Federal Register: October 28, 2003 (Volume 68, Number 208)
DOCID: FR Doc 03-26754
ENVIRONMENTAL PROTECTION AGENCY
CFR Citation: 40 CFR Parts 260 and 261
RIN ID: RIN 2050-AE98
RCR ID: [RCRA-2002-0031; FRL-7577-7]
NOTICE: Part II
DOCUMENT ACTION: Proposed rule.
Revisions to the Definition of Solid Waste
DATES: To make sure we consider your comments on this proposed rule, they must be postmarked by January 26, 2004.
The Environmental Protection Agency (EPA) is today proposing revisions to the definition of solid waste that identify certain recyclable hazardous secondary materials as not discarded, and thus not subject to regulation as wastes under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The proposed rule would also establish specific regulatory criteria for determining whether or not hazardous secondary materials are recycled legitimately.
Environmental Protection Agency,
A. Regulated Entities
Entities potentially affected by this action are expected to
include more than 1700 facilities that generate and/or recycle
hazardous secondary materials. Most of these facilities are in
manufacturing industries, and the most common types of recyclable
materials that would be affected by the rule are metalbearing
secondary materials and solvents. The rule is expected to result in a
net savings to industry of approximately $178 million per year. More
detailed information on the entities, industries and materials
potentially affected by this rule is presented in section VII.A. of this preamble.
B. How Can I Get Copies of This Document and Other Related Information?
Docket. EPA has established an official docket for this action under Docket ID No. RCRA20020031. The official docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The public docket is the collection of materials that is available for public viewing at the OSWER Docket at the EPA Docket Center (EPA/DC), Room B102, EPA West Building, 1301 Constitution Avenue NW., Washington, DC. The EPA/DC Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 5661744, and the OSWER Docket telephone number is (202) 5660270. Copies are $0.15 per page. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the ``Federal Register'' listings at http://. http://www.regulations.gov.
An electronic version of the public docket is also available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the public docket, and access those documents in the public docket that are available electronically. Once in the system, select ``search,'' then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Docket. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility. EPA intends to work toward providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
For additional information about EPA's electronic public docket visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked ``late.'' EPA is not required to consider these late comments.
Electronically. If you submit an electronic comment as prescribed
below, EPA recommends that you include your name, mailing address, and
an email address or other contact information in the body of your
comment. Also include this contact information on the outside of any disk
or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To access EPA's electronic public docket from the EPA Internet Home Page, select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select ``search,'' and then key in Docket ID No. RCRA20020031. The system is an ``anonymous access'' system, which means EPA will not know your identity, email address, or other contact information unless you provide it in the body of your comment.
Comments may be sent by electronic mail (email) to email@example.com, Attention Docket ID No. RCRA20020031. In contrast to EPA's electronic public docket, EPA's email system is not an ``anonymous access'' system. If you send an email comment directly to the Docket without going through EPA's electronic public docket, EPA's email system automatically captures your email address. Email addresses that are automatically captured by EPA's email system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.
You may submit comments on a disk or CD ROM that you mail to the mailing address identified in the following paragraph. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.
By Mail. Send comments to: OSWER Docket, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave. NW., Washington, DC 20460, Attention Docket ID No. RCRA20020031.
By Hand Delivery or Courier. Deliver your comments to: OSWER Docket, EPA West Building, Room B102, 1301 Constitution Avenue NW., Washington, DC, Attention Docket ID No. RCRA20020031. Such deliveries are only accepted during the Docket's normal hours of operation as identified in the ``How Can I Get Copies of This Document and Other Related Information?'' section.
How Should I Submit CBI to the Agency?
Do not submit information that you consider to be confidential business information (CBI) electronically through EPA's electronic public docket or by email. Send or deliver information identified as CBI only to the following address: RCRA CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. RCRA20020031. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR, Part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.
I. Statutory Authority
A. What Is the Intent of Today's Proposed Rule?
B. Who Would be Affected by Today's Rule?
C. How Is Hazardous Waste Recycling Currently Regulated?
D. What Are the Legal Issues Surrounding the Definition of Solid Waste?
2. A series of D.C. Circuit Court decisions
3. Today's action
E. What Suggestions Have Stakeholders Offered for Future Efforts to Revise the Current Recycling Regulations?
F. What Is the Scope of Today's Proposed Rule?
III. Detailed Description of the Proposed Rule
A. Exclusion for Hazardous Secondary Materials Generated and Reclaimed in a Continuous Process Within the Same Industry
1. What is the intent of the proposed exclusion?
2. What is reclamation?
3. What types of materials would be eligible for the proposed exclusion?
4. What is meant by a ``continuous process within the same industry?''
5. What other options were considered for defining ``continuous process within the same industry?''
6. How is EPA proposing to define ``industry?''
7. How is EPA proposing to define ``continuous process?''
8. What type of notification will be required?
9. What conforming changes to existing regulations are proposed?
10. How would the proposal be implemented and enforced?
B. Legitimate Recycling
1. What is legitimate recycling?
2. What is the current guidance for legitimate recycling?
3. Today's proposed criteria for legitimate recycling
IV. Request for Comment on a Broader Exclusion for Legitimate Recycling
V. Effect of Today's Proposal on Other Programs
A. Exports and Imports
VI. State Authority
A. Applicability of rules in authorized states
B. Effect on state authorization
C. Interstate transport
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments
G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks
H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act of 1995 I. Statutory Authority
These regulations are proposed under the authority of sections
2002, 3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.
A. What Is the Intent of Today's Proposed Rule?
Today's proposed rule is intended to revise and clarify the RCRA definition of solid waste as it pertains to certain types of hazardous secondary materials that are not considered to be discarded, and thus are not considered wastes subject to regulation under RCRA Subtitle C. This regulatory action was initiated primarily in response to decisions by the United States Court of Appeals for the D.C. Circuit, which, taken together, have provided the Agency with additional direction in this area. Specifically, this proposal would define those circumstances under which materials would be excluded from RCRA's hazardous waste regulations because they are generated and reclaimed in a continuous process within the same industry.
This proposal represents an important restructuring of the RCRA regulations that distinguish wastes from nonwaste materials for Subtitle C purposes, and that ensure environmental protections over hazardous waste recycling practices. As such, it is also an opportunity for the Agency to clarify in a regulatory context the concept of ``legitimate recycling,'' which has been and is a key component of RCRA's regulatory program for hazardous material recycling, but which to date has been implemented without specific regulatory criteria. Today's proposal thus includes specific regulatory provisions for determining when hazardous wastes and other hazardous secondary materials are recycled legitimately.
Today's proposal is deregulatory in nature, in that certain recyclable materials that have heretofore been subject to hazardous waste regulations would no longer be regulated under the hazardous waste regulatory system. The proposed criteria for legitimate recycling codify existing principles, without increasing regulation. This proposal is not intended to bring new wastes into the RCRA Subtitle C regulatory system.
By removing hazardous waste regulatory controls over certain
recycling practices, and by providing more explicit criteria for
determining the legitimacy of recycling practices in general, EPA
expects that this proposed rule will encourage safe, beneficial
recycling of hazardous secondary materials by industry. This regulatory
initiative is thus consistent with the Agency's longstanding policy of
encouraging the recovery and reuse of valuable resources as an
alternative to land disposal. It is also consistent with one of the
primary goals of the Congress in enacting the RCRA statute (as
evidenced by its name), and with the Agency's vision of how the RCRA
program could evolve over the longer term to promote sustainability and
more efficient use of resources.\1\ Finally, this regulatory proposal
is an important component of EPA's recently announced ``Resource
Conservation Challenge,'' which is designed to encourage and provide
new incentives for increased reuse and recycling of materials,
including hazardous wastes and hazardous secondary materials (for
further information on this initiative see http://www.epa.gov/epaoswer/osw/conserve/index.htm ).
\1\ The Agency's longterm ``vision'' of the future of the RCRA program is discussed in the document ``Beyond RCRA: Prospects for Waste and Materials Management in the Year 2020,'' which is available on the Agency's Web site at http://www.epa.gov/epaoswer/osw/vision.htm .
It should be understood that today's proposal does not attempt to resolve all issues surrounding the current RCRA Subtitle C recycling regulations. Since the current regulations were put in place in 1985 (see 50 FR 614668, January 4, 1985), many of the program's stakeholders have expressed the view that the current system is unnecessarily restrictive, and imposes regulatory controls that often discourage legitimate recycling opportunities by industry. These stakeholders have often argued that the Agency should commit itself to fundamentally restructuring the current rules, to ease controls over a wide range of recycling practices. On the other hand, other stakeholders have argued that the current regulations are in some ways too lenient, and that greater accountability and tighter controls should be built into the system.
EPA has participated with a variety of stakeholder groups in several initiatives aimed at exploring and developing comprehensive new approaches to regulating hazardous material recycling. Unfortunately, these initiatives have been largely unsuccessful. In EPA's view, these unsuccessful efforts to comprehensively revise the RCRA recycling system are in large part attributable to the fundamental difficulty of trying to distinguish wastes from nonwaste materials in a national regulatory framework that applies to an exceptionally broad array of industries, materials and recycling practices.
Today's proposal, which addresses a particular set of recycling activities, is prompted by concerns articulated in the D.C. Circuit Court's opinions. Together with the legitimacy criteria also discussed today, the proposed exclusion is crafted to cover those cases where discard most likely does not occur because materials are being truly reused or recycled in a continuous process within the generating industry. EPA intends to continue exploring whether further initiatives aimed at encouraging legitimate recycling of hazardous secondary materials are warranted. We invite comment on this issue. Specifically, we are interested in stakeholder views as to whether EPA should undertake additional actions to encourage recycling of materials that would remain regulated as wastes under today's proposal. In this regard, most helpful would be comments describing what specific actions might be appropriate for this purpose, and the potential environmental and economic impacts that might be associated with such actions. B. Who Would Be Affected by Today's Proposed Rule?
Today's proposal would most directly affect those who generate,
reclaim and reuse hazardous secondary materials in a continuous process
within the generating industry, in accordance with the provisions of
today's proposal. These materials would not be considered to be
discarded under the proposal (and thus would not be wastes), so those
who manage them would no longer be subject to hazardous waste
regulatory requirements. EPA estimates that approximately 70% of the [[Page 61561]]
materials potentially affected by today's proposed regulatory exclusion are generated in the following industries:
[sbull] Inorganic chemicals
[sbull] Plastic Materials and Resins
[sbull] Pharmaceutical Preparations
[sbull] Cyclic Crudes and Intermediates
[sbull] Industrial Organic Chemicals
[sbull] Secondary Smelting of Nonferrous Metals
[sbull] Plating and Polishing
[sbull] Printed Circuit Boards
More detailed discussion of the potential impacts of this rule on the regulated community is presented in section VII.A. of this preamble.
In addition to the industries that may potentially benefit from the regulatory exclusion in today's proposal, the proposed provisions relating to legitimacy of recycling activities should provide a more general benefit to those who are engaged in hazardous material recycling, by providing clearer, more explicit rules for distinguishing between recycling practices that are legitimate, and those that EPA considers to be ``sham'' recycling.
C. How Is Hazardous Waste Recycling Currently Regulated?
The basic regulatory provisions for defining ``solid wastes'' and ``hazardous wastes'' under RCRA are found in part 261 of title 40 of the Code of Federal Regulations (CFR). To be subject to RCRA's hazardous waste regulatory program, a material must be a solid waste that is also a hazardous waste. A solid waste is a hazardous waste if it is explicitly listed as such (in subpart D of part 261), or if it exhibits a hazardous characteristic (as specified in subpart C of part 261).
In general, hazardous wastes are subject to RCRA's full ``cradle to grave'' regulatory system, from the time they are generated to when they ultimately are disposed of. However, hazardous secondary materials can often be recycled instead of being disposed, which can change how those wastes are regulated. The ``definition of solid waste'' regulations in part 261 in effect separate recyclable hazardous secondary materials into two broad categoriesthose that are classified as solid wastes when recycled, and are therefore subject to regulation under RCRA, and those that are not considered solid wastes when they are recycled, and thus are not regulated. It should be understood that the term ``hazardous secondary material'' as it is used in today's proposed rule and preamble therefore refers to both categories of recyclable materials; that is, materials that are regulated as hazardous wastes when recycled, and materials that are not considered wastes when recycled.
Hazardous secondary materials that are not regulated as wastes when they are recycled include, for example, those which are used or reused directly as effective substitutes for commercial products, and those which can be used as ingredients in an industrial process, provided the materials are not being reclaimed. See 40 CFR 261.2(e). In essence, EPA considers these types of recycling practices to be more akin to normal industrial production than waste management. EPA does not consider them to involve management of discarded materials for purposes of RCRA Subtitle C.
In contrast, some recycling practices bear more resemblance to waste management, and the hazardous secondary materials therefore remain regulated as wastes. One type of recycling that falls within this category and that is especially relevant to this proposed rule is reclamation of certain types of hazardous secondary materials. Reclamation involves processing of secondary materials in some way so that the materials can be used or reused. See 40 CFR 261.1(c)(4) and 40 CFR 261.2(c)(3). An example of reclamation is processing of a spent solvent to restore its solvent properties before it is suitable for reuse as a solvent. As explained elsewhere in this preamble, today's proposal would deregulate a specific subset of these materials that are recycled by being reclaimed.
The existing part 261 regulations identify other types of recycling practices that are fully regulated because they generally are more likely to involve discard of materials (see 40 CFR 261.2(c)). These practices include recycling of ``inherently wastelike'' materials, recycling of materials that are ``used in a manner constituting disposal,'' and ``burning of materials for energy recovery.'' Today's proposal is not intended to affect how these recycling practices are regulated.
The current regulations also provide certain specific exemptions
and exclusions from the definition of solid waste for particular
recycling practices. For example, pulping liquors from paper
manufacturing that are reclaimed in a pulping liquor recovery furnace
and then reused in the pulping process are excluded from regulation
under 40 CFR 261.4(a)(6). In some cases, these exclusions specify
certain conditions that must be met in order to qualify for and
maintain the excluded status of the recycled material. An example of
such a ``conditional exclusion'' is the one provided in 40 CFR
261.4(a)(9) for spent wood preserving solutions that are reclaimed and
reused. Today's proposal would impact some of these existing exclusions, as discussed in Section III.A. below.
D. What Are the Legal Issues Surrounding the Definition of Solid Waste? 1. Background
RCRA gives EPA authority to regulate the management of ``solid wastes'' under its nonhazardous waste program. See, e.g, RCRA sections 1008(a), 4001 and 4004(a). RCRA also gives EPA authority to regulate hazardous wastes. See, e.g., RCRA sections 30013004. ``Hazardous wastes'' are the subset of solid wastes that present threats to human health and the environment. See section 1004(5). EPA may also address solid and hazardous wastes under its endangerment authorities in section 7003. (Similar authorities are available for citizen suits under section 7002.) Materials that are not wastes are generally not subject to regulation under RCRA Subtitle C. Thus, the definition of ``solid waste'' plays a key role in defining the scope of EPA's RCRA's authorities.
The statute defines ``solid waste'' as ``* * * any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material * * * resulting from industrial, commercial, mining, and agricultural operations, and from community activities.* * *'' RCRA Section 1004 (27) (emphasis added). In its RCRA regulations, EPA has historically defined some materials destined for recycling as ``waste,'' while excluding others.
Since 1980, EPA has interpreted ``solid waste'' under its Subtitle
C regulations to encompass both materials that are destined for final,
permanent placement in disposal units, as well as some materials that
are destined for recycling. 45 FR 3309095 (May 19, 1980); 50 FR 604
656 (Jan. 4, 1985) (see especially pages 616618). EPA has offered three arguments in support of this approach:
[sbull] The statute and the legislative history suggest that Congress expected EPA to regulate as wastes some materials that are destined for recycling (see 45 FR 33091, citing numerous sections of the statute and U.S. Brewers' Association v. EPA, 600 F. 2d 974 (D.C. Cir. 1979); 48 FR 1450204 (April 3, 1983); and 50 FR 616618). [sbull] Many materials stored or transported prior to recycling present the same types of threats to human health and the environment as materials
stored or transported prior to disposal. In fact, EPA found that recycling operations have accounted for a number of notorious damage incidents. For example, materials destined for recycling were involved in onethird of the first 60 filings under RCRA's imminent and substantial endangerment authority, and 20 of the first sites listed under CERCLA. (48 FR 14474, April 4, 1983) (The Agency has not, however, compiled definitive data on more recent damage cases associated with recycling operations.) Congress also cited some damage cases which can be interpreted to involve recycling. H.R. Rep. 941491, 94th Cong., 2d Sess., at 17, 18, 22.
[sbull] Excluding all materials destined for recycling would allow materials to move in and out of the hazardous waste management system depending on what any person handling the material intended to do with it. This seems inconsistent with the mandate to track hazardous wastes and control them from ``cradle to grave.''
Interpreting the statute to confer jurisdiction over at least some materials destined for recycling, EPA has developed in part 261 of 40 CFR a definition of ``solid waste'' for Subtitle C regulatory purposes. (Note that this definition is narrower than the definition of ``solid waste'' for RCRA endangerment and information gathering authorities. See 40 CFR 261.1(b) and Connecticut Coastal Fishermen's Association v. Remington Arms Co., 989 F.2d 1305, 1315 (2d Cir. 1993), holding that EPA's use of a broader and more specific definition of solid waste for Subtitle C purposes is a reasonable interpretation of the statute.)
Under its Subtitle C regulations, EPA classifies as solid wastes somebut not allsecondary materials that are recycled by
``reclamation.'' The regulations define ``spent materials'' as being ``discarded'' if they are destined for reclamation. However, ``commercial chemical products'' are not defined as ``discarded'' when reclaimed. Byproducts and sludges are defined as ``discarded'' on a casebycase basis. EPA regulates these materials when they are reclaimed, when it has listed them in the context of a hazardous waste listing determination. However, EPA does not regulate byproducts and sludges being reclaimed that are not listed hazardous wastes. See Table 1 to 40 CFR 261.2. Finally, EPA has promulgated three exceptions from the Subtitle C definition for materials destined for reclamation. See 260.31(b) and (c); 40 CFR 261.4(a)(8).
In a reclamation operation, some components of a material are recovered and reused, while others are separated and in some cases are discarded. The variety of regulatory approaches to reclamation reflects the fact that EPA has found that some reclamation processes involve discard (because they more closely resemble waste management), while other such processes do not (because they more closely resemble normal manufacturing).
Finally, EPA has always asserted that materials are not excluded from its jurisdiction simply because someone claims that they will be recycled. EPA has consistently considered materials destined for ``sham recycling'' to be discarded and, hence, to be solid wastes for Subtitle C purposes. See 45 FR 33093 (May 19, 1980), 50 FR 63839 (Jan. 4, 1985). The U.S. Court of Appeals for the D.C. Circuit has agreed that materials undergoing sham recycling are discarded and, consequently, are solid wastes under RCRA. See American Petroleum Institute v. EPA, 216 F.3d 50, 5859 (D.C. Cir. 2000);
2. A Series of D.C. Circuit Court Decisions
Trade associations representing mining and oil refining interests challenged EPA's 1985 regulatory definition of solid waste. In 1987, the D.C. Circuit held that EPA exceeded its authority ``in seeking to bring materials that are not discarded or otherwise disposed of within the compass of ``waste.'' '' American Mining Congress v. EPA (``AMC I''), 824 F.2d 1177, 1178 (D.C. Cir. 1987). Although the Court clearly articulated this concept, it did not specify which portions of the rules exceeded EPA's authority. It more generally ``granted the petition for review.''
The Court held that some of the materials EPA was seeking to regulate were not ``discarded materials'' under section 1004(27). After reviewing numerous statutory provisions and portions of the legislative history, the Court held that Congress used the term ``discarded'' in its ordinary sense, to mean ``disposed of'' or ``abandoned.'' 824 F.2d at 118889. The Court further held that the term ``discarded materials'' could not include materials * * * destined for beneficial reuse or recycling in a continuous process by the generating industry itself (because they) are not yet part of the waste disposal problem.'' 824 F.2d at 1190 (italics in original). The Court held that Congress had directly spoken to this issue, so that EPA's use of a conflicting definition was not entitled to deference under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). 824 F.2d at 1183, 118990, 1193.
At the same time, the Court did not hold that no recycled materials could be discarded. The Court mentioned at least two examples of recycled materials that EPA properly considered within its statutory jurisdiction, noting that used oil to be reused as fuel and metal bearing secondary materials stored in open piles which leached into the environment while stored for reuse in metals recovery can be considered to be solid wastes. 824 F.3d at 1187 (fn 14) and 1191 (fn 20). Also, the Court suggested that materials disposed of and recycled as part of a waste management program are within EPA's jurisdiction. 824 F. 2d at 1179. Subsequent decisions by the D.C. Circuit also indicate that some materials destined for recycling are ``discarded'' and therefore within EPA's jurisdiction. The Court held that emission control dust from steelmaking operations listed as hazardous waste ``K061'' is a solid waste, even where sent to a metals reclamation facility, at least where that is the treatment method required under EPA's land disposal restrictions program. American Petroleum Institute v. EPA (``API I''), 906 F.2d 729 (D.C. Cir. 1990). The Court held that listed wastes managed in units that are part of wastewater treatment units are discarded materials (and solid wastes), especially where it is not clear that the industry actually reuses the materials. (``AMC II''), 907 F. 2d 1179 (D.C. Cir. 1990). Also, the Court found that EPA potentially had jurisdiction over oilbearing wastewaters recycled at petroleum refineries, although in the rule under review EPA failed to provide a rational basis for asserting jurisdiction. American Petroleum Institute v. EPA (``API II''), 216 F.3d 50, 5758 (D.C. Cir. 2000).
It is also worth noting that two other Circuits also have held that EPA has authority over at least some materials destined for reuse rather than final discard. The U.S. Court of Appeals for the 11th Circuit found that ``[i]t is unnecessary to read into the term `discarded' a congressional intent that the waste in question must finally and forever be discarded.'' U.S. v. ILCO, 996 F.2d 1126, 1132 (11th Cir. 1993) (finding that used lead batteries sent to a reclaimer have been ``discarded once'' by the entity that sent the battery to the reclaimer). The Fourth Circuit found that slag held on the ground untouched for six months before sale for use as road bed could be a solid waste. Owen Electric Steel Co. v. EPA, 37 F.3d 146, 150 (4th Cir. 1994).
Considering all of these decisions (except the API case decided in
2000), in 1998 EPA promulgated a rule adjusting its Subtitle C jurisdiction over
materials recycled by reclamation within the mineral processing industry (the ``LDR Phase IV rule''). 63 FR 28556 (May 26, 1998). In that rule, EPA promulgated a conditional exclusion for all types of mineral processing materials destined for reclamation. EPA imposed a condition prohibiting landbased storage prior to reclamation because it considered secondary materials from the mineral processing industry that were stored on the land to be part of the waste disposal problem. 63 FR at 28581. The conditional exclusion decreased regulation over spent materials stored prior to reclamation, but increased regulation over byproducts and sludges that exhibit a hazardous characteristic, and that are stored prior to reclamation. EPA noted that the statute does not authorize it to regulate ``materials that are destined for immediate reuse in another phase of the industry's ongoing production process.'' EPA, however, took the position that materials that are removed from a production process for storage are not ``immediately reused,'' and therefore, are ``discarded.'' 63 FR at 28580.
The mining industry challenged the rule, and the D.C. Circuit vacated the provisions that expanded jurisdiction over characteristic byproducts and sludges destined for reclamation. Association of Battery Recyclers v. EPA (``ABR''), 208 F.3d 1047 (D.C. Cir. 2000). The Court held that it had already resolved the issue presented here in its opinion in AMC I, where it found that ``* * * Congress unambiguously expressed its intent that `solid waste' (and therefore EPA's regulatory authority) be limited to materials that are `discarded' by virtue of being disposed of, abandoned, or thrown away.'' 208 F.2d at 1051. It repeated that materials reused within an ongoing industrial process are neither disposed of or abandoned. 208 F.3d at 105152. It explained that the intervening API I and AMC II decisions had not narrowed the holding in AMC I. 208 F.3d at 10541056.
At the same time, the Court did not hold that storage before reclamation automatically makes materials ``discarded.'' Rather, it held that ``* * * at least some of the secondary material EPA seeks to regulate as solid waste (in the mineral processing rule) is destined for reuse as part of a continuous industrial process and thus is not abandoned or thrown away.'' 208 F.3d at 1056.
3. Today's Action
EPA has promulgated a final rule removing from the Code of Federal Regulations the byproduct and sludge provisions of the 1998 mineral processing exclusion that the Court vacated in ABR. 67 FR 11251 (Mar. 13, 2002). Nonetheless, EPA views ABR as creating an opportunity to re examine its rules and interpretations and clarify whether they regulate certain materials that are not ``discarded.'' In today's proposed rule, therefore, EPA is attempting to identify a certain class or category of materials that EPA has determined are not discarded for purposes of Subtitle C. As explained in more detail elsewhere in this notice, EPA generally believes that such materials may include those that are recycled by being reclaimed within the same industry in which they were generated. EPA thinks that other classes of recycling activities, such as ``burning for energy recovery,'' ``use constituting disposal,'' and recycling of materials classified as ``inherently wastelike'' clearly involve elements of discard.
EPA is today proposing that any material which is generated and reclaimed in a continuous process within the same industry (as defined in today's proposal) is not ``discarded'' for purposes of Subtitle C, provided that the recycling process is ``legitimate.'' Guided by the AMC I and ABR opinions, EPA is proposing to exclude these materials from the definition of solid waste for purposes of Subtitle C. Under this approach, EPA is proposing that when generation and reclamation occur on a continuous basis within a single industry (as the terms are defined in this proposal), secondary materials would not be regulated as solid wastes.
Looking to the D.C. Circuit decisions for guidance, EPA is proposing today to exercise its discretion to interpret the statutory term ``discard'' for Subtitle C purposes. EPA is proposing that materials recycled in a continuous process within the generating industry would not be considered solid wastes for Subtitle C purposes. For reasons articulated later in this preamble, EPA believes that it must draw lines to provide a measure of regulatory certainty. EPA believes that the lines it is proposing today reflect reasonable judgments.
EPA notes that the term ``solid waste'' is used in several places
in the statute in addition to Subtitle C. EPA, however, is limiting the
specific definitions in today's proposal to its Subtitle C regulations.
While the general concepts that the Court articulated may also play a
role in other RCRA provisions, EPA does not think the detailed scheme
involving ``industry'' classifications and time limits on processing
which it has developed for this rule are necessarily appropriate for
other RCRA provisions. For example, RCRA section 7003 gives EPA
authority to compel actions to abate conditions that may present an
``imminent and substantial endangerment'' involving solid wastes. EPA
uses this authority on a casebycase basis. The Agency can determine
in a specific factual context whether a material which causes an
endangerment is discarded. Finally, EPA notes that it continues to
regard any material intended for recycling that escapes into the
environment as ``discarded'' and, therefore, within its statutory jurisdiction.
E. What Suggestions Have Stakeholders Offered for Future Efforts To Revise the Current Recycling Regulations?
In the final rule responding directly to the vacaturs ordered by the United States Court of Appeals for the District of Columbia Circuit in Association of Battery Recyclers, v. EPA 208 F.3d 1047 (2000) (67 FR 112514, March 13, 2002), EPA asked stakeholders to submit suggestions for possible future revisions to the current recycling regulations.
The Agency received responses from both States and industry stakeholders. Some comments pertained to specific waste streams or industrial processes, but others were broader in nature. Although many of the broader suggestions are outside the scope of the current proposal, EPA would like to briefly summarize the comments here in order to continue the public dialogue on possible future efforts. In addition, the full set of these suggestions are included in the docket to today's proposed rulemaking. EPA requests comment on both these and any other possible revisions to the definition of solid waste that might be included in future proposals.
Most of the comments from industry stakeholders focused on the
regulatory definition of ``discarded material'' found in 40 CFR
261.2(a)(2). Many of these stakeholders encouraged the Agency to
address broadly the issue of when ``discard'' of recyclable materials
occurs. Several commenters, including the American Chemistry Council
(ACC), American Petroleum Institute (API), ChevronTexaco and the
International Precious Metals Institute (IPMI) suggested removing
``recycled'' from the definition of discarded materials. Commenters
offered different regulatory alternatives to ensuring that ``sham
recycling'' does not occur as a result of removing recycling from the
definition of discard, including suggesting that EPA specify
``legitimacy criteria'' (ACC), suggesting EPA delineate material
management factors that would indicate discard (IPMI), or including specific
``sham'' practices in the definition of solid waste (API and Chevron Texaco).
The Synthetic Organic Chemical Manufacturers Association (SOCMA) raised issues on clarifying the terms ``continuous industrial process,'' ``generating industry'' and ``offsite/onsite.'' SOCMA provided examples of how the different terms could be applied to the Association's members. SOCMA also provided specific comments and regulatory language for an expanded variance procedure to exempt materials from the definition of solid waste.
API and ChevronTexaco offered the most specific comments, attaching regulatory language for discussion. ChevronTexaco suggested adding a requirement that material with hazardous constituents above Universal Treatment Standard (UTS) levels that is managed such that the material is released to the environment would be considered discarded. API offered several possible new additions to the definition of discarded material, which closely follow examples that EPA has used in past rulemaking and guidance. (see October 3, 2002 letter from API to EPA).
Several commenters (e.g. API, SOCMA) focused on the decision's discussion of a waste being recycled in a ``continuous industrial process.'' They stated that a ``continuous'' process encompasses all of the steps between original production of a raw material and eventual disposal, including any reclamation that might occur. These commenters believed that ``continuous industrial process'' did not necessarily imply only a single industry. Commenters cited examples of generators sending material offsite to recyclers who reclaim the material for reuse in other industries.
Other industrysuggested revisions include creating a variance process for waste going to environmentally protective recycling (ACC), adding specific language that coproducts are not solid waste (Hogan and Hartson, LLP), extending the storage accumulation times (SOCMA), revising the definition of ``accumulated speculatively'' in 40 CFR 261.1(b)(8) for the mining and mineral processing industry (National Mining Association), and a recycling exclusion for spent pickle liquor recycling efforts (American Iron and Steel Institute).
The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) expressed general support for simplifying the current regulations and encouraging recycling. However, they also expressed the strong opinion that codified legitimacy criteria should be included in any changes, and that a notification or certification provision be added to allow state regulatory agencies to determine whether recycling practices are legitimate.
F. What Is the Scope of Today's Proposed Rule?
As discussed previously in this section of today's preamble, spent materials, listed sludges and listed byproducts that are recycled by being reclaimed are currently considered wastes for RCRA regulatory purposes. Today's proposal would affect a particular subset of these waste materials. Specifically, materials that are ``generated and reclaimed in a continuous process within the same industry'' (as defined in this proposal) would no longer be regulated under RCRA's Subtitle C hazardous waste management system.
Today's proposed 40 CFR 261.2(g)(2) also requires that reclamation of excluded materials within the generating industry must produce a product or ingredient that can be used or reused without any further reclamation. This requirement is intended to prevent situations where excluded materials might be only partially reclaimed within the generating industry, and then sent to a different industry for one or more ``final'' reclamation steps. We do not believe that such partial reclamation practices would be consistent with the concept of ``continuous process within the same industry'' as it is articulated in today's proposal.
Today's proposal would not affect materials that are reclaimed in other ways. Thus, spent materials, listed byproducts and listed sludges that are generated and reclaimed in different industries would generally remain subject to regulation as wastes. This proposal would also not affect materials that are currently considered wastes because they are recycled in a certain way. This category of wastes includes materials that are ``inherently wastelike,'' materials that are ``speculatively accumulated,'' materials that are recycled and ``used in a manner constituting disposal,'' and materials that are ``burned for energy recovery.'' The regulatory provisions for these categories of wastes are found in 40 CFR 261.2.
Today's proposal would also codify in regulations criteria for
assessing ``legitimate recycling'' of hazardous secondary materials.
These criteria would apply not only to the materials that would be
excluded under today's proposal, but more broadly to recycling of
hazardous wastes, as well as recycling of hazardous secondary materials
that are not considered wastes when they are recycled. These criteria
for legitimate recycling would not, however, apply to materials that
are not hazardous wastes, or materials that do not exhibit a hazardous characteristic.
III. Detailed Description of Today's Proposed Rule
A. Exclusion for Hazardous Secondary Materials Generated and Reclaimed in a Continuous Process Within the Same Industry
1. What Is the Intent of the Proposed Exclusion?
Today's proposal would exclude from the RCRA regulatory definition of solid waste hazardous secondary materials that are generated and reclaimed in a continuous process within the same industry. As discussed in the previous section of this preamble, the D.C. Circuit Court's decisions have provided general direction to the Agency as to the meaning of ``discarded materials'' in section 1004(27) and the extent of the Agency's Subtitle C jurisdiction over recycling. Today's proposed rule is intended to define ``solid waste'' for Subtitle C purposes in a way that we believe is consistent with the Court's general direction, to establish specific rules for how the exclusion will be implemented, and explain how the exclusion fits into RCRA's general regulatory framework.
Today's proposal would modify the current regulatory provision at
40 CFR 261.2(c)(3), which specifies that some types of hazardous
secondary materials are wastes if their recycling involves reclamation.
In effect, we are proposing to relinquish regulatory controls over such
materials, provided that they are generated and reclaimed in accordance
with today's proposal. This proposal, which we believe is consistent
with the Court's opinions, would generally exclude materials that are
recycled in a manner more akin to normal industrial production than waste management.
2. What Is ``Reclamation?''
``Reclamation'' of materials can involve a number of different types of activities and end results. As defined in 40 CFR 261.1(c), a material is reclaimed ``* * *if it is processed to recover a usable product, or if it is regenerated.'' From a technical standpoint, some reclamation processes are relatively simple, such as magnetic separation of ferrous metals from a pollution control sludge. Other types of reclamation may be much more complex, and may involve a series of processing steps to
obtain the desired endproduct. An example could be where a solidform secondary material is separated into different fractions and then smelted to recover metal constituents.
In some cases, reclamation essentially involves extraction of a valuable component from a waste or other material. An example of this type of reclamation occurs in the mineral processing industry, such as when smelter byproducts are processed in a series of steps to successively extract several different precious metals. Another type of reclamation involves ``regenerating'' used products or materials so that they can be reused for their original purpose, or some other purpose. A common example of this type of reclamation is found in the steel making industry, where ``pickling'' acids are used to remove scale and other impurities from steel, eventually lose their acidic properties, and must be reclaimed before they can be used again as pickling agents. In this case, the reclamation process may yield both regenerated pickling acid, as well as a marketable iron oxide product. 3. What Types of Materials Would Be Eligible for the Proposed Exclusion?
Under the current regulations, certain hazardous secondary materials that are recycled by being reclaimed are considered wastes (see 40 CFR 261.2(c)(3)). These materials include sludges and by products that are listed hazardous wastes (see listings in 40 CFR 261.31 and 40 CFR 261.32), scrap metal, and listed or characteristic ``spent materials.'' As defined in 40 CFR 261.1(c), materials are ``spent'' when they are used and as a result of contamination can no longer serve the purpose for which they were produced without processing. Additional guidance on the definition of ``spent material'' may be found on the Agency's ``RCRA Online'' Internet data base, at http:// yosemite.epa.gov/ OSW/rcra.nsf/ /Documents/8D46F076812A58 D0852565DA006F0565.
An example of a spent material would be a solvent that is used for degreasing metal parts, and which eventually becomes too contaminated for further use in degreasing. Similarly, under the current regulations some types of scrap metal are wastes prior to reclamation (although they are subject to less stringent Subtitle C regulations under 40 CFR 261.6).
Some materials that are ``generated and reclaimed in a continuous process within the same industry'' (as proposed today) would not be eligible for the exclusion. As specified in proposed 40 CFR 261.(g)(1), the exclusion would not apply to recycling of materials that are ``inherently wastelike'' (see 40 CFR 261.2(d)), materials used in ``a manner constituting disposal'' (see 40 CFR 261.2(c)(1) and part 266, subpart C), or materials that are ``burned for energy recovery'' (see 40 CFR 261.2(c)(2)). Any of these recycling practices could potentially be conducted intraindustry. Nevertheless, these particular recycling practices have been identified by the Agency as being akin to discard, and therefore materials that are recycled in these specific ways are explicitly identified as wastes under the current regulations. The Agency does not intend to change the way these waste materials are regulated in today's proposal. We believe that the original logic for maintaining regulatory jurisdiction over these materials remains valid.
The basic premise of today's proposed exclusion is that materials that are ``generated and reclaimed in a continuous process within the same industry'' (as defined in this proposal) would not be considered wastes for Subtitle C purposes. Generally, when a material is reclaimed within the same industry that generated it, the material can remain useful to that industry, and thus is not discarded. In effect, the industry has not ``finished'' with the material; rather, it is to the advantage of the industry to continue using it as a substitute for other types of materials.
While the Agency believes that the types of material that would be eligible for the exclusion in today's proposal would generally not be discarded, we believe there may also be more technical reasons for excluding such materials. For one, processes and facilities that operate within the same industry are likely to use similar raw materials and process them in a similar manner. They are also likely to have expertise as to the types of secondary materials produced by their industry, their potential for recycling, and appropriate practices for managing such materials. For these practical reasons, EPA believes that the potential for environmental harm from deregulating this type of recycling practice is likely to be relatively small compared to other types of recycling practices.
While we are proposing to define materials generated and reclaimed
within the same industry as inprocess materials that are not solid
wastes for purposes of Subtitle C, this is not to say that all
materials legitimately recycled between different industries are always
solid wastes. In fact, the Agency has promulgated several specific
exclusions to the definition of solid waste for materials that are
generated in one industry and reclaimed in another. We are not proposing to revisit those exclusions.
4. What Is Meant by a ``Continuous Process Within the Same Industry?''
Proposed 40 CFR 261.2(g)(2) would establish the general regulatory
framework for defining ``continuous process within the same industry,''
and thus, how recycling must be conducted in order to qualify for the
exclusion. As explained below, we are coproposing today two different
options for defining ``continuous process within the same industry.''
The two options differ only in that one option (Option
CoProposal Option 1: Under this option, hazardous secondary materials would have to be generated and reclaimed within a single industry in order to qualify for the exclusion (the definition of ``industry'' for the purpose of this proposal is discussed in section III.A.6 of this preamble, below). Thus, for example, if a hazardous secondary material was generated in the motor vehicle manufacturing industry and then shipped for reclamation to a facility in the ship and boat building industry, the exclusion would not apply, and the materials would be regulated as hazardous wastes.
Under proposed 40 CFR 261.2(g)(2), reclamation of excluded material could take place in multiple processing steps, provided that each processing step takes place in the same industry that generated the material. To illustrate, if a copperbearing sludge required three separate reclamation steps in order to produce a marketable product such as copper sulfate, each of those reclamation steps would have to take place within the same industry in order to qualify for the exclusion.
Proposed 40 CFR 261.2(g)(2) would also allow reclamation of
excluded material to take place at one or more different locations or
facilities, as long as each reclamation step occurs within the
generating industry. In fact, we anticipate that, in many situations,
reclamation of materials will take place at a different facility from
where the materials were generated, but would remain within in the same
industry. In some cases, excluded materials might be reclaimed in
several steps, each time at a different location or facility, but
within the same industry. As proposed, therefore, the exclusion would not place
any geographical limits on movements of excluded materials, provided that each facility where the material is reclaimed is in the same industry that originally generated the material.
It is likely that there will be many situations in which reclamation of an excluded material results in a finished endproduct that needs no further reclamation, as well as a residual secondary material that has no further use and must be disposed of. Such residuals would be wastes, and thus not eligible for the exclusion. If the wastes were hazardous, they would need to be managed according to applicable hazardous waste regulations.
Today's proposal also anticipates situations where residuals from reclamation of excluded materials are sent to a different industry for further reclamation. As proposed in 40 CFR 261.2(g)(2)(ii), such residual materials would not be eligible for today's exclusion, since they would no longer be managed within the same industry. The fact that such materials are sent to another industry and are thus ineligible for the exclusion would not, however, affect the exclusion for materials that remained within the generating industry. To illustrate, if intra industry reclamation of an excluded metalbearing sludge generated a residual material that was then sent to a different industry for further reclamation, that residual would be considered a waste, but the exclusion for the original metalbearing sludge would not be affected. Similarly, a reclamation process might generate two types of residual materialsone which could be further reclaimed in the same industry, and another that is amenable to reclamation in a different industry. In such cases, the material that continues to move in the same industry would continue to be excluded, while the residual material sent to a different industry would not be excluded.
CoProposal Option #2: Today's coproposed Option
To illustrate this coproposed option, if a paint manufacturer who reclaims spent solvents were to accept spent solvents from other paint manufacturers, as well as spent solvents from a generator in a different industry (e.g., an automobile repair shop), none of the spent solvents managed by the paint manufacturer would be eligible for the exclusion proposed today. If, however, in this example the solvents from the automobile repair shop were excluded under a different regulatory provision (e.g., because they are reused without reclamationsee 40 CFR 261.2(e)), the solvents generated and reclaimed within the paint manufacturing industry would be eligible for the exclusion.
Advantages and disadvantages of Options #1 and #2. The Agency
believes that Option
With regard to Option
EPA requests comment on the two coproposed regulatory options
described above, particularly with regard to the advantages and
disadvantages of the different approaches, their potential associated
benefits, and whether such approaches would be consistent with the
general direction given in this area by the D.C. Circuit Court of Appeals.
5. What Other Options Were Considered for Defining ``Continuous Process Within the Same Industry?''
In developing the exclusion in today's proposal, the Agency considered several alternative approaches to defining the concept of ``continuous process within the generating industry.'' One option that was considered would define the scope of the exclusion depending on who uses the products of the recycling process after the secondary materials are reclaime
FOR FURTHER INFORMATION CONTACT
For general information, contact the RCRA Call Center at (800) 4249346 or TDD (800) 5537672 (hearing impaired). In the Washington, DC, metropolitan area, call (703) 412 9810 or TDD (703) 4123323. For more detailed information on specific aspects of this rulemaking, contact Dave Fagan at (703) 3080603 (firstname.lastname@example.org), or Ingrid Rosencrantz at (703) 6050709 email@example.com).