[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