential shift from
kilns is inconsistent with EPA's calculation regarding the shift from
disposal/incineration. The amount of the rule-induced cost incentive to
shift to recycling is nearly as large (70 percent as large: 349
dollars/ton relative to 500 dollars/ton) for waste solvents destined in
the baseline for kilns as it is for waste solvents destined in the
baseline for disposal/incineration.  The waste solvents shipped in the
baseline to kilns are presumably far more amenable to solvent recovery
(i.e., they are less dilute, less contaminated, etc.) than are the waste
solvents shipped in the baseline to incinerators/disposal.  The waste
solvents going to kilns in the baseline would thus be far more likely to
shift to other forms of recycling, given a roughly equal
regulation-induced cost incentive, than those going to
incinerators/disposal in the baseline. Yet the RIA assumes the opposite
- no shift in the waste solvents going to kilns, and a substantial shift
in the waste solvents going to incinerators.

The RIA should analyze the impact of causing a shift away from energy
recovery.

This likely shift from energy recovery to alternate recycling/solvent
recovery should be analyzed rather than assumed away because it is an
essential input to many of the other analyses that the RIA did not
perform that could have a material impact on the costs and risks of the
options considered by EPA, as discussed in the points below.

2. EPA lays out a "worst case" scenario for cement plants, but
underestimates the potential for this "worst case" to occur as well as
the magnitude of its impact.

The DSW RIA performs what it calls a "worst-case" analysis of the cost
to the Portland cement manufacturing industry for a scenario in which
the DSW rule results in loss to the cement industry of all of the
RCRA-regulated wastes that are currently utilized for energy recovery by
cement kilns.  The RIA assumes these materials will be replaced by coal.
 The RIA estimates the resulting lost revenues and increased costs for
cement plants:  reduced revenues from generators of 50.6 million
dollars/year and increased costs for coal of 45.4 million dollars/year
for a total loss of 96 million dollars/year, representing 6.8 - 9.2
percent of revenues at these plants. Assuming the RIA's analysis is
accurate, the RIA still fails to recognize four critical factors.

a)  The "worst-case" scenario in which cement plants no longer use any
RCRA-regulated wastes for energy recovery may be triggered by a much
smaller initial shift in the volume of these wastes. The types of
RCRA-regulated materials that are most desirable for solvent recycling
are also those that are most desirable to kilns for fuel blending. These
most desirable materials account for perhaps 1/4 to 1/3 of the
RCRA-regulated materials used by kilns for energy recovery. Because of
the leveraging effect discussed earlier, the loss to kilns of this most
desirable 1/3 or so of their wastes would result in another 1/3 or so of
the wastes becoming no longer acceptable because of the need to maintain
the overall quality of the HWDF as fired.  Some kilns might then find
the sharply reduced (by 2/3 or so) quantity of RCRA wastes to be
insufficient to justify the costs of continuing in the business of
managing hazardous wastes.  It is even possible that some kilns losing
the most desirable wastes could ultimately find it necessary to cease
burning all sorts of hazardous wastes, and possibly also some
non-hazardous industrial waste streams that are currently beneficially
used for energy recovery (i.e., both Federally-listed hazardous wastes
and additional sorts of wastes that are listed by states but not the
Federal government as hazardous.).  In short, it's possible that there
could be an even larger reduction in energy recovery by kilns than EPA's
"worst-case"; and that EPA's "worst case" could be triggered by a shift
to recycling of well less than half of the volume of RCRA wastes now
managed in kilns.  The "worst-case" is a more likely scenario than
represented in the RIA.

Further, as discussed in number 3 below, another proposed EPA rule, the
Expansion of the RCRA Comparable Fuel Exclusion (CFE), will clearly have
the effect of shifting these critical materials away from cement kilns
as EPA concludes in the RIA for the CFE rule (USEPA OSW, "Assessment of
the Potential Costs, Benefits, and Other Impacts of the Expansion of the
RCRA Comparable Fuel Exclusion - Proposed Rule," June, 2007). Even if
the effect of the DSW rule by itself is not sufficient to trigger the
worst-case, EPA should evaluate whether the combined impact of the DSW
and CFE rules might have that effect.  Moreover, even if the combined
impact of the rules is less than the "worst case," the combined impact
might still be sufficient to alter EPA's evaluation of the regulatory
options and, for that reason, should be analyzed.

b)  The RIA considers the entire loss of revenues to cement plants of 96
million dollars/year to be a "transfer effect," and so it is not
included in the RIA's estimate of the "most likely" net cost savings of
107 million dollars/year associated with the proposed rule (USEPA OSW,
DSW RIA. Page 6).  While the lost revenue to cement plants from
generators of 50.6 million dollars is properly considered a transfer
cost, the RIA's estimate of the additional cost of 45.4 million
dollars/year to the cement plants for replacing the lost energy supplies
with coal is instead a real resource cost to the economy that should be
reflected in EPA's estimate of net cost savings, as discussed in number
4 below.

c)  Assuming the RIA's estimate of a 6.8 - 9.2 percent reduction in
revenues for the affected cement plants is accurate, the RIA provides no
analysis of the economic impacts that might result.  Would this
reduction in revenues be sufficient to cause these facilities to cease
managing all hazardous wastes, as well as perhaps some non-hazardous
industrial wastes? If so, there would be further revenue losses to
cement producers beyond the 6.8 - 9.2 percent figures.  Would this
reduction in revenues be sufficient to cause these cement plants to
close?  EPA is typically quite concerned about plant closures, job
losses, and other economic impacts when a regulation is projected to
reduce revenues by nearly 10 percent for producers in a competitive,
relatively low profit margin industry such as cement.  EPA should
analyze the extent to which these adverse economic impacts will result.
This analysis should reflect the combined impact of all of the rules the
Agency is about to issue, including the DSW rule, the CFE rule and
perhaps even the upcoming proposed rule on gasification, as discussed in
number 3 below.

d)  The RIA correctly assumes that if EPA's rule results in less energy
recovery by cement plants, then these materials would be replaced by
coal.  However, the RIA fails to recognize and analyze as an impact of
the rule the additional health and safety damages that would result from
this increased use of coal - these are discussed further in number 5
below.

3. EPA does not consider the joint impact with another recently proposed
EPA rule -- the Expansion of the RCRA Comparable Fuel Exclusion -- that
will also reduce energy recovery at kilns.

The DSW RIA assumes that no RCRA-regulated wastes will be diverted from
cement plants.  This assumption seems ill-founded, and the impact on the
estimated risks and savings from the rule would be large if this
assumption were incorrect.  This assumption should be abandoned and the
impact of the regulation in diverting wastes from energy recovery to
other forms of recycling should be carefully estimated.  Furthermore,
whatever RCRA-regulated wastes are drawn away from energy recovery at
cement kilns to other forms of recycling, there will be a leveraged
effect where additional hazardous wastes and perhaps even additional
non-hazardous wastes will also no longer be burned at kilns.  This also
should be evaluated. When performing these analyses for the DSW rule, it
is important for EPA to consider the joint impact of other Agency rules
that also can affect the RCRA-regulated wastes available to cement
plants for energy recovery.  In particular, the CFE rule is being
proposed in essentially the same time frame as the DSW rule, and its RIA
estimates that the CFE rule will reduce the amount of RCRA-regulated
wastes available to cement plants for energy recovery (USEPA OSW, CFE
RIA June 2007, Pages 6-7 and 36-39). The joint impact of EPA's DSW and
CFE rules might be sufficiently large to affect EPA's choice of
regulatory alternatives.  Both EPA's Guidelines for Preparing Economic
Analyses and Executive Order 12866 state the importance of explicitly
evaluating the combined impact when multiple regulations affect a
particular economic sector or activity.

EPA's Guidelines for Preparing Economic Analyses emphasizes the
importance of taking into account combined impacts in its section on
Multiple Rules or Regulations and Baseline Specification.  The
guidelines state that "there is no theoretically correct order for
conducting a sequential analysis of multiple overlapping policies that
are promulgated simultaneously," and that "an idealized approach would
attempt to analyze all of the policies together when assessing the total
costs and benefits resulting from the package of policies."

Likewise, Executive Order 12866, Regulatory Planning and Review, states
that regulatory analyses should be prepared "… taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations," (Federal Register, Vol. 58, No. 190, Executive
Order 12866, October 4, 1993, Page 51736).  A combined analysis of the
impact from the DSW and CFE rules on energy recovery by cement plants
appears to be especially appropriate and feasible because:

a)  The DSW and CFE rules are being considered in the same time frame
and clearly affect many of the same sectors and activities;

b)  There may be some synergy between the two rules in creating
incentives for generators to manage on-site (recycle or burn for energy
recovery) the cleaner, higher energy content RCRA-regulated wastes that
are essential components of the energy recovery programs at HWDF-burning
cement kilns.  Thus, separate analyses of the two rules may
underestimate the total volume of wastes that is diverted from kilns;
and

c)  The DSW and CFE RIAs share some of the same authors (Industrial
Economics, Inc.) and analytical approaches, and thus can likely be
coordinated relatively smoothly.

At a minimum, EPA's Guidelines state that analyses should "…be clear
as to the baseline for the analysis, and to present a justification for
making this choice.  This can include providing information on the
status of other regulatory actions that may have some effect on the
baseline, and conducting sensitivity analyses that test for the
implications of including or omitting other regulations," (USEPA,
"Guidelines for Preparing Economic Analyses," September 2000, Page 25).

The combined impact analysis should estimate the volume of waste shifted
away from cement kilns, the economic impact to cement plants, the cost
of increased coal use, the impact of the waste shift on the overall cost
or cost savings from the rules, the additional health and safety impacts
associated with increased coal use, and the loss of hazardous waste fees
to states.  The analysis should also address the potential effect on
non-RCRA regulated wastes.

4. The cost of the additional coal that cement plants will burn as a
result of the DSW rule is a real resource cost, not a "transfer effect,"
and as such should be counted among the costs of the rule.

The RIA calculates a "worst case" revenue impact of the DSW rule to
cement plants of 96.0 million per year, consisting of 50.6 million
dollars/year in lost revenues from RCRA hazardous wastes that will no
longer be burned in kilns and 45.4 million dollars/year in costs for the
increased coal that will be burned to offset the lost energy content of
the hazardous wastes.  The RIA characterizes this full amount as a
"transfer effect" that is not counted among the overall costs or cost
savings for the rule:

"From a national economic analysis methodology perspective, this type of
potential impact is a "transfer effect" or "distributional effect"
(i.e., potential loss of secondary materials management activity in one
industry potentially transferring to other industries), not a "real
resource" economic impact reflecting a net loss in business activity in
the overall national economy.  For this reason, the business impacts
estimated in this Chapter [Chapter 8: Potential Business Impacts on the
Commercial Hazardous Waste Management Industry and on the Portland
Cement Manufacturing Industry] are not additive to the net cost savings
impacts estimated [for the rule as a whole]," (USEPA OSW, DSW RIA Jan
2007. Page 163).

The revenue loss to cement kilns from no longer accepting some quantity
of waste solvents is offset by the savings to generators and fuel
blenders from no longer paying cement kilns for accepting these wastes,
and these amounts can properly be considered to be transfers.  However,
the cost to cement plants for additional coal should not be considered a
transfer cost; it instead is a real resource cost resulting from the DSW
rule.  EPA's "Guidelines for Preparing Economic Analyses" state:

"An economic analysis of a policy or regulation compares "the world with
the policy or regulation" (the policy scenario) with "the world absent
the policy or regulation" (the baseline scenario).  Impacts of policies
or regulations are measured by the resulting differences between these
two scenarios," (USEPA, "Guidelines for Preparing Economic Analyses."
September 2000. Page 21.).

OMB's Circular A-4 (providing guidance to Federal agencies on the
development of regulatory analysis as required under Executive Order
12866) elaborates:

"The Difference between Costs (or Benefits) and Transfer Payments:
Distinguishing between real costs and transfer payments is an important,
but sometimes difficult, problem in cost estimation.  Benefit and cost
estimates should reflect real resource use. Transfer payments are
monetary payments from one group to another that do not affect total
resources available to society. … You should not include transfers in
the estimates of the benefits and costs of a regulation," (U.S. Office
of Management and Budget, Circular A-4,  September 17, 2003, Page 38).

The increased use of coal in cement kilns as HWDF is displaced due to
the DSW rule represents an increased "real resource use" in the "world
with the policy or regulation" compared with "the world absent the
policy or regulation."  It is not a transfer payment; it is a real use
of resources.  More coal is used in the "world with the policy or
regulation" than is used in the "world absent the policy or regulation,"
(Partly offsetting this real resource use as wastes shift away from
energy recovery at kilns due to the regulation would be a "real resource
savings" in the form of an increased volume of solvents that are
recycled and recovered rather than burned.).  The value of these
additional coal resources that are used due to the DSW regulation can be
approximated by the cost of this coal -- 45.4 million dollars per year
in EPA's "worst case" analysis.

The RIA's error in how to treat the cost of increased coal use by cement
kilns may perhaps be explained by the distinction between the direct and
indirect costs of a regulation.  Direct costs are those incurred by
entities that are directly regulated (e.g., "compliance costs") or that
have a role in implementing and enforcing the regulation.  Direct costs
are nearly always estimated in RIAs.  Indirect costs are those that may
occur elsewhere in the economy as markets adjust to the direct costs;
they occur among entities other than those that are directly regulated.
Indirect costs are less frequently estimated in RIAs, even though they
represent real resource costs just as direct compliance costs do,
because they are more difficult to trace.  The cost of increased coal
used by kilns is an indirect cost of the DSW rule.  Both EPA's
"Guidelines for Preparing Economic Analyses" and OMB's Circular A-4
suggest that: a) RIAs should aim to estimate all real resource costs,
whether direct or indirect; and  b) indirect costs may be substantially
more difficult to estimate than direct costs.

For the DSW regulation, EPA should estimate the magnitude of the
indirect cost of the rule as cement kilns increase their use of coal,
and EPA should include this cost in the overall estimate of the real
costs of the rule.  EPA should prepare a "best estimate" of this coal
cost (i.e., an estimate premised on a best estimate of the volume of
wastes that the rule will cause to shift from cement kilns to recycling)
and not only a "worst case" estimate.  This best estimate coal cost will
substantially reduce the overall net cost savings that the Agency
estimates for the rule -- the 45.4 million dollars/year "worst case"
coal cost that the RIA now estimates would offset a substantial portion
of the 107 million dollars/year (most likely estimate) in total
estimated cost savings due to the rule.  Incorporating the cost of
replacing coal will likely have a material impact on the RIA's estimate
of the net cost savings associated with the rule, and they thus think it
is important for EPA to perform this analysis.

5. There are health and safety impacts associated with the increased use
of coal that will be caused by the DSW rule that should be considered.

EPA's DSW RIA correctly assumes that if cement plants are forced to
reduce energy recovery they will meet their resulting increased energy
needs with coal (USEPA OSW, DSW RIA Page 167).  However, the RIA does
not address the additional adverse health and safety impacts that will
result from the increased production, transportation and use of this
additional coal.  Reducing the use of hazardous waste derived fuels and
substituting coal would increase fatalities and injuries due to more
coal mining accidents, lung cancer among miners, black lung disease
(described in the commenter's August, 1996 comments on the Hazardous
Waste Combustion MACT Proposed Rule) among miners, coal train accidents,
and coal truck accidents.  Moreover, substitution of coal for HWDF would
also result in material increases in SO2 and NOx emissions, with a wide
range of damages associated with these emissions.  These resulting
additional coal-related damages that might be induced by the DSW rule
are likely significant compared with the other environmental, health and
safety impacts of the rule that are estimated in the RIA (e.g., in the
two life cycle analyses in Appendix D), and they also seem significant
relative to the risks that EPA has sought to address in many of the
Agency's other RCRA regulations.  Even a small increase in the use of
coal at kilns from a reduction in energy recovery could result in
additional damages that may be sufficient to affect EPA's choice of
regulatory options for the DSW rule.  These damages should be evaluated
in the RIA.

Such an analysis is required by OMB Circular A-4:

"Ancillary Benefits and Countervailing Risks

Your analysis should look beyond the direct benefits and direct costs of
your rulemaking and consider any important ancillary benefits and
countervailing risks. An ancillary benefit is a favorable impact of the
rule that is typically unrelated or secondary to the statutory purpose
of the rulemaking, while a countervailing risk is an adverse economic,
health, safety or environmental consequence that occurs due to a rule
and is not already accounted for in the direct cost of the rule.

You should begin by considering and perhaps listing the possible
ancillary benefits and countervailing risks. However, highly speculative
or minor consequences may not be worth further formal analysis.
Analytic priority should be given to those ancillary benefits and
countervailing risks that are important enough to potentially change the
rank ordering of the main alternatives in the analysis.  In some cases
the mere consideration of these secondary effects may help in the
generation of a superior regulatory alternative with strong ancillary
benefits and fewer countervailing risks. …

Like other benefits and costs, an effort should be made to quantify and
monetize ancillary benefits and countervailing risks.  If monetization
is not feasible, quantification should be attempted through use of
informative physical units.  The same standards of information and
analysis quality that apply to direct benefits and costs should be
applied to ancillary benefits and countervailing risks."

It appears clear that if a regulatory alternative has the potential to
have a significant indirect effect, it should be analyzed and presumably
considered.  As demonstrated below, to the extent that EPA's DSW rule
can cause an increased use of coal by cement plants, this may result in
increased damages that may be material compared to the net social
benefits for the options under consideration for the rule.

Potential damages resulting from increased use of coal

The commenter's August, 1996 comments on the Hazardous Waste Combustion
MACT proposed rule estimated the increased health, safety and
environmental damages from coal production, transportation and
combustion that would result from substituting coal for HWDF at cement
kilns.  That analysis was based on the impacts associated with
substituting 890,000 tons of coal annually.  The resulting increased
damages were:

-- 214 - 581 deaths per 1000 years;

-- 16,000 - 20,000 injuries per 1,000 years;

-- more than 26,024 tons per year SO2 emissions; and

-- more than 11,336 tons per year NOx emissions.

To provide a more direct indication of the damages that might be
associated with the worst case scenario in the DSW RIA, the commenter's
1996 estimates can be scaled by the amount of coal that the RIA
estimates might be substituted for energy recovery.  The DSW RIA
estimates that the worst case scenario would result in additional use by
cement kilns of 756,000 tons of coal per year, or about 85 percent of
the amount of coal analyzed in the commenter's 1996 comments.
Accordingly, scaling the commenter's 1996 estimates by 85 percent, the
damages associated with the additional coal use in the DSW RIA's worst
case would be:

-- 192 - 494 deaths per 1000 years from coal production &
transportation;

-- 13,600 - 17,000 injuries per 1000 years from coal production &
transportation;

-- more than 22,120 tons per year SO2 emissions; and

-- more than 9,636 tons per year NOx emissions.

Assigning monetary values to these damages, the commenter estimates that
they are equivalent to approximately 108 million dollars in annual
costs. (The values the commenter used in monetizing these damages are as
follows:  1) Death: 6.1 million dollars in 1999 dollars (USEPA,
Guidelines for Preparing Economic Analyses," page 90),  2) Injury:
17,098 dollars in 2004 dollars (Moore, Bauer and Steiner. NIOSH.
Prevalence and Cost of Cumulative Injuries over Two Decades of
Technological Advances: a Look at Underground Coal Mining in the U.S.),
3) Pound of SO2: 2.03 dollars, and 4) pound of NOx: 0.82 dollars in 1990
dollars (Richard Ottinger, Environmental Costs of Electricity. Note that
these various figures are not inflated to more current dollars for
comparison with the cost figures in the RIA.).

Even if the DSW RIA results in only a fraction of this increase in the
amount of coal needed by cement plants to replace lost HWDF, it appears
that the resulting increase in damages would likely be sufficient to
affect EPA's choice of regulatory options.

6. EPA should complete an analysis of the lifecycle impacts of diverting
waste solvents from cement kilns to other kinds of recycling.

The RIA's Case Study Number 1 provides a partial life cycle comparison
of the impacts of recycling vs. incineration for organic liquids. The
results are summarized in Exhibit D15 in which the aggregate life cycle
impacts (change in air emissions by pollutant, change in water releases
by pollutant, change in solid waste generation, and change in fuel
consumption) are shown for each of the seven regulatory options under
consideration. This information is somewhat incomplete, since: a)
several of the impacts are not fully quantified; b) some steps in the
waste solvent lifecycle (e.g., transportation) have not been analyzed;
and c) impacts are expressed in physical terms rather than in terms of
risks.  Nevertheless, the information is very useful, providing a
valuable picture of the environmental impacts expected as a result of
the DSW regulation-induced shift of organic liquids from incineration to
recycling.  EPA could do more to make these impact estimates meaningful
to decision-makers and to the public, for example, by combining many of
the individual impact estimates into more aggregated indices of air and
water pollution and energy impacts.  The impact estimates for individual
air pollutants could be weighted by toxicity and summed, and the same
could be done for the individual water pollutants.  The various changes
in fuel consumption could be aggregated on a Btu basis.

Case Study Number 1 in the RIA concludes with a discussion (Limitation
number 7 on page 258) to the effect that the lifecycle analysis does not
address the impacts of diverting waste solvents from cement kilns to
other forms of recycling because OSW assumes that the DSW rule will not
induce any wastes to shift in this manner.  As discussed earlier in this
paper, this assumption is not well supported and information presented
in the RIA suggests the opposite. The RIA should estimate both: a) the
volume of organic liquids/waste solvents that the rule will cause to
shift from energy recovery at cement kilns to other forms of recycling;
and b) the lifecycle impacts that will result from this shift.

The RIA's discussion of limitations for Case Study Number 1 provides a
start toward this second analysis, by beginning an evaluation on a per
ton of solvent burned basis of the lifecycle impacts for energy recovery
at kilns vs. other recycling. This analysis in the RIA is substantially
incomplete.  It should be completed on a per ton basis, taking into
account the additional health and safety and emissions impacts
associated with extracting, transporting and burning coal that will
ensue if waste solvents are recovered rather than sent to cement kilns
for their energy value.  This analysis would demonstrate the
substantially positive environmental, health and safety impacts of
energy recovery in cement kilns.

7. EPA has not quantified the degree to which the proposed rule may
cause increased mismanagement of waste or sham recycling, and has not
estimated the impacts if this occurs.

EPA provides an analytic framework for evaluating additional potential
adverse environmental impacts of the proposed DSW rule, focusing on the
potential for increased mismanagement of waste and sham recycling
(USEPA OSW, "A Study of Potential Effects of Market Forces on the
Management of Hazardous Secondary Materials Intended for Recycling,"
November, 2006).  However, EPA does not apply the framework to actually
quantify this potential negative impact of EPA's deregulatory action.
Moreover, EPA's RIA estimates that the primary effect of the proposed
rule is to switch materials from offsite to onsite recycling, and that
it does far less to create new recycling (USEPA OSW. DSW RIA. Page
10-11.).  Thus, the proposed deregulation appears to have the potential
to do more to increase mismanagement and sham recycling than it does to
create new recycling.

Consequently EPA's proposed deregulation might create more negative
health and environmental impacts than it does to add benefits (or to
sufficiently alter the balance, perhaps in combination with the other
missing analyses identified in this  report, to impact EPA's choice of
options), but this is not fully analyzed.

8. The RIA has not evaluated the adverse consequences if some states do
not adopt this rule.

States will not be obligated to adopt the revised definition of solid
waste.  It seems likely that some states will not adopt the revised
definition, as several states are on record regarding their concerns
about the proposed rule. To the extent that some states do not adopt the
revised definition, this may lead to inconsistent requirements across
state lines.  It is well understood that consistent requirements across
state lines have promoted the development of a fully integrated national
system to manage hazardous wastes in a manner that is both protective of
human health and the environment and economically efficient. However,
the rule may result in creating a patchwork of inconsistent state solid
and hazardous waste regulations.  Inconsistent state regulations could
undermine the viability of long-established national waste management
networks, such as the nationally integrated recycling programs of the
type operated by cement kiln operators and fuel blenders. The RIA
overstates the benefits of the proposed rule to the extent that it fails
to reflect the likely adverse impact to such national waste management
networks.  At a minimum, the RIA should perform a sensitivity analysis
that estimates the impact if states with relatively high waste
generation volumes do not adopt the rule if promulgated as proposed.

[0548-2, 0548-5, 0548-7, 0548-25, 0548-27, 0548-29]

Proposed Rule is "Significant"

One commenter stated that EPA circumvents Executive Order (EO) 12866 by
defining a significant rule exclusively as one which exceeds a 100
million dollar threshold. In fact, the EO clearly provides an
either-or-situation, i.e., either 100 million dollars or "adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State (emphasis added), local, or tribal governments or
communities" (Sec. 4(f)(1)). Executive Order 12866 also provides that
regulations only be promulgated that are "required by law" - which this
rule is neither required by nor consistent with existing law - and that
a rule becomes "significant" if it raises novel legal policy or is
inconsistent with the EO 12866 ((Sec. 4 (f)(4)).

[0561-4, 0561-5]

Transportation Assumption

One commenter disputed EPA's estimate that hazardous waste recycling
transportation activities involve 400 to 520 miles per movement, stating
that it is in excess of reality because it has been less than or equal
to 80 miles for decades.

[0564-45]

12.1 - Response

Potential Adverse Impacts

In response to comments requesting that EPA assess potential adverse
impacts of the rule, the Agency added an evaluation of potential
countervailing risks to our 2008 RIA for the DSW final rule, which
evaluates potential adverse environmental and other types of potential
countervailing impacts and effects identified by public commenters on
the 2003 RIA and 2007 RIA for this rulemaking.  In part, it is based on
a qualitative screening evaluation of the historical industrial
recycling damage cases identified in our March 2007 supplemental
proposal for the DSW rule ("An Assessment of Environmental Problems
Associated with Recycling of Hazardous Secondary Materials", 11 January
2007, http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf).
Our 2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs.

Hazardous wastes which become excluded under the DSW final rule may be
expected, in part, to shift to less-regulated (e.g., non RCRA-permitted)
industrial recycling facilities, and thus potentially be subject to
relatively less frequent annual environmental protection and regulatory
enforcement inspections.  However, OSW designed the
conditions/requirements of the DSW final rule exclusions to minimize any
environmental protection outcome from this type of possible change
(i.e., reduction in relative number of annual site inspections).  These
requirements include legitimate recycling, containment, no speculative
accumulation, management of residuals in environmentally protective
manner, site closure financial assurance, generator due diligence
oversight of recyclers, notification to regulatory authorities, offsite
shipment recordkeeping, and other requirements.  Our 2008 RIA does not
indicate a potential for business closures (bankruptcies) because the
fraction of affected business activity as measured by average annual
company revenues potentially lost (i.e., transferred to other
industries) as a result of the DSW final rule, is relatively small in
all affected industries.  For example, some current Subtitle C permitted
hazardous waste recyclers may continue to manage the DSW-excluded
secondary materials in other units of their same facilities after this
rule is implemented, which would mitigate any potential future business
loss for the commercial hazardous waste treatment industry.

The Agency does not anticipate less assurance that secondary materials
will be adequately tested because the exclusions do not affect the
obligation for the generator to properly identify their wastes and also
require a determination of the legitimacy of a specific recycling
activity, which includes evaluating the legitimacy factor addressing
whether the product of the recycling process contains hazardous
constituents or exhibits a hazardous characteristic.  The RIA assumes
this factor to be current (baseline) practice because the concept of
legitimate recycling is embedded in the existing regulations (see the
"Lowrance Memo" (OSWER directive 9441.1989(19), 26 April 1989) and
referenced Federal Register preamble discussions), which has been
applied by state governments to determine "legitimate" from "sham"
industrial recycling.  In addition wastes sent to Subtitle C landfills
will not be excluded by this final rule unless they shift to legitimate
recycling operations which conform to the eligibility requirements of
the DSW final rule exclusions.  However, in any such case, the affected
material formerly sent to Subtitle C landfills will be recycled and not
disposed elsewhere.  Furthermore, any residuals generated from recycling
the formerly landfilled materials at an DSW-excluded recycling operation
must be managed in environmentally protective manner, and if any
residuals exhibit a hazardous characteristic according to 40 CFR 261
Subpart C, or themselves are RCRA-listed hazardous wastes, they are
hazardous wastes if discarded and must be managed according to the
applicable RCRA Subtitle C hazardous waste regulatory requirements of 40
CFR 260 to 272.

The Agency also does not anticipate an increase in materials
transportation risk because all employees of truckers, air shippers, and
vessel shippers who directly affect the safe and legal packaging,
shipping, or transportation of hazardous materials must be trained
before performing hazmat duties (and retrained every 3 years and as
rules change) according to US Department of Transportation (DOT) 49 CFR
haz mat training regulations, plus IATA dangerous goods training for air
employees, and IMO dangerous goods training for vessel employees.  This
training consists of hazardous materials classification, proper shipping
name, packaging requirements, preparing DOT shipping papers, hazard
communication container marking/labeling, placards, loading, moving,
unloading, security, handling incidents, emergencies, and recordkeeping.
 These requirements remain applicable to any residuals that are
determined to be RCRA hazardous wastes.

The Federal Register announcements for both the 2007 DSW supplemental
proposal (Vol.72, No.57, 26 March 2007, Section XIII., pp.14205-14207),
and for the DSW final rule, as well as the "Countervailing Risks"
chapter of our 2008 RIA for the DSW final rule, provide a description of
the expected effects of this final rule on other programs, including
potential impacts on: (1) RCRA solid waste exclusions found in 40 CFR
261.4(a), (2) spent lead-acid battery recycling, (3) other RCRA
recycling exclusions, (4) RCRA-permitted TSDFs, (5) RCRA interim status
TSDFs, (6) corrective action for releases from formerly RCRA-regulated
units, (7) financial assurance obtained for closure at non-excluded
RCRA-regulated units, (8) CERCLA & SREA, and (9) hazardous secondary
materials imports and exports.

Impact of Codifying Legitimacy

In general, EPA disagrees with comments asserting that codification of
legitimacy would impose quantifiable costs on the regulated community.
In the final rule, EPA has decided to codify legitimacy as part of the
exclusions and the non-waste determination provision.  The concept of
legitimacy being codified is substantively the same as the concept of
legitimate recycling which is embedded in the current hazardous waste
recycling regulations and which the Agency has described in earlier
Federal Register preamble discussions and policy statements.  (See the
preamble of the final rule for further discussion.) Because the codified
legitimacy provision is substantively the same as the existing
regulations and policy, our 2008 RIA for this final rule assumes that
this codification of legitimacy may have a small impact which is not
quantified in our RIA

Onsite Recycling Overestimated

In response to comments regarding impediments to onsite recycling, EPA
revised the economic analysis assumptions related to estimating the
potential future increase in recycling as a result of this rule.  The
2007 and 2008 RIAs for this rule attempted to assess the
economies-of-scale for potential creation of new onsite industrial
recycling operations as a result of the final rule.  This analysis is
titled "micro-economic breakeven test" in the RIA to assess whether
economies-of-scale would be reached on a facility-by-facility basis,
taking into account expected de-regulatory cost savings to affected
industries.  This breakeven test confirms the commenter's comment that
"In actuality, like all industrial processes, reclamation is cost
effective only with certain economies of scale."  We agree with, and
added as an interpretative point to our final rule RIA, the commenters'
observation that, not all generators (e.g., large chemical plants) are
likely to build onsite recycling operations (e.g., a chemical
manufacturing metal catalyst recovery smelting unit) because they lack
of volume economies-of-scale, recycling expertise, and industrial
infrastructure to support a new onsite recycling operation.  Thus we
eliminated from the central analysis of our 2008 RIA for the final rule
any estimation of potential shifts in baseline offsite (commercial)
recycling and baseline disposal, to onsite recycling as a result of the
DSW final rule.  However, we did conduct two sensitivity analyses to
estimate the effects of possible shifts  on the bottom line economic
impact estimates of our RIA (see Exhibit 1D and Sensitivity Analyses 10
and 11 in Chapter 12 of the 2008 RIA).

Furthermore, the final rule does not constrain the DSW exclusions to
intra-industry (within same 4-digit NAICS codes) as proposed as an
option in 2003, so comments on limited benefits do not apply to the
final rule.

Conversion of LQGs to SQGs Unlikely

Both the 2007 RIA and 2008 RIA for this rule do not assume that all LQGs
will become SQGs; the RIAs estimated the magnitude of this potential
change in RCRA regulatory status by calculations involving estimated
industry cost savings under the DSW exclusions and estimated annual
tonnage of hazardous wastes per-facility which might become excluded
from regulation.  For complex chemical manufacturing companies, we
concur with a comment stating that it is unreasonable to simply assume
that they may change from LQG to SQG status as a result of this rule
HYPERLINK ""   .  Thus, as described above, the analysis evaluates the
characteristics of facilities impacted to estimate this change.

Impact on State Fees

Based on the state government distributional effects analysis in both
our 2007 RIA and 2008 RIA, this rule could result in a decrease in
future annual hazardous waste fees paid by industrial facilities to
state governments.  This is a type of transfer effect rather than a real
resource economic cost to this rule and is discussed as such in the
RIAs.  State governments may act to offset this possible revenue loss by
(a) reformulating their fee structure, or (b) not adopting this rule.

Impacts on Printed Circuit Board Industry

EPA's response to comments regarding the impacts on the printed circuit
board industry consists of three parts. (1) EPA expects that for some
industries, including the printed circuit board manufacturing industry,
the DSW final rule may encourage additional future recycling, not
necessarily by encouraging investment in new onsite reclamation (e.g.,
metals secondary smelting) operations, but by possibly lowering the
relative cost for offsite recycling under the DSW exclusions, compared
to the current (baseline) cost for offsite recycling.  The degree to
which the future offsite commercial reclamation/recycling services
prices may decrease depends upon (a) the extent to which commercial
offsite recyclers claim these exclusions for all types of hazardous
secondary materials for all types of generator industries for all
regions of the USA, (b) the associated extent to which such exclusion
claims decrease offsite commercial reclamation/recycling business
operating costs by reducing annual RCRA regulatory burden, and (c) the
extent to which any such regulatory cost savings are passed on to
generators (customers) in the form of lower prices for offsite
commercial reclamation/recycling services.  (2) We added an
acknowledgement in our 2008 RIA for the final rule that it is based on a
limited amount of detailed cost data.  Typically, OSW RIAs for the RCRA
program are designed to provide semi-detailed estimates rather than
exact engineering cost and benefit estimates for each of the nationwide
100s of different industries consisting of 1,000s of facilities which
are generating and managing 10,000s of individual waste streams which
may be affected by this rule.  Relative to the ANSI Standard Reference
Z94.2-1989 and AACE Recommended Practice No. 18R-97 cost estimation
accuracy classification system
(http://www.aacei.org/technical/rps/18r-97.pdf), the semi-detailed level
of the DSW RIAs corresponds to a "Class 3" estimate with expected cost
estimation accuracy range of -20% to +30%.  We appreciate the level of
detail this commenter provides in the discussion of copper, tin, and
nickel constituents in the printed circuit board industry liquid wastes,
and we added this discussion as an example limitation of the scope of
our final rule RIA.  (3) We revised our impact analysis and the comment
on mathematical errors in our 2003 RIA is no longer relevant.

Impact on Recycling Infrastructure

In response to these comments, we added an analysis ("distributional
effects") of potential adverse business impacts on the commercial
hazardous waste disposal (landfills, incinerators) and recycling
industry to both our 2007 and 2008 DSW RIAs.  However, EPA disagrees
with the commenter's assumption that current recycling and reclamation
facilities may "lose access to significant streams of valuable secondary
materials and feedstocks" and "no longer prove economically viable,"
because current recyclers may experience increased business as a result
of the DSW final rule exclusions for generators who shift current
hazardous wastes from disposal to recycling.  Furthermore, current
hazardous waste recyclers who choose to operate under the DSW final rule
exclusions may realize de-regulatory cost savings which may allow them
to lower their prices thereby increasing competition for generators, and
also helping grow their recycling businesses in the future as a result
of this rule.

Analyze Benefits of Excluding All Legitimately Recycled Materials

In our 2007 RIA for this rule, EPA attempted to quantify the potential
environmental effects (i.e., potential environmental benefits) of the
DSW rule, by adding two life-cycle analysis (LCA) case studies; one for
reclaiming metals (zinc) from K061 dust, and the other for reclaiming
liquid organics for solvent use.  These two LCA case studies are
available as Appendix D at:
http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/ria.pdf.  We also
added a qualitative screening evaluation of potential countervailing
risks to our 2008 RIA for the DSW final rule, which evaluates potential
adverse environmental and other types of potential countervailing
impacts and effects identified by public commenters on both our 2003 and
2007 RIAs for this rulemaking.  In part, it is based on a qualitative
screening evaluation of the historical industrial recycling damage cases
identified in our March 2007 supplemental proposal for the DSW rule ("An
Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials", 11 January 2007,
http://www.epa.gov/epaoswer/hazwaste/dsw/abr-rule/env-prob.pdf).  Our
2008 RIA for the DSW final rule examines 12 potential countervailing
risks (some of which are over-lapping): 1. recycling environmental
damages, 2. materials testing, 3. community & groundwater, 4. training &
traffic, 5. human exposure, 6. material shipments, 7. compliance
enforcement, 8. abandoned sites, 9. site inspections, 10. coal mining,
11. bankruptcy, 12. other environmental programs.

Additional New Recycling is Likely to be Small

EPA notes that the two primary purposes of this rulemaking, as
identified in the Federal Register announcement for the DSW final rule,
are (1) to respond to a series of seven decisions (1987 to 2000) by the
US Court of Appeals for the DC Circuit which, taken together, have
provided EPA with additional direction regarding the proper formulation
of the RCRA regulatory definition of solid waste for purposes of
Subtitle C, and (2) to clarify the RCRA concept of "legitimate
recycling."  EPA expects that the rule will also encourage and expand
the safe, beneficial recycling of additional hazardous secondary
materials. Our 2008 RIA estimates that 23,000 tons per year of hazardous
wastes currently disposed may switch to recycling under the DSW final
rule, which represents only a 1.1% increase over the 2.045 million tons
2005 hazardous recycling volume (source: total of metals recovery +
solvents recovery + other recovery reported in Exhibit 2.5 subtotal
tonnages for metals recovery + solvent recovery + other recovery in the
2003 RCRA National Biennial Report at:   HYPERLINK
"http://www.epa.gov/epaoswer/hazwaste/data/br05/national05.pdf"
http://www.epa.gov/epaoswer/hazwaste/data/br05/national05.pdf ).  Two
sensitivity analyses included in the RIA also estimate possible
increases to these estimates (see Exhibit 1D and Sensitivity Analyses 10
and 11 in Chapter 12 of the 2008 RIA).

It is reasonable to expect that some fraction of the hazardous wastes
which become excluded under the DSW final rule may be expected, in part,
to shift to less-regulated (e.g., non RCRA-permitted) industrial
recycling facilities.  However, OSW designed the conditions/requirements
of the DSW final rule exclusions to minimize environmental protection
risks.  These requirements include legitimate recycling, containerized
materials, no speculative accumulation, management of residuals in
environmentally protective manner, site closure financial assurance,
generator due diligence oversight of recyclers, notifications to
regulatory authorities, offsite shipment recordkeeping, and other
requirements.

Volume Error in 2003 Regulatory Impact Analysis

In response to this comment, EPA eliminated and revised this "delta 1997
and 1999" methodology for estimating the potential increased recycling
of the DSW rule, in both the 2007 RIA for the 2007 DSW supplemental
re-proposal, and in our 2008 RIA for the DSW final rule.  Our new
methodology is explained in our 2008 RIA for the final rule.

Statistical Treatment of Outliers

In response to this comment, EPA modified our statistical treatment of
hazardous waste tonnage data outliers to remove this bias, by (a) using
more recent RCRA biennial report data years, and (b) basing the impact
analysis on all relevant tonnage data from the RCRA Biennial Report, as
well as providing alternative impact estimates based on alternative
statistical levels and sensitivity analyses.

Other Technical Comments on 2003 Analysis

EPA concurs with the distinctions (e.g., one-time versus annually
recurring) made by the commenter on the various RCRA regulatory cost
factors applied in our 2003 DSW RIA.  We attempted to update these unit
costs and associated assumptions in both our 2007 and 2008 RIAs for this
rulemaking.  However, we formulated many of these regulatory costs based
on unit cost estimates contained in prior OMB-approved information
collection request (ICR) supporting statements for the RCRA program.
ICR-based cost estimates are typically presented on an average
annualized basis, and we attempted to harmonize the DSW RIAs with OSW's
existing RCRA ICRs (which are inventoried by OMB at
http://www.reginfo.gov/public/do/PRAMain).

In both our 2007 and 2008 RIAs for this rulemaking, we attempted to
enhance our statistical treatment of hazardous waste tonnage data and
impact estimates by (a) using more recent RCRA biennial report data
years, (b) providing alternative impact estimates based on alternative
statistical levels and sensitivity analyses, and (c) applying new
sources of data (e.g., disposed waste constituent data from OSW's 1996
"National Hazardous Waste Constituent Survey"; NHWCS; see item 4 at:
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm).  EPA
appreciates the information from commenters about the assorted secondary
materials recovery processes (Vortec process, HTMR smelting, Mismelt
process, etc.).  We attempted to update our capital and O&M costs for
these processes in both the 2007 and 2008 RIAs for this rule.

In our 2008 RIA for the final rule we also added an acknowledgement that
the analysis is based on a limited amount of detailed cost data.
Typically, OSW RIAs for the RCRA program are designed to provide
semi-detailed estimates rather than exact engineering cost and benefit
estimates for each of the nationwide 100s of different industries
consisting of 1,000s of facilities which are generating and managing
10,000s of individual waste streams which may be affected by this rule.
Relative to the ANSI Standard Reference Z94.2-1989 and AACE Recommended
Practice No. 18R-97 cost estimation accuracy classification system
(http://www.aacei.org/technical/rps/18r-97.pdf), the semi-detailed level
of the DSW RIAs corresponds to a "Class 3" estimate with expected cost
estimation accuracy range of -20% to +30%.

Physical/Chemical Properties of Wastes

EPA concurs that the 2003 DSW RIA was a "desk top analysis," as are both
the 2007 and 2008 RIAs for this rulemaking.  However, we must observe
the 1995 Paperwork Reduction Act (PRA) and OMB information collection
restrictions on the amount of data and information we may collect for
any given year and program activity (e.g., RCRA rulemakings).  You may
read more about Federal agency PRA compliance requirements at OMB's PRA
webpage http://www.whitehouse.gov/omb/inforeg/infocoll.html#PRA.  We
appreciate the information from commenters about materials that could be
more economically and frequently recycled under a less burdensome RCRA
regulatory scheme.  We enhanced the quality of our 2008 DSW RIA by
integrating into the RIA empirical data on hazardous waste
characteristics from OSW's 1996 "National Hazardous Waste Constituent
Survey" (NHWCS; see item 4 at:
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm), to
replace the prior "desk top" judgment concerning waste constituents
potentially recoverable in disposed hazardous wastes.  We agree, as is
pointed out in the sensitivity analysis sections of both the 2007 and
2008 DSW RIAs, that other OSW RCRA rulemakings may potentially increase
or decrease the future annual impact of the DSW final rule, for example,
for the reasons mentioned in this comment. EPA appreciates the
information about the physical/chemical characteristics of wastes
disposed by incineration and energy recovery.  We added this information
in a new interpretive caveat to our 2008 RIA for the final rule.

Cost Saving Underestimated

EPA agrees that our RIAs may under-estimate the potential environmental
and economic benefits of this rule.  Typically, benefits are more
difficult to estimate compared to costs in benefit-cost analyses such as
Federal regulatory agency RIAs, particularly RIAs involving
environmental benefits with non-market values.  Furthermore, we do not
have hazardous waste data on CESQGs because they (as well as SQGs) are
not required to file RCRA Biennial Reports.  In order to communicate the
numerical uncertainty surrounding our impact estimates, we added a
"Sensitivity Analysis" section to both the 2007 RIA and 2008 RIA for
this rulemaking.  For example, one of the uncertainty factors identified
in the sensitivity analysis section of our 2008 RIA for the DSW final
rule indicates that our RIA is based on a limited amount of detailed
cost data.

EPA also notes that our 2007 and 2008 RIAs for this rulemaking do not
directly estimate baseline tolling arrangements for hazardous waste
recycling, nor do they estimate future new tolling arrangements which
may be induced by the DSW final rule.  This is probably not a relatively
large source of de-regulatory cost savings estimation in this RIA,
because baseline offsite recycling (with or without tolling
arrangements) is included in the impact estimation methodology of this