[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24664-24671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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.
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[FR Doc. 2018-11578 Filed 5-29-18; 8:45 am]
BILLING CODE 6560-50-P