EPA has long sought to encourage recycling, particularly of solvents and metals, by removing RCRA oversight and control over what use to be considered hazardous "wastes". The original proposal in 2003 focused on a defining a continuous process within an industry; the proposal was heavily criticized, as noted in prior posts. The new proposal, as was noted in prior posts describing the then "draft" rule, focused on when materials would deemed discarded, as does the final rule. Eliminating all RCRA related oversight, the draft and final rule seek to redefine "solid waste", the fundamental concept in RCRA waste management, so that certain items are no longer defined as a solid waste. The "hazardous secondary materials" (HSM) eligible for exclusion include spent materials, listed sludges, and listed byproducts that are generated, legitimately reclaimed, and handled in non-land-based units such as tanks, containers, and containment buildings. The new definition does not cover materials that are "inherently waste-like", are used in a manner constituting disposal, or are burned for energy recovery. EPA estimates that the new rule will affect 5,600 facilities handling 1.5 million tons of hazardous secondary materials annually. To be a legitimate recycling process, the HSM must provide a useful contribution to the recycling process, and result in a valuable new intermediate or final product. EPA also created two nonregulatory guidelines which help evidence legitimacy. One is that the recycled product is managed as a valuable product, and second whether the product contains toxic constituents at significantly greater levels than a non-recycled product made from virgin materials. Thus, it is acceptable to create a final product with toxic constituents, just not at a "significantly" greater level, whatever that means. Critics see the new rule as an escape hatch for toxic waste. One has only to remember the environmental harm caused by numerous battery and solvent "recyclers" to recognize that the lack of controls, monitoring, and oversight can lead to some egregious harm. While it is always desirable to recycle constituents that may make a meaningful contribution to a new product, it is important to bear in mind that these items, as EPA itself concedes, are in fact hazardous wastes under pre-rule law since they are composed mostly of solvents and metals. The financial incentive for "recyclers" to cheat will be extensive. The Federal Register Notice has been divided into three parts. Those parts can be found at http://www.epa.gov/fedrgstr/EPA-WASTE/2008/October/Day-30/f24399a.pdf, http://www.epa.gov/fedrgstr/EPA-WASTE/2008/October/Day-30/f24399b.pdf, and http://www.epa.gov/fedrgstr/EPA-WASTE/2008/October/Day-30/f24399c.pdf. A two-page fact sheet can be found at http://www.epa.gov/epawaste/hazard/dsw/downloads/dsw-fs.pdf. Frequently Asked Questions and their answers can be found at http://www.epa.gov/epawaste/hazard/dsw/dsw-faq2.htm. Links to a number of "supporting studies and analyses" can be found at http://www.epa.gov/epawaste/hazard/dsw/rulemaking.htm#2008.