83 FR 24664 - Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 83, Issue 104 (May 30, 2018)

Page Range		24664-24671
FR Document		2018-11578
The Environmental Protection Agency is revising regulations associated with the definition of solid waste under the Resource Conservation and Recovery Act. These revisions implement vacaturs ordered by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), on July 7, 2017, as modified on March 6, 2018.
Federal Register, Volume 83 Issue 104 (Wednesday, May 30, 2018)
[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24664-24671]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-11578]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-OLEM-2018-0185; FRL-9977-56-OLEM]


Response to Vacatur of Certain Provisions of the Definition of 
Solid Waste Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is revising regulations 
associated with the definition of solid waste under the Resource 
Conservation and Recovery Act. These revisions implement vacaturs 
ordered by the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit), on July 7, 2017, as modified on March 
6, 2018.

DATES: This final rule is effective on May 30, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2018-0185. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Docket Center. See https://www.epa.gov/dockets/epa-docket-center-reading-room for more information on the Public Reading Room.

FOR FURTHER INFORMATION CONTACT: Office of Resource Conservation and 
Recovery, Materials Recovery and Waste Management Division, MC 5304P, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460, Tracy Atagi, at (703) 308-8672, ([email protected]).

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. General Information
II. Statutory Authority
III. Which regulations is EPA removing and replacing?
IV. When will the final rule become effective?
V. State Authorization
VI. Statutory and Executive Order (E.O.) Reviews

I. General Information

A. Does this action apply to me?

    This final rule applies to facilities that generate or recycle 
hazardous secondary materials (HSM). According to the revisions to the 
definition of solid waste promulgated in 2015, entities potentially 
affected by the original rule include over 5,000 industrial facilities 
in 634 industries (at the 6-digit North American Industry 
Classification System (NAICS) code level).\1\ Most of these 634 
industries have relatively few entities that are potentially affected. 
The top-5 economic sectors (at the 2-digit NAICS code level) with the 
largest number of potentially affected entities are as follows: (1) 41% 
in NAICS code 33--the manufacturing sector, which consists of metals, 
metal products, machinery, computer & electronics, electrical 
equipment, transportation equipment, furniture, and miscellaneous 
manufacturing subsectors, (2) 23% in NAICS code 32--the manufacturing 
sector, which consists of wood products, paper, printing, petroleum & 
coal products, chemicals plastics & rubber products, and nonmetallic 
mineral products manufacturing subsectors, (3) 3.0% in NAICS code 92--
the public administration sector, (4) 2.9% in NAICS code 61--the 
educational services sector, and (5) 2.8% in NAICS code 54--the 
professional, scientific and technical services sector.
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    \1\ 80 FR 1694/2, January 13, 2015.
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B. Why is EPA issuing a final rule?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedures are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for revising these provisions without prior 
proposal and opportunity for comment, because these revisions simply 
undertake the ministerial task of implementing court orders vacating 
these rules and reinstating the prior versions. As a matter of law, the 
orders issued by the United States Court of Appeals for the District of 
Columbia Circuit on July 7, 2017 and amended on March 6, 2018, (1) 
vacated the 2015 verified recycler exclusion for hazardous waste that 
is recycled off-site (except for certain provisions); (2) reinstated 
the transfer-based exclusion from the 2008 rule to replace the now-
vacated 2015 verified recycler exclusion; (3) upheld the containment 
and emergency preparedness provisions of the 2015 rule; (4) vacated 
Factor 4 of the 2015 definition of legitimate recycling in its 
entirety; and (5) reinstated the 2008 version of Factor 4 to replace 
the now-vacated 2015 version of Factor 4.\2\ It is, therefore, 
unnecessary to provide notice and an opportunity for comment on this 
action, which merely carries out the court's orders.
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    \2\ API v. EPA, 862 F.3d 50 (DC Cir. 2017), reh'g granted, No. 
09-1038, 2018 U.S. App. LEXIS 5613 (DC Cir. Mar. 6, 2018).
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    In addition, EPA finds that it has good cause to make the revisions 
immediately effective under section 553(d) of the Administrative 
Procedure Act, 5 U.S.C. 553(d), and section 3010(b) of RCRA, 42 U.S.C. 
6930(b). Section 553(d) provides that final rules shall not become 
effective until 30 days after publication in the Federal Register, 
``except . . . as otherwise provided by the agency for good cause,'' 
among other exceptions. The purpose of this provision is to ``give 
affected parties a reasonable time to adjust their behavior before the 
final rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 
(D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (quoting legislative history). Thus, in 
determining whether good cause exists to waive the 30-day delay, an 
agency should ``balance the necessity for immediate implementation 
against principles of fundamental fairness which require that all 
affected persons be afforded a reasonable amount of time

[[Page 24665]]

to prepare for the effective date of its ruling.'' Gavrilovic, 551 F.2d 
at 1105. EPA has determined that there is good cause for making this 
final rule effective immediately because this action merely implements 
court orders that vacate certain regulatory provisions and reinstate 
the prior versions. The court issued the mandate for its decision on 
March 14, 2018, at which point the orders became effective. Delaying 
the effectiveness of this rulemaking would lengthen the period between 
the change in the law (i.e., the court's mandate) and the corresponding 
update to the regulations. Minimizing that time period should reduce 
the possibility of confusion for the regulated community, state and 
local governments, and the public. Moreover, the Agency believes that 
delaying the effectiveness of this rule would not offer any benefits. 
As a result, EPA is making this rule immediately effective.

II. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002, 3001, 3002, 3003, 3004, 3006, 3010, and 3017 of the Solid Waste 
Disposal Act of 1965, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA) This statute is commonly referred to as 
``RCRA.''

III. Which regulations is EPA removing and replacing?

A. Removal of the 2015 Verified Recycler Exclusion and Reinstatement of 
the 2008 Transfer-Based Exclusion, With Modifications

    In the 2015 DSW rule, EPA replaced the 2008 DSW rule transfer-based 
exclusion found at 40 CFR 261.4(a)(24)-(25) with the verified recycler 
exclusion, found at 40 CFR 261.4(a)(24).\3\ (The goal of both 
exclusions was to exempt from regulation off-site recycling of 
hazardous waste when certain conditions are met). In promulgating the 
2015 verified recycler exclusion EPA made four key changes to the 
language of the 2008 transfer-based exclusion: (1) Removed a 
prohibition that had made certain spent petroleum catalysts (hazardous 
waste codes K171 and K172) ineligible for the new recycling exclusions 
(i.e., these materials became eligible under the 2015 exclusion); (2) 
added a specific ``contained'' standard for the management of the 
materials prior to being recycled; (3) added emergency preparedness and 
response requirements; and (4) replaced a requirement for generators to 
make a ``reasonable effort'' to audit the recycling facility prior to 
sending their material to be recycled with a requirement that the 
recycling facility obtain a variance from the regulations prior to 
accepting the recyclable materials.
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    \3\ The Federal Register citation for the ``2015 DSW rule'' is 
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR 
64668, October 30, 2008.
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    In its decisions vacating the 2015 verified recycler exclusion and 
ordering the reinstatement of the 2008 transfer-based exclusion, the 
court found that the first three provisions noted above were severable 
from the rest of the verified recycler exclusion and would not be 
affected by the vacatur. Instead, these provisions are retained in the 
reinstated transfer-based exclusion found in the revised version of 40 
CFR 261.4(a)(24) being finalized with this action. In addition, the 
export requirements for the transfer-based exclusion found at 40 CFR 
261.4(a)(25) are also reinstated.\4\ Finally, the following conforming 
changes are made in response to the vacatur of the verified recycler 
exclusion and reinstatement of the transfer-based exclusion (1) 
references to the verified recycler variance process are removed from 
40 CFR 260.30 and 40 CFR 260.31, (2) the reference to the financial 
assurance notification requirement reinstated under the transfer-based 
exclusion is added back into 40 CFR 260.42(a)(5), and (3) the language 
in 40 CFR 261.4(a)(25) is updated to reflect the fact that subsequent 
to the 2015 withdrawal of the transfer-based exclusion, the applicable 
export definitions were moved to 40 CFR 262.81, and the paper submittal 
of RCRA export notices and export annual reports was replaced with 
electronic submittal via EPA's Waste Import Export Tracking System 
(WIETS). (81 FR 85696, November 28, 2016; 82 FR 41015, August 29, 
2017).
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    \4\ The court characterized the 2008 transfer-based exclusion 
this way: ``EPA adopted the first edition, the Transfer-Based 
Exclusion, as part of its 2008 Rule . . . previously codified at 40 
CFR 261.4(a)(24)-(25) (2014).'' API, 862 F.3d at 64. The court's 
citation encompasses both the domestic (i.e., paragraph (a)(24) and 
export (i.e., paragraph (a)(25)) parts of the exclusion. The court 
then concluded that ``the [2008] Transfer-Based Exclusion is 
reinstated.'' Id. at 75. Consequently, this action includes both 
paragraphs (a)(24) and (25).
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B. Removal of the 2015 Factor Four in the Definition of Legitimate 
Recycling and Reinstatement of the 2008 Factor Four

    In the 2015 DSW rule, EPA revised the definition of legitimate 
recycling found at 40 CFR 260.43, which was originally promulgated in 
the 2008 DSW rule. In both the 2008 and 2015 versions of the 
regulation, the legitimacy provision was designed to distinguish 
between real recycling activities--legitimate recycling--and ``sham'' 
recycling, an activity undertaken by an entity to avoid the 
requirements of managing a hazardous secondary material as a hazardous 
waste. This provision represented the codification of a long-standing 
policy prohibiting sham recycling which had previously been applied via 
Federal Register preamble and guidance documents, most notably through 
the 1989 ``Lowrance memo'' which discussed over a dozen factors to be 
considered.
    The existing policy in that 1998 memo was condensed and codified 
into regulation in 2008 as four separate factors, summarized as 
follows. Factor 1 addresses the concept that legitimate recycling 
involves a hazardous secondary material that provides a useful 
contribution to the recycling process, or to a product or intermediate 
of the recycling process. Factor 2 addresses the concept that the 
legitimate recycling process produces a valuable product or 
intermediate. Factor 3 addresses the concept that under legitimate 
recycling, the generator and the recycler manages the hazardous 
secondary material as a valuable commodity when it is under their 
control. Factor 4 addresses the concept that the product of the 
recycling process is comparable to a legitimate product or intermediate 
in terms of hazardous constituents or characteristics. Under the 2008 
rule, the first two factors had to be satisfied while the latter two 
factors had to be considered. In addition, the codified legitimacy test 
only applied to the then-new Generator-Controlled and Transfer-based 
exclusions, and to non-waste determinations under 260.34. See 40 CFR 
260.43(b), (c) (2008).
    The 2015 revisions made the following changes to the four 
legitimacy factors: (1) All four factors were made to apply to all 
excluded recycling, including recycling exclusions that predated the 
2008 rule (2) Factors 3 and 4 became mandatory factors (in the 2008 
rule, they were merely factors to be ``considered''), and (3) the 
substance of Factors 3 and 4 changed to add flexibility since the 
factors had become mandatory.
    In its decisions, the Court vacated Factor 4, but left in place all 
other 2015 changes to the legitimacy factors. The net result is as 
follows: (1) The 2015 version of Factor 4 is vacated in its entirety; 
(2) the 2015 change making the legitimacy factors applicable to all 
exclusions remains; (3) Factor 3 remains mandatory per the 2015 
changes; and (4) the 2008 version of Factor 4 (which

[[Page 24666]]

requires only that the factor be ``considered'') replaces the now-
vacated 2015 version. In addition, a reference in 40 CFR 
261.4(a)(23)(ii)(E) requiring documentation of how ``all four factors 
in 40 CFR 260.43(a) are met'' has been revised to conform with the 
court decisions.

IV. When will the final rule become effective?

    The revisions to 40 CFR 260.42, 40 CFR 260.43, 40 CFR 261.4(a)(23) 
and 40 CFR 261.4(a)(24); the reinstatement of 261.4(a)(25), and the 
removal of 40 CFR 260.30(f) and 260.31(d) are effective immediately.

V. 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 and prohibitions 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 under 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 existing federal requirements. Under RCRA section 3009, 
states may impose standards that are more stringent than those in the 
federal program (see also 40 CFR 271.1(i)). Therefore, authorized 
states are not required to adopt new federal regulations that are 
considered less stringent than previous federal regulations or that 
narrow the scope of the RCRA program. Previously authorized hazardous 
waste regulations would continue to apply in those states that do not 
adopt ``deregulatory'' rules.

B. Effect on State Authorization of D.C. Circuit Court Vacaturs

    On March 14, 2018, the D.C. Circuit Court issued its mandate, 
effectuating the vacaturs as described earlier in this document. The 
court's vacaturs mean that the vacated provisions of these federal 
rules are legally null and void and the corresponding regulatory 
requirements that were previously in effect are reinstated as if the 
vacated parts of the rules never existed. At the federal level, because 
the effect of the vacaturs means, in essence, that the vacated 
provisions of these rules should not have been promulgated, this 
Federal Register action serves to remove the vacated provisions from 
the federal regulations and replaces them with the regulations that 
were previously in effect. At the state level, because no state rules 
were challenged in the litigation, the court decision does not directly 
affect any state regulations. However, the vacaturs do have an impact 
on the authorization status of state regulations. The multiple 
scenarios that exist in the states are discussed below.
1. States Without Final RCRA Authorization
    For states and territories that have no RCRA authorization, the 
vacaturs mean that the reinstated federal rules are now effect in those 
states and this Federal Register action alerts interested parties of 
the removal of the vacated parts of the rules from the Code of Federal 
Regulations and their replacement with the previously promulgated 
provisions.
2. States That Have Final Authorization But Did Not Promulgate Similar 
Rules
    For states and territories that have RCRA authorization but did not 
adopt the 2015 verified recycler exclusion (and therefore were not 
authorized for the exclusion), these states are not required to adopt 
or become authorized for the transfer-based exclusion being reinstated 
today because the transfer-based exclusion is less stringent than full 
Subtitle C hazardous waste regulation.
    However, states and territories that have RCRA authorization but 
have not adopted the 2015 definition of legitimate recycling at 40 CFR 
260.43 are required to adopt and become authorized for a definition of 
legitimate recycling that is equivalent to and at least as stringent as 
the definition being promulgated today.
3. States That Adopted Similar Rules But Are Not Yet Authorized for 
Them
    For states that have adopted rules similar to the verified recycler 
exclusion and the 2015 definition of legitimate recycling, but have not 
yet been authorized for them, the vacatur of the federal rules will not 
change the authorization status of the state programs. The 
authorization status that was established prior to the adoption of the 
state counterpart rules remains in effect. The vacaturs and subsequent 
reinstatement of various provisions of the prior federal rules will 
result in state provisions that are broader in scope than the federal 
program as it pertains to the specific vacated provisions.
4. States That Adopted Similar Rules and Have Been Authorized for Them
    For states that have previously been authorized for rules similar 
to the verified recycler exclusion and the 2015 definition of 
legitimate recycling, and have been authorized for them, the effect of 
the vacaturs is that those previously-authorized state provisions will 
be considered broader in scope than the federally program as it 
pertains to the specific vacated provisions.

VI. Statutory and Executive Order (E.O.) Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), the Office of 
Management and Budget (OMB) waived review of this action. Because this 
action is not subject to notice and comment requirements under the 
Administrative Procedure Act or any other statute, it is not subject to 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) or Sections 202 
and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 
104-4). In addition, this action does not significantly or uniquely 
affect small governments. This action does not create new binding legal 
requirements that substantially and directly affect Tribes under 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action does 
not have significant Federalism implications under Executive Order 
13132 (64 FR 43255, August 10, 1999). Because this final rule is not a 
significant regulatory action under Executive Order 12866, this final 
rule is not subject to Executive Order 13771, entitled Reducing 
Regulations and Controlling Regulatory Costs; Executive Order 13211, 
entitled Actions Concerning Regulations That

[[Page 24667]]

Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, 
May 22, 2001); or Executive Order 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997). This action does not require any special 
considerations under Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.

A. Paperwork Reduction Act (PRA)

    To implement the court vacatur, EPA submitted an emergency ICR 
amendment to OMB with OMB control number 2050-0202 (EPA ICR Number 
2310.05). You can find a copy of the ICR amendment in the docket for 
this rule. The ICR amendment reflects changes due to the vacatur, which 
are expected to affect a total of 105 facilities, resulting in a total 
net burden reduction of 2,122 hours and $26,132.21 per year. 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.

B. Congressional Review Act (CRA)

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. Because this final action only implements 
the court vacatur, and the Agency has made a good cause finding that 
notice and comment is unnecessary, it is not subject to the 
Congressional Review Act.

List of Subjects

40 CFR Part 260

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

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Solid waste.

    Dated: May 23, 2018.
E. Scott Pruitt,
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, 6934, 6935, 
6937, 6938, 6939, and 6974.


Sec.  260.30  [Amended]

0
2. Section 260.30 is amended by removing paragraph (f).


Sec.  260.31  [Amended]

0
3. Section 260.31 is amended by removing paragraph (d).

0
4. Section 260.42 is amended by revising paragraph (a) to 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), 261.4(a)(25), 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:
    (1) The name, address, and EPA ID number (if applicable) of the 
facility;
    (2) The name and telephone number of a contact person;
    (3) The NAICS code of the facility;
    (4) The regulation under which the hazardous secondary materials 
will be managed;
    (5) For reclaimers and intermediate facilities managing hazardous 
secondary materials in accordance with Sec.  261.4(a)(24) or (25), 
whether the reclaimer or intermediate facility has financial assurance 
(not applicable for persons managing hazardous secondary materials 
generated and reclaimed under the control of the generator);
    (6) When the facility began or expects to begin managing the 
hazardous secondary materials in accordance with the regulation;
    (7) 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);
    (8) For each hazardous secondary material, whether the hazardous 
secondary material, or any portion thereof, will be managed in a land-
based unit;
    (9) The quantity of each hazardous secondary material to be managed 
annually; and
    (10) The certification (included in EPA Form 8700-12) signed and 
dated by an authorized representative of the facility.

0
5. Section 260.43 is amended by revising paragraph (a) and adding 
paragraph (b) to read 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 and must consider the requirements of 
paragraph (b) of this section.
    (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.
    (b) The following factor must be considered in making a 
determination as to the overall legitimacy of a specific recycling 
activity.

[[Page 24668]]

    (1) The product of the recycling process does not:
    (i) Contain significant concentrations of any hazardous 
constituents found in appendix VIII of part 261 that are not found in 
analogous products; or
    (ii) Contain concentrations of hazardous constituents found in 
appendix VIII of part 261 at levels that are significantly elevated 
from those found in analogous products, or
    (iii) Exhibit a hazardous characteristic (as defined in part 261 
subpart C) that analogous products do not exhibit.
    (2) In making a determination that a hazardous secondary material 
is legitimately recycled, persons must evaluate all factors and 
consider legitimacy as a whole. If, after careful evaluation of these 
considerations, the factor in this paragraph is not met, then this fact 
may be an indication that the material is not legitimately recycled. 
However, the factor in this paragraph does not have to be met for the 
recycling to be considered legitimate. In evaluating the extent to 
which this factor is met and in determining whether a process that does 
not meet this factor is still legitimate, persons can consider exposure 
from toxics in the product, the bioavailability of the toxics in the 
product and other relevant considerations.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
6. 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
7. Section 261.4 is amended as follows:
0
a. Republish paragraph (a) introductory text;
0
b. Revise paragraphs (a)(23) introductory text, (a)(23)(ii), and 
(a)(24); and
0
c. Add paragraph (a)(25).
    The revisions and additions read 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:
* * * * *
    (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. Sec.  
266.80 and 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 three factors in Sec.  
260.43(a) and how the factor in Sec.  260.43(b) was considered. 
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 another person for the purpose of reclamation is not a 
solid waste, provided that:
    (i) The material is not speculatively accumulated, as defined in 
Sec.  261.1(c)(8);
    (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 paragraph (a) of this section 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) Prior to arranging for transport of hazardous secondary 
materials to a reclamation facility (or facilities) where the 
management of the hazardous secondary materials is not addressed under 
a RCRA part B permit or interim status standards, the hazardous 
secondary material generator must make reasonable efforts to ensure 
that each reclaimer intends to properly and legitimately reclaim the 
hazardous secondary material and not discard it, and that each 
reclaimer will manage the hazardous secondary material in a manner that 
is protective of human health and the environment. If the hazardous 
secondary material will be passing through an intermediate facility 
where the management of the hazardous secondary materials is not 
addressed under a RCRA part B permit or interim status standards, the 
hazardous secondary material generator must make contractual 
arrangements with the intermediate facility to ensure that the 
hazardous secondary material is sent to the reclamation facility 
identified by the hazardous secondary material generator, and the 
hazardous secondary material generator must perform reasonable efforts 
to ensure that the intermediate facility will manage the hazardous 
secondary material in a manner that is protective of human health and 
the environment. Reasonable efforts must be repeated at a minimum of 
every three years for the hazardous secondary material generator to 
claim the exclusion and to send the hazardous secondary materials to 
each reclaimer and any intermediate facility. In making these 
reasonable efforts, the generator may use any credible evidence 
available, including information gathered by the hazardous secondary 
material generator, provided by the reclaimer or intermediate facility, 
and/or provided by a third party. The hazardous secondary material 
generator must affirmatively answer all of the following questions for 
each reclamation facility and any intermediate facility:
    (1) Does the available information indicate that the reclamation 
process is legitimate pursuant to Sec.  260.43 of this chapter? In 
answering this question, the

[[Page 24669]]

hazardous secondary material generator can rely on their existing 
knowledge of the physical and chemical properties of the hazardous 
secondary material, as well as information from other sources (e.g., 
the reclamation facility, audit reports, etc.) about the reclamation 
process.
    (2) Does the publicly available information indicate that the 
reclamation facility and any intermediate facility that is used by the 
hazardous secondary material generator notified the appropriate 
authorities of hazardous secondary materials reclamation activities 
pursuant to Sec.  260.42 of this chapter and have they notified the 
appropriate authorities that the financial assurance condition is 
satisfied per paragraph (a)(24)(vi)(F) of this section? In answering 
these questions, the hazardous secondary material generator can rely on 
the available information documenting the reclamation facility's and 
any intermediate facility's compliance with the notification 
requirements per Sec.  260.42 of this chapter, including the 
requirement in Sec.  260.42(a)(5) to notify EPA whether the reclaimer 
or intermediate facility has financial assurance.
    (3) Does publicly available information indicate that the 
reclamation facility or any intermediate facility that is used by the 
hazardous secondary material generator has not had any formal 
enforcement actions taken against the facility in the previous three 
years for violations of the RCRA hazardous waste regulations and has 
not been classified as a significant non-complier with RCRA Subtitle C? 
In answering this question, the hazardous secondary material generator 
can rely on the publicly available information from EPA or the state. 
If the reclamation facility or any intermediate facility that is used 
by the hazardous secondary material generator has had a formal 
enforcement action taken against the facility in the previous three 
years for violations of the RCRA hazardous waste regulations and has 
been classified as a significant non-complier with RCRA Subtitle C, 
does the hazardous secondary material generator have credible evidence 
that the facilities will manage the hazardous secondary materials 
properly? In answering this question, the hazardous secondary material 
generator can obtain additional information from EPA, the state, or the 
facility itself that the facility has addressed the violations, 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) Does the available information indicate that the reclamation 
facility and any intermediate facility that is used by the hazardous 
secondary material generator have the equipment and trained personnel 
to safely recycle the hazardous secondary material? In answering this 
question, the generator may rely on a description by the reclamation 
facility or by an independent third party of the equipment and trained 
personnel to be used to recycle the generator's hazardous secondary 
material.
    (5) If residuals are generated from the reclamation of the excluded 
hazardous secondary materials, does the reclamation facility have the 
permits required (if any) to manage the residuals? If not, does the 
reclamation facility have a contract with an appropriately permitted 
facility to dispose of the residuals? If not, does the hazardous 
secondary material generator have credible evidence that the residuals 
will be managed in a manner that is protective of human health and the 
environment? In answering these questions, the hazardous secondary 
material generator can rely on publicly available information from EPA 
or the state, or information provided by the facility itself.
    (C) The hazardous secondary material generator must maintain for a 
minimum of three years documentation and certification that reasonable 
efforts were made for each reclamation facility and, if applicable, 
intermediate facility where the management of the hazardous secondary 
materials is not addressed under a RCRA part B permit or interim status 
standards prior to transferring hazardous secondary material. 
Documentation and certification must be made available upon request by 
a regulatory authority within 72 hours, or within a longer period of 
time as specified by the regulatory authority. The certification 
statement must:
    (1) Include the printed name and official title of an authorized 
representative of the hazardous secondary material generator company, 
the authorized representative's signature, and the date signed;
    (2) Incorporate the following language: ``I hereby certify in good 
faith and to the best of my knowledge that, prior to arranging for 
transport of excluded hazardous secondary materials to [insert name(s) 
of reclamation facility and any intermediate facility], reasonable 
efforts were made in accordance with Sec.  261.4(a)(24)(v)(B) to ensure 
that the hazardous secondary materials would be recycled legitimately, 
and otherwise managed in a manner that is protective of human health 
and the environment, and that such efforts were based on current and 
accurate information.''
    (D) 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.
    (E) 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);
    (F) 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

[[Page 24670]]

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,
    (vii) In addition, all persons claiming the exclusion under this 
paragraph (a)(24) of this section must provide notification as required 
under Sec.  260.42 of this chapter.
    (25) Hazardous secondary material that is exported from the United 
States and reclaimed at a reclamation facility located in a foreign 
country is not a solid waste, provided that the hazardous secondary 
material generator complies with the applicable requirements of 
paragraph (a)(24)(i)-(v) of this section (excepting paragraph 
(a)(24)(v)(B)(2) of this section for foreign reclaimers and foreign 
intermediate facilities), and that the hazardous secondary material 
generator also complies with the following requirements:
    (i) Notify EPA of an intended export before the hazardous secondary 
material is scheduled to leave the United States. A complete 
notification must be submitted at least sixty (60) days before the 
initial shipment is intended to be shipped off-site. This notification 
may cover export activities extending over a twelve (12) month or 
lesser period. The notification must be in writing, signed by the 
hazardous secondary material generator, and include the following 
information:
    (A) Name, mailing address, telephone number and EPA ID number (if 
applicable) of the hazardous secondary material generator;
    (B) A description of the hazardous secondary material and the EPA 
hazardous waste number that would apply if the hazardous secondary 
material was managed as hazardous waste and the U.S. DOT proper 
shipping name, hazard class and ID number (UN/NA) for each hazardous 
secondary material as identified in 49 CFR parts 171 through 177;
    (C) The estimated frequency or rate at which the hazardous 
secondary material is to be exported and the period of time over which 
the hazardous secondary material is to be exported;
    (D) The estimated total quantity of hazardous secondary material;
    (E) All points of entry to and departure from each foreign country 
through which the hazardous secondary material will pass;
    (F) A description of the means by which each shipment of the 
hazardous secondary material will be transported (e.g., mode of 
transportation vehicle (air, highway, rail, water, etc.), type(s) of 
container (drums, boxes, tanks, etc.));
    (G) A description of the manner in which the hazardous secondary 
material will be reclaimed in the country of import;
    (H) The name and address of the reclaimer, any intermediate 
facility and any alternate reclaimer and intermediate facilities; and
    (I) The name of any countries of transit through which the 
hazardous secondary material will be sent and a description of the 
approximate length of time it will remain in such countries and the 
nature of its handling while there (for purposes of this section, the 
terms ``EPA Acknowledgement of Consent'', ``country of import'' and 
``country of transit'' are used as defined in 40 CFR 262.81 with the 
exception that the terms in this section refer to hazardous secondary 
materials, rather than hazardous waste):
    (ii) Notifications must be submitted electronically using EPA's 
Waste Import Export Tracking System (WIETS), or its successor system.
    (iii) Except for changes to the telephone number in paragraph 
(a)(25)(i)(A) of this section and decreases in the quantity of 
hazardous secondary material indicated pursuant to paragraph 
(a)(25)(i)(D) of this section, when the conditions specified on the 
original notification change (including any exceedance of the estimate 
of the quantity of hazardous secondary material specified in the 
original notification), the hazardous secondary material generator must 
provide EPA with a written renotification of the change. The shipment 
cannot take place until consent of the country of import to the changes 
(except for changes to paragraph (a)(25)(i)(I) of this section and in 
the ports of entry to and departure from countries of transit pursuant 
to paragraphs (a)(25)(i)(E) of this section) has been obtained and the 
hazardous secondary material generator receives from EPA an EPA 
Acknowledgment of Consent reflecting the country of import's consent to 
the changes.
    (iv) Upon request by EPA, the hazardous secondary material 
generator shall furnish to EPA any additional information which a 
country of import requests in order to respond to a notification.
    (v) EPA will provide a complete notification to the country of 
import and any countries of transit. A notification is complete when 
EPA receives a notification which EPA determines satisfies the 
requirements of paragraph (a)(25)(i) of this section. Where a claim of 
confidentiality is asserted with respect to any notification 
information required by paragraph (a)(25)(i) of this section, EPA may 
find the notification not complete until any such claim is resolved in 
accordance with 40 CFR 260.2.
    (vi) The export of hazardous secondary material under this 
paragraph (a)(25) is prohibited unless the country of import consents 
to the intended export. When the country of import

[[Page 24671]]

consents in writing to the receipt of the hazardous secondary material, 
EPA will send an EPA Acknowledgment of Consent to the hazardous 
secondary material generator. Where the country of import objects to 
receipt of the hazardous secondary material or withdraws a prior 
consent, EPA will notify the hazardous secondary material generator in 
writing. EPA will also notify the hazardous secondary material 
generator of any responses from countries of transit.
    (vii) For exports to OECD Member countries, the receiving country 
may respond to the notification using tacit consent. If no objection 
has been lodged by any country of import or countries of transit to a 
notification provided pursuant to paragraph (a)(25)(i) of this section 
within thirty (30) days after the date of issuance of the 
acknowledgement of receipt of notification by the competent authority 
of the country of import, the transboundary movement may commence. In 
such cases, EPA will send an EPA Acknowledgment of Consent to inform 
the hazardous secondary material generator that the country of import 
and any relevant countries of transit have not objected to the 
shipment, and are thus presumed to have consented tacitly. Tacit 
consent expires one (1) calendar year after the close of the thirty 
(30) day period; renotification and renewal of all consents is required 
for exports after that date.
    (viii) A copy of the EPA Acknowledgment of Consent must accompany 
the shipment. The shipment must conform to the terms of the EPA 
Acknowledgment of Consent.
    (ix) If a shipment cannot be delivered for any reason to the 
reclaimer, intermediate facility or the alternate reclaimer or 
alternate intermediate facility, the hazardous secondary material 
generator must re-notify EPA of a change in the conditions of the 
original notification to allow shipment to a new reclaimer in 
accordance with paragraph (iii) of this section and obtain another EPA 
Acknowledgment of Consent.
    (x) Hazardous secondary material generators must keep a copy of 
each notification of intent to export and each EPA Acknowledgment of 
Consent for a period of three years following receipt of the EPA 
Acknowledgment of Consent. They may satisfy this recordkeeping 
requirement by retaining electronically submitted notifications or 
electronically generated Acknowledgements in their account on EPA's 
Waste Import Export Tracking System (WIETS), or its successor system, 
provided that such copies are readily available for viewing and 
production if requested by any EPA or authorized state inspector. No 
hazardous secondary material generator may be held liable for the 
inability to produce a notification or Acknowledgement for inspection 
under this section if they can demonstrate that the inability to 
produce such copies are due exclusively to technical difficulty with 
EPA's Waste Import Export Tracking System (WIETS), or its successor 
system for which the hazardous secondary material generator bears no 
responsibility.
    (xi) Hazardous secondary material generators must file with the 
Administrator no later than March 1 of each year, a report summarizing 
the types, quantities, frequency and ultimate destination of all 
hazardous secondary materials exported during the previous calendar 
year. Annual reports must be submitted electronically using EPA's Waste 
Import Export Tracking System (WIETS), or its successor system. Such 
reports must include the following information:
    (A) Name, mailing and site address, and EPA ID number (if 
applicable) of the hazardous secondary material generator;
    (B) The calendar year covered by the report;
    (C) The name and site address of each reclaimer and intermediate 
facility;
    (D) By reclaimer and intermediate facility, for each hazardous 
secondary material exported, a description of the hazardous secondary 
material and the EPA hazardous waste number that would apply if the 
hazardous secondary material was managed as hazardous waste, the DOT 
hazard class, the name and U.S. EPA ID number (where applicable) for 
each transporter used, the total amount of hazardous secondary material 
shipped and the number of shipments pursuant to each notification;
    (E) A certification signed by the hazardous secondary material 
generator which states: ``I certify under penalty of law that I have 
personally examined and am familiar with the information submitted in 
this and all attached documents, and that based on my inquiry of those 
individuals immediately responsible for obtaining the information, I 
believe that the submitted information is true, accurate, and complete. 
I am aware that there are significant penalties for submitting false 
information including the possibility of fine and imprisonment.''
    (xii) All persons claiming an exclusion under this paragraph 
(a)(25) must provide notification as required by Sec.  260.42 of this 
chapter.
* * * * *
[FR Doc. 2018-11578 Filed 5-29-18; 8:45 am]
BILLING CODE 6560-50-P
24664 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations

ozone and the 1997 and 2006 PM2.5 available either electronically through B. Why is EPA issuing a final rule?
NAAQS requirements of CAA sections www.regulations.gov or in hard copy at Section 553 of the Administrative
110(a)(2)(A), (B), (C) (enforcement the EPA Docket Center. See https:// Procedure Act, 5 U.S.C. 553(b)(3)(B),
program only), (D)(i)(II) prong 4 www.epa.gov/dockets/epa-docket- provides that, when an agency for good
(visibility), (E), (F), (G), (H), (J) center-reading-room for more cause finds that notice and public
(consultation and public notification information on the Public Reading procedures are impracticable,
only), (K), (L), and (M). Room. unnecessary or contrary to the public
* * * * * interest, the agency may issue a rule
FOR FURTHER INFORMATION CONTACT:
(b) * * * without providing notice and an
Office of Resource Conservation and
(1) * * * Submittal from New Jersey opportunity for public comment. EPA
Recovery, Materials Recovery and Waste
dated October 17, 2014, as has determined that there is good cause
Management Division, MC 5304P,
supplemented on March 15, 2017, to for revising these provisions without
Environmental Protection Agency, 1200
address the CAA infrastructure prior proposal and opportunity for
Pennsylvania Ave. NW, Washington, DC
requirements of section 110(a)(2) for the comment, because these revisions
20460, Tracy Atagi, at (703) 308–8672,
2008 Lead, 2008 8-hour ozone, 2010 simply undertake the ministerial task of
(atagi.tracy@epa.gov).
NO2, 2010 SO2, 2012 PM2.5, 2006 PM10, implementing court orders vacating
and 2011 CO NAAQS is approved for SUPPLEMENTARY INFORMATION: these rules and reinstating the prior
(A), (B), (C) (enforcement program only), versions. As a matter of law, the orders
(E), (F), (G), (H), (J) (consultation and Preamble Outline issued by the United States Court of
public notification only), (K), (L), and I. General Information Appeals for the District of Columbia
(M). II. Statutory Authority Circuit on July 7, 2017 and amended on
III. Which regulations is EPA removing and March 6, 2018, (1) vacated the 2015
* * * * *
replacing? verified recycler exclusion for
[FR Doc. 2018–10801 Filed 5–29–18; 8:45 am]
IV. When will the final rule become hazardous waste that is recycled off-site
BILLING CODE 6560–50–P effective?
(except for certain provisions); (2)
V. State Authorization
VI. Statutory and Executive Order (E.O.)
reinstated the transfer-based exclusion
ENVIRONMENTAL PROTECTION Reviews from the 2008 rule to replace the now-
AGENCY vacated 2015 verified recycler
I. General Information exclusion; (3) upheld the containment
40 CFR Parts 260 and 261 A. Does this action apply to me? and emergency preparedness provisions
of the 2015 rule; (4) vacated Factor 4 of
[EPA–HQ–OLEM–2018–0185; FRL–9977–
This final rule applies to facilities that the 2015 definition of legitimate
56–OLEM]
generate or recycle hazardous secondary recycling in its entirety; and (5)
Response to Vacatur of Certain materials (HSM). According to the reinstated the 2008 version of Factor 4
Provisions of the Definition of Solid revisions to the definition of solid waste to replace the now-vacated 2015 version
Waste Rule promulgated in 2015, entities of Factor 4.2 It is, therefore, unnecessary
potentially affected by the original rule to provide notice and an opportunity for
AGENCY: Environmental Protection include over 5,000 industrial facilities comment on this action, which merely
Agency (EPA). in 634 industries (at the 6-digit North carries out the court’s orders.
ACTION: Final rule. American Industry Classification In addition, EPA finds that it has good
System (NAICS) code level).1 Most of cause to make the revisions immediately
SUMMARY: The Environmental Protection these 634 industries have relatively few effective under section 553(d) of the
Agency is revising regulations entities that are potentially affected. The Administrative Procedure Act, 5 U.S.C.
associated with the definition of solid top-5 economic sectors (at the 2-digit 553(d), and section 3010(b) of RCRA, 42
waste under the Resource Conservation NAICS code level) with the largest U.S.C. 6930(b). Section 553(d) provides
and Recovery Act. These revisions number of potentially affected entities that final rules shall not become
implement vacaturs ordered by the are as follows: (1) 41% in NAICS code effective until 30 days after publication
United States Court of Appeals for the 33—the manufacturing sector, which in the Federal Register, ‘‘except . . . as
District of Columbia Circuit (D.C. consists of metals, metal products, otherwise provided by the agency for
Circuit), on July 7, 2017, as modified on machinery, computer & electronics, good cause,’’ among other exceptions.
March 6, 2018. electrical equipment, transportation The purpose of this provision is to ‘‘give
DATES: This final rule is effective on equipment, furniture, and affected parties a reasonable time to
May 30, 2018. miscellaneous manufacturing adjust their behavior before the final
subsectors, (2) 23% in NAICS code 32— rule takes effect.’’ Omnipoint Corp. v.
ADDRESSES: EPA has established a
the manufacturing sector, which FCC, 78 F.3d 620, 630 (D.C. Cir. 1996);
docket for this action under Docket ID
consists of wood products, paper, see also United States v. Gavrilovic, 551
No. EPA–HQ–OLEM–2018–0185. All
printing, petroleum & coal products, F.2d 1099, 1104 (8th Cir. 1977) (quoting
documents in the docket are listed in
chemicals plastics & rubber products, legislative history). Thus, in
the www.regulations.gov index.
and nonmetallic mineral products determining whether good cause exists
Although listed in the index, some
manufacturing subsectors, (3) 3.0% in to waive the 30-day delay, an agency
information is not publicly available,
NAICS code 92—the public should ‘‘balance the necessity for
e.g., Confidential Business Information
immediate implementation against
sradovich on DSK3GMQ082PROD with RULES

(CBI) or other information whose administration sector, (4) 2.9% in
NAICS code 61—the educational principles of fundamental fairness
disclosure is restricted by statute.
services sector, and (5) 2.8% in NAICS which require that all affected persons
Certain other material, such as
code 54—the professional, scientific and be afforded a reasonable amount of time
copyrighted material, is not placed on
the internet and will be publicly technical services sector. 2 API v. EPA, 862 F.3d 50 (DC Cir. 2017), reh’g
available only in hard copy form. granted, No. 09–1038, 2018 U.S. App. LEXIS 5613
Publicly available docket materials are 1 80 FR 1694/2, January 13, 2015. (DC Cir. Mar. 6, 2018).

VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1
Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations 24665

to prepare for the effective date of its requirements; and (4) replaced a provision was designed to distinguish
ruling.’’ Gavrilovic, 551 F.2d at 1105. requirement for generators to make a between real recycling activities—
EPA has determined that there is good ‘‘reasonable effort’’ to audit the legitimate recycling—and ‘‘sham’’
cause for making this final rule effective recycling facility prior to sending their recycling, an activity undertaken by an
immediately because this action merely material to be recycled with a entity to avoid the requirements of
implements court orders that vacate requirement that the recycling facility managing a hazardous secondary
certain regulatory provisions and obtain a variance from the regulations material as a hazardous waste. This
reinstate the prior versions. The court prior to accepting the recyclable provision represented the codification
issued the mandate for its decision on materials. of a long-standing policy prohibiting
March 14, 2018, at which point the In its decisions vacating the 2015 sham recycling which had previously
orders became effective. Delaying the verified recycler exclusion and ordering been applied via Federal Register
effectiveness of this rulemaking would the reinstatement of the 2008 transfer- preamble and guidance documents,
lengthen the period between the change based exclusion, the court found that most notably through the 1989
in the law (i.e., the court’s mandate) and the first three provisions noted above ‘‘Lowrance memo’’ which discussed
the corresponding update to the were severable from the rest of the over a dozen factors to be considered.
regulations. Minimizing that time verified recycler exclusion and would The existing policy in that 1998
period should reduce the possibility of not be affected by the vacatur. Instead, memo was condensed and codified into
confusion for the regulated community, these provisions are retained in the regulation in 2008 as four separate
state and local governments, and the reinstated transfer-based exclusion factors, summarized as follows. Factor 1
public. Moreover, the Agency believes found in the revised version of 40 CFR addresses the concept that legitimate
that delaying the effectiveness of this 261.4(a)(24) being finalized with this recycling involves a hazardous
rule would not offer any benefits. As a action. In addition, the export secondary material that provides a
result, EPA is making this rule requirements for the transfer-based useful contribution to the recycling
immediately effective. exclusion found at 40 CFR 261.4(a)(25) process, or to a product or intermediate
are also reinstated.4 Finally, the of the recycling process. Factor 2
II. Statutory Authority following conforming changes are made addresses the concept that the legitimate
These regulations are promulgated in response to the vacatur of the verified recycling process produces a valuable
under the authority of sections 2002, recycler exclusion and reinstatement of product or intermediate. Factor 3
3001, 3002, 3003, 3004, 3006, 3010, and the transfer-based exclusion (1) addresses the concept that under
3017 of the Solid Waste Disposal Act of references to the verified recycler legitimate recycling, the generator and
1965, as amended by the Resource variance process are removed from 40 the recycler manages the hazardous
Conservation and Recovery Act of 1976 CFR 260.30 and 40 CFR 260.31, (2) the secondary material as a valuable
(RCRA), as amended by the Hazardous reference to the financial assurance commodity when it is under their
and Solid Waste Amendments of 1984 notification requirement reinstated control. Factor 4 addresses the concept
(HSWA) This statute is commonly under the transfer-based exclusion is that the product of the recycling process
referred to as ‘‘RCRA.’’ added back into 40 CFR 260.42(a)(5), is comparable to a legitimate product or
III. Which regulations is EPA removing and (3) the language in 40 CFR intermediate in terms of hazardous
and replacing? 261.4(a)(25) is updated to reflect the fact constituents or characteristics. Under
that subsequent to the 2015 withdrawal the 2008 rule, the first two factors had
A. Removal of the 2015 Verified of the transfer-based exclusion, the to be satisfied while the latter two
Recycler Exclusion and Reinstatement applicable export definitions were factors had to be considered. In
of the 2008 Transfer-Based Exclusion, moved to 40 CFR 262.81, and the paper addition, the codified legitimacy test
With Modifications submittal of RCRA export notices and only applied to the then-new Generator-
In the 2015 DSW rule, EPA replaced export annual reports was replaced with Controlled and Transfer-based
the 2008 DSW rule transfer-based electronic submittal via EPA’s Waste exclusions, and to non-waste
exclusion found at 40 CFR 261.4(a)(24)– Import Export Tracking System determinations under 260.34. See 40
(25) with the verified recycler exclusion, (WIETS). (81 FR 85696, November 28, CFR 260.43(b), (c) (2008).
found at 40 CFR 261.4(a)(24).3 (The goal 2016; 82 FR 41015, August 29, 2017). The 2015 revisions made the
of both exclusions was to exempt from following changes to the four legitimacy
B. Removal of the 2015 Factor Four in factors: (1) All four factors were made to
regulation off-site recycling of the Definition of Legitimate Recycling
hazardous waste when certain apply to all excluded recycling,
and Reinstatement of the 2008 Factor including recycling exclusions that
conditions are met). In promulgating the Four
2015 verified recycler exclusion EPA predated the 2008 rule (2) Factors 3 and
made four key changes to the language In the 2015 DSW rule, EPA revised 4 became mandatory factors (in the 2008
of the 2008 transfer-based exclusion: (1) the definition of legitimate recycling rule, they were merely factors to be
Removed a prohibition that had made found at 40 CFR 260.43, which was ‘‘considered’’), and (3) the substance of
certain spent petroleum catalysts originally promulgated in the 2008 DSW Factors 3 and 4 changed to add
(hazardous waste codes K171 and K172) rule. In both the 2008 and 2015 versions flexibility since the factors had become
ineligible for the new recycling of the regulation, the legitimacy mandatory.
In its decisions, the Court vacated
exclusions (i.e., these materials became 4 The court characterized the 2008 transfer-based Factor 4, but left in place all other 2015
eligible under the 2015 exclusion); (2) exclusion this way: ‘‘EPA adopted the first edition, changes to the legitimacy factors. The
added a specific ‘‘contained’’ standard
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the Transfer-Based Exclusion, as part of its 2008
net result is as follows: (1) The 2015
for the management of the materials Rule . . . previously codified at 40 CFR
261.4(a)(24)–(25) (2014).’’ API, 862 F.3d at 64. The version of Factor 4 is vacated in its
prior to being recycled; (3) added
court’s citation encompasses both the domestic (i.e., entirety; (2) the 2015 change making the
emergency preparedness and response paragraph (a)(24) and export (i.e., paragraph (a)(25)) legitimacy factors applicable to all
parts of the exclusion. The court then concluded
3 The Federal Register citation for the ‘‘2015 DSW that ‘‘the [2008] Transfer-Based Exclusion is
exclusions remains; (3) Factor 3 remains
rule’’ is 80 FR 1694, January 13, 2015, and for the reinstated.’’ Id. at 75. Consequently, this action mandatory per the 2015 changes; and (4)
‘‘2008 DSW rule’’ is 73 FR 64668, October 30, 2008. includes both paragraphs (a)(24) and (25). the 2008 version of Factor 4 (which

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requires only that the factor be federal regulations that are considered recycling that is equivalent to and at
‘‘considered’’) replaces the now-vacated less stringent than previous federal least as stringent as the definition being
2015 version. In addition, a reference in regulations or that narrow the scope of promulgated today.
40 CFR 261.4(a)(23)(ii)(E) requiring the RCRA program. Previously
3. States That Adopted Similar Rules
documentation of how ‘‘all four factors authorized hazardous waste regulations
But Are Not Yet Authorized for Them
in 40 CFR 260.43(a) are met’’ has been would continue to apply in those states
revised to conform with the court that do not adopt ‘‘deregulatory’’ rules. For states that have adopted rules
decisions. similar to the verified recycler exclusion
B. Effect on State Authorization of D.C. and the 2015 definition of legitimate
IV. When will the final rule become Circuit Court Vacaturs recycling, but have not yet been
effective? On March 14, 2018, the D.C. Circuit authorized for them, the vacatur of the
The revisions to 40 CFR 260.42, 40 Court issued its mandate, effectuating federal rules will not change the
CFR 260.43, 40 CFR 261.4(a)(23) and 40 the vacaturs as described earlier in this authorization status of the state
CFR 261.4(a)(24); the reinstatement of document. The court’s vacaturs mean programs. The authorization status that
261.4(a)(25), and the removal of 40 CFR that the vacated provisions of these was established prior to the adoption of
260.30(f) and 260.31(d) are effective federal rules are legally null and void the state counterpart rules remains in
immediately. and the corresponding regulatory effect. The vacaturs and subsequent
requirements that were previously in reinstatement of various provisions of
V. State Authorization effect are reinstated as if the vacated the prior federal rules will result in state
A. Applicability of Rules in Authorized parts of the rules never existed. At the provisions that are broader in scope
States federal level, because the effect of the than the federal program as it pertains
vacaturs means, in essence, that the to the specific vacated provisions.
Under section 3006 of RCRA, EPA vacated provisions of these rules should
may authorize a qualified state to 4. States That Adopted Similar Rules
not have been promulgated, this Federal and Have Been Authorized for Them
administer and enforce a hazardous Register action serves to remove the
waste program within the state in lieu vacated provisions from the federal For states that have previously been
of the federal program, and to issue and regulations and replaces them with the authorized for rules similar to the
enforce permits in the state. A state may regulations that were previously in verified recycler exclusion and the 2015
receive authorization by following the effect. At the state level, because no definition of legitimate recycling, and
approval process described in 40 CFR state rules were challenged in the have been authorized for them, the
271.21 (see 40 CFR part 271 for the litigation, the court decision does not effect of the vacaturs is that those
overall standards and requirements for directly affect any state regulations. previously-authorized state provisions
authorization). EPA continues to have However, the vacaturs do have an will be considered broader in scope
independent authority to bring impact on the authorization status of than the federally program as it pertains
enforcement actions under RCRA state regulations. The multiple scenarios to the specific vacated provisions.
sections 3007, 3008, 3013, and 7003. An that exist in the states are discussed
authorized state also continues to have VI. Statutory and Executive Order
below. (E.O.) Reviews
independent authority to bring
enforcement actions under state law. 1. States Without Final RCRA Under Executive Order 12866 (58 FR
After a state receives initial Authorization 51735, October 4, 1993) and Executive
authorization, new federal requirements For states and territories that have no Order 13563 (76 FR 3821, January 21,
and prohibitions promulgated under RCRA authorization, the vacaturs mean 2011), the Office of Management and
RCRA authority existing prior to the that the reinstated federal rules are now Budget (OMB) waived review of this
1984 Hazardous and Solid Waste effect in those states and this Federal action. Because this action is not subject
Amendments (HSWA) do not apply in Register action alerts interested parties to notice and comment requirements
that state until the state adopts and of the removal of the vacated parts of under the Administrative Procedure Act
receives authorization for equivalent the rules from the Code of Federal or any other statute, it is not subject to
state requirements. In contrast, under Regulations and their replacement with the Regulatory Flexibility Act (5 U.S.C.
RCRA section 3006(g) (42 U.S.C. the previously promulgated provisions. 601 et seq.) or Sections 202 and 205 of
6926(g)), new federal requirements and the Unfunded Mandates Reform Act of
prohibitions promulgated under HSWA 2. States That Have Final Authorization 1999 (UMRA) (Pub. L. 104–4). In
provisions take effect in authorized But Did Not Promulgate Similar Rules addition, this action does not
states at the same time that they take For states and territories that have significantly or uniquely affect small
effect in unauthorized states. As such, RCRA authorization but did not adopt governments. This action does not
EPA carries out the HSWA requirements the 2015 verified recycler exclusion create new binding legal requirements
and prohibitions in authorized states, (and therefore were not authorized for that substantially and directly affect
including the issuance of new permits the exclusion), these states are not Tribes under Executive Order 13175 (65
implementing those requirements, until required to adopt or become authorized FR 67249, November 9, 2000). This
EPA authorizes the state to do so. for the transfer-based exclusion being action does not have significant
Authorized states are required to reinstated today because the transfer- Federalism implications under
modify their programs only when EPA based exclusion is less stringent than Executive Order 13132 (64 FR 43255,
enacts federal requirements that are full Subtitle C hazardous waste August 10, 1999). Because this final rule
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more stringent or broader in scope than regulation. is not a significant regulatory action
existing federal requirements. Under However, states and territories that under Executive Order 12866, this final
RCRA section 3009, states may impose have RCRA authorization but have not rule is not subject to Executive Order
standards that are more stringent than adopted the 2015 definition of 13771, entitled Reducing Regulations
those in the federal program (see also 40 legitimate recycling at 40 CFR 260.43 and Controlling Regulatory Costs;
CFR 271.1(i)). Therefore, authorized are required to adopt and become Executive Order 13211, entitled Actions
states are not required to adopt new authorized for a definition of legitimate Concerning Regulations That

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Significantly Affect Energy Supply, of Federal Regulations is amended as (10) The certification (included in
Distribution, or Use (66 FR 28355, May follows: EPA Form 8700–12) signed and dated
22, 2001); or Executive Order 13045, by an authorized representative of the
entitled Protection of Children from PART 260—HAZARDOUS WASTE facility.
Environmental Health Risks and Safety MANAGEMENT SYSTEM: GENERAL
■ 5. Section 260.43 is amended by
Risks (62 FR 19885, April 23, 1997). revising paragraph (a) and adding
■ 1. The authority citation for part 260
This action does not require any special paragraph (b) to read as follows:
continues to read as follows:
considerations under Executive Order
12898, entitled Federal Actions to Authority: 42 U.S.C. 6905, 6912(a), 6921– § 260.43 Legitimate recycling of hazardous
Address Environmental Justice in 6927, 6930, 6934, 6935, 6937, 6938, 6939, secondary materials.
Minority Populations and Low-Income and 6974.
(a) Recycling of hazardous secondary
Populations (59 FR 7629, February 16, § 260.30 [Amended] materials for the purpose of the
1994). This action does not involve exclusions or exemptions from the
■ 2. Section 260.30 is amended by
technical standards; thus, the hazardous waste regulations must be
removing paragraph (f).
requirements of Section 12(d) of the legitimate. Hazardous secondary
National Technology Transfer and § 260.31 [Amended] material that is not legitimately recycled
Advancement Act of 1995 (15 U.S.C. is discarded material and is a solid
■ 3. Section 260.31 is amended by
272 note) do not apply. waste. In determining if their recycling
removing paragraph (d).
A. Paperwork Reduction Act (PRA) is legitimate, persons must address all
■ 4. Section 260.42 is amended by
revising paragraph (a) to read as follows: the requirements of this paragraph and
To implement the court vacatur, EPA must consider the requirements of
submitted an emergency ICR § 260.42 Notification requirement for paragraph (b) of this section.
amendment to OMB with OMB control hazardous secondary materials. (1) Legitimate recycling must involve
number 2050–0202 (EPA ICR Number (a) Facilities managing hazardous a hazardous secondary material that
2310.05). You can find a copy of the ICR secondary materials under §§ 260.30, provides a useful contribution to the
amendment in the docket for this rule. 261.4(a)(23), 261.4(a)(24), 261.4(a)(25), recycling process or to a product or
The ICR amendment reflects changes or 261.4(a)(27) must send a notification intermediate of the recycling process.
due to the vacatur, which are expected prior to operating under the regulatory The hazardous secondary material
to affect a total of 105 facilities, provision and by March 1 of each even- provides a useful contribution if it:
resulting in a total net burden reduction numbered year thereafter to the (i) Contributes valuable ingredients to
of 2,122 hours and $26,132.21 per year. Regional Administrator using EPA Form a product or intermediate; or
An agency may not conduct or sponsor, 8700–12 that includes the following (ii) Replaces a catalyst or carrier in the
and a person is not required to respond information: recycling process; or
to, a collection of information unless it (1) The name, address, and EPA ID (iii) Is the source of a valuable
displays a currently valid OMB control number (if applicable) of the facility; constituent recovered in the recycling
number. (2) The name and telephone number process; or
B. Congressional Review Act (CRA) of a contact person; (iv) Is recovered or regenerated by the
(3) The NAICS code of the facility; recycling process; or
The Congressional Review Act, 5 (4) The regulation under which the
U.S.C. 801 et seq., generally provides (v) Is used as an effective substitute
hazardous secondary materials will be
that before certain actions may take for a commercial product.
managed;
effect, the agency promulgating the (5) For reclaimers and intermediate (2) The recycling process must
action must submit a report, which facilities managing hazardous secondary produce a valuable product or
includes a copy of the action, to each materials in accordance with intermediate. The product or
House of the Congress and to the § 261.4(a)(24) or (25), whether the intermediate is valuable if it is:
Comptroller General of the United reclaimer or intermediate facility has (i) Sold to a third party; or
States. Because this final action only financial assurance (not applicable for (ii) Used by the recycler or the
implements the court vacatur, and the persons managing hazardous secondary generator as an effective substitute for a
Agency has made a good cause finding materials generated and reclaimed commercial product or as an ingredient
that notice and comment is under the control of the generator); or intermediate in an industrial process.
unnecessary, it is not subject to the (6) When the facility began or expects (3) The generator and the recycler
Congressional Review Act. to begin managing the hazardous must manage the hazardous secondary
secondary materials in accordance with material as a valuable commodity when
List of Subjects it is under their control. Where there is
the regulation;
40 CFR Part 260 (7) A list of hazardous secondary an analogous raw material, the
materials that will be managed hazardous secondary material must be
Environmental protection,
according to the regulation (reported as managed, at a minimum, in a manner
Administrative practice and procedure,
the EPA hazardous waste numbers that consistent with the management of the
Hazardous waste, Reporting and
would apply if the hazardous secondary raw material or in an equally protective
recordkeeping requirements.
materials were managed as hazardous manner. Where there is no analogous
40 CFR Part 261 wastes); raw material, the hazardous secondary
Environmental protection, Hazardous (8) For each hazardous secondary material must be contained. Hazardous
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waste, Recycling, Solid waste. material, whether the hazardous secondary materials that are released to
secondary material, or any portion the environment and are not recovered
Dated: May 23, 2018.
thereof, will be managed in a land-based immediately are discarded.
E. Scott Pruitt, (b) The following factor must be
unit;
Administrator. (9) The quantity of each hazardous considered in making a determination
For the reasons set out in the secondary material to be managed as to the overall legitimacy of a specific
preamble, title 40, chapter I of the Code annually; and recycling activity.

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(1) The product of the recycling with paragraphs (a)(23)(i) and (ii) of this (v) The hazardous secondary material
process does not: section: generator satisfies all of the following
(i) Contain significant concentrations * * * * * conditions:
of any hazardous constituents found in (ii)(A) The hazardous secondary (A) The material must be contained as
appendix VIII of part 261 that are not material is contained as defined in defined in § 260.10. A hazardous
found in analogous products; or § 260.10 of this chapter. A hazardous secondary material released to the
(ii) Contain concentrations of secondary material released to the environment is discarded and a solid
hazardous constituents found in environment is discarded and a solid waste unless it is immediately recovered
appendix VIII of part 261 at levels that waste unless it is immediately recovered for the purpose of recycling. Hazardous
are significantly elevated from those for the purpose of reclamation. secondary material managed in a unit
Hazardous secondary material managed with leaks or other continuing releases
found in analogous products, or
in a unit with leaks or other continuing is discarded and a solid waste.
(iii) Exhibit a hazardous characteristic (B) Prior to arranging for transport of
(as defined in part 261 subpart C) that or intermittent unpermitted releases is
hazardous secondary materials to a
analogous products do not exhibit. discarded and a solid waste.
reclamation facility (or facilities) where
(2) In making a determination that a (B) The hazardous secondary material
the management of the hazardous
hazardous secondary material is is not speculatively accumulated, as
secondary materials is not addressed
legitimately recycled, persons must defined in § 261.1(c)(8).
under a RCRA part B permit or interim
evaluate all factors and consider (C) Notice is provided as required by
status standards, the hazardous
legitimacy as a whole. If, after careful § 260.42 of this chapter.
secondary material generator must make
evaluation of these considerations, the (D) The material is not otherwise
reasonable efforts to ensure that each
factor in this paragraph is not met, then subject to material-specific management reclaimer intends to properly and
this fact may be an indication that the conditions under paragraph (a) of this legitimately reclaim the hazardous
material is not legitimately recycled. section when reclaimed, and it is not a secondary material and not discard it,
However, the factor in this paragraph spent lead-acid battery (see §§ 266.80 and that each reclaimer will manage the
does not have to be met for the recycling and 273.2 of this chapter). hazardous secondary material in a
to be considered legitimate. In (E) Persons performing the recycling manner that is protective of human
evaluating the extent to which this of hazardous secondary materials under health and the environment. If the
factor is met and in determining this exclusion must maintain hazardous secondary material will be
whether a process that does not meet documentation of their legitimacy passing through an intermediate facility
this factor is still legitimate, persons can determination on-site. Documentation where the management of the hazardous
consider exposure from toxics in the must be a written description of how the secondary materials is not addressed
product, the bioavailability of the toxics recycling meets all three factors in under a RCRA part B permit or interim
in the product and other relevant § 260.43(a) and how the factor in status standards, the hazardous
considerations. § 260.43(b) was considered. secondary material generator must make
Documentation must be maintained for contractual arrangements with the
* * * * * three years after the recycling operation intermediate facility to ensure that the
PART 261—IDENTIFICATION AND has ceased. hazardous secondary material is sent to
LISTING OF HAZARDOUS WASTE (F) The emergency preparedness and the reclamation facility identified by the
response requirements found in subpart hazardous secondary material generator,
■ 6. The authority citation for part 261 M of this part are met. and the hazardous secondary material
continues to read as follows: (24) Hazardous secondary material generator must perform reasonable
that is generated and then transferred to efforts to ensure that the intermediate
Authority: 42 U.S.C. 6905, 6912(a), 6921,
another person for the purpose of facility will manage the hazardous
6922, 6924(y) and 6938.
reclamation is not a solid waste, secondary material in a manner that is
Subpart A—General provided that: protective of human health and the
(i) The material is not speculatively environment. Reasonable efforts must be
■ 7. Section 261.4 is amended as accumulated, as defined in § 261.1(c)(8); repeated at a minimum of every three
follows: (ii) The material is not handled by any years for the hazardous secondary
■ a. Republish paragraph (a)
person or facility other than the material generator to claim the
introductory text; hazardous secondary material generator, exclusion and to send the hazardous
the transporter, an intermediate facility secondary materials to each reclaimer
■ b. Revise paragraphs (a)(23)
or a reclaimer, and, while in transport, and any intermediate facility. In making
introductory text, (a)(23)(ii), and (a)(24);
is not stored for more than 10 days at these reasonable efforts, the generator
and
a transfer facility, as defined in § 260.10 may use any credible evidence
■ c. Add paragraph (a)(25).
of this chapter, and is packaged available, including information
The revisions and additions read as according to applicable Department of gathered by the hazardous secondary
follows: Transportation regulations at 49 CFR material generator, provided by the
§ 261.4 Exclusions. parts 173, 178, and 179 while in reclaimer or intermediate facility, and/
transport; or provided by a third party. The
(a) Materials which are not solid (iii) The material is not otherwise hazardous secondary material generator
wastes. The following materials are not subject to material-specific management must affirmatively answer all of the
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solid wastes for the purpose of this part: conditions under paragraph (a) of this following questions for each
* * * * * section when reclaimed, and it is not a reclamation facility and any
(23) Hazardous secondary material spent lead-acid battery (see §§ 266.80 intermediate facility:
generated and legitimately reclaimed and 273.2 of this chapter); (1) Does the available information
within the United States or its territories (iv) The reclamation of the material is indicate that the reclamation process is
and under the control of the generator, legitimate, as specified under § 260.43 legitimate pursuant to § 260.43 of this
provided that the material complies of this chapter; chapter? In answering this question, the

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hazardous secondary material generator management of the hazardous secondary legitimately, and otherwise managed in
can rely on their existing knowledge of materials. a manner that is protective of human
the physical and chemical properties of (4) Does the available information health and the environment, and that
the hazardous secondary material, as indicate that the reclamation facility such efforts were based on current and
well as information from other sources and any intermediate facility that is accurate information.’’
(e.g., the reclamation facility, audit used by the hazardous secondary (D) The hazardous secondary material
reports, etc.) about the reclamation material generator have the equipment generator must maintain at the
process. and trained personnel to safely recycle generating facility for no less than three
(2) Does the publicly available the hazardous secondary material? In (3) years records of all off-site shipments
information indicate that the answering this question, the generator of hazardous secondary materials. For
reclamation facility and any may rely on a description by the each shipment, these records must, at a
intermediate facility that is used by the reclamation facility or by an minimum, contain the following
hazardous secondary material generator independent third party of the information:
notified the appropriate authorities of equipment and trained personnel to be (1) Name of the transporter and date
hazardous secondary materials used to recycle the generator’s of the shipment;
reclamation activities pursuant to hazardous secondary material. (2) Name and address of each
§ 260.42 of this chapter and have they (5) If residuals are generated from the reclaimer and, if applicable, the name
notified the appropriate authorities that reclamation of the excluded hazardous and address of each intermediate facility
the financial assurance condition is secondary materials, does the to which the hazardous secondary
satisfied per paragraph (a)(24)(vi)(F) of reclamation facility have the permits material was sent;
this section? In answering these required (if any) to manage the (3) The type and quantity of
residuals? If not, does the reclamation hazardous secondary material in the
questions, the hazardous secondary
facility have a contract with an shipment.
material generator can rely on the
appropriately permitted facility to (E) The hazardous secondary material
available information documenting the
dispose of the residuals? If not, does the generator must maintain at the
reclamation facility’s and any
hazardous secondary material generator generating facility for no less than three
intermediate facility’s compliance with
have credible evidence that the (3) years confirmations of receipt from
the notification requirements per
residuals will be managed in a manner each reclaimer and, if applicable, each
§ 260.42 of this chapter, including the
that is protective of human health and intermediate facility for all off-site
requirement in § 260.42(a)(5) to notify
the environment? In answering these shipments of hazardous secondary
EPA whether the reclaimer or
questions, the hazardous secondary materials. Confirmations of receipt must
intermediate facility has financial material generator can rely on publicly include the name and address of the
assurance. available information from EPA or the reclaimer (or intermediate facility), the
(3) Does publicly available state, or information provided by the type and quantity of the hazardous
information indicate that the facility itself. secondary materials received and the
reclamation facility or any intermediate (C) The hazardous secondary material date which the hazardous secondary
facility that is used by the hazardous generator must maintain for a minimum materials were received. This
secondary material generator has not of three years documentation and requirement may be satisfied by routine
had any formal enforcement actions certification that reasonable efforts were business records (e.g., financial records,
taken against the facility in the previous made for each reclamation facility and, bills of lading, copies of DOT shipping
three years for violations of the RCRA if applicable, intermediate facility papers, or electronic confirmations of
hazardous waste regulations and has not where the management of the hazardous receipt);
been classified as a significant non- secondary materials is not addressed (F) The hazardous secondary material
complier with RCRA Subtitle C? In under a RCRA part B permit or interim generator must comply with the
answering this question, the hazardous status standards prior to transferring emergency preparedness and response
secondary material generator can rely on hazardous secondary material. conditions in subpart M of this part.
the publicly available information from Documentation and certification must (vi) Reclaimers of hazardous
EPA or the state. If the reclamation be made available upon request by a secondary material excluded from
facility or any intermediate facility that regulatory authority within 72 hours, or regulation under this exclusion and
is used by the hazardous secondary within a longer period of time as intermediate facilities as defined in
material generator has had a formal specified by the regulatory authority. § 260.10 of this chapter satisfy all of the
enforcement action taken against the The certification statement must: following conditions:
facility in the previous three years for (1) Include the printed name and (A) The reclaimer and intermediate
violations of the RCRA hazardous waste official title of an authorized facility must maintain at its facility for
regulations and has been classified as a representative of the hazardous no less than three (3) years records of all
significant non-complier with RCRA secondary material generator company, shipments of hazardous secondary
Subtitle C, does the hazardous the authorized representative’s material that were received at the
secondary material generator have signature, and the date signed; facility and, if applicable, for all
credible evidence that the facilities will (2) Incorporate the following shipments of hazardous secondary
manage the hazardous secondary language: ‘‘I hereby certify in good faith materials that were received and
materials properly? In answering this and to the best of my knowledge that, subsequently sent off-site from the
question, the hazardous secondary prior to arranging for transport of facility for further reclamation. For each
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material generator can obtain additional excluded hazardous secondary materials shipment, these records must at a
information from EPA, the state, or the to [insert name(s) of reclamation facility minimum contain the following
facility itself that the facility has and any intermediate facility], information:
addressed the violations, taken remedial reasonable efforts were made in (1) Name of the transporter and date
steps to address the violations and accordance with § 261.4(a)(24)(v)(B) to of the shipment;
prevent future violations, or that the ensure that the hazardous secondary (2) Name and address of the
violations are not relevant to the proper materials would be recycled hazardous secondary material generator

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and, if applicable, the name and address (a)(24) of this section must provide (I) The name of any countries of
of the reclaimer or intermediate facility notification as required under § 260.42 transit through which the hazardous
which the hazardous secondary of this chapter. secondary material will be sent and a
materials were received from; (25) Hazardous secondary material description of the approximate length of
(3) The type and quantity of that is exported from the United States time it will remain in such countries
hazardous secondary material in the and reclaimed at a reclamation facility and the nature of its handling while
shipment; and located in a foreign country is not a there (for purposes of this section, the
(4) For hazardous secondary materials solid waste, provided that the hazardous terms ‘‘EPA Acknowledgement of
that, after being received by the secondary material generator complies Consent’’, ‘‘country of import’’ and
reclaimer or intermediate facility, were with the applicable requirements of ‘‘country of transit’’ are used as defined
subsequently transferred off-site for paragraph (a)(24)(i)–(v) of this section in 40 CFR 262.81 with the exception
further reclamation, the name and (excepting paragraph (a)(24)(v)(B)(2) of that the terms in this section refer to
address of the (subsequent) reclaimer this section for foreign reclaimers and hazardous secondary materials, rather
and, if applicable, the name and address foreign intermediate facilities), and that than hazardous waste):
of each intermediate facility to which the hazardous secondary material (ii) Notifications must be submitted
the hazardous secondary material was generator also complies with the electronically using EPA’s Waste Import
sent. following requirements: Export Tracking System (WIETS), or its
(B) The intermediate facility must (i) Notify EPA of an intended export successor system.
send the hazardous secondary material before the hazardous secondary material (iii) Except for changes to the
to the reclaimer(s) designated by the is scheduled to leave the United States. telephone number in paragraph
hazardous secondary materials A complete notification must be (a)(25)(i)(A) of this section and
generator. submitted at least sixty (60) days before decreases in the quantity of hazardous
(C) The reclaimer and intermediate the initial shipment is intended to be secondary material indicated pursuant
facility must send to the hazardous shipped off-site. This notification may to paragraph (a)(25)(i)(D) of this section,
secondary material generator cover export activities extending over a when the conditions specified on the
confirmations of receipt for all off-site twelve (12) month or lesser period. The original notification change (including
shipments of hazardous secondary notification must be in writing, signed any exceedance of the estimate of the
materials. Confirmations of receipt must by the hazardous secondary material quantity of hazardous secondary
include the name and address of the generator, and include the following material specified in the original
reclaimer (or intermediate facility), the information: notification), the hazardous secondary
type and quantity of the hazardous (A) Name, mailing address, telephone material generator must provide EPA
secondary materials received and the number and EPA ID number (if with a written renotification of the
date which the hazardous secondary applicable) of the hazardous secondary change. The shipment cannot take place
materials were received. This material generator; until consent of the country of import to
requirement may be satisfied by routine (B) A description of the hazardous the changes (except for changes to
business records (e.g., financial records, secondary material and the EPA paragraph (a)(25)(i)(I) of this section and
bills of lading, copies of DOT shipping hazardous waste number that would in the ports of entry to and departure
papers, or electronic confirmations of apply if the hazardous secondary from countries of transit pursuant to
receipt). material was managed as hazardous paragraphs (a)(25)(i)(E) of this section)
(D) The reclaimer and intermediate waste and the U.S. DOT proper shipping has been obtained and the hazardous
facility must manage the hazardous name, hazard class and ID number (UN/ secondary material generator receives
secondary material in a manner that is NA) for each hazardous secondary from EPA an EPA Acknowledgment of
at least as protective as that employed material as identified in 49 CFR parts Consent reflecting the country of
for analogous raw material and must be 171 through 177; import’s consent to the changes.
contained. An ‘‘analogous raw material’’ (C) The estimated frequency or rate at (iv) Upon request by EPA, the
is a raw material for which a hazardous which the hazardous secondary material hazardous secondary material generator
secondary material is a substitute and is to be exported and the period of time shall furnish to EPA any additional
serves the same function and has similar over which the hazardous secondary information which a country of import
physical and chemical properties as the material is to be exported; requests in order to respond to a
hazardous secondary material. (D) The estimated total quantity of notification.
(E) Any residuals that are generated hazardous secondary material; (v) EPA will provide a complete
from reclamation processes will be (E) All points of entry to and notification to the country of import and
managed in a manner that is protective departure from each foreign country any countries of transit. A notification is
of human health and the environment. through which the hazardous secondary complete when EPA receives a
If any residuals exhibit a hazardous material will pass; notification which EPA determines
characteristic according to subpart C of (F) A description of the means by satisfies the requirements of paragraph
40 CFR part 261, or if they themselves which each shipment of the hazardous (a)(25)(i) of this section. Where a claim
are specifically listed in subpart D of 40 secondary material will be transported of confidentiality is asserted with
CFR part 261, such residuals are (e.g., mode of transportation vehicle (air, respect to any notification information
hazardous wastes and must be managed highway, rail, water, etc.), type(s) of required by paragraph (a)(25)(i) of this
in accordance with the applicable container (drums, boxes, tanks, etc.)); section, EPA may find the notification
requirements of 40 CFR parts 260 (G) A description of the manner in not complete until any such claim is
sradovich on DSK3GMQ082PROD with RULES

through 272. which the hazardous secondary material resolved in accordance with 40 CFR
(F) The reclaimer and intermediate will be reclaimed in the country of 260.2.
facility have financial assurance as import; (vi) The export of hazardous
required under subpart H of 40 CFR part (H) The name and address of the secondary material under this paragraph
261, reclaimer, any intermediate facility and (a)(25) is prohibited unless the country
(vii) In addition, all persons claiming any alternate reclaimer and intermediate of import consents to the intended
the exclusion under this paragraph facilities; and export. When the country of import

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Document Created: 2018-05-30 01:01:32
Document Modified: 2018-05-30 01:01:32
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		This final rule is effective on May 30, 2018.
Contact		Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460, Tracy Atagi, at (703) 308-8672, ([email protected]).
FR Citation		83 FR 24664
CFR Citation		40 CFR 260 40 CFR 261
CFR Associated		Environmental Protection; Administrative Practice and Procedure; Hazardous Waste; Reporting and Recordkeeping Requirements; Recycling and Solid Waste