'A)
June 2010
Version 1
Revisions to the Definition of Solid Waste Final
Rule Compilations: The Reasonable Efforts
Condition
Materials Recovery and Waste Management Division
Office of Resource Conservation and Recovery
U.S. Environmental Protection Agency
EPA530-R-10-006
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Revisions to the Definition of Solid Waste Final Rule Compilations:
The Reasonable Efforts Condition
INTRODUCTION
Contents
Click a topic below to go to a section
INTRODUCTION i
THE REASONABLE EFFORTS CONDITION 1
Applicability 1
The Five Reasonable Efforts Questions .2
Question 1—Legitimate Recycling 2
Question 2—Notification & Financial
Assurance 3
Question 3—RCRA Compliance 4
Question 4—Equipment & Trained
Personnel 5
Question 5—Management of Residuals .6
Additional Information 7
Frequency 8
Documentation 8
RCRA and CERCLA Liability 9
CFR LANGUAGE 10
ACRONYMS 14
INDEX 15
About the 2008 DSW Rule
On October 30, 2008, the U.S.
Environmental Protection Agency (EPA)
published a final rule that streamlines
regulation of hazardous secondary
materials to encourage beneficial
recycling and to help conserve resources.
The Revisions to the Definition of Solid
Waste (DSW) Final Rule ("DSW rule")
amends and clarifies the Resource
Conservation and Recovery Act (RCRA)
definition of solid waste (40 CFR 261.2).
In particular, this rule establishes three
self-implementing exclusions to the
definition of solid waste for hazardous
secondary materials that are reclaimed.
One of the exclusions involves
hazardous secondary materials that are
legitimately reclaimed under the control
of the generator (onsite reclamation,
reclamation by the same company, and
reclamation under certain tolling
arrangements). The second exclusion
involves hazardous secondary materials
that are transferred to another company
for reclamation. The last exclusion
involves hazardous secondary materials
that are exported for reclamation. In
addition, the 2008 DSW rule outlines a
procedure for case-by-case non-waste
determinations.
For more information on the DSW rule,
see EPA's DSW Federal Register
Notices web page
Introduction
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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About the "Revisions to the Definition of Solid Waste Final
Rule Compilations"
The Revisions to the Definition of Solid Waste Final Rule Compilations provide easy
access for EPA, the states, the regulated community, and the public to important
information regarding three provisions under the DSW rule: legitimate recycling,
reasonable efforts, and the contained standard. This user-friendly reference tool reduces
the need for stakeholders to search through multiple Federal Register notices and will
improve understanding of each of these three subjects. For each compilation, EPA has
incorporated information from relevant preambles, regulations, and other materials.
Please note that this reference is designed to be web-based; therefore, the usefulness of
the document is maximized when it is viewed on a computer that is connected to the
Internet.
This volume of the Compilations series provides information about the reasonable efforts
condition under the DSW rule. The compilations covering the legitimacy standard and
the contained standard will be available at
http://www.epa.gov/epawaste/hazard/dsw/impresource.htmtfguide.
This document is not a rulemaking and does not change any existing solid or hazardous
waste requirements. Any reformatting of regulatory language is only intended to make
the language easier to read. Moreover, EPA's intention is to include only that CFR
language that is directly relevant to the reasonable efforts condition. Note: other relevant
language to this standard may exist and may not be included in this document; users of
this document are responsible for examining all CFR language and other information that
may be relevant to the reasonable efforts condition. Any language in this document,
including any reformatted CFR language to assist in ease of reading, is not a substitute
for the CFR itself or the requirements in the CFR. In addition, we also provide links to
the Government Printing Office's Electronic Code of Federal Regulations Web site (e-
CFR), which is updated almost daily.
In addition, this reference document presents matters related only to the reasonable
efforts condition of the federal definition of solid waste and hazardous waste recycling
regulations. Most states are authorized to manage their own solid and hazardous waste
regulatory programs. Therefore, states may have their own regulations that apply in lieu
of the federal regulations. While most state regulations are based on the federal
requirements, some states have developed regulations that are more stringent than the
federal program. We direct you to the following Web site to determine if your state
regulatory program is different from the federal program:
http://epa.gov/waste/wyl/stateprograms.htm.
For a collection of written materials about other issues related to the definition of solid
waste, see the Definition of Solid Waste Compendium. For more information regarding
Introduction
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Revisions to the Definition of Solid Waste Final Rule Compilations:
The Reasonable Efforts Condition
the various regulations applied to facilities generating or managing hazardous waste, see
Hazardous Waste Generators: A User Friendly Reference Document.
The Compilations series is also available in Microsoft Word format from EPA upon
request. For more information on these versions and any other questions or comments
concerning this document, please contact EPA's Office of Resource Conservation and
Recovery:
Amanda Geldard Tracy Atagi
geldard.amanda@epa.gov atagi.tracy@epa.gov
(703) 347-8975 (703) 308-8672
Introduction iii
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Revisions to the Definition of Solid Waste Final Rule Compilations:
The Reasonable Efforts Condition
About "The Reasonable Efforts Condition" Compilation
The reasonable efforts condition is a condition of the transfer-based exclusion from the
RCRA definition of solid waste at 40 CFR261.4(a)(24) and under the exclusion at 40
CFR_26L4(a)(25) for generators who export hazardous secondary materials for
reclamation. This condition requires generators to conduct reasonable efforts prior to
transferring their hazardous secondary materials to ensure that the reclamation facility
intends to safely manage and reclaim the hazardous secondary materials. Generators must
also conduct reasonable efforts on intermediate facilities, if applicable. Generators are not
required to conduct reasonable efforts if the reclamation facility/intermediate facility has
a RCRA Part B permit or interim status standards that address the units being used to
manage the hazardous secondary materials.
This compilation discusses key elements relating to the reasonable efforts condition,
including (click a topic below to jump to a section):
• Applicability
• Five questions to answer for the reasonable efforts condition
• Frequency
• Documentation
• RCRA liability
• Regulatory text
The text in the following sections is taken nearly verbatim from the preamble to the 2008
DSW rule and from final regulatory language. The excerpts presented in this compilation
do not necessarily appear in the same order as in the original source. In some cases, we
have reformatted passages to improve readability. Where the language in this compilation
does not exactly match preamble or regulatory language, we have indicated this by
bracketing the text (with the exception of headings and bold titles). As noted above, any
changes to the preamble or regulatory text are for the convenience of the reader and are
not to be taken as substitutes for the actual language of the regulations or the preamble.
Introduction iv
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THE REASONABLE EFFORTS
CONDITION
Applicability
The reasonable efforts condition for generators [under the transfer-based exclusion
from the RCRA Definition of Solid Waste at 40CFR261.4 (a)(24)] applies when
hazardous secondary materials are transferred to[:]
• [Intermediate facilities (as defined in 40 CFR260.10) and reclamation facilities
operating without a RCRA Part B permit or under the interim status standards that
extend to management of the hazardous secondary materials in question [(73 FR
64686); or]
• Reclamation or intermediate facilities with] a RCRA permit or complying] with
the interim status standards for another onsite operation unrelated to the
hazardous secondary materials of interest to the generator. [73 FR 64686]
Exception for RCRA Part B Permit or interim status standards
[I]f the permit or interim status standards address the units being used to manage the
hazardous secondary materials, [EPA does] not require generators to conduct reasonable
efforts because [EPA believes] that a Part B permit or the interim status standards provide
some assurance to generators that the facility has a measure of financial stability and that the
hazardous secondary materials will be well managed. [73 FR 64686]
If a permitted facility later modifies its permit terms in a way that the permit no longer
extends to the management of the hazardous secondary materials, the generator would need
to perform reasonable efforts in accordance with this exclusion. EPA recommends that any
hazardous secondary material generator transferring hazardous secondary materials to a
permitted facility request that it get placed on the facility mailing list, so they can then
receive notice of changes to the permit status of the reclaimer or intermediate facility (see 40
CFR 270.42 and 40 CFR 124.10). [73 FR 64686]
[Generators who export hazardous secondary materials are required to notify the
receiving country through EPA and obtain consent from that country before shipment of
the hazardous secondary materials takes place (see 40 CFR 261.4(a)(25)). These notice
and consent requirements provide notification to the receiving country so that it can
ensure that the hazardous secondary materials are reclaimed rather than disposed of or
abandoned. Included by reference in 40 CFR 261.4(a)(25), the generator must comply
with the requirements of 40 CFR 261.4(a)(24)(i)-(v), which comprise the hazardous
secondary material generator requirements under the transfer-based exclusion, such as
speculative accumulation and reasonable efforts. However, generators who export
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hazardous secondary materials for reclamation are not required to comply with 40 CFR
26L4(a)(24)(v)(B)(2) for foreign reclaimers and intermediate facilities because, as part of
satisfying reasonable efforts, this question requires the generator to affirmatively answer
if the reclaimer or intermediate facility has notified the appropriate authorities pursuant to
§260.42 and if the reclaimer or intermediate facility has financial assurance as required
under 40 CFR 261.4 (a)(24)(vi)(F). Since foreign reclaimers and foreign intermediate
facilities are not subject to U.S. regulations, they cannot comply with the notification and
financial assurance requirements under [the] rule (however, hazardous secondary material
generators must affirmatively answer this question for domestic intermediate facilities).
[73 FR 64698]
A generator should be allowed to use any credible evidence available in making
reasonable efforts, including information[:]
• [G]athered by the generator[;]
• [P]rovided by the reclaimer or intermediate facility[;] and/or
• [P]rovided by a third party in lieu of personally performing an assessment.
For example, the hazardous secondary material generator might hire an
independent auditor to review the operations, produce audit reports as a
consortium of generators, or rely on an assessment of a recycler or
intermediate facility by a parent corporation or trade association that is used
by several generating facilities. [73 FR 64686]
The Five Reasonable Efforts Questions
Hazardous secondary material generators wishing to take advantage of the [transfer-
based] exclusion must be able to answer all [of the below] questions affirmatively to
determine that their hazardous secondary materials are or will be properly and
legitimately recycled and will not be discarded. [Note:] Generators who export hazardous
secondary materials for reclamation are not required to comply with 40 CFR
26L4(a)(24)(v)(B)(2). [73 FR 64698] The reasonable efforts questions are straight-
forward by design and will allow generators to use a common sense approach in
answering the questions and satisfying] the condition. These questions can be found at
40_CFR26L4(a)(24)(v)(B) and are discussed below. [73 FR 64686]
Question 1—Legitimate Recycling
Does the available information indicate that the reclamation process is legitimate
pursuant to §260.43? In answering this question, the hazardous secondary material
generator can rely on its existing know ledge 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. (By
responding to this question, the hazardous secondary material generator has also
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satisfied its requirement in §260.43 fa) to be able to demonstrate that the recycling is
legitimate.) [73 FR 64687; §26L4(a)(24)(v)(B)(l)]
Determining whether a recycling operation is legitimate is a fundamental basis for
establishing that a generator's hazardous secondary materials will not be discarded
after being transferred to a reclamation facility. EPA believes that generators can [:]
• [W]ork with the owner or operator of the reclamation facility to verify that
they have made a determination that the recycling is legitimate[.]
• [R]ely on its existing knowledge of the physical and chemical properties of
the hazardous secondary material.
• [I]f questions or concerns remain regarding the legitimacy of the recycling
activity, a generator could request additional information on how the
definition of legitimacy is met. [73 FR 64687]
Question 2—Notification & Financial Assurance
Does the publicly available information indicate that the reclamation facility and
any intermediate facility that is used by the hazardous secondary material generator
have notified the appropriate authorities of hazardous secondary materials
reclamation activities pursuant to 40 CFR 260.42 and have they notified the
appropriate authorities that the financial assurance condition is satisfied per 4Q
CFR 261.4(a)(24)(vi)(F)? 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 §260.42, including the requirement in §260.42(a)(5) to
notify EPA whether the reclaimer or intermediate facility has financial assurance.
[73 FR 64687; §26L4(a)(24)(v)(B)(2)]
Question (2) concentrates on whether the recycler or intermediate facility (to the extent
that the hazardous secondary material generator uses an intermediate facility) has met the
following obligations under the exclusion before accepting hazardous secondary
materials:
• Notification of the appropriate regulatory authorities that it plans to reclaim (or, in
the case of the intermediate facility, properly store the hazardous secondary
material) excluded hazardous secondary materials, and
• [Notification of the appropriate regulatory authorities that the facility has the
necessary financial assurance to cover the costs of managing any hazardous
secondary materials that remain if the facility closes. [73 FR 64688]
Generators may access the notification information, including the facility's notification
that it has financial assurance, through EPA's public Web site at http://www. epa.gov/
enviro/html/rcris/ or other successor Web sites. [73 FR 64688]
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Question 3—RCRA Compliance
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 a significant noncomplier 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-compiler 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. [73 FR 64687; §26L4(a)(24)(v)(B)(3)]
[P]ublicly available compliance data are a reasonable starting point for evaluating a
facility's environmental performance. Facility-specific enforcement data on
compliance status, ongoing enforcement actions by both EPA and states, and
specific case information for formal enforcement actions are readily available on
EPA's public Web site at http://www.epa.gov/echo. [73 FR 64688]
While a facility designated as a significant non-complier and the subject of a formal
enforcement action does not mean that the facility would not reclaim the hazardous
secondary materials properly, it does raise questions that [EPA] believes the hazardous
secondary material generator should investigate. That is, if any formal enforcement
actions were taken against the facility in the previous three years for such noncompliance
and the facility was alleged to be a significant non-complier, [EPA] would expect that the
reclaimer would adequately explain to the hazardous secondary material generator how it
has resolved any issues or how the reclamation facility will properly manage the
hazardous secondary materials to avoid future violations and/ or enforcement actions.
Additionally, if the generator obtains reasonable information that the enforcement matters
are unrelated to the facility's commitment to manage the hazardous secondary materials
properly or that the violation has been corrected and the facility is back in compliance,
then that would satisfy this aspect of the reasonable efforts determination. [73 FR 64688]
The generator also may wish to make a similar investigation of facilities designated
as significant non-compliers by EPA or a state even if no formal enforcement action
has been taken. [73 FR 64688]
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Definition of "formal enforcement" and "significant non-complier"
"Formal enforcement" is a written document that mandates compliance and/or initiates a civil
or administrative process, with or without appeal rights before a trier of fact that results in an
enforceable agreement or order and an appropriate sanction. For EPA, formal enforcement
action is a referral to the U.S. Department of Justice for the commencement of a civil action in
the appropriate U.S. District Court, or the filing of an administrative complaint, or the
issuance of an order, requiring compliance and a sanction. For states, formal enforcement
action is a referral to the state's Attorney General for the commencement of a civil or
administrative action in the appropriate forum, or the filing of an administrative complaint, or
the issuance of an order, requiring compliance and a sanction. [73 FR 64688]
"Significant non-complier" is a defined term in EPA's Hazardous Waste Civil Enforcement
Response Policy and means the violators have caused actual exposure or a substantial
likelihood of exposure to hazardous waste or hazardous waste constituents; are chronic or
recalcitrant violators; or deviate substantially from the terms of a permit, order, agreement, or
from the RCRA statutory or regulatory requirements. In evaluating whether there has been
actual or likely exposure to hazardous waste or hazardous waste constituents, EPA and the
states consider both the environmental and human health concerns, including the potential
exposure of workers to hazardous waste or hazardous waste constituents. [73 FR 64688]
For both terms, see EPA's Hazardous Waste Civil Enforcement Response Policy (Dec. 2003)
at http://www. epa. sov/compliance/resources/policies/civil/rcra/finalerpl 203.pdf. [73 FR
64688]
Question 4—Equipment & Trained Personnel
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. [73
FR 64687; §26L4(a)(24)(v)(B)(4)]
Question 4 concentrates on the technical capability of the recycler or intermediate
facility, the most basic requirement for ensuring proper and legitimate recycling of
hazardous secondary materials. If a reclamation or intermediate facility was found to
have no equipment or inadequate equipment for storing the hazardous secondary material
or was found to have personnel who have not been trained for reclaiming the hazardous
secondary materials, it raises serious questions as to whether the facility would properly
manage such materials and avoid discarding them to the environment. [73 FR 64688]
EPA is [...] allowing] the generator to rely on the reclamation facility to explain why its
equipment and personnel are appropriate. Of course, the generator must have an
objectively reasonable belief based on this information that the reclamation facility's
equipment and trained personnel are adequate for safe recycling. Accordingly, if the
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equipment and personnel described by the reclamation facility would be, to an objective
and reasonable person, clearly inadequate for safe recycling of the generator's hazardous
secondary material, then the generator would not have met this condition. However, EPA
does not require or expect the generator to have specialized knowledge or expertise of the
recycling process. [73 FR 64688]
Of course, generators of hazardous secondary materials also are already familiar with
equipment and personnel needed to manage their hazardous secondary materials properly
at their own site. Therefore, a generator may also choose to answer question (4) using its
existing knowledge of the physical and chemical properties of the hazardous secondary
materials, technologies involved with managing and recycling such materials, and
applicable regulations or industry standards based on the generator's experience
producing and managing such materials. [73 FR 64689]
Generators may also at their discretion use[:]
• [R]elevant third-party information sources to answer questions about a
facility's equipment and personnel, including audit reports;
• [Information provided by industry or waste management associations
related to the reclaimation or intermediate facility;
• [D]ocuments provided by the reclaimer or intermediate facility; [and]
• [A]n evaluation by a qualified engineer. [73 FR 64689]
Question 5—Management of Residuals
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. [73 FR 64687; §26L4(a)(24)(v)(B)(5)]
This question relates to discard through the concept that a generator or reclaimer may
actually be discarding hazardous secondary materials through the release of residuals
from the recycling process. While the product made from recycling may be a legitimate
product, the whole recycling process could be considered a discard activity if hazardous
constituents from the recycled hazardous secondary materials are released to the
environment. Because the residuals from recycling can contain the hazardous constituents
that originated with the hazardous secondary materials, it is important that the hazardous
secondary material generator understands how a reclamation facility will manage any
residuals generated. [73 FR 64689]
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Many generators of hazardous waste already understand and comply with the
requirements for residuals management. Therefore, they may rely on their existing
knowledge to answer question (5) and [EPA does] not anticipate that answering it will
pose a significant challenge to them. [EPA] also anticipate[s] that new generators will use
the same resources that are publicly available to current hazardous secondary material
generators for determining applicable regulatory requirements. In addition, a reclamation
facility would likely assist the generator in understanding any requirements applicable to
residuals management. For example, the reclamation facility could identify the types of
residuals generated by the recycling process and explain to the generator
• how [the residuals] are managed,
• whether any requirements apply, and
• how the requirements are met. [73 FR 64689]
To answer question (5), a generator should determine that the reclamation facility has
practices in place to ensure that residuals are managed in a manner that is protective of
human health and the environment and according to applicable federal or state standards.
• If a residual is a hazardous waste, generators could access information about
a facility's permit for managing the material on EPA's public Web site at
http://www.epa.gov/enviro/html/rcris (or successor Web sites) or through a
state Web site, if such information is made publicly available.
• If a residual is a non-hazardous waste, a generator could access permit
information from state agencies or a state Web site if available.
• A reclamation facility may also send its residuals to a waste management
facility, in which case, a generator could ask about contracts with
appropriately permitted disposal facilities.
• If a reclamation facility does not have permits for managing residuals or
disposal contracts with permitted facilities, then the generator should
determine that a reclamation facility has a system in place for managing
residuals in a manner that is protective of human health and the environment.
[73 FR 64689]
When asking about residuals management options
Any inquiry into a reclamation facility's system for analyzing options for residuals
management should acknowledge that various options exist and that price fluctuations may
be a determining factor for selecting an option. [73 FR 64689]
Additional Information
Of course, a generator could choose to seek additional information or ask additional
questions to determine that its hazardous secondary materials will not be discarded
due to concerns about [Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA)] liability. One example of additional information that
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many responsible generators currently seek from recyclers, but that EPA [did] not
include in [the] final rule, is information about a reclamation facility's financial
health. These inquiries can include reviews of[:]
• [Liability insurance coverage[;]
• [C]ompany annual reports[;]
• [Bankruptcy filings[;]
• [Investments in capital improvements^]
• [M]arkets for recycled products[; and]
• [B]usiness reports, such as Dun & Bradstreet reports. [73 FR 64686]
Frequency
EPA is requiring that hazardous secondary material generators make reasonable efforts
every three years, at a minimum, in order to ensure that the generators adequately manage
their risk and are attune to changes at reclamation and intermediate facilities with which
they are partners. [EPA] believe[s] that this schedule reflects an average time frame for
re-evaluating facilities [...] although [EPA] acknowledge^] that shorter time frames
could be appropriate for certain industries. [73 FR 64689]
By specifying periodic updates for reasonable efforts every three years at a minimum,
EPA in no way intends to limit a generator to conducting evaluations only every three
years. In fact, EPA expects that any generator who has concerns about a reclamation or
intermediate facility, or who gains new knowledge of significant changes or
extraordinary situations at such facilities, would conduct reasonable efforts regardless of
the required schedule. For example, if a hazardous secondary material generator
conducted reasonable efforts in the first year it took advantage of the exclusion, prior to
transferring materials to an intermediate facility, and then again conducted reasonable
efforts in the second year upon learning about a significant change at the intermediate
facility (such as bankruptcy), the hazardous secondary material generator would be
required to update reasonable efforts three years later during the generator's fifth year of
taking advantage of the exclusion. [73 FR 64689]
Documentation
EPA is requiring that generators maintain documentation showing that they satisfied the
reasonable efforts condition under 40 CFR 261.4(a)(24)(v)(B) prior to transferring the
hazardous secondary materials to the intermediate facility or the reclamation facility.
Such records could include copies of audit reports and/or other relevant information that
was used as the basis for affirmatively responding to inquiries about a reclamation or
intermediate facility. [73 FR 64689]
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Generators are also required to certify for each reclamation and intermediate facility that
reasonable efforts were made to ensure that hazardous secondary materials will be
properly and legitimately recycled, and not discarded. This certification should be signed
and dated by an authorized representative of the generating company prior to transferring
the excluded hazardous secondary materials to a reclamation or intermediate facility
under 40 CFR 261.4(a)(24). The certification should also incorporate the certification
language in 40_CFR26L4(a)(24)(v)(C)(2). [73 FR 64689-64690]
Reasonable efforts certification 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." [40 CFR
26L4(a)(24)(v)(C)(2)]
Documentation of reasonable efforts and the certification statement must be maintained
by the generator for a minimum of three years and it 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. [EPA] understand[s] that many generators may maintain this
kind of documentation and certification at their company headquarters or at another
offsite facility; therefore, [EPA is] not requiring that they be maintained onsite. However,
[EPA does] believe that generators, having satisfied the reasonable efforts condition and
certified reasonable efforts prior to transferring the hazardous secondary materials,
should be able to produce the documentation and certification readily. EPA notes that
time frames for producing documentation are generally determined by regulatory
authorities on a case-by-case basis and time frames are clearly outlined by authorities
within RCRA section 3007 information request letters. [73 FR 64690]
RCRA and CERCLA Liability
EPA intends that if a hazardous secondary material generator has met the reasonable
efforts condition prior to transferring hazardous secondary materials to the reclamation or
intermediate facility, then the reclaimer or intermediate facility, not the generator, would
be liable under RCRA if the materials were discarded (i.e., not properly and legitimately
recycled). However, if the generator does not meet the reasonable efforts condition, then
the generator is ineligible for the transfer-based exclusion and would be potentially liable
in the event its hazardous secondary materials were discarded by a reclamation or
intermediate facility. {See section VIII.E. [of 73 FR 64668] for more information.) EPA
acknowledges that meeting this condition will not affect CERCLA liability. (See section
XIII [of 73 FR 64668] for more information on CERCLA liability.) [74 FR 64687]
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CFR LANGUAGE
261.4(a)(24) Exclusion for Hazardous Secondary Materials That Are Transferred
for the Purpose of Legitimate Reclamation.
§261.4(a)(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:
[CFR text not included]
(v) The hazardous secondary material generator satisfies all of the following
conditions:
[CFR text not included]
(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:
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(1) Does the available information indicate that the reclamation
process is legitimate pursuant to §260.43 of this chapter? In
answering this question, the 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. (By responding to this
question, the hazardous secondary material generator has also
satisfied its requirement in §260.43(a) of this chapter to be able to
demonstrate that the recycling is legitimate).
(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 §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 §260.42 of this chapter, including the
requirement in §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
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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
§261.4(a)(24)(v)(B) to ensure that the hazardous secondary
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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."
[Remaining CFR text not included]
261.4(a)(25) Exclusion for Hazardous Secondary Materials Exported for
Reclamation.
§261.4(a)(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)(v)(B)(2)
of this section for foreign reclaimers and foreign intermediate facilities)[....]
[Remaining CFR text not included]
CFR Language 13
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ACRONYMS
CERCLA Comprehensive Environmental Response,
Compensation, and Liability Act
CFR Code of Federal Regulations
DSW definition of solid waste
e-CFR electronic Code of Federal Regulations
EPA U.S. Environmental Protection Agency
RCRA Resource Conservation and Recovery Act
Acronyms
14
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INDEX
audit 2,6, 8, 11
certification 9, 12
contract 6, 12
credible evidence 2, 4, 6, 10, 11, 12
discard 3, 6, 7, 9, 10
enforcement 4, 11
existing knowledge 2, 3, 11
financial assurance 2, 3, 11
intermediate 13
legitimacy ii, 2, 3, 5, 6, 9, 10, 11, 13
liability iv, 7
permit 1, 6, 7, 10, 12
publicly available information 2, 3, 4, 5, 6, 7, 11, 12
RCRA Part B permit 1, 10, 12
reclaim, reclamation i, 10, 13
residuals 6, 7, 12
safe recycling 5, 12
third-party information 6
transfer i, 1, 2, 3, 9, 10, 12
violations 4, 11
Index 15
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