``partially'' before ``reclaimed'' disregards the fact that EPA has
acknowledged that more than one processing step may be necessary before
the inherent value of a usable product is recovered.
EPA's Response: General Comments on Revisions to Variance Criteria
    EPA agrees with the many commenters that supported the proposed
changes to the variance criteria. Regarding EPA's proposed insertion of
the word ``whether'' in each criterion, the intent of this change is to
make the criteria more prescriptive in order to reduce the
inconsistency of

partial reclamation variance determinations. EPA also disagrees that
adding the word ``partially'' in front of ``reclaimed'' disregards the
fact that EPA has acknowledged that more than one processing step may
be necessary before the inherent value of a usable product is
recovered. EPA recognizes that reclamation of hazardous secondary
materials may involve multiple steps and hazardous waste may be
recycled in any number of steps in accordance with the hazardous waste
regulations. However, EPA maintains that a variance from the definition
of solid waste is appropriate only for partially-reclaimed material
that is commodity-like, as demonstrated by satisfaction of the partial
reclamation criteria.
Comments: Proposed Criterion (1)--Whether the Degree of Partial
Reclamation the Material Has Undergone Is Substantial
    For the first proposed criterion, two commenters argued that EPA's
use of ``partial reclamation'' in place of ``processing'' did not
provide additional clarification. Another commenter stated the
criterion should state EPA's intent on 76 FR 44129 and read ``whether
the degree of partial reclamation the material has undergone is
substantial and the material produced is not the original hazardous
waste.'' Other commenters were concerned regarding the term
``substantial,'' because it is subjective and needs a better
definition. These commenters argued that EPA has not provided a
standard regarding when a material is ``no longer the original
hazardous waste.''
EPA's Response: Proposed Criterion (1)--Whether the Degree of Partial
Reclamation the Material Has Undergone Is Substantial
    EPA disagrees with those commenters who argued that EPA's use of
``partial reclamation'' in place of ``processing'' did not provide
additional clarification. The term ``processing'' is a broad, general
term that can refer to a number of processes, such as the process used
to generate the hazardous waste. However, the intention of the partial
reclamation variance is to evaluate, specifically, the degree of
partial reclamation and therefore it makes sense to use ``partial
reclamation'' in criterion 1. Additionally, this revised language for
the first criterion conforms to the revised changes in the introductory
text of the partial reclamation variance.
    EPA agrees with commenters that adding a clarifying statement to
criterion (1) is helpful and has added ``as demonstrated by using a
partial reclamation process other than the process that generated the
hazardous waste'' after ``substantial.'' We believe this language
clarifies (and responds to the comment regarding the term
``substantial'') that the process used to generate the hazardous waste
(such as dewatering of sludge) would not be considered ``substantial''
under this criterion. Therefore, by emphasizing that the partial
reclamation process must be substantial in the first criterion, the
Agency is reiterating that the material produced by the partial
reclamation process must be commodity-like as supported by also meeting
criteria (2)-(5).
    Under the final rule, EPA is finalizing the first criterion to
read: ``Whether the degree of partial reclamation the material has
undergone is substantial as demonstrated by using a partial reclamation
process other than the process that generated the hazardous waste.''
Comments: Proposed Criterion (2)--Whether the Partially-Reclaimed
Material Has Sufficient Economic Value That it Will Be Purchased for
Final Reclamation
    For the second proposed criterion, one commenter supported EPA's
emphasis in the preamble on the existence of contracts for the sale of
the partially-reclaimed material. This commenter argued that such
emphasis is important to ensure that partial reclaimers do not
accumulate significant quantities of material without assurance that a
willing buyer actually exists. This commenter stated that an example of
excess accumulation risk is shown by the variance recently granted by
IDEM to the facility, ShoreMet, in which the variance was granted on
the basis that a market for the partially-reclaimed material would
exist solely because other reclaimers had sold fully-reclaimed F006
(wastewater treatment sludges from electroplating operations) and F019
(wastewater treatment sludges from aluminum coating processes). This
commenter argued that such an analysis does not ensure that ShoreMet
can market its partially-reclaimed material.
    Another commenter argued that reclamation may involve more than one
processing step and that the proposed changes to this criterion limit
the administrative authority's ability to consider the value of the
partially-reclaimed material and the usable end products. This
commenter also argued that the term ``value'' in 40 CFR 260.43 means
sold to a third party or used as an effective substitute, which may not
apply here. Still another commenter noted the F006 reclamation guidance
\51\ allows the use of theoretical ``on paper'' value of precious
metals present, despite that substantial processing might be needed
before those precious metals realize market value.
---------------------------------------------------------------------------

    \51\ U.S. EPA, ``Background Document: Providing Context--The
Example of F006 Electroplating Sludges,'' June 2011. Docket ID: EPA-
HQ-RCRA-2010-0742-0016.
---------------------------------------------------------------------------

EPA's Response: Proposed Criterion (2)--Whether the Partially-Reclaimed
Material Has Sufficient Economic Value That it Will Be Purchased for
Final Reclamation
    EPA agrees with the commenter that supported EPA's emphasis in the
preamble on the existence of contracts for the sale of the partially-
reclaimed material as demonstrating the second criterion is being met.
    As we have stated previously, the partial reclamation variance is
for those hazardous secondary materials that have been partially-
reclaimed but, must be reclaimed further, as long as the partial
reclamation has produced a commodity-like material. That is, if the
partially-reclaimed material is being purchased for further
reclamation, the Agency considers the partially-reclaimed material to
have sufficient economic value, regardless of how each party calculates
the value to be paid. Evidence to support this criterion may include
sales information; demand for the materials; and business contracts,
such as contracts specifying quantities of material sold, details of
the transaction, and the effective price paid for the partially
reclaimed material by purchasers (i.e., after subtracting
transportation costs and any other goods or services rendered in
exchange for the material purchased).
    EPA is making one change to the proposed second criterion. As noted
above, EPA understands that reclamation of hazardous waste may involve
multiple steps and thus EPA finds it is more appropriate to ensure that
the partially-reclaimed material is purchased for ``further
reclamation'' rather than ``final reclamation'' to allow for processes
that use more than one reclamation step in processing the partially-
reclaimed material. Therefore, the final second criterion in today's
rule reads: ``Whether the partially-reclaimed material has sufficient
economic value that it will be purchased for further reclamation.''

Comments: Proposed Criterion (3)--Whether the Partially-Reclaimed
Material Is a Viable Substitute for a Product or Intermediate Produced
From Virgin or Raw Materials Which Feeds Subsequent Production Steps
    For the third criterion, one commenter disagreed with the proposed
wording change because it restricts the authority's ability to consider
the benefit provided by subsequent processing of the partially-
reclaimed material and directs the authority only to consider whether
it is immediately a substitute or product before further processing.
Another commenter suggested replacing the phrase ``which feed
subsequent production steps'' with the phrase ``that is used in a
subsequent manufacturing process'' to be more clear. Still another
commenter suggested that this criterion should state more plainly that
``it is a substitute for ingredients, intermediates, or commercially
available virgin/raw materials.''
EPA's Response: Proposed Criterion (3)--Whether the Partially-Reclaimed
Material Is a Viable Substitute for a Product or Intermediate Produced
From Virgin or Raw Materials Which Feeds Subsequent Production Steps
    EPA maintains that the partial reclamation variance is for those
materials that have been partially-reclaimed, but must be reclaimed
further, as long as the partial reclamation has produced a commodity-
like material. Thus, whether or not a material is produced at a later
stage of reclamation as a viable substitute for a product or
intermediate is not relevant in determining whether a partially-
reclaimed material produced earlier is commodity-like.
    EPA agrees with the commenter who suggested replacing the phrase
``which feed subsequent production steps,'' with the commenters
suggested wording, with certain modifications, in order to improve
clarity. Therefore, the Agency is modifying this criterion to read,
``whether the partially-reclaimed material is a viable substitute for a
product or intermediate produced from virgin or raw materials, which is
used in subsequent production steps.'' With this clarification, the
Agency is making clear that, while multiple steps may be involved in
producing a commodity-like material, it is only when the partially-
reclaimed material is a viable substitute for a product or intermediate
is it considered ``commodity-like.''
    EPA is not making the suggested change to state that the partially-
reclaimed material ``is a substitute for ingredients, intermediates, or
commercially available virgin/raw materials'' because EPA is concerned
that this language may introduce confusion in distinguishing between
when a partially-reclaimed material is ``commodity-like'' as compared
to raw or virgin material that would need to undergo substantial
processing before meeting this definition. Therefore, EPA is
maintaining the proposed language to read ``is a viable substitute for
a product or intermediate produced from virgin or raw materials.''
Comments: Proposed Criterion (4)--Whether There Is a Guaranteed Market
for the Partially-Reclaimed Material
    For the fourth proposed criterion, whether there is a guaranteed
market for the partially-reclaimed material, a few commenters argued
that EPA is not specific enough to meet its objective and suggested
that the criterion should read ``whether there is a guaranteed and
secure long-term market for the partially-reclaimed material.'' These
commenters also stated that EPA should include in the final rule more
empirical and measurable ways to define this concept, for example
including markets with consistent positive profit margins for a minimum
of ten years.
EPA's Response: Proposed Criterion (4)--Whether There Is a Guaranteed
Market for the Partially-Reclaimed Material
    EPA agrees that clarity is needed and has modified the fourth
criterion to include examples of how a market for the partially-
reclaimed material can be demonstrated. The fourth criterion now reads,
``whether there is a market for the partially-reclaimed material as
demonstrated by known customer(s) who are further reclaiming the
material (e.g. record of sales and/or contracts, and evidence of
subsequent use, such as bills of lading).'' In response to the
commenter who urged EPA to include more empirical and measurable ways
to define this concept, the Agency has determined that examination of
the contracts, record of sales, and bills of lading between the partial
reclaimer and its customers will provide adequate evidence of whether
this criterion is satisfied.
Comments: Proposed Criterion (5)--Whether the Partially-Reclaimed
Material Is Handled To Minimize Loss
    For the fifth proposed criterion, one commenter argued that
``minimize loss'' should be better defined and that, at a minimum, the
partially-reclaimed material should meet the ``contained'' standard for
hazardous secondary materials and be managed exactly like any other
commodity.
EPA's Response: Proposed Criterion (5)--Whether the Partially-Reclaimed
Material Is Handled To Minimize Loss
    EPA does not find that the phrase ``minimize loss'' needs to be
better defined. As we have discussed elsewhere and in the preamble to
the 2011 July DSW proposal, evidence to support this criterion may
include documentation of facility procedures used to minimize loss
(e.g., inspections, training) and storage and management equipment
designed to minimize loss. Additionally, under today's final rule,
partially-reclaimed materials must meet the legitimate recycling
standard in 40 CFR 260.43, which requires that the hazardous secondary
materials be managed as a valuable commodity. This criterion explains
that, where there is an analogous raw material, the hazardous secondary
materials must be managed, at a minimum, in a manner consistent with
the management of the raw material or in an equally protective manner.
Where there is no analogous raw material, the hazardous secondary
material should be contained, as defined in 40 CFR 260.10.
Comments: Revision To Eliminate Sixth Criterion
    Many commenters supported EPA's proposal to eliminate the sixth
criterion concerning other relevant factors. One commenter stated that
criterion six has been and is currently being used as a primary basis
for granting partial reclamation variances for hazardous secondary
materials, and has led to the creation of unfair and illegal advantages
for some reclaimers.
    A few commenters, however, disagreed with the proposed change. One
commenter argued that removing criterion six conflicts with the intent
of the partial reclamation variance by restricting the administrative
authority's discretion. Other commenters argued that the overall
situation should be considered and that an applicant's history of
compliance would be an ``other relevant factor'' that should be
considered when evaluating an application for a partial reclamation
variance.
EPA's Response: Revision To Eliminate Sixth Criterion
    EPA agrees with those commenters that supported the elimination of
the sixth criterion. The sixth criterion has resulted in subjective
interpretations which have led, in the Agency's view, to incorrect
application of the partial reclamation variance and therefore, EPA

is removing it from the list of criteria. We do not agree with the
commenter who argued that removing this criterion would restrict the
administrative authority's discretion. For example, EPA agrees with
those commenters who said that an applicant's history of compliance
could be considered as part of a partial reclamation variance
determination. However, rather than requiring that compliance be
considered under a sixth criterion, EPA notes that compliance would
likely be a factor in determining how the facility is meeting the
legitimate recycling factors in 40 CFR 260.43 and the partial
reclamation variance criteria (1)-(5). For example, regulatory
compliance could be used regarding whether the partially-reclaimed
material is handled to minimize loss.

D. Revision to the Criteria for Non-Waste Determinations To Require
Petitioners To Demonstrate Why Their Material Cannot Meet an Existing
Exclusion

    EPA proposed to revise the criteria for the non-waste determination
in 40 CFR 260.34 to require that petitioners explain or demonstrate why
their hazardous secondary materials cannot meet, or should not have to
meet, the existing DSW exclusions under 40 CFR 261.2 or 40 CFR 261.4.
Comments: Non-Waste Determination Criteria To Require Petitioners To
Demonstrate Why Their Material Cannot Meet an Existing Exclusion
    Many commenters agreed with this proposed change. These commenters
noted that, as a practical matter, it would seem facilities seeking
such a determination would have already evaluated the existing
exclusions and thus, requiring this information should not be overly
burdensome.
    A few commenters, however, disagreed with this proposed change. One
commenter argued that petitioners will be unwilling to provide
justification at the risk of disqualification of an accepted exclusion
in another state or EPA region for the same process. Another commenter
noted that there may be legitimate reasons where the use of an
exclusion might be too close to call and the facility wants greater
comfort in a determination. A third commenter argued it is unreasonable
for EPA to place the burden of interpreting EPA's regulations on those
who are regulated prior to consenting to review a request for a non-
waste determination.
EPA's Response: Non-Waste Determination Criteria To Require Petitioners
To Demonstrate Why Their Material Cannot Meet an Existing Exclusion
    EPA agrees with those commenters who supported this proposed change
to require that petitioners explain or demonstrate why their hazardous
secondary materials cannot meet, or should not have to meet, the
existing DSW exclusions under 40 CFR 261.2 or 40 CFR 261.4. EPA agrees
that this type of evaluation should already have been conducted by
facilities that are formally petitioning the state or EPA for a non-
waste determination. This provision provides the regulatory authority
with the information it needs, while helping to reduce the number of
applications because facilities will be forced to evaluate whether an
existing self-implementing exclusion may be used.
    EPA does not agree with the opposing arguments presented by the
commenters as a basis for not finalizing the proposed change. These
arguments, including that a facility may want more comfort in a
determination and that EPA shouldn't put the burden on facilities to
interpret regulations, are precisely why EPA and authorized states
would benefit from receiving an explanation or demonstration from the
facility why they cannot or should not have to meet an existing
exclusion. This information would enable regulatory authorities to
review and resolve questions regarding whether a non-waste
determination may be warranted. Additionally, EPA does not find
convincing the argument that a facility may be unwilling to provide
justification at the risk of disqualification of an accepted exclusion
in another state or EPA region. In fact, by finalizing this change, EPA
is fostering greater consistency in state-to-state interpretations.

E. Designation of the Regional Administrator as the EPA Recipient of
Petitions for Variances and Non-Waste Determinations

    In the July 2011 DSW proposal, EPA proposed to change the word
``Administrator'' to ``Regional Administrator'' in 40 CFR 260.30,
260.31, 260.32, 260.33, and 260.34. Due to the case-specific nature of
the variances and non-waste determinations, EPA believed that these
decisions may be better made by the Regional Administrator.
Comments: Designation of the Regional Administrator as the EPA
Recipient of Petitions for Variance and Non-Waste Determinations
    Most of the comments on this issue opposed the proposed change
arguing that there are significant differences in regional
interpretations just as there are differences in state interpretations
and that the change will lead to increased inconsistency in the
implementation of variances and non-waste determinations. Other
commenters urged EPA to clarify that petitions for solid waste
variances and non-waste determinations may be sent to Directors of
authorized states, just as the petition process works currently. These
commenters argued that states are delegated by EPA to administer the
hazardous waste regulations and, therefore, states have a role in
reviewing solid waste variance and non-waste determination petitions.
    Only a few commenters supported the proposed change.
EPA's Response: Designation of the Regional Administrator as the EPA
Recipient of Petitions for Variance and Non-Waste Determinations
    EPA recognizes the commenters' concerns who argued that designating
the Regional Administrator, rather than the Administrator, as the
person responsible for evaluating such petitions and deciding whether
to grant a solid waste variance or a non-waste determination may
increase inconsistency by virtue of there being ten Regional
Administrators as compared to the one Administrator. Because the Agency
is striving for as much consistency as possible, we have decided not to
finalize this proposed change. We would also note that the rule does
not change in any way the delegation of authority to states authorized
to administer the hazardous waste regulations and thus, authorized
states that have adopted these provisions may continue to evaluate and
decide whether to grant a solid waste variance or a non-waste
determination, as they do currently.

F. Requirement To Share Copies of Variances and Non-Waste
Determinations

    In the July 2011 DSW proposal, EPA requested comment on whether to
require states to share copies of any solid waste variance and non-
waste determination petitions and the tentative decisions with EPA for
review and comment in order to encourage collaboration and national
consistency. Formalizing collaboration would have

the benefit of reinforcing existing working relationships between EPA
and the states.
Comments: Requirement To Share Copies of Variances and Non-Waste
Determinations
    A number of comments did not support a requirement for states to
share copies of solid waste variance and non-waste determination
petitions with EPA for comment. These commenters argued that another
layer of bureaucracy would delay the process. One commenter was
concerned with protecting a company's confidential business
information. Another commenter argued that EPA has not made an adequate
case for the need for national approvals and that there may be
legitimate reasons for arriving at different conclusions, for different
variance petitions.
    Some commenters, however, supported EPA's efforts to collect solid
waste variance and non-waste determination decisions and to share the
information with other states.
EPA's Response: Requirement To Share Copies of Variances and Non-Waste
Determinations
    EPA recognizes commenters' concerns who argued that requiring
states to share copies of solid waste variance and non-waste
determination petitions with EPA for review and comment would likely
increase the duration of the petition process. Therefore, EPA is not
codifying this requirement in the final rule. EPA, however, will likely
continue to work with the states in order to increase state-to-state
consistency in such determinations and may pursue non-regulatory
efforts to collect and share solid waste variances and non-waste
determinations as part of implementing the final rule.

XIX. Major Comments on the Proposed Revisions to Pre-2008 Recycling
Exclusions

    In the 2011 DSW proposed rule, EPA considered whether additional
requirements should be codified for recycling exclusions and exemptions
that EPA promulgated prior to the 2008 DSW final rule. Specifically,
EPA requested comment on codifying the legitimate recycling standard in
40 CFR 260.43, the contained standard in 40 CFR 260.10, and the
notification provision in 40 CFR 260.42 for 32 regulatory provisions
that exclude or exempt certain types of recycling from full Subtitle C
regulations.\52\
---------------------------------------------------------------------------

    \52\ EPA also proposed additional recordkeeping requirements in
the speculative accumulation standard in 40 CFR 261.1(c)(8). See
section XIV for responses to these comments.
---------------------------------------------------------------------------

    However, EPA explicitly did not reopen comment on any substantive
provisions of the regulatory exclusions or exemptions. The inclusion of
requirements for legitimacy, containment, and notification were
strictly meant as means to better enforce the regulations.
    The request for comment stemmed from EPA's analysis of a report it
developed as part of the DSW rulemaking, ``An Assessment of
Environmental Problems Associated with Recycling of Hazardous Secondary
Materials'' (environmental problems study), which analyzed 218
recycling damage cases.\53\ The goal of the environmental problems
study was to identify and characterize environmental problems that have
been attributed to hazardous secondary material recycling activities.
EPA then used the findings from this study to craft a number of
conditions for the 2008 DSW final rule, which were specifically
designed to target the major causes of damage and thus help define
``discard'' of hazardous secondary materials. These conditions,
however, were applied only to the 2008 DSW exclusions.
---------------------------------------------------------------------------

    \53\ The original environmental problems study, published
January 11, 2007, reviewed 208 damage cases. Based on information
submitted by commenters to the 2007 DSW supplemental proposed rule,
EPA reviewed an additional ten recycling damage cases in an addendum
to the environmental problems study, published July 14, 2008. A
second addendum was published in June 2011. As part of this DSW
final rule, EPA updated the environmental problems study to combine
all of the information compiled from the 2007 study, the 2008 and
2011 addenda, and new information collected by EPA since June 2011.
This 2014 updated study includes information on 250 damage cases and
can be found in the docket for today's rule.
---------------------------------------------------------------------------

    EPA reviewed and analyzed each damage case in the environmental
problems study and determined the regulatory provision that likely, or
potentially, governed the management of the hazardous secondary
materials.\54\ This analysis was based on the type of hazardous
secondary material and the date of the damage case related to the
effective date of the regulatory provision. From this analysis, EPA had
concluded that over half of the damage cases in the environmental
problems study were associated with hazardous secondary materials that
were likely excluded or exempted from Subtitle C regulation under an
existing (pre-2008) regulatory provision.\55\ For example, EPA reported
in the 2011 DSW proposed rule that 52 damage cases (23%) are associated
with scrap metal that is likely excluded under Sec.  261.4(a)(13) and/
or Sec.  261.6(a)(3)(ii), while drum reconditioning accounted for 23
damage cases (10%), in which the residuals are likely excluded under 40
CFR 261.7. Additionally, 35 damage cases (16%) were associated with
batteries that are likely managed under 40 CFR 273.2 and/or 40 CFR part
266 subpart G. Based on these results, and given that many of the pre-
2008 recycling exclusions do not directly specify conditions that are
necessary to ensure discard is not occurring, we concluded that these
provisions may not be adequately enforceable in order to protect human
health and the environment. Thus, in the 2011 DSW proposal, we
requested comment on whether EPA should codify additional conditions
for these recycling exclusions.
---------------------------------------------------------------------------

    \54\ U.S. EPA Correlation of Recycling Damage Cases with
Regulatory Exclusions, Exemptions or Alternative Standards.
    \55\ The determination that the hazardous secondary materials
were ``likely'' associated with pre-2008 recycling exclusions and
exemptions was based on the waste description and the fact that most
recyclers did not appear to have a RCRA permit. EPA did not
specifically verify if the damage case facility was operating under
an exclusion or exemption.
---------------------------------------------------------------------------

    Many comments in response to EPA's request for comment on whether
the Agency should codify additional conditions to the pre-2008
recycling provisions were unfavorable, although a number of comments
indicated support for the codification.
Comments: Potential Impact of Additional Requirements
    Industry commenters, and scrap metal recyclers in particular,
strongly opposed adding conditions, arguing that the additional
conditions will pose an undue burden on businesses without any
environmental benefit and will discourage recycling. For example,
commenters argued that scrap metal recyclers go to great lengths to
ensure that they do not handle hazardous waste. These commenters said
that, if EPA were to add conditions to the scrap metal exclusion, a
scrap metal recycler would be required to obtain additional insurance,
local licenses, training, new inspection procedures, lawyers, and
consultants in order to maintain compliance and to prepare for an
inadvertent loss of the exclusion, which would make it a handler of
hazardous waste. Commenters argued that many scrap metal businesses are
small and family-owned and cannot afford these new requirements and
thus, these regulations will severely affect business and jobs.
    Many commenters also argued that the contained standard is not
necessary or practical and would be expensive. Commenters believed that
the one-size-

fits-all approach that EPA requested comment on fails to reflect EPA's
recognition over the years of the need to tailor any conditions for
regulatory exclusions to the specific characteristics of the recycling
activities. For example, one commenter argued that the contained
standard is redundant for the spent wood preservatives exclusion under
40 CFR 261.4(a)(9), which already requires facilities to manage
solutions and wastewater ``to prevent release to either land or
groundwater or both'' and to construct recycling units so ``prior to
reuse they can be visually or otherwise determined to prevent such
release.'' This commenter also noted that drip pads must comply with 40
CFR part 265 subpart W. Other commenters noted that applying the
contained standard to lead-acid batteries is inappropriate and
unnecessary because EPA, on several occasions, has recognized that
individual lead-acid batteries qualify as ``containers,'' citing a
November 17, 1989, memo from Sylvia Lowrance (RO 13339). Furthermore,
these commenters argued that the contained standard duplicates Sec.
266.80(b).
    Regarding notification, many commenters did not support adding
notification to the pre-2008 exclusions. These commenters argued that
the EPA Form 8700-12 (Site Identification Form) and, in particular the
Addendum to the Site Identification Form, which is used to notify under
40 CFR 260.42, is too burdensome for facilities operating under a pre-
2008 exemption/exclusion. For example, the Addendum requires facilities
to list their hazardous secondary materials using EPA hazardous waste
codes. In some cases, particularly for scrap metal recyclers,
facilities would be required to determine which secondary material
would be considered a hazardous secondary material, which may involve
extensive testing in order to determine which hazardous waste code to
report on the form. Additionally, the Addendum also requires facilities
to report quantities of hazardous secondary material managed under the
exclusions, but commenters explained that facilities operating under a
pre-2008 exclusion have not generally determined which secondary
material would be considered a hazardous secondary material, and
therefore, any quantity estimates, which are required on the Addendum,
would not be reliable for programmatic decisions. Moreover, commenters
argued that notification would be difficult for facilities with
multiple excluded processes. For example, one commenter explained that
one facility in Tennessee has more than a hundred closed-loop recycling
processes and thus it would be extremely onerous to report each process
on a notification.
    Commenters also argued that it is difficult to estimate the number
of facilities operating under the exclusions and thus the impact on the
state implementers of the notification program is uncertain. For
example, notification would impact all forms of scrap metal handling
(junk yards, scrap dealers, steel-makers), generators and handlers
managing lead-acid batteries (vehicle repair facilities, retailers) and
precious metals destined for reclamation (x-ray facilities, dentists,
vets, jewelers). These commenters argued that most states are already
under resource constraints and will be unable to cope with the tens of
thousands of new forms that would need processing if EPA were to codify
notification as a condition of the exclusions. Some state commenters
suggested ways to reduce the burden on states, including not requiring
periodic notifications on the same day that biennial reports are due
and by implementing a process whereby notifications could be submitted
electronically. Commenters also noted that the re-notification
requirement for excluded facilities would be more stringent than what
is currently required for hazardous waste small quantity generators.
EPA's Response: Potential Impact of Additional Requirements
    EPA did not believe at the time of the proposal that the additional
requirements--meeting the legitimate recycling standard, the contained
standard, and the notification requirement--would present an undue
burden on facilities. As discussed in more detail below, this is
because EPA considers certain requirements, like legitimate recycling
and containment, inherent in the definition of solid waste recycling
exclusions and assumes that the regulated community already meets these
standards. Notification was considered to be a simple reporting
requirement that would pose minimal additional burden.
    However, upon reviewing the comments, EPA has determined that more
study is needed before taking action. Therefore, EPA is not making any
changes to the language of the 32 recycling exclusions and exemptions
at this time. In the case of the legitimacy provision, EPA is instead
codifying a general prohibition against sham recycling. In the case of
the contained standard and notification requirement, EPA is deferring
any action until further study is conducted. EPA's response to comments
regarding burden implications of each of the provisions is discussed in
more detail below.
    (1) Legitimacy. With respect to legitimacy, it has been EPA's long-
standing policy that all recycling of hazardous secondary materials
must be legitimate. If a facility is engaged in sham recycling, this,
by definition, is not real recycling and that material is being
discarded. Additionally, EPA considers the four legitimacy factors
codified in 40 CFR 260.43 to be substantively the same as the existing
legitimacy policy, which has been articulated in the 1989 Lowrance Memo
and in various DSW Federal Register notices.
    In proposing to codify the legitimate recycling standard for all
exclusions, we did not intend to raise questions about the status of
general legitimacy determinations that underlie these existing
exclusions from the definition of solid waste, or about case-specific
determinations that have already been made by EPA or the states. As
noted in the comments, EPA generally considered the legitimacy of the
recycling process when the original determinations were promulgated,
and the Agency did not intend to force companies to have to reexamine
long standing legitimate recycling practices. Therefore EPA is not
revising the pre-2008 exclusions and exemptions to include a legitimacy
requirement.
    However, as discussed in section VIII, these material-specific
exclusions from the definition of solid waste do not negate the basic
requirement that the hazardous secondary material must be legitimately
recycled. Therefore, EPA is codifying a general statement in Sec.
261.2(g) that makes it clear that a hazardous secondary material found
to be sham recycled is discarded and thus, is a solid waste. By
codifying a prohibition on sham recycling that applies to all hazardous
secondary materials being recycled, we are confirming that we expect
anyone operating under a recycling exclusion or exemption to be doing
so legitimately. EPA finds that this will give implementing agencies a
clear regulatory statement that can be used to enforce against sham
recyclers, yet not require the vast majority of recyclers that are
performing legitimate recycling under the pre-2008 exclusions and
exemptions to revisit previously-made legitimacy determinations.
    Additionally, the Agency has, based on the public comments, made
adjustments to the legitimacy factors to build in more flexibility for
meeting each factor and thus, ease the use of the

standard. For example, EPA has modified factor 4 to rely on widely-
recognized commodity standards and specifications in the case where
there is no analogous product as a way of recognizing industry
standards that ensure their products are legitimate. EPA gives the
example in the regulatory text of commodity specification grades for
common metals, which would be relevant to scrap metal recyclers, among
other metal recyclers. EPA has also included a provision that states
that when ``hazardous secondary materials being recycled are returned
to the original process or processes from which they were generated to
be reused, the product of the recycling process is comparable to a
legitimate product or intermediate,'' and thus would meet factor 4.
This revision addresses concerns regarding the closed loop exemption at
Sec.  261.4(a)(8), as well as mineral processing to produce primary
metals, because these processes always include materials looping back
into the process to ensure that all the valuable metals that can be
extracted from the ore are being collected for use.
    For more information and responses to comments on legitimacy,
please see section XVII in today's preamble.
    (2) Contained. With respect to the contained standard, EPA has long
determined that hazardous secondary materials that are released to the
environment and are not destined for recycling are clearly discarded.
Based on the environmental problems study, the results of which showed
mismanagement of hazardous secondary materials as one of the major
causes of damage, EPA requested comment in the 2011 DSW proposed rule
on applying the proposed contained standard to all hazardous secondary
materials. EPA assumes that the vast majority of recycling facilities
``contain'' their hazardous secondary materials and thus would already
meet the contained standard. Therefore, EPA assumed that the contained
standard would not present any additional burden to the regulated
community, especially since the contained standard is ``performance-
based'' and provides much flexibility, but could be used to enforce
against those facilities that were mismanaging their materials.
    However, as the commenters' noted, EPA has already promulgated
certain management standards for some exclusions based on the case-
specific characteristics of the hazardous secondary material or
recycling process (e.g., drip pads used to manage wastewaters and/or
spent wood preserving solutions under 40 CFR 261.4(a)(9)). Thus, EPA
understands that simply applying the contained standard wholesale
across the 32 recycling provisions, may not be the most efficient or
effective course of action as EPA would not be considering how the
contained standard would work within each specific exclusion and its
existing conditions. Therefore, EPA is deferring action on applying the
contained standard to the pre-2008 exclusions and exemptions until we
can more adequately address commenters' concerns.
    (3) Notification. With respect to notification, EPA's intent was to
provide basic information to regulatory authorities in order to enable
adequate compliance monitoring of the exclusions. EPA had requested
comment on requiring notification under 40 CFR 260.42 using the Site ID
Form (EPA Form 8700-12), which is the same provision used for the 2008
DSW final rule exclusions. Given that this form is familiar to the
regulated community, we had not considered this requirement to pose an
undue burden.
    However, based on comments we received, we understand that using
the same notification requirement developed for hazardous secondary
materials that were recently excluded in 2008 presents challenges when
used for hazardous secondary materials that have been excluded for many
decades. For example, the notification provision in 40 CFR 260.42
requires information on types of hazardous secondary materials (using
hazardous waste codes) and quantities of these materials. However, as
noted by commenters, this is difficult, for example, for scrap metal
recyclers, because these facilities currently do not distinguish
between non-hazardous scrap metal and scrap metal that would be
hazardous waste were it not for the exclusion. Requiring notification
in this instance may infer that scrap metal recyclers would be required
to extensively test their hazardous secondary material in order to
determine if the scrap metal was hazardous, and therefore excluded, and
to determine which hazardous waste code to report on the form.
Additionally, the notification presents challenges for facilities with
numerous closed-loop recycling processes because the form would require
these facilities to specifically list each process. We also understand
commenters' concerns regarding the burden on states that must review
and process these forms. Because the majority of the pre-2008
exclusions and exemptions do not include notification requirements, EPA
does not have precise data regarding how many facilities are recycling
hazardous secondary materials under these exclusions and exemptions.
This lack of data hinders EPA's ability to more precisely estimate the
burden on states and whether such a requirement would be
environmentally beneficial. Therefore, EPA is deferring action on
applying notification to the pre-2008 exclusions and exemptions until
we can more adequately address commenters' concerns.
Comments: EPA's Authority To Add Requirements to Pre-2008 Exclusions
    Commenters stated that EPA lacks jurisdiction to add requirements
to materials that are not solid wastes and, if EPA is changing its
position on the waste status of these materials, the Agency must
provide a reasoned explanation for disregarding facts and circumstances
that underlay the prior policy. Some commenters argued that EPA had
evaluated each of the hazardous secondary materials at the time it
promulgated the exclusions and thus, EPA must demonstrate why
management in compliance with the existing conditions constitutes
discard.
EPA's Response: EPA's Authority To Add Requirements to Pre-2008
Exclusions
    EPA disagrees with comments that argue that EPA does not have the
authority to require conditions for hazardous secondary materials being
recycled. As noted in the Background section of this preamble, in the
Safe Food court case, the D.C. Circuit upheld an EPA rule that excludes
from the definition of solid waste hazardous secondary materials used
to make zinc fertilizers, and the fertilizers themselves, as long as
the recycled materials meet certain handling, storage, and reporting
conditions and the resulting fertilizers have concentration levels for
certain hazardous constituents that fall below specified thresholds. It
is therefore within EPA's discretion to determine conditions under
which a hazardous secondary material is not being discarded and thus
may be excluded from hazardous waste regulation.
    However, EPA agrees that more information is needed before
determining whether adding requirements to the pre-2008 exclusions and
exemptions is needed to make them more enforceable. EPA's request for
comment on this issue was based on conclusions drawn from the
environmental problems study, which evaluated over 200 damage cases,
and the Correlation of Recycling Damage Cases with Regulatory
Exclusions, Exemptions or Alternative Standards, which analyzed which
damage cases

were likely operating under a pre-2008 exclusion and exemption. From
these studies, EPA concluded that over half of the damage cases were
likely operating under an existing exclusion and exemption. However,
EPA did not examine the specific underlying causes of the damage cases
(whether they were based on the lack of oversight of the pre-2008
exclusions and exemptions or on other causes). Thus EPA has decided
that additional information is needed to determine whether additional
regulatory action is needed, or whether the problems should be
addressed through some other method, such as outreach and compliance
assistance.
Comments: Record Support
    Many commenters argued that EPA's record does not support this
regulatory change and that EPA failed to conduct a thorough analysis.
For example, commenters argued that EPA's record needs to show that
significant environmental problems have been caused by a meaningful
number of facilities operating in compliance with the pre-2008
exclusions and exemptions. These commenters noted that many of the
damage cases involve civil or criminal violations, indicating that the
problem was non-compliance with the regulations, not from a lack of
regulations. Thus, these commenters believed that EPA already has
sufficient authority to enforce against bad actors. Additionally, EPA's
own analysis only links damage cases to just seven exclusions, yet EPA
is considering adding conditions to 32 exclusions.
EPA's Response: Record Support
    EPA disagrees with comments that argue that since the environmental
problems study includes cases with civil or criminal violations, this
demonstrates existing regulations are adequately enforceable. On the
contrary, the frequency of violations in the damage cases may
demonstrate the need for greater, not less, oversight, particularly in
the case of sham recycling, where discard via over-accumulation of
material can become a major problem before the Agency can take action.
    For example, in one of the damage cases, a facility whose primary
business was mixing electric arc furnace dust (K061) with agricultural
lime for sale as a micronutrient lost its customers and could not sell
its product. However, the facility continued to accept K061, and, after
approximately seven months, the facility had accepted over 60,000 tons
of this hazardous waste and stored it on the ground in piles up to 30
feet high, with no prospect of it being used to produce a product and,
thus, legitimately recycled. While the initial recycling of the K061
hazardous waste was legitimate, when the facility failed to produce a
product that was actually sold, the K061 could no longer be considered
legitimately recycled, resulting in significant risk to human health
and the environment from discarded material. Therefore EPA is codifying
a general probation against sham recycling, in order to prevent such
cases from occurring.
    However, in the case of containment and notification, EPA agrees
with commenters and has determined that additional information about
the underlying causes of the damage cases would be useful to determine
whether additional regulatory action is needed, or whether the problems
should be addressed through some other method, such as outreach and
compliance assistance.
    EPA also understands commenters' concerns regarding the limitations
of the correlation analysis, including the fact that EPA could only
correlate with confidence 7 of the 32 recycling exclusions and
exemptions to damage cases in its environmental problems study. The
analysis was hampered by a lack of precision in the data. For example,
because notification is not required for the majority of pre-2008
exclusions and exemptions, we can only conservatively identify damage
case correlations where the type of hazardous secondary material very
clearly matches to an exclusion (e.g., scrap metal). We lack
information to make inferences for broadly applicable exclusions,
(e.g., use/reuse) or for broadly defined hazardous secondary materials
(e.g., metal-bearing wastes). Therefore, by virtue of some exclusions'
broad applicability, we were unable to correlate them to specific
damage cases.
    Although it is difficult to assign specific damage cases to certain
exclusions, we note that in the environmental problems study only nine
of the damage cases were operating under a RCRA permit at the time of
damage. Thus, EPA can generally conclude that the majority of the
damage cases were operating outside of RCRA, inferring these facilities
were either operating illegally or likely operating under an exclusion,
exemption, alternate standard, or no standard at all. In the case of
containment and notification, EPA has determined that additional
information about the underlying causes of the damage cases would be
useful to determine whether additional regulatory action is needed, or
whether the problems should be addressed through some other method,
such as outreach and compliance assistance.
Comments: Time To Comment
    Industry commenters argued that they did not have adequate time to
comment. Further, they had no forewarning of the changes EPA was
considering before the proposal was issued. EPA's request for comment
did not involve prior discussions with stakeholders, as is typical when
developing proposed rules. Moreover, this issue was not part of the
2008 DSW final rulemaking, Sierra Club's petition, or part of EPA's
settlement agreement with the Sierra Club. Many commenters urged EPA to
meet with industry representatives in order to better understand
industry practices.
    Commenters also argued that if EPA codified a notification as a
condition of the exclusions, thousands of facilities would be at risk
of losing the exclusion due to failure to notify, which could result in
civil fines and solid waste management fees for the facility. These
commenters stated that notification as a condition in this instance
presents acute risks to facilities operating under an exclusion,
because, up to this point, these facilities have not been required to
comply with the RCRA hazardous waste requirements. Thus, commenters
said many facilities may fail to notify simply because they were
unaware the regulations had changed.
EPA's Response: Time To Comment
    EPA understands commenters that argued they did not have adequate
time to comment on applying the contained standard and notification for
pre-2008 recycling exclusions and exemptions. Contrary to the
legitimate recycling standard, which has been EPA's long-standing
policy and has been articulated in the 1989 Lowrance memo and various
Federal Register notices, EPA had not previously indicated it was
considering the contained standard and notification for pre-2008
exclusions and exemptions prior to the 2011 DSW proposal. Although the
2011 proposed rule provided an opportunity for public comment, EPA
understands commenters' concerns, with notification in particular, as
these provisions would impact thousands of businesses, many of which
may not be closely following DSW rulemaking activity. EPA agrees that a
more inclusive approach to a potential rulemaking that involves
stakeholders in upfront discussions would likely result in gainful
information, more effective strategies for addressing issues, and
better communication with the regulated community.

Comments: Support for Adding Requirements to Existing Exclusions
    Some commenters, including environmental organizations, supported
adding conditions to the pre-2008 exclusions and exemptions, arguing
that EPA must adopt the regulatory conditions, including the legitimacy
standard in light of the risks posed by the 32 recycling exclusions and
the historical pattern of environmental contamination at facilities
that are exempt from RCRA. These commenters believed that the
prevention of one damage case every two years would more than offset
the compliance costs. Some state commenters also supported adding
conditions to the pre-2008 exclusions and exemptions, although some
argued that EPA should exempt certain types of hazardous secondary
materials, like scrap metal, spent lead-acid batteries, closed-loop
recycling, and printed circuit boards, from the requirements.
    Other commenters supported adding notification to the pre-2008
recycling provisions. These commenters argued that states may not be
aware of excluded activities unless they are occurring at facilities
that are otherwise regulated or are the subject of a citizen complaint.
These commenters said that notifications would allow states to
periodically evaluate these facilities to ensure they are meeting the
terms of the exclusion and that, while the initial burden on states
might be quite heavy, the long-term benefit of knowing where these
facilities are justifies this burden.
EPA's Response: Support for Adding Requirements to Existing Exclusions
    EPA acknowledges commenters who support additional requirements for
the pre-2008 exclusions and exemptions in order to avoid potential
damage cases and protect human health and the environment. However,
based on the comments received, the EPA has determined that it does not
have enough information to determine if adding requirements to the
existing pre-2008 recycling exclusions and exemptions would be the most
effective method for addressing the damage cases or whether a more
targeted approach would be more appropriate.
    Regarding legitimacy, in lieu of adding a legitimacy requirement to
the specific recycling exclusions, EPA is instead codifying a general
statement in Sec.  261.2(g) that makes it clear that a hazardous
secondary material found to be sham recycled is discarded and thus, is
a solid waste. EPA finds that this will give implementing agencies a
clear regulatory statement that can be used to enforce against sham
recyclers, yet not require the vast majority of recyclers that are
performing legitimate recycling under the pre-2008 exclusions and
exemptions to revisit previously-made legitimacy determinations. EPA
also notes that today's final legitimacy standard includes
modifications that address implementation concerns for certain
hazardous secondary materials and processes, such as scrap metal and
closed-loop recycling. For more information on these modifications,
please see the other sections on legitimacy in this preamble.
    Regarding the contained standard and notification, for reasons
stated above, the Agency is deferring action on applying the contained
standard and notification to the pre-2008 exclusions and exemptions in
order to consider how best to implement these conditions in the context
of the case-specific circumstances of the regulatory provisions.

XX. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified state to
administer and enforce a hazardous waste program within the state in
lieu of the federal program, and to issue and enforce permits in the
state. A state may receive authorization by following the approval
process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall
standards and requirements for authorization). EPA continues to have
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. An authorized state also continues to have
independent authority to bring enforcement actions under state law.
    After a state receives initial authorization, new federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
state until the state adopts and receives authorization for equivalent
state requirements. In contrast, under RCRA section 3006(g) (42 U.S.C.
6926(g)), new federal requirements and prohibitions promulgated
pursuant to HSWA provisions take effect in authorized states at the
same time that they take effect in unauthorized states. As such, EPA
carries out the HSWA requirements and prohibitions in authorized
states, including the issuance of new permits implementing those
requirements, until EPA authorizes the state to do so.
    Authorized states are required to modify their programs only when
EPA enacts federal requirements that are more stringent or broader in
scope than the existing federal requirements. RCRA section 3009 allows
the states to impose standards more stringent than those in the federal
program (see also 40 FR 271.1(i)). Therefore, authorized states are not
required to adopt federal regulations, both HSWA and non-HSWA, that are
considered less stringent than previous federal regulations or that
narrow the scope of the RCRA program and Subtitle C hazardous waste
regulations would continue to apply in those states.

B. Effect on State Authorization of Final Rule

    The regulations finalized in today's notice are not promulgated
under the authority of HSWA. Thus, the standards will be applicable on
the effective date only in those states that do not have final
authorization of their base RCRA programs. Moreover, authorized states
are required to modify their programs only when EPA promulgates federal
regulations that are more stringent or broader in scope than the
authorized state regulations. For those changes that are less
stringent, states are not required to modify their program. This is a
result of section 3009 of RCRA, which allows states to impose more
stringent regulations than the federal program.
    The revisions to the definition of solid waste being finalized
today are more stringent than those promulgated under the 2008 DSW
final rule, so those states which have adopted the 2008 DSW final rule
would be required to modify their programs. However, when compared to
the federal program that was in place when the 2008 DSW final rule was
finalized, many of today's revisions would be considered less stringent
(e.g., the revised generator-controlled exclusion, the verified
recycler exclusion, and the remanufacturing exclusion). Therefore,
authorized states that have not adopted the 2008 DSW final rule are not
required to modify their programs to adopt these exclusions and the
federally authorized state hazardous waste regulations applying the
full subtitle C requirements will continue to apply in those states. As
noted in footnote 58 of the proposed rule, final decisions regarding
whether a state rule is more stringent under 40 CFR 271.1(i)(1) or
broader in scope than the federal program under 40 CFR 271.1(i)(2) are
made when the Agency authorizes state programs. However, the revisions
to the definition of legitimacy and the prohibition of sham recycling,
as discussed in section VIII of the preamble, are more stringent than
the current federal hazardous waste

program because they codify implicit requirements that have been
largely implemented through guidance. Also, the additional
recordkeeping requirement in the speculative accumulation provision in
40 CFR 261.1(c)(8), as discussed in section V of the preamble, is also
more stringent than the current federal hazardous waste program.
Finally, the changes to the standards and criteria for variances from
classification as a solid waste discussed in section IX are more
stringent than the current federal hazardous waste program. In these
cases, all authorized states will be required to modify their programs
to adopt equivalent, consistent and no less stringent requirements.

XXI. Statutory and Executive Order (EO) Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' because it is likely to
``raise novel legal or policy issues'' under section 3(f)(4) of
Executive Order 12866. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in
response to OMB recommendations have been documented in the docket for
this action.
    In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
EPA's background document for today's action titled ``Regulatory Impact
Analysis'' (RIA). A copy of the analysis is available in the docket for
this action and the analysis is briefly summarized here. EPA estimates
that the 2014 DSW rule will result in a future annual costs savings of
$1.0 to $2.0 million per year, depending on discount rate used, as
compared to a baseline of full implementation of the 2008 DSW rule.
This cost savings is based on the assumption that same number of states
would adopt the 2014 DSW rule as would adopt the 2008 DSW rule.
However, because the 2014 DSW rule addresses many of the concerns
states raised about the 2008 DSW rule, there is a potential that more
states would adopt it, thus increasing the upper bound of annual cost
savings to $17.5 million to $59 million per year.
    In addition to estimating the cost savings of today's action, the
RIA also provides qualitative (i.e., non-monetized) descriptions of
three categories of expected future benefits for today's action
consisting of: (1) Reduction in future environmental damages associated
with industrial recycling of hazardous secondary materials; (2)
improved industry environmental compliance; (3) indirect legal &
financial benefits to industry consisting of reduced liability, less
uncertainty for regulated entities, and lower legal and financial
credit costs.

B. Paperwork Reduction Act (Information Collection Request)

    The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
information collection requirements are not enforceable until OMB
approves them. The information collection request has been updated
since the July 22 proposed rule to reflect the final rule requirements
and to respond to public comments. The EPA ICR number for this next
submission will be 2310.03 and the OMB control number will be 2050-
0202.
    Several information requirements established for this action are
voluntary to the extent that the conditional exclusions being finalized
today are voluntary and represent an overall reduction in burden, as
compared with the alternative information requirements associated with
managing hazardous secondary materials as hazardous waste. The
information requirements help ensure that: (1) Entities operating under
today's rule are held accountable to the applicable requirements; and
(2) inspectors can verify compliance with the conditions of today's
rule when needed.
    EPA estimates the total annual burden to respondents under the new
paperwork requirements as a result of the final rule changes to be
34,454 hours and $68,071 in operations and maintenance costs
($2,378,111, including labor costs), respectively. Burden and costs
continuing from the 2008 ICR No. 2310.02 include 2,034 hours and $299
in operations and maintenance ($144,235, including labor costs),
respectively. The total annual burden and operations and maintenance
costs are estimated at 36,488 hours and $68,370 in operations and
maintenance costs, or 109,464 hours and $205,110 in operations and
maintenance over three years. Burden is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business based on
small size standards defined by the Small Business Administration's
(SBA) regulations at 13 CFR 121.201 for 27 NAICS codes with the largest
number of affected entities; (2) a small governmental jurisdiction that
is a government of a city, county, town, school district or special
district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The small
entities directly regulated by this final rule are primarily small
businesses in the manufacturing sector (i.e., NAICS codes 32 and 33).
We have determined that the average annual impact on small businesses
is estimated to be significantly less than 1% of annual business sales
for all small entities.
    Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. Comments
were requested, and the comment period was extended once until October
20, 2011. In September 2011, EPA held two public meetings to accept
public comment on the proposal in Philadelphia, PA and in Chicago, IL.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for state, local, and Tribal
governments, in the aggregate, or the private sector in any one year.
EPA's RIA for today's action estimates the maximum state government
share of future direct costs for complying with today's action is $0.3
million per year. No impacts are expected for local or Tribal
governments. Because these direct costs are well below the $100 million
annual direct cost threshold, this rule is not subject to the
requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.
    The RIA estimates that the state government share of future
annualized direct costs is $0.3 million per year. No added costs are
expected for local or tribal governments. Because these direct costs
are well below the $25 million Federalism test threshold, EPA concludes
that Executive Order 13132 does not apply to today's action.

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

    Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000), EPA may not issue a regulation that has tribal implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by tribal
governments, or EPA consults with tribal officials early in the process
of developing the regulation and develops a tribal summary impact
statement.
    EPA has concluded that this action may have tribal implications.
However, it will neither impose substantial direct compliance costs on
tribal governments, nor preempt tribal law. Under the RCRA statute, the
federal government implements hazardous waste regulations directly in
Indian Country. Thus, the changes to the hazardous waste regulations
promulgated today would not impose any direct costs on tribal
governments. In addition, currently there are no facilities operating
on land controlled by tribal governments, but if such facilities did
locate in such areas, then this action could have tribal implications,
to the extent that the rule is intended to address potential adverse
impacts of the 2008 DSW final rule.
    EPA consulted with tribal officials early in the process of
developing this regulation to ensure they had an opportunity for
meaningful and timely input into its development. Specifically, tribal
representatives participated in the public meetings EPA held on the
draft environmental justice methodology and noted that the Bureau of
Census data used as the basis for the demographic analysis may
undercount indigenous populations. EPA also sent a consultation letter
to all federally recognized tribes requesting a consultation on the
2011 DSW proposal and held a tribes-only live webinar on August 11,
2011 to allow tribal official the opportunity to ask questions and
offer input into the proposed rule. EPA did not receive formal comments
from tribal officials during the consultation process.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in EO
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate
risk to children. This action's health and risk assessments are
contained in the Potential Adverse Impacts Under the Definition of
Solid Waste Exclusions (Including Potential Disproportionate Adverse
Impacts to Minority and Low-Income Populations) in the docket for
today's rule.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. EPA does not expect today's final rule
to adversely affect the supply, distribution, or use of energy.
    On the contrary, EPA expects that at least two elements of today's
final rule may provide future annual energy savings by (a) inducing
under today's solvent remanufacturing exclusion larger future annual
quantities of industrial processing solvents which get recycled rather
than disposed (i.e., incinerated) thereby reducing the relatively
higher lifecycle energy and other lifecycle resource impacts associated
with manufacturing virgin solvents, and (b) inducing more state
governments to adopt the other DSW exclusions which are revised under
today's final rule, thereby generally stimulating other types of
industrial recycling of hazardous secondary materials (HSM), which EPA
also expects may reduce adverse lifecycle impacts on the economy and
environment compared to the lifecycle impacts of producing virgin
materials for which larger future annual quantities of recycled HSM may
substitute. Thus, Executive Order 13211 does not apply to this rule.

I. National Technology Transfer and Advancement Act

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

J. Executive Order 12898: Environmental Justice

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this final rule will not have
disproportionately high and adverse human health or

environmental effects on minority or low-income populations because it
increases the level of environmental protection for all affected
populations without having any disproportionately high and adverse
human health or environmental effects on any population, including any
minority or low-income population. The purpose of this final rule is to
revise the 2008 DSW final rule in such a way that reduces potential
adverse impacts, including potential disproportionate impacts to
minority and low-impact communities. For further information on the
potential for disproportionate impacts to minority and low-income
populations, see the Potential Adverse Impacts Under the Definition of
Solid Waste Exclusions (Including Potential Disproportionate Adverse
Impacts to Minority and Low-Income Populations) in the docket for
today's rule.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on July 13, 2015.

List of Subjects

40 CFR Part 260

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

40 CFR Part 261

    Environmental protection, Hazardous waste, Incorporation by
reference, Recycling, Solid waste.

    Dated: December 10, 2014.
Gina McCarthy,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

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

Subpart B--Definitions

0
2. Section 260.10 is amended as follows:
0
a. Add in alphabetical order the definition of ``Contained;''
0
b. Remove the definition of ``Hazardous secondary material generated
and reclaimed under the control of the generator;'' and
0
c. Add in alphabetical order the definition of ``Remanufacturing,''
    The additions read as follows:

Sec.  260.10  Definitions

* * * * *
    Contained means held in a unit (including a land-based unit as
defined in this subpart) that meets the following criteria:
    (1) The unit is in good condition, with no leaks or other
continuing or intermittent unpermitted releases of the hazardous
secondary materials to the environment, and is designed, as appropriate
for the hazardous secondary materials, to prevent releases of hazardous
secondary materials to the environment. Unpermitted releases are
releases that are not covered by a permit (such as a permit to
discharge to water or air) and may include, but are not limited to,
releases through surface transport by precipitation runoff, releases to
soil and groundwater, wind-blown dust, fugitive air emissions, and
catastrophic unit failures;
    (2) The unit is properly labeled or otherwise has a system (such as
a log) to immediately identify the hazardous secondary materials in the
unit; and
    (3) The unit holds hazardous secondary materials that are
compatible with other hazardous secondary materials placed in the unit
and is compatible with the materials used to construct the unit and
addresses any potential risks of fires or explosions.
    (4) Hazardous secondary materials in units that meet the applicable
requirements of 40 CFR parts 264 or 265 are presumptively contained.
* * * * *
    Remanufacturing means processing a higher-value hazardous secondary
material in order to manufacture a product that serves a similar
functional purpose as the original commercial-grade material. For the
purpose of this definition, a hazardous secondary material is
considered higher-value if it was generated from the use of a
commercial-grade material in a manufacturing process and can be
remanufactured into a similar commercial-grade material.
* * * * *

Subpart C--Rulemaking Petitions

0
3. Section 260.30 is amended by adding paragraph (f) to read as
follows:

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

* * * * *
    (f) Hazardous secondary materials that are transferred for
reclamation under Sec.  261.4(a)(24) and are managed at a verified
reclamation facility or intermediate facility where the management of
the hazardous secondary materials is not addressed under a RCRA Part B
permit or interim status standards.

0
4. Section 260.31 is amended by revising paragraph (c) and adding
paragraph (d) to read as follows:

Sec.  260.31  Standards and criteria for variances from classification
as a solid waste.

* * * * *
    (c) The Administrator may grant requests for a variance from
classifying as a solid waste those hazardous secondary materials that
have been partially reclaimed, but must be reclaimed further before
recovery is completed, if the partial reclamation has produced a
commodity-like material. A determination that a partially-reclaimed
material for which the variance is sought is commodity-like will be
based on whether the hazardous secondary material is legitimately
recycled as specified in Sec.  260.43 of this part and on whether all
of the following decision criteria are satisfied:
    (1) Whether the degree of partial reclamation the material has
undergone is substantial as demonstrated by using a partial reclamation
process other than the process that generated the hazardous waste;
    (2) Whether the partially-reclaimed material has sufficient
economic value that it will be purchased for further reclamation;
    (3) Whether the partially-reclaimed material is a viable substitute
for a product or intermediate produced from virgin or raw materials
which is used in subsequent production steps;
    (4) Whether there is a market for the partially-reclaimed material
as demonstrated by known customer(s) who are further reclaiming the
material (e.g., records of sales and/or contracts

and evidence of subsequent use, such as bills of lading);
    (5) Whether the partially-reclaimed material is handled to minimize
loss.
    (d) The Administrator may grant requests for a variance from
classifying as a solid waste those hazardous secondary materials that
are transferred for reclamation under Sec.  261.4(a)(24) and are
managed at a verified reclamation facility or intermediate facility
where the management of the hazardous secondary materials is not
addressed under a RCRA Part B permit or interim status standards. The
Administrator's decision will be based on the following criteria:
    (1) The reclamation facility or intermediate facility must
demonstrate that the reclamation process for the hazardous secondary
materials is legitimate pursuant to Sec.  260.43;
    (2) The reclamation facility or intermediate facility must satisfy
the financial assurance condition in Sec.  261.4(a)(24)(vi)(F);
    (3) The reclamation facility or intermediate facility must not be
subject to a formal enforcement action in the previous three years and
not be classified as a significant non-complier under RCRA Subtitle C,
or must provide credible evidence that the facility will manage the
hazardous secondary materials properly. Credible evidence may include a
demonstration that the facility has taken remedial steps to address the
violations and prevent future violations, or that the violations are
not relevant to the proper management of the hazardous secondary
materials;
    (4) The intermediate or reclamation facility must have the
equipment and trained personnel needed to safely manage the hazardous
secondary material and must meet emergency preparedness and response
requirements under 40 CFR part 261 subpart M;
    (5) If residuals are generated from the reclamation of the excluded
hazardous secondary materials, the reclamation facility must have the
permits required (if any) to manage the residuals, have a contract with
an appropriately permitted facility to dispose of the residuals or
present credible evidence that the residuals will be managed in a
manner that is protective of human health and the environment, and
    (6) The intermediate or reclamation facility must address the
potential for risk to proximate populations from unpermitted releases
of the hazardous secondary material to the environment (i.e., releases
that are not covered by a permit, such as a permit to discharge to
water or air), which may include, but are not limited to, potential
releases through surface transport by precipitation runoff, releases to
soil and groundwater, wind-blown dust, fugitive air emissions, and
catastrophic unit failures), and must include consideration of
potential cumulative risks from other nearby potential stressors.

0
5. Section 260.33 is amended by revising paragraph (c) and adding
paragraphs (d) and (e) to read as follows:

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

* * * * *
    (c) In the event of a change in circumstances that affect how a
hazardous secondary material meets the relevant criteria contained in
Sec.  260.31, Sec.  260.32, or Sec.  260.34 upon which a variance or
non-waste determination has been based, the applicant must send a
description of the change in circumstances to the Administrator. The
Administrator may issue a determination that the hazardous secondary
material continues to meet the relevant criteria of the variance or
non-waste determination or may require the facility to re-apply for the
variance or non-waste determination.
    (d) Variances and non-waste determinations shall be effective for a
fixed term not to exceed ten years. No later than six months prior to
the end of this term, facilities must re-apply for a variance or non-
waste determination. If a facility re-applies for a variance or non-
waste determination within six months, the facility may continue to
operate under an expired variance or non-waste determination until
receiving a decision on their re-application from the Administrator.
    (e) Facilities receiving a variance or non-waste determination must
provide notification as required by Sec.  260.42 of this chapter.

0
6. Section 260.34 is amended by revising paragraphs (b)(4) and (c)(5)
to read as follows:

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

* * * * *
    (b) * * *
    (4) Other relevant factors that demonstrate the hazardous secondary
material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under Sec.  261.2 or Sec.  261.4 of this chapter.
    (c) * * *
    (5) Other relevant factors that demonstrate the hazardous secondary
material is not discarded, including why the hazardous secondary
material cannot meet, or should not have to meet, the conditions of an
exclusion under Sec.  261.2 or Sec.  261.4 of this chapter.

0
7. Section 260.42 is amended by revising paragraphs (a) introductory
text, (a)(4) through (9), removing paragraph (a)(10), and revising
paragraph (b).
    The revisions read as follows:

Sec.  260.42  Notification requirement for hazardous secondary
materials.

    (a) Facilities managing hazardous secondary materials under
Sec. Sec.  260.30, 261.4(a)(23), 261.4(a)(24), or 261.4(a)(27) must
send a notification prior to operating under the regulatory provision
and by March 1 of each even-numbered year thereafter to the Regional
Administrator using EPA Form 8700-12 that includes the following
information:
* * * * *
    (4) The regulation under which the hazardous secondary materials
will be managed;
    (5) When the facility began or expects to begin managing the
hazardous secondary materials in accordance with the regulation;
    (6) A list of hazardous secondary materials that will be managed
according to the regulation (reported as the EPA hazardous waste
numbers that would apply if the hazardous secondary materials were
managed as hazardous wastes);
    (7) For each hazardous secondary material, whether the hazardous
secondary material, or any portion thereof, will be managed in a land-
based unit;
    (8) The quantity of each hazardous secondary material to be managed
annually; and
    (9) The certification (included in EPA Form 8700-12) signed and
dated by an authorized representative of the facility.
    (b) If a facility managing hazardous secondary materials has
submitted a notification, but then subsequently stops managing
hazardous secondary materials in accordance with the regulation(s)
listed above, the facility must notify the Regional Administrator
within thirty (30) days using EPA Form 8700-12. For purposes of this
section, a facility has stopped managing hazardous secondary materials
if the facility no longer generates, manages and/or reclaims hazardous
secondary materials under the regulation(s) above and does not expect
to manage any amount of hazardous secondary materials for at least 1
year.

0
 8. Section 260.43 is amended by revising the section heading and

paragraph (a) and removing and reserving paragraphs (b) and (c).
    The revision reads as follows:

Sec.  260.43  Legitimate recycling of hazardous secondary materials.

    (a) Recycling of hazardous secondary materials for the purpose of
the exclusions or exemptions from the hazardous waste regulations must
be legitimate. Hazardous secondary material that is not legitimately
recycled is discarded material and is a solid waste. In determining if
their recycling is legitimate, persons must address all the
requirements of this paragraph.
    (1) Legitimate recycling must involve a hazardous secondary
material that provides a useful contribution to the recycling process
or to a product or intermediate of the recycling process. The hazardous
secondary material provides a useful contribution if it:
    (i) Contributes valuable ingredients to a product or intermediate;
or
    (ii) Replaces a catalyst or carrier in the recycling process; or
    (iii) Is the source of a valuable constituent recovered in the
recycling process; or
    (iv) Is recovered or regenerated by the recycling process; or
    (v) Is used as an effective substitute for a commercial product.
    (2) The recycling process must produce a valuable product or
intermediate. The product or intermediate is valuable if it is:
    (i) Sold to a third party; or
    (ii) Used by the recycler or the generator as an effective
substitute for a commercial product or as an ingredient or intermediate
in an industrial process.
    (3) The generator and the recycler must manage the hazardous
secondary material as a valuable commodity when it is under their
control. Where there is an analogous raw material, the hazardous
secondary material must be managed, at a minimum, in a manner
consistent with the management of the raw material or in an equally
protective manner. Where there is no analogous raw material, the
hazardous secondary material must be contained. Hazardous secondary
materials that are released to the environment and are not recovered
immediately are discarded.
    (4) The product of the recycling process must be comparable to a
legitimate product or intermediate:
    (i) Where there is an analogous product or intermediate, the
product of the recycling process is comparable to a legitimate product
or intermediate if:
    (A) The product of the recycling process does not exhibit a
hazardous characteristic (as defined in part 261 subpart C) that
analogous products do not exhibit, and
    (B) The concentrations of any hazardous constituents found in
appendix VIII of part 261 of this chapter that are in the product or
intermediate are at levels that are comparable to or lower than those
found in analogous products or at levels that meet widely-recognized
commodity standards and specifications, in the case where the commodity
standards and specifications include levels that specifically address
those hazardous constituents.
    (ii) Where there is no analogous product, the product of the
recycling process is comparable to a legitimate product or intermediate
if:
    (A) The product of the recycling process is a commodity that meets
widely recognized commodity standards and specifications (e.g.,
commodity specification grades for common metals), or
    (B) The hazardous secondary materials being recycled are returned
to the original process or processes from which they were generated to
be reused (e.g., closed loop recycling).
    (iii) If the product of the recycling process has levels of
hazardous constituents that are not comparable to or unable to be
compared to a legitimate product or intermediate per paragraph
(a)(4)(i) or (ii) of this section, the recycling still may be shown to
be legitimate, if it meets the following specified requirements. The
person performing the recycling must conduct the necessary assessment
and prepare documentation showing why the recycling is, in fact, still
legitimate. The recycling can be shown to be legitimate based on lack
of exposure from toxics in the product, lack of the bioavailability of
the toxics in the product, or other relevant considerations which show
that the recycled product does not contain levels of hazardous
constituents that pose a significant human health or environmental
risk. The documentation must include a certification statement that the
recycling is legitimate and must be maintained on-site for three years
after the recycling operation has ceased. The person performing the
recycling must notify the Regional Administrator of this activity using
EPA Form 8700-12.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
9. The authority citation for part 261 continues to read as follows:

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

Subpart A--General

0
10. Section 261.1 is amended by revising paragraphs (c)(4) and (8) to
read as follows:

Sec.  261.1  Purpose and scope.

* * * * *
    (c) * * *
    (4) A material is ``reclaimed'' if it is processed to recover a
usable product, or if it is regenerated. Examples are recovery of lead
values from spent batteries and regeneration of spent solvents. In
addition, for purposes of Sec.  261.4(a)(23) and (24), smelting,
melting, and refining furnaces are considered to be solely engaged in
metals reclamation if the metal recovery from the hazardous secondary
materials meets the same requirements as those specified for metals
recovery from hazardous waste found in Sec.  266.100(d)(1) through (3)
of this chapter, and if the residuals meet the requirements specified
in Sec.  266.112 of this chapter.
* * * * *
    (8) A material is ``accumulated speculatively'' if it is
accumulated before being recycled. A material is not accumulated
speculatively, however, if the person accumulating it can show that the
material is potentially recyclable and has a feasible means of being
recycled; and that--during the calendar year (commencing on January
1)--the amount of material that is recycled, or transferred to a
different site for recycling, equals at least 75 percent by weight or
volume of the amount of that material accumulated at the beginning of
the period. Materials must be placed in a storage unit with a label
indicating the first date that the material began to be accumulated. If
placing a label on the storage unit is not practicable, the
accumulation period must be documented through an inventory log or
other appropriate method. In calculating the percentage of turnover,
the 75 percent requirement is to be applied to each material of the
same type (e.g., slags from a single smelting process) that is recycled
in the same way (i.e., from which the same material is recovered or
that is used in the same way). Materials accumulating in units that
would be exempt from regulation under Sec.  261.4(c) are not to be
included in making the calculation. Materials that are already defined
as solid wastes also are not to be included in making the calculation.
Materials are no longer in this category once they are removed from
accumulation for recycling, however.
* * * * *

0
11. Section 261.2 is amended as follows:
0
a. Remove and reserve paragraph (a)(2)(ii);
0
b. Revise paragraph (b)(3);
0
c. Add paragraph (b)(4);
0
d. Revise paragraph (c)(3) and table 1 in paragraph (c)(4); and
0
e. Add paragraph (g).
    The revisions and additions text reads as follows:

Sec.  261.2  Definition of solid waste.

* * * * *
    (b) * * *
    (3) Accumulated, stored, or treated (but not recycled) before or in
lieu of being abandoned by being disposed of, burned or incinerated; or
    (4) Sham recycled, as explained in paragraph (g) of this section.
* * * * *
    (c) * * *
    (3) Reclaimed. Materials noted with a ``-'' in column 3 of Table 1
are not solid wastes when reclaimed. Materials noted with an ``*'' in
column 3 of Table 1 are solid wastes when reclaimed unless they meet
the requirements of Sec. Sec.  261.4(a)(17), or 261.4(a)(23),
261.4(a)(24), or 261.4(a)(27).
    (4) * * *

                                                     Table 1
----------------------------------------------------------------------------------------------------------------
                                                                                Reclamation
                                                                                (Sec.
                                                                                261.2(c)(3)),
                                                    Use             Energy         except as       Speculative
                                                constituting    recovery/fuel     provided in      accumulation
                                               disposal (Sec.       (Sec.          Sec.  Sec.         (Sec.
                                                261.2(c)(1))     261.2(c)(2))    261.4(a)(17),     261.2(c)(4))
                                                                                261.4(a)(23),
                                                                                261.4(a)(24) or
                                                                                261.4(a)(27)
----------------------------------------------------------------------------------------------------------------
                                                     1                2                3                4
----------------------------------------------------------------------------------------------------------------
Spent Materials.............................             (*)              (*)              (*)              (*)
Sludges (listed in 40 CFR Part 261.31 or                 (*)              (*)              (*)              (*)
 261.32)....................................
Sludges exhibiting a characteristic of                   (*)              (*)   ...............             (*)
 hazardous waste............................
By-products (listed in 40 CFR 261.31 or                  (*)              (*)              (*)              (*)
 261.32)....................................
By-products exhibiting a characteristic of               (*)              (*)   ...............             (*)
 hazardous waste............................
Commercial chemical products listed in 40                (*)              (*)   ...............  ...............
 CFR 261.33.................................
Scrap metal that is not excluded under 40                (*)              (*)              (*)              (*)
 CFR 261.4(a)(13)...........................
----------------------------------------------------------------------------------------------------------------
Note: The terms ``spent materials,'' ``sludges,'' ``by-products,'' and ``scrap metal'' and ``processed scrap
  metal'' are defined in Sec.   261.1.

* * * * *
    (g) Sham recycling. A hazardous secondary material found to be sham
recycled is considered discarded and a solid waste. Sham recycling is
recycling that is not legitimate recycling as defined in Sec.  260.43.

0
12. Section 261.4 is amended as follows:
0
a. Republish paragraph (a) introductory text;
0
b. Revise paragraph (a)(23) and (24);
0
c. Remove and reserve paragraph (a)(25); and
0
d. Add paragraph (a)(27).
    The revisions and addition as follows:

Sec.  261.4  Exclusions.

    (a) Materials which are not solid wastes. The following materials
are not solid wastes for the purpose of this part:
* * * * *
    (23) Hazardous secondary material generated and legitimately
reclaimed within the United States or its territories and under the
control of the generator, provided that the material complies with
paragraphs (a)(23)(i) and (ii) of this section:
    (i)(A) The hazardous secondary material is generated and reclaimed
at the generating facility (for purposes of this definition, generating
facility means all contiguous property owned, leased, or otherwise
controlled by the hazardous secondary material generator); or
    (B) The hazardous secondary material is generated and reclaimed at
different facilities, if the reclaiming facility is controlled by the
generator or if both the generating facility and the reclaiming
facility are controlled by a person as defined in Sec.  260.10 of this
chapter, and if the generator provides one of the following
certifications: ``on behalf of [insert generator facility name], I
certify that this facility will send the indicated hazardous secondary
material to [insert reclaimer facility name], which is controlled by
[insert generator facility name] and that [insert name of either
facility] has acknowledged full responsibility for the safe management
of the hazardous secondary material,'' or ``on behalf of [insert
generator facility name], I certify that this facility will send the
indicated hazardous secondary material to [insert reclaimer facility
name], that both facilities are under common control, and that [insert
name of either facility] has acknowledged full responsibility for the
safe management of the hazardous secondary material.'' For purposes of
this paragraph, ``control'' means the power to direct the policies of
the facility, whether by the ownership of stock, voting rights, or
otherwise, except that contractors who operate facilities on behalf of
a different person as defined in Sec.  260.10 shall not be deemed to
``control'' such facilities. The generating and receiving facilities
must both maintain at their facilities for no less than three years
records of hazardous secondary materials sent or received under this
exclusion. In both cases, the records must contain the name of the
transporter, the date of the shipment, and the type and quantity of the
hazardous secondary material shipped or received under the exclusion.
These requirements may be satisfied by routine business records (e.g.,
financial records, bills of lading, copies of DOT shipping papers, or
electronic confirmations); or
    (C) The hazardous secondary material is generated pursuant to a
written contract between a tolling contractor and a toll manufacturer
and is reclaimed by the tolling contractor, if the tolling contractor
certifies the following: ``On behalf of [insert tolling contractor
name], I certify that [insert tolling contractor name] has a written
contract with [insert toll manufacturer name] to manufacture [insert
name of product or intermediate] which is made from specified unused
materials, and that [insert tolling contractor name] will reclaim the
hazardous secondary materials generated during this manufacture. On
behalf of [insert tolling contractor name], I also certify that [insert
tolling contractor name] retains ownership of, and responsibility for,
the

hazardous secondary materials that are generated during the course of
the manufacture, including any releases of hazardous secondary
materials that occur during the manufacturing process''. The tolling
contractor must maintain at its facility for no less than three years
records of hazardous secondary materials received pursuant to its
written contract with the tolling manufacturer, and the tolling
manufacturer must maintain at its facility for no less than three years
records of hazardous secondary materials shipped pursuant to its
written contract with the tolling contractor. In both cases, the
records must contain the name of the transporter, the date of the
shipment, and the type and quantity of the hazardous secondary material
shipped or received pursuant to the written contract. These
requirements may be satisfied by routine business records (e.g.,
financial records, bills of lading, copies of DOT shipping papers, or
electronic confirmations). For purposes of this paragraph, tolling
contractor means a person who arranges for the production of a product
or intermediate made from specified unused materials through a written
contract with a toll manufacturer. Toll manufacturer means a person who
produces a product or intermediate made from specified unused materials
pursuant to a written contract with a tolling contractor.
    (ii)(A) The hazardous secondary material is contained as defined in
Sec.  260.10 of this chapter. A hazardous secondary material released
to the environment is discarded and a solid waste unless it is
immediately recovered for the purpose of reclamation. Hazardous
secondary material managed in a unit with leaks or other continuing or
intermittent unpermitted releases is discarded and a solid waste.
    (B) The hazardous secondary material is not speculatively
accumulated, as defined in Sec.  261.1(c)(8).
    (C) Notice is provided as required by Sec.  260.42 of this chapter.
    (D) The material is not otherwise subject to material-specific
management conditions under paragraph (a) of this section when
reclaimed, and it is not a spent lead-acid battery (see Sec.  266.80
and Sec.  273.2 of this chapter).
    (E) Persons performing the recycling of hazardous secondary
materials under this exclusion must maintain documentation of their
legitimacy determination on-site. Documentation must be a written
description of how the recycling meets all four factors in Sec.
260.43(a). Documentation must be maintained for three years after the
recycling operation has ceased.
    (F) The emergency preparedness and response requirements found in
subpart M of this part are met.
    (24) Hazardous secondary material that is generated and then
transferred to a verified reclamation facility for the purpose of
reclamation is not a solid waste, provided that:
    (i) The material is not speculatively accumulated, as defined in
Sec.  261.1(c)(8);
    (ii) The material is not handled by any person or facility other
than the hazardous secondary material generator, the transporter, an
intermediate facility or a reclaimer, and, while in transport, is not
stored for more than 10 days at a transfer facility, as defined in
Sec.  260.10 of this chapter, and is packaged according to applicable
Department of Transportation regulations at 49 CFR parts 173, 178, and
179 while in transport;
    (iii) The material is not otherwise subject to material-specific
management conditions under this paragraph (a) when reclaimed, and it
is not a spent lead-acid battery (see Sec. Sec.  266.80 and 273.2 of
this chapter);
    (iv) The reclamation of the material is legitimate, as specified
under Sec.  260.43 of this chapter;
    (v) The hazardous secondary material generator satisfies all of the
following conditions:
    (A) The material must be contained as defined in Sec.  260.10. A
hazardous secondary material released to the environment is discarded
and a solid waste unless it is immediately recovered for the purpose of
recycling. Hazardous secondary material managed in a unit with leaks or
other continuing releases is discarded and a solid waste.
    (B) The hazardous secondary material generator must arrange for
transport of hazardous secondary materials to a verified reclamation
facility (or facilities) in the United States. A verified reclamation
facility is a facility that has been granted a variance under Sec.
260.31(d), or a reclamation facility where the management of the
hazardous secondary materials is addressed under a RCRA Part B permit
or interim status standards. If the hazardous secondary material will
be passing through an intermediate facility, the intermediate facility
must have been granted a variance under Sec.  260.31(d) or the
management of the hazardous secondary materials at that facility must
be addressed under a RCRA Part B permit or interim status standards,
and the hazardous secondary material generator must make contractual
arrangements with the intermediate facility to ensure that the
hazardous secondary material is sent to the reclamation facility
identified by the hazardous secondary material generator.
    (C) The hazardous secondary material generator must maintain at the
generating facility for no less than three (3) years records of all
off-site shipments of hazardous secondary materials. For each shipment,
these records must, at a minimum, contain the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of each reclaimer and, if applicable, the name
and address of each intermediate facility to which the hazardous
secondary material was sent;
    (3) The type and quantity of hazardous secondary material in the
shipment.
    (D) The hazardous secondary material generator must maintain at the
generating facility for no less than three (3) years confirmations of
receipt from each reclaimer and, if applicable, each intermediate
facility for all off-site shipments of hazardous secondary materials.
Confirmations of receipt must include the name and address of the
reclaimer (or intermediate facility), the type and quantity of the
hazardous secondary materials received and the date which the hazardous
secondary materials were received. This requirement may be satisfied by
routine business records (e.g., financial records, bills of lading,
copies of DOT shipping papers, or electronic confirmations of receipt);
    (E) The hazardous secondary material generator must comply with the
emergency preparedness and response conditions in subpart M of this
part.
    (vi) Reclaimers of hazardous secondary material excluded from
regulation under this exclusion and intermediate facilities as defined
in Sec.  260.10 of this chapter satisfy all of the following
conditions:
    (A) The reclaimer and intermediate facility must maintain at its
facility for no less than three (3) years records of all shipments of
hazardous secondary material that were received at the facility and, if
applicable, for all shipments of hazardous secondary materials that
were received and subsequently sent off-site from the facility for
further reclamation. For each shipment, these records must at a minimum
contain the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of the hazardous secondary material generator
and, if applicable, the name and address of the reclaimer or
intermediate facility

which the hazardous secondary materials were received from;
    (3) The type and quantity of hazardous secondary material in the
shipment; and
    (4) For hazardous secondary materials that, after being received by
the reclaimer or intermediate facility, were subsequently transferred
off-site for further reclamation, the name and address of the
(subsequent) reclaimer and, if applicable, the name and address of each
intermediate facility to which the hazardous secondary material was
sent.
    (B) The intermediate facility must send the hazardous secondary
material to the reclaimer(s) designated by the hazardous secondary
materials generator.
    (C) The reclaimer and intermediate facility must send to the
hazardous secondary material generator confirmations of receipt for all
off-site shipments of hazardous secondary materials. Confirmations of
receipt must include the name and address of the reclaimer (or
intermediate facility), the type and quantity of the hazardous
secondary materials received and the date which the hazardous secondary
materials were received. This requirement may be satisfied by routine
business records (e.g., financial records, bills of lading, copies of
DOT shipping papers, or electronic confirmations of receipt).
    (D) The reclaimer and intermediate facility must manage the
hazardous secondary material in a manner that is at least as protective
as that employed for analogous raw material and must be contained. An
``analogous raw material'' is a raw material for which a hazardous
secondary material is a substitute and serves the same function and has
similar physical and chemical properties as the hazardous secondary
material.
    (E) Any residuals that are generated from reclamation processes
will be managed in a manner that is protective of human health and the
environment. If any residuals exhibit a hazardous characteristic
according to subpart C of 40 CFR part 261, or if they themselves are
specifically listed in subpart D of 40 CFR part 261, such residuals are
hazardous wastes and must be managed in accordance with the applicable
requirements of 40 CFR parts 260 through 272.
    (F) The reclaimer and intermediate facility have financial
assurance as required under subpart H of 40 CFR part 261,
    (G) The reclaimer and intermediate facility have been granted a
variance under Sec.  260.31(d) or have a RCRA Part B permit or interim
status standards that address the management of the hazardous secondary
materials; and
    (vii) All persons claiming the exclusion under this paragraph
(a)(24) of this section provide notification as required under Sec.
260.42 of this chapter.
* * * * *
    (27) Hazardous secondary material that is generated and then
transferred to another person for the purpose of remanufacturing is not
a solid waste, provided that:
    (i) The hazardous secondary material consists of one or more of the
following spent solvents: Toluene, xylenes, ethylbenzene, 1,2,4-
trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-
butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane,
methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl
alcohol, ethanol, and/or methanol;
    (ii) The hazardous secondary material originated from using one or
more of the solvents listed in paragraph (a)(27)(i) of this section in
a commercial grade for reacting, extracting, purifying, or blending
chemicals (or for rinsing out the process lines associated with these
functions) in the pharmaceutical manufacturing (NAICS 325412), basic
organic chemical manufacturing (NAICS 325199), plastics and resins
manufacturing (NAICS 325211), and/or the paints and coatings
manufacturing sectors (NAICS 325510).
    (iii) The hazardous secondary material generator sends the
hazardous secondary material spent solvents listed in paragraph
(a)(27)(i) of this section to a remanufacturer in the pharmaceutical
manufacturing (NAICS 325412), basic organic chemical manufacturing
(NAICS 325199), plastics and resins manufacturing (NAICS 325211), and/
or the paints and coatings manufacturing sectors (NAICS 325510).
    (iv) After remanufacturing one or more of the solvents listed in
paragraph (a)(27)(i) of this section, the use of the remanufactured
solvent shall be limited to reacting, extracting, purifying, or
blending chemicals (or for rinsing out the process lines associated
with these functions) in the pharmaceutical manufacturing (NAICS
325412), basic organic chemical manufacturing (NAICS 325199), plastics
and resins manufacturing (NAICS 325211), and the paints and coatings
manufacturing sectors (NAICS 325510) or to using them as ingredients in
a product. These allowed uses correspond to chemical functional uses
enumerated under the Chemical Data Reporting Rule of the Toxic
Substances Control Act (40 CFR parts 704, 710-711), including
Industrial Function Codes U015 (solvents consumed in a reaction to
produce other chemicals) and U030 (solvents become part of the
mixture);
    (v) After remanufacturing one or more of the solvents listed in
paragraph (a)(27)(i) of this section, the use of the remanufactured
solvent does not involve cleaning or degreasing oil, grease, or similar
material from textiles, glassware, metal surfaces, or other articles.
(These disallowed continuing uses correspond to chemical functional
uses in Industrial Function Code U029 under the Chemical Data Reporting
Rule of the Toxics Substances Control Act.); and
    (vi) Both the hazardous secondary material generator and the
remanufacturer must:
    (A) Notify EPA or the State Director, if the state is authorized
for the program, and update the notification every two years per 40 CFR
260.42;
    (B) Develop and maintain an up-to-date remanufacturing plan which
identifies:
    (1) The name, address and EPA ID number of the generator(s) and the
remanufacturer(s),
    (2) The types and estimated annual volumes of spent solvents to be
remanufactured,
    (3) The processes and industry sectors that generate the spent
solvents,
    (4) The specific uses and industry sectors for the remanufactured
solvents, and
    (5) A certification from the remanufacturer stating ``on behalf of
[insert remanufacturer facility name], I certify that this facility is
a remanufacturer under pharmaceutical manufacturing (NAICS 325412),
basic organic chemical manufacturing (NAICS 325199), plastics and
resins manufacturing (NAICS 325211), and/or the paints and coatings
manufacturing sectors (NAICS 325510), and will accept the spent
solvent(s) for the sole purpose of remanufacturing into commercial-
grade solvent(s) that will be used for reacting, extracting, purifying,
or blending chemicals (or for rinsing out the process lines associated
with these functions) or for use as product ingredient(s). I also
certify that the remanufacturing equipment, vents, and tanks are
equipped with and are operating air emission controls in compliance
with the appropriate Clean Air Act regulations under 40 CFR part 60,
part 61 or part 63, or, absent such Clean Air Act standards for the
particular operation or piece of equipment covered by the
remanufacturing exclusion, are in compliance with the appropriate
standards in 40 CFR part 261, subparts

AA (vents), BB (equipment) and CC (tank storage),'';
    (C) Maintain records of shipments and confirmations of receipts for
a period of three years from the dates of the shipments;
    (D) Prior to remanufacturing, store the hazardous spent solvents in
tanks or containers that meet technical standards found in subparts I
and J of 40 CFR part 261, with the tanks and containers being labeled
or otherwise having an immediately available record of the material
being stored;
    (E) During remanufacturing, and during storage of the hazardous
secondary materials prior to remanufacturing, the remanufacturer
certifies that the remanufacturing equipment, vents, and tanks are
equipped with and are operating air emission controls in compliance
with the appropriate Clean Air Act regulations under 40 CFR part 60,
part 61 or part 63; or, absent such Clean Air Act standards for the
particular operation or piece of equipment covered by the
remanufacturing exclusion, are in compliance with the appropriate
standards in 40 CFR part 261 subparts AA (vents), BB (equipment) and CC
(tank storage); and
    (F) Meet the requirements prohibiting speculative accumulation per
40 CFR 261.1(c)(8).
* * * * *

0
13. Part 261 is amended by:
0
a. Adding Subparts I and J;
0
b. Adding reserved Subparts K and L;
0
c. Adding Subpart M;
0
d. Adding reserved Subparts N through Z; and
0
e. Adding Subparts AA through CC.
    The additions read as follows:
Subpart I--Use and Management of Containers
Sec.
261.170 Applicability.
261.171 Condition of containers.
261.172 Compatibility of hazardous secondary materials with
containers.
261.173 Management of containers.
261.175 Containment.
261.176 Special requirements for ignitable or reactive hazardous
secondary material.
261.177 Special requirements for incompatible materials.
261.179 Air emission standards.
Subpart J--Tank Systems
261.190 Applicability.
261.191 Assessment of existing tank system's integrity.
261.192 [Reserved]
261.193 Containment and detection of releases.
261.194 General operating requirements.
261.195 [Reserved]
261.196 Response to leaks or spills and disposition of leaking or
unfit-for-use tank systems.
261.197 Termination of remanufacturing exclusion.
261.198 Special requirements for ignitable or reactive materials.
261.199 Special requirements for incompatible materials.
261.200 Air emission standards.
Subparts K-L [Reserved]
Subpart M--Emergency Preparedness and Response for Management of
Excluded Hazardous Secondary Materials
261.400 Applicability.
261.410 Preparedness and prevention
261.411 Emergency procedures for facilities generating or
accumulating of 6000 kg or less of hazardous secondary material.
261.420 Contingency planning and emergency procedures for facilities
generating or accumulating more than 6000 kg of hazardous secondary
material.
Subparts N-Z [Reserved]
Subpart AA--Air Emission Standards for Process Vents
261.1030 Applicability.
261.1031 Definitions.
261.1032 Standards: Process vents.
261.1033 Standards: Closed-vent systems and control devices.
261.1034 Test methods and procedures.
261.1035 Recordkeeping requirements.
261.1036-261.1049 [Reserved]
Subpart BB--Air Emission Standards for Equipment Leaks
261.1050 Applicability.
261.1051 Definitions.
261.1052 Standards: Pumps in light liquid service.
261.1053 Standards: Compressors.
261.1054 Standards: Pressure relief devices in gas/vapor service.
261.1055 Standards: Sampling connection systems.
261.1056 Standards: Open-ended valves or lines.
261.1057 Standards: Valves in gas/vapor service or in light liquid
service.
261.1058 Standards: Pumps and valves in heavy liquid service,
pressure relief devices in light liquid or heavy liquid service, and
flanges and other connectors.
261.1059 Standards: Delay of repair.
261.1060 Standards: Closed-vent systems and control devices.
261.1061 Alternative standards for valves in gas/vapor service or in
light liquid service: percentage of valves allowed to leak.
261.1062 Alternative standards for valves in gas/vapor service or in
light liquid service: skip period leak detection and repair.
261.1063 Test methods and procedures.
261.1064 Recordkeeping requirements.
261.1065-261.1079 [Reserved]
Subpart CC--Air Emission Standards for Tanks and Containers
261.1080 Applicability.
261.1081 Definitions.
261.1082 Standards: General.
261.1083 Material determination procedures.
261.1084 Standards: Tanks.
261.1085 [Reserved]
261.1086 Standards: Containers.
261.1087 Standards: Closed-vent systems and control devices.
261.1088 Inspection and monitoring requirements.
261.1089 Recordkeeping requirements.
261.1090 [Reserved]

Subpart I--Use and Management of Containers

Sec.  261.170  Applicability.

    This subpart applies to hazardous secondary materials excluded
under the remanufacturing exclusion at Sec.  261.4(a)(27) and stored in
containers.

Sec.  261.171  Condition of containers.

    If a container holding hazardous secondary material is not in good
condition (e.g., severe rusting, apparent structural defects) or if it
begins to leak, the hazardous secondary material must be transferred
from this container to a container that is in good condition or managed
in some other way that complies with the requirements of this part.

Sec.  261.172  Compatibility of hazardous secondary materials with
containers.

    The container must be made of or lined with materials which will
not react with, and are otherwise compatible with, the hazardous
secondary material to be stored, so that the ability of the container
to contain the material is not impaired.

Sec.  261.173  Management of containers.

    (a) A container holding hazardous secondary material must always be
closed during storage, except when it is necessary to add or remove the
hazardous secondary material.
    (b) A container holding hazardous secondary material must not be
opened, handled, or stored in a manner which may rupture the container
or cause it to leak.

Sec.  261.175  Containment.

    (a) Container storage areas must have a containment system that is
designed and operated in accordance with paragraph (b) of this section.
    (b) A containment system must be designed and operated as follows:
    (1) A base must underlie the containers which is free of cracks or
gaps and is sufficiently impervious to contain leaks, spills, and
accumulated precipitation until the collected material is detected and
removed;
    (2) The base must be sloped or the containment system must be
otherwise

designed and operated to drain and remove liquids resulting from leaks,
spills, or precipitation, unless the containers are elevated or are
otherwise protected from contact with accumulated liquids;
    (3) The containment system must have sufficient capacity to contain
10% of the volume of containers or the volume of the largest container,
whichever is greater.
    (4) Run-on into the containment system must be prevented unless the
collection system has sufficient excess capacity in addition to that
required in paragraph (b)(3) of this section to contain any run-on
which might enter the system; and
    (5) Spilled or leaked material and accumulated precipitation must
be removed from the sump or collection area in as timely a manner as is
necessary to prevent overflow of the collection system.

Sec.  261.176  Special requirements for ignitable or reactive hazardous
secondary material.

    Containers holding ignitable or reactive hazardous secondary
material must be located at least 15 meters (50 feet) from the
facility's property line.

Sec.  261.177  Special requirements for incompatible materials.

    (a) Incompatible materials must not be placed in the same
container.
    (b) Hazardous secondary material must not be placed in an unwashed
container that previously held an incompatible material.
    (c) A storage container holding a hazardous secondary material that
is incompatible with any other materials stored nearby must be
separated from the other materials or protected from them by means of a
dike, berm, wall, or other device.

Sec.  261.179  Air emission standards.

    The remanufacturer or other person that stores or treats the
hazardous secondary material shall manage all hazardous secondary
material placed in a container in accordance with the applicable
requirements of subparts AA, BB, and CC of this part.

Subpart J--Tank Systems

Sec.  261.190  Applicability.

    (a) The requirements of this subpart apply to tank systems for
storing or treating hazardous secondary material excluded under the
remanufacturing exclusion at Sec.  261.4(a)(27).
    (b) Tank systems, including sumps, as defined in Sec.  260.10, that
serve as part of a secondary containment system to collect or contain
releases of hazardous secondary materials are exempted from the
requirements in Sec.  261.193(a).

Sec.  261.191  Assessment of existing tank system's integrity.

    (a) Tank systems must meet the secondary containment requirements
of Sec.  261.193, or the remanufacturer or other person that handles
the hazardous secondary material must determine that the tank system is
not leaking or is unfit for use. Except as provided in paragraph (c) of
this section, a written assessment reviewed and certified by a
qualified Professional Engineer must be kept on file at the
remanufacturer's facility or other facility that stores or treats the
hazardous secondary material that attests to the tank system's
integrity.
    (b) This assessment must determine that the tank system is
adequately designed and has sufficient structural strength and
compatibility with the material(s) to be stored or treated, to ensure
that it will not collapse, rupture, or fail. At a minimum, this