[Federal Register Volume 74, Number 100 (Wednesday, May 27, 2009)]
[Proposed Rules]
[Pages 25200-25205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12283]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260 and 261
[EPA-HQ-RCRA-2009-0315; FRL-8905-6]
RIN 2050-AG31
Definition of Solid Waste Public Meeting
AGENCY: Environmental Protection Agency.
ACTION: Definition of Solid Waste Notice of Public Meeting and Request
for Comments.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing a
public meeting regarding the Agency's recent regulation on the
definition of solid waste under Subtitle C of the Resource Conservation
and Recovery Act (RCRA). Specifically, EPA is currently reviewing a
petition filed with the Administrator under RCRA section 7004(a)
requesting that the Agency reconsider and repeal the recently
promulgated revisions to the definition of solid waste for hazardous
secondary materials being reclaimed, and is soliciting comments and
information to assist the agency in evaluating the petition. EPA does
not plan to repeal the rule, but is interested in receiving comments on
possible revisions to the rule. Persons may register to speak at the
public meeting or may submit written comments to the address below.
DATES: The public meeting will be held on June 30, 2009, from 9 a.m. to
4:30 p.m. The closing date for advance registration is June 23, 2009.
Persons may also submit written or electronic comments by July 14, 2009
(see ADDRESSES). The administrative record
[[Page 25201]]
of the meeting will remain open for submissions until July 14, 2009.
ADDRESSES: Public meeting. The public meeting will be held at One
Potomac Yard, 2777 S. Crystal Drive, Arlington, VA 22202. Advance
registration for the meeting is available at http://www.epa.gov/epawaste/hazard/dsw/publicmeeting.htm. For further information on
registering for the meeting, see section IV below. Written comments.
Submit your written comments, identified by Docket ID No. EPA-HQ-RCRA-
2009-0315 by one of the following methods:
http://www.regulations.gov: Follow the online instructions
for submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to [email protected], Attention Docket ID No. EPA-HQ-RCRA-2009-0315.
Fax: Fax comments to: 202-566-9744, Attention Docket ID
No. EPA-HQ-RCRA-2009-0315.
Mail: Send comments to: OSWER Docket, EPA Docket Center,
Mail Code 2822T, Environmental Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-RCRA-
2009-0315.
Instructions: EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit information
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. 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. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, such as CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.
The Public 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
Public Reading Room is (202) 566-1744, and the telephone number for the
OSWER Docket is 202-566-0270.
FOR FURTHER INFORMATION CONTACT: For more detailed information on the
definition of solid waste regulations, contact Tracy Atagi, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division, MC 5304P, Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460, at (703) 308-8672
([email protected]). For information on specific aspects of the
public meeting, contact Amanda Geldard, Office of Resource Conservation
and Recovery, Materials Recovery and Waste Management Division, MC
5304P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, at (703) 347-8975, ([email protected]).
SUPPLEMENTARY INFORMATION: Submitting CBI. Do not submit this
information to EPA through http://www.regulations.gov or e-mail.
Clearly mark part of all information that you claim to be CBI. For CBI
information in a disk or CD ROM that you mail to EPA, 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 claimed as CBI. In
addition to one complete version of the comment that includes
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. Information so marked will not be disclosed, except in
accordance with procedures set forth in 40 CFR Part 2.
Outline
I. Background
A. Definition of Solid Waste Final Rule
B. Section 7004 Petition Submitted by Sierra Club
C. Industry Coalition Response to Petition
II. Purpose and Scope of the Public Meeting
III. Issues for Discussion
A. Definition of ``Contained''
B. Notification
C. Definition of Legitimacy
D. Transfer-Based Exclusion
IV. How To Participate in the Public Meeting
V. Implementation and State Adoption
I. Background
A. Definition of Solid Waste Final Rule
On October 30, 2008, EPA promulgated a final rule under the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, et seq.,
regarding regulation of hazardous secondary materials when they are
recycled via reclamation (73 FR 64668). The rule excludes from the RCRA
definition of solid waste for materials that are:
Generated and legitimately reclaimed under the control of
the generator (``generator-controlled exclusion'');
Generated and transferred to another company for
legitimate reclamation under specific conditions (``transfer-based
exclusion''); or
Determined by EPA or an authorized State to be non-wastes
on a case-by-case basis via a petition process.
The rule also contains a provision to determine whether recycling
activities are legitimate under the new exclusions and non-waste
determinations. In order to be excluded under the revised definition of
solid waste, hazardous secondary materials must be legitimately
reclaimed and must meet the conditions of the exclusions.
B. Section 7004 Petition Submitted by Sierra Club
On January 29, 2009, the Sierra Club submitted a petition under
RCRA section 7004(a), 42 U.S.C. 6974(a),\1\ to the Administrator of EPA
requesting that the Agency repeal the October 2008 revisions to the
definition of solid waste (DSW) rule and stay the implementation of the
rule. A copy of the petition is in the docket to this notice. The
petition argues that the revised regulations are unlawful and that they
increase threats to public health and the environment without producing
compensatory
[[Page 25202]]
benefits, and therefore, should be repealed. Among other things, the
petition singles out the lack of a regulatory definition of
``contained'' and ``significant release'' and disagrees with the
Agency's findings that the rule would have no adverse environmental
impacts, including no adverse impact to environmental justice
communities or to children's health.
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\1\ See Petition for Reconsideration of ``Revisions to the
Definition of Solid Waste,'' 73 FR 64668 (Oct. 30, 2008) and Request
for Stay, from Lisa Gollin Evans and Deborah Goldberg, Earthjustice,
Attorneys for Sierra Club, to Lisa Jackson, Administrator, U.S.
Environmental Protection Agency, January 29, 2009.
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C. Industry Coalition Response to Petition
On March 6, 2009, a coalition of industry associations (``industry
coalition'') \2\ submitted a letter to the Administrator of EPA in
response to the Sierra Club petition.\3\ This letter requests that EPA
deny Sierra Club's petition on the grounds that the DSW final rule
comports with court cases construing the scope of EPA's jurisdiction to
regulate solid waste under RCRA, and that the DSW final rule achieves
significant economic and conservation benefits, while imposing
significant controls on the hazardous secondary material recycling
industry that are fully protective of the environment. A copy of this
letter is in the docket to this notice. The letter also responds to
each of the specific points raised by the Sierra Club in its petition.
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\2\ The industry coalition includes the Metals Industries
Recycling Coalition (which includes the American Iron & Steel
Institute, the Copper and Brass Fabricator's Council, the Copper
Development Association Inc., the International Metals Reclamation
Company, Inc., the Specialty Steel Industry of North America, and
the Steel Manufacturers Association), the American Chemistry
Council, the Alliance of Automobile Manufacturers, the American Coke
& Coal Chemicals Institute, the National Paint and Coatings
Association, the Treated Wood Council, the American Forest and Paper
Association, and the Synthetic Organic Chemical Manufacturers
Association.
\3\ See Response to Sierra Club's petition for Reconsideration
of ``Revisions to the Definition of Solid Waste,'' 73 FR 64668 (Oct.
30, 2008,) and Request for Stay, from John L. Wittenborn, Counsel to
Industry-Respondents, to Lisa Jackson, Administrator, U.S.
Environmental Protection Agency, March 6, 2009.
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II. Purpose and Scope of the Public Meeting
After meeting with representatives from both the Sierra Club and
the industry coalition,\4\ EPA has decided that it would be advisable
to hear from a broader range of stakeholders before making a decision
on how to best respond to Sierra Club's petition. The Agency has
determined that a public meeting, with opportunities to provide
comments both verbally and in writing, is an efficient and transparent
method for obtaining public input. EPA also notes that a number of
other letters were submitted to EPA by various members of the public
after the Agency held the meetings with Sierra Club and the industry
coalition. These letters are also in the docket to this notice.
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\4\ See Memorandum to File from Alan Carpien, Attorney, EPA,
Office of General Counsel, April 28, 2009.
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The scope of possible changes to the definition of solid waste is
governed by the concept of ``discard.'' As discussed in the preamble to
the DSW final rule, EPA used the concept of discard as the central
organizing idea behind the October 2008 revisions to the definition of
solid waste. As stated in RCRA section 1004(27), ``solid waste'' is
defined 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 activities.'' (emphasis added)
Therefore, in the context of the DSW final rule, a key issue relates to
the circumstances under which a hazardous secondary material that is
recycled by reclamation is or is not discarded (73 FR 64675). In
exercising its discretion in the DSW final rule to define what
constitutes ``discard'' for hazardous secondary materials reclamation,
EPA included an explanation of how each provision of the final rule
relates to discard (73 FR 64676-64679).
For example, in the DSW final rule, EPA determined that if the
generator maintains control over the recycled hazardous secondary
material and if the material is legitimately recycled under the
standards established in the final rule and not speculatively
accumulated within the meaning of EPA's regulations, then the hazardous
secondary material is not discarded. This is because the hazardous
secondary material is being treated as a valuable commodity rather than
as a waste. By maintaining control over, and potential liability for,
the reclamation process, the generator ensures that the hazardous
secondary materials are not discarded. See 73 FR 64676.
Because the final revisions to the definition of solid waste are
closely tied to EPA's interpretation of the concept of ``discard,'' EPA
does not plan to repeal the rule in whole or stay its implementation.
Such an action could result in hazardous secondary materials that are
not discarded being regulated as hazardous waste. In particular, EPA
does not expect to repeal either the exclusion for hazardous secondary
materials reclaimed under the control of the generator or the non-waste
determination petition process.
However, EPA believes that there may be opportunities to revise or
clarify the definition of solid waste rule, particularly with respect
to the definition of legitimacy and the transfer-based exclusion, in
ways that could improve implementation and enforcement of the
provisions, thus increasing environmental protection, while still
appropriately defining when a hazardous secondary material being
reclaimed is a solid waste and subject to hazardous waste regulation.
In section III of this notice, EPA lists several possible issues
for discussion. These issues represent areas in which EPA is
particularly interested in obtaining public feedback on possible
changes to the definition of solid waste revisions. In addition to
these issues, commenters may file comments on any other changes to the
rule that they deem appropriate.
Section IV of this notice explains how to participate in the
upcoming public meeting, while section V explains State adoption and
how the final rule is currently implemented.
III. Issues for Discussion
A. Definition of ``Contained''
For both the generator-controlled and the transfer-based
exclusions, EPA requires that the hazardous secondary material be
``contained.'' EPA stated in the final rule preamble that whether
hazardous secondary materials are contained would be decided on a case-
by-case basis, and that such materials are generally contained if they
are placed in a unit that controls the movement of the hazardous
secondary materials out of the unit. EPA also stated that hazardous
secondary materials released to the environment and not immediately
recovered are solid wastes; in addition, hazardous secondary materials
remaining in the unit may also be a solid waste if they are not managed
as a valuable raw material, intermediate, or product, and, as a result,
a ``significant'' release of hazardous secondary materials from the
unit to the environment were to take place and the materials were not
immediately recovered. A release may be ``significant'' even if it is
not a large volume, if such a release has the potential of causing
significant damage over time (73 FR 64681).
EPA did not include a regulatory definition of ``contained,'' nor
did we include specific performance or storage standards. EPA did not
believe such an approach was necessary for determining whether
hazardous secondary materials were discarded when sent for reclamation
and believed that the approach in the DSW final rule, covered the
breadth of activities that might take
[[Page 25203]]
place under the exclusion (73 FR 64729).
However, by using a general performance standard (``contained'') in
the regulations to determine whether a material is ``contained,'' the
DSW final rule does not include specific requirements. Some commenters
asked that more specific requirements be included in the rule. The
Agency is considering developing a definition of ``contained'' in the
regulations; such a definition would need to apply to a range of
hazardous secondary materials and reclamation processes and still
remain within the scope of determining whether a hazardous secondary
material is ``discarded.'' EPA could also address this issue by setting
specific performance or storage standards as a condition of the
transfer-based exclusion. Finally, EPA could address this concern by
developing more detailed guidance on what might constitute
``contained,'' for different types of units or management practices.
B. Notification
The DSW final rule required persons claiming one of the exclusions
to notify the appropriate regulatory agency before operating under the
exclusion. EPA explained that the notification requirement under the
authority of RCRA section 3007 would not be a condition of the
exclusion, and failure to notify, while constituting a violation of the
notification regulations, would not affect the excluded status of the
hazardous secondary materials. In other words, generators or reclaimers
could fail to notify yet still be considered to be legitimately
recycling their hazardous secondary materials according to the
conditions of the exclusion (73 FR 64682).
EPA took this approach because it believed that the fact of
notification was separable from the question of whether a material has
been in fact ``discarded.'' At the same time, however, for both the
generator-controlled and the transfer-based exclusions, the
notification requirement is a key indication of a facility's intent to
reclaim a hazardous secondary material and not discard it. Thus, for
example, if during an inspection of a large quantity generator of
hazardous waste, EPA were to discover a hazardous secondary material
that had been stored onsite for more than 90 days without a RCRA permit
(an act that would typically be a violation of the hazardous waste
regulations), a previously filed notification would be an indication
that the facility was planning to reclaim the hazardous secondary
material under the conditions of the exclusion. Absent such a
notification, it might be difficult for EPA to determine the facility's
true intentions for the hazardous secondary material without arranging
for follow-up inspections or gathering additional information. If EPA
were to restructure the DSW final rule exclusions so that the
notification was a condition of the exclusions rather than a 3007
requirement as suggested by commenters, the notification would serve as
the first step in the facility's demonstrating that the hazardous
secondary material is not being discarded. Such a system might provide
a stronger incentive for facilities to notify and make it difficult for
a facility to claim, after the fact, that it intended to reclaim a
material, when it had no real intention of doing so.
C. Definition of Legitimacy
1. Applicability of Codified Definition
In the October 2008 DSW final rule, EPA codified the definition of
``legitimacy'' as a requirement for both the generator-controlled and
transfer-based exclusions in the final rule and for the non-waste
determinations, but not for other hazardous secondary material
recycling. The purpose of defining legitimacy was to distinguish
``legitimate'' recycling from ``sham'' recycling (i.e., waste treatment
and/or disposal conducted in the guise of recycling). To avoid
confusion among the regulated community and the States, as well as the
other implementing regulatory agencies about the status of recycling
exclusions that were in existence prior to the October 2008 DSW final
rule, EPA codified the legitimacy factors as specifically applicable to
the new exclusions and non-waste determination procedures in that final
rule. However, the final rule also explained how the four legitimacy
factors codified in the final rule are substantively the same as the
existing legitimacy policy (73 FR 64707-64708).
While this approach was intended to make it clear that legitimacy
determinations made for the existing exclusions are not affected by the
codified language, ultimately there may be greater clarity if there is
a single legitimacy standard for all recycling. Applying the regulatory
legitimacy factors to all recycling also might ensure that the factors
are better known and understood by the regulated community and easier
for the States and EPA to monitor and enforce.
2. Legitimacy Factors ``To Be Considered''
In the October 2008 codified definition of legitimacy, EPA included
four factors, all of which must be considered. Two of these factors
must always be met,\5\ while two factors may in some cases not need to
be met, depending on such considerations as the protectiveness of the
storage methods, exposure from toxics in the product, the
bioavailability of the toxics in the product, and other relevant
considerations. The Agency took this approach because there were some
situations in which a legitimate recycling process did not conform to
one or both of these two factors, yet the reclamation activity, in the
Agency's judgment, was still legitimate. The two factors to consider
are: (1) Whether the hazardous secondary material is managed as a
valuable commodity, and (2) whether the product of the recycling
process contains hazardous constituents that are significantly elevated
in comparison to analogous products (i.e., ``toxics along for the
ride'') (73 FR 64701-64705).
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\5\ The two factors which must always be met are (1) whether the
hazardous secondary material provides a useful contribution to the
recycling process or product, and (2) whether the product or
intermediate of the recycling process has value.
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EPA believes that most situations where one or both of these two
factors are not met would be sham recycling. However, EPA expressed in
the final rule that legitimate recycling may sometimes occur in these
situations, and provided examples of where this might occur.
Consequently, EPA built into the definition of legitimacy the provision
that, after considering the factors, the regulated entity making the
legitimacy determination can decide, based on considerations such as
the protectiveness of the storage methods, exposure from toxics in the
product, and the bioavailability of the toxics in the product, that the
recycling is still legitimate (73 FR 64743-64744).
Some commenter's have asserted that not having all legitimacy
factors be mandatory could mean that materials going for reclamation
might be significantly mismanaged, or could lead to recycled products
that present significant risks, compared to comparable virgin material
products. This certainly was not EPA's intent in the final rule; in
such a case EPA expects that regulatory agency would determine that
such activity is not legitimate recycling. However, we are looking for
comments on a different implementation approach that might require that
all four legitimacy factors must be met, unless the implementing agency
makes a determination (for example, through a petition process) that
the recycling is still legitimate
[[Page 25204]]
despite the fact that one or more of the latter two factors is not met.
D. Transfer-Based Exclusion
As EPA explained in the October 2008 DSW final rule, businesses
often ship hazardous secondary materials to be reclaimed by a third
party or commercial facility or another manufacturer. In such
situations, EPA determined that the generator has relinquished control
of the hazardous secondary materials and the entity receiving such
materials may not have the same incentives to manage them as a useful
product. This conclusion is supported by the results of both the damage
case study and the market forces study that were performed in support
of the final rulemaking (73 FR 64677-64678).
As a result of this conclusion, EPA developed specific conditions
for the transfer-based exclusion in order for the Agency to determine
which hazardous secondary materials transferred to another entity are
not discarded. In the preamble to the final rule, EPA explained how
each of these conditions specifically related to the concept of
discard, as evidenced by the rulemaking record (73 FR 64678-64679).
EPA has identified a number of alternative approaches to the
transfer-based exclusion that may be used to identify when hazardous
secondary materials sent to another entity for reclamation are not
discarded, and to appropriately regulate materials subject to RCRA
regulation. These alternative approaches could include the following:
EPA could repeal the transfer-based exclusion, and thus
return to regulating most hazardous secondary materials transferred to
third parties as discarded materials under traditional RCRA program
requirements, while keeping the generator-controlled exclusion and the
non-waste determination petition process as the basis for excluding
materials which are not discarded;
EPA could revisit the approach taken in the 2003 DSW
proposal and limit the transfer-based exclusion to materials reclaimed
in a ``continuous industrial process within the generating industry.''
The 2003 DSW proposal used NAICS codes to define ``within the
generating industry.'' However, this approach was criticized by many
commenters following its proposal. Thus, commenters supporting this
option should address the practical problems involved in using this
approach or suggest another approach;
EPA could limit the transfer-based exclusion to activities
where the generator is paid for the hazardous secondary material.
However, EPA in the past has rejected this approach on the grounds that
costs are subject to market uncertainty and manipulation, making this
option difficult to establish and enforce. See 50 FR 614, 617 (January
4, 1985), 48 FR 14481, 14478-14481 (April 4, 1983). Thus, commenters
supporting this option should address whether it could be practicably
implemented and enforced.
In addition, any of the above three options could be combined with
developing new more tailored exclusions focusing specifically on
reclamation of certain hazardous secondary materials or reclamation
performed in specific industries.
Alternatively, EPA could consider focused changes to the transfer-
based exclusion. For example, EPA could revisit whether to allow
intermediate facilities storing hazardous secondary materials to be
eligible for the transfer-based exclusion. The purpose of including
such facilities was to provide an opportunity for generators of smaller
quantities of hazardous secondary materials to send these materials for
reclamation, but it also added another possible step or steps through
which the regulatory agencies must monitor materials to ensure that
they are being legitimately reclaimed and not discarded. EPA could also
explore requiring the equivalent of a ``closure plan'' for reclamation
and intermediate facilities (if the Agency decides to continue to allow
intermediate facilities to be eligible for the transfer-based
exclusion) operating under the exclusion. Such a plan would allow the
implementing agency additional upfront oversight to determine that the
facility has made provisions to ensure that its hazardous secondary
materials will not be abandoned (and therefore discarded). The plan
would also provide a further basis for the reclaimers to estimate how
much closure would cost, and therefore how much financial assurance is
needed. In addition, allowing a public notice and comment step could
help address concerns regarding the lack of participation by the
potentially affected community in making these determinations,
particularly if there are environmental justice concerns.
EPA is interested in comments and information on these issues or
other areas that the public believes will assist the agency in
evaluating the petition. The public may register to speak at the public
meeting or may submit written comments as explained below.
IV. How To Participate in the Public Meeting
Persons who wish to participate in the public meeting (either by
making a presentation or as a member of the audience) must register for
the meeting (see ADDRESSES section). Persons requiring special
accommodations due to a disability should inform the contact person of
their request (see FOR FURTHER INFORMATION CONTACT). Persons may also
submit written comments for the record. (see ADDRESSES section).
Persons who register in advance of the meeting should check in at
the onsite registration desk between 8 a.m. and 9 a.m. We will also
accept registrations onsite on a first-come, first-served basis;
however, space will be limited and registration will be closed when the
maximum seating capacity is reached. Persons who wish to register
onsite on the day of the meeting may do so at the registration desk
between 8 a.m. and 9 a.m.
We encourage all participants to attend the entire meeting. Because
the meeting will be held in a Federal building, meeting participants
must present photo identification and plan adequate time to pass
through the security system.
Depending on the number of requests received, we may be obliged to
limit the time allotted for each presentation (e.g., 5 minutes each).
If time permits, we may allow interested persons who attend the
meeting, but did not register in advance to make an oral presentation
at the conclusion of the meeting. The schedule of speakers will be
available at the meeting. After the meeting, the schedule and a list of
participants will be placed on file in the docket (see ADDRESSES
section) under the docket number listed in brackets in the heading of
this document. We will post all submissions and received comments
without change, unless the submissions or comments contain CBI or other
information whose disclosure is restricted by statute to http://www.regulations.gov, including any personal information provided.
EPA will carefully consider all information, both verbal and
written, provided by stakeholders regarding the definition of solid
waste as the Agency decides how to respond to the Sierra Club petition.
Following review of all comments, EPA will decide how to respond to the
petition, which may include proposing to make changes to the DSW rule
through a notice of proposed rulemaking.
V. Implementation and State Adoption
The DSW final rule promulgated on October 30, 2008, became
effective on December 29, 2008 (73 FR 64668) and remains in effect
unless EPA goes through another rulemaking process (proposed and final)
to repeal or amend
[[Page 25205]]
it. However, because the October 30, 2008 DSW revisions are less
stringent than the hazardous waste regulations that applied to the
affected hazardous secondary materials before the DSW rule went into
effect, States that have been authorized to administer the RCRA
Subtitle C hazardous waste program are not required to adopt these
revisions. For States who do not adopt these revisions, the State
hazardous waste regulations, as authorized by EPA, will remain the
standards that apply to hazardous wastes sent to reclamation in that
State.
Because the DSW final rule is in effect, States may decide to adopt
these provisions (or to adopt a subset of these provisions, such as the
generator-controlled exclusion) at any time. States may also decide not
to adopt the DSW rule until such time as EPA completes the current
process of reviewing the Sierra Club petition. If EPA subsequently
decides to revise the rule, such that the revisions are more stringent
than the October 30, 2008, rule, then those States who adopted the
current version of the DSW rule would need to modify their program to
adopt the more stringent provisions (because State RCRA regulations can
be no less stringent than the Federal regulations).
Dated: May 11, 2009.
Matt Hale,
Director, Office of Resource Conservation and Recovery.
[FR Doc. E9-12283 Filed 5-26-09; 8:45 am]
BILLING CODE 6560-50-P