[Federal Register Volume 80, Number 186 (Friday, September 25, 2015)]
[Proposed Rules]
[Pages 57918-58012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23166]
[[Page 57917]]
Vol. 80
Friday,
No. 186
September 25, 2015
Part II
Environmental Protection Agency
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40 CFR Parts 260, 261, 262, et al.
Hazardous Waste Generator Improve; Proposed Rule
Federal Register / Vol. 80 , No. 186 / Friday, September 25, 2015 /
Proposed Rules
[[Page 57918]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 262, 263, 264, 265, 268, 270, 273, and 279
[EPA-HQ-RCRA-2012-0121; FRL 9924-07-OSWER]
RIN 2050-AG70
Hazardous Waste Generator Improvements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
proposing to revise the hazardous waste generator regulations under the
Resource Conservation and Recovery Act (RCRA) to improve compliance and
thereby enhance protection of human health and the environment.
Specifically, EPA proposes to revise certain components of the
hazardous waste generator regulatory program; address gaps in the
regulations; provide greater flexibility for hazardous waste generators
to manage their hazardous waste in a cost-effective and protective
manner; reorganize the hazardous waste generator regulations to make
them more user-friendly and thus improve their usability by the
regulated community; and make technical corrections and conforming
changes to address inadvertent errors, remove obsolete references to
programs that no longer exist, and improve the readability of the
regulations.
These proposed changes are both a result of EPA's experience in
implementing and evaluating the hazardous waste generator program over
the last 30 years, as well as a response to concerns and issues
identified by the states and regulated community.
DATES: Comments must be received on or before November 24, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2012-0121, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or withdrawn. The
EPA may publish any comment received to its public docket. Do not
submit electronically any information you consider to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e. on the web,
cloud, or other file sharing system). For additional submission
methods, the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Jim O'Leary, U.S. Environmental
Protection Agency, Office of Resource Conservation and Recovery, (MC:
5304P), 1200 Pennsylvania Ave. NW., Washington, DC 20460, (703) 308-
8827, ([email protected]) or Kathy Lett, U.S. Environmental Protection
Agency, Office of Resource Conservation and Recovery, (MC: 5304P), 1200
Pennsylvania Ave. NW., Washington, DC 20460, (703) 605-0761,
([email protected]).
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this action include between
353,000 and 543,000 industrial entities that generate hazardous waste
regulated under the RCRA Subtitle C regulations. Of this universe,
between 293,000 and 470,000 are conditionally exempt small quantity
generators (CESQGs) that will only be affected if they choose to take
advantage of two voluntary programs being proposed. Entities
potentially affected by this proposed rule include practically every
industrial sector, including printing, petroleum refining, chemical
manufacturing, plastics and resin manufacturing, pharmaceutical
manufacturing, paint and coatings, iron and steelmaking, secondary
smelting and refining, metal manufacturing, electroplating, circuit
board manufacturing, and automobile manufacturing, among other
industries.
As discussed in section XVIII, the Regulatory Impact Analysis (RIA)
for this action, available in the docket for this action, estimates the
future annualized cost to industry to comply with the proposed
requirements is between $6.2 and $17.4 million (at a 7% discount rate).
The annualized benefits for entities opting to take advantage of two
voluntary programs in the proposed rule (e.g., consolidation of CESQG
waste by large quantity generators (LQGs) under the same ownership, and
generators who change regulatory status episodically) is between $6.2
and $12.2 million (at a 7% discount rate) resulting in a net annualized
cost of between $0.1 million and $5.2 million.
The proposed Hazardous Waste Generator Improvements Rule is
expected to yield a variety of benefits as generators change several of
their waste management practices to comply with the proposed
regulations. These benefits reflect the rule's focus on enhancing
protection of human health and the environment while improving the
efficiency of the RCRA hazardous waste generator standards. Ideally,
the Agency would prefer to quantify and monetize the rule's total
benefits. However, only some categories of benefits are quantifiable.
For the majority of benefits, sufficient data are not available to
support a detailed quantitative analysis. For example, the added
flexibility from allowing a large quantity generator accumulating
ignitable or reactive hazardous waste to obtain a waiver from the local
fire department for 50-foot property line requirement at 40 CFR 265.176
(provided other safety requirements are met) is difficult to quantify.
In addition, quantifying the benefits associated with emergency
response due to changes in container labeling would require data on the
annual number of emergencies at generator sites, the current risks
associated with these incidents, the extent to which more detailed
labeling would affect the procedures of emergency responders, and the
reduction in risk associated with these changes. Detailed data on these
items are not readily available. In this and in similar cases, the
benefits are described qualitatively.
B. Incorporation by Reference (IBR)
This action is not proposing to add any new IBR material, however,
we are proposing to reorganize one of the existing requirements
containing IBR material to make the regulation easier for the reader to
follow. We are proposing to copy Sec. 265.201(g)(2) to Sec.
262.16(b)(3)(vii)(B). To accommodate this change, we are proposing to
update Sec. 260.11(d)(1), which is the IBR reference section for these
regulations, by adding a reference to Sec. 262.16. The materials for
which we are seeking incorporation by reference are for the NFPA 30
standard, Flammable and Combustible Liquids Code, and are available for
inspection at the ANSI Incorporation by Reference (IBR) Portal, http://ibr.ansi.org. Copies may be obtained from the National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02269. (For ordering
information, call toll-free 1-800-344-3555.)
[[Page 57919]]
II. Statutory Authority
These regulations are proposed under the authority of sections
2002, 3001, 3002, 3003, 3004, 3007, and 3010 of the Solid Waste
Disposal Act of 1965, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6921, 6922, 6923, and 6924.
This statute is commonly referred to as ``RCRA.''
III. What is the intent of this proposal?
EPA is proposing to revise the hazardous waste generator
regulations under RCRA to improve compliance by the regulated community
and support the efficient implementation of the hazardous waste
generator regulations by EPA and the states and, thereby enhance
protection of human health and the environment. Specifically, EPA
proposes to (1) revise certain components of the hazardous waste
generator regulatory program, primarily at 40 CFR 261.5 and 40 CFR part
262; (2) address identified gaps in the regulations; (3) provide
greater flexibility for hazardous waste generators to manage their
hazardous waste in a cost-effective and protective manner; (4)
reorganize the hazardous waste generator regulations to make them more
user-friendly and thus improve their usability by the regulated
community; and (5) make technical corrections and conforming changes to
address inadvertent errors, remove obsolete programs, and improve the
readability of the regulations.
These proposed changes are a result of EPA's experience in
implementing and evaluating the hazardous waste generator program over
the last 30 years, as well as a response to concerns and issues
identified by the states and regulated community.
The hazardous waste generator regulatory program was originally
promulgated in 1980. Over the course of the last 30 plus years, the
Agency, through experience with implementing the program, and in
various meetings, correspondence, and discussions with the states and
the regulated community, has become aware of ambiguities,
inconsistencies, gaps, and a lack of flexibility in the regulations,
which, if revised, could result in a program that is more effective in
protecting human health and the environment. Many of these problems
were identified in a 2004 program evaluation of the hazardous waste
generator program conducted by EPA.\1\ In 2013, a separate EPA program
evaluation addressing hazardous waste determinations also identified a
number of problems related to generators being able to make a proper
hazardous waste determination.\2\ Several of the proposed provisions
are also responsive to the 2014 Notice of Data Availability that EPA
issued on the retail sector asking for comment on hazardous waste
management practices in that sector and on challenges they face in
complying with RCRA (79 FR 8926, February 14, 2014).
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\1\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
EPA-HQ-RCRA-2003-0014.
\2\ Hazardous Waste Determination Program Evaluation, IEc, April
2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.
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Many of the changes in this proposal are revisions to existing
rules designed to improve generator compliance without any increase in
burden. For example, the Agency has inconsistently addressed the
situation where a generator generates both acute and non-acute
hazardous waste in a calendar month. This inconsistency has resulted in
uncertainty for the generator regarding what generator category, and
thus which regulatory provisions, would apply during that calendar
month. This proposal addresses the problem. The Agency is also
proposing to replace the phrase ``conditionally exempt small quantity
generator'' (CESQG) with the phrase ``very small quantity generator''
(VSQG) so as to be consistent with the other two generator categories--
large quantity generators (LQGs) and small quantity generators (SQGs).
Another area of the program that needs revision is the closure
regulations for hazardous waste generators under Sec. 262.34(a)(1).
The regulations do not expressly specify whether closure provisions
apply to generators accumulating hazardous waste in containment
buildings only or also to hazardous waste accumulated in containers,
tanks and on drip pads. This notice proposes to revise the closure
provisions to address these and other concerns.
The Agency is also proposing changes to improve flexibility for
generators of hazardous wastes. One example is the proposal to enhance
flexibility by allowing conditionally exempt small quantity generators
(CESQGs) to send hazardous waste to an LQG that is under the control of
the same person, provided certain conditions are met. Numerous
situations exist in industry, government, and academia where an
organization with satellite locations that qualify as CESQGs could take
advantage of this provision in order to consolidate and manage the
hazardous waste in an environmentally sound manner. In addition, this
proposal addresses the concern that some generators, such as generators
located in urban environments, may find it difficult to meet the
independent requirement that containers holding ignitable or reactive
waste must be placed 15 meters (50 feet) from the site's property line.
To build in flexibility, while maintaining protection of human health
and the environment, we are proposing to allow generators to apply for
a waiver from this requirement from their local fire department or
emergency response organization, and if approved, maintain
documentation of that agreement.
The Agency is also proposing to reorganize the hazardous waste
generator regulations to make them more user-friendly for various
stakeholders. For example, the current CESQG regulations are found at
Sec. 261.5, while the regulations for SQGs and LQGs are found in 40
CFR part 262. For convenience and ease of use, the Agency is proposing
to move all the generator regulations into 40 CFR part 262. As a result
of this reorganization, EPA is proposing to make a number of conforming
changes to other parts of the regulations that cite particular sections
of the part 262 regulations.
Lastly, the Agency is proposing to make several technical
corrections that address inadvertent errors in the regulations,
obsolete programs, and outdated citations.
IV. What is the scope of this proposal?
EPA is proposing to revise the hazardous waste generator
regulations, primarily at 40 CFR 261.5 and throughout 40 CFR part 262.
The Agency is also proposing some changes to parts 260, 263, 264, 265,
268, 270, 273, and 279 mostly for the purposes of maintaining
consistency with the proposed changes in part 262.
The preamble discussion of these proposed changes is organized by
where the existing regulations currently appear in the Code of Federal
Regulations (CFR). The preamble to this proposed rule first addresses
changes to the substance of the existing generator provisions, as well
as a number of related changes (sections VI through XII). These
proposed revisions are discussed using existing regulatory citations to
make the discussion easier to understand by those already familiar with
the hazardous waste generator regulations. In the cases where the
Agency is proposing to revise a regulation and is also proposing to
move it as part of the reorganization, the new citation for the
provision in the
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proposed regulatory text is provided at the end of that section of
preamble discussion.
Following those sections, a discussion of the proposed
reorganization of the hazardous waste generator regulations is
presented (section XIII), including where the existing regulatory
sections would be located in the proposed reorganization. As part of
this discussion, we have provided a crosswalk table that compares where
a particular regulatory section is currently in the regulations and
where it would appear under the proposed reorganization.
Finally, a number of technical corrections are discussed (section
XIV).
A. Proposed Revisions to 40 CFR Part 260--Hazardous Waste Management
System: General
EPA is proposing to revise the definition of ``small quantity
generator'' and add definitions for the other two generator categories
as well as a definition for ``central accumulation area'' in Sec.
260.10. In addition, we propose to change the name of the
``conditionally exempt small quantity generator'' category to ``very
small quantity generator'' or VSQG.\3\ These proposed changes are
discussed in section VI of this preamble.
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\3\ Despite this proposed change, in the preamble, EPA will
continue refer to this category as CESQGs to make it easier to
follow the other changes to the generator being proposed. We will
use the term ``VSQG'' when directly quoting proposed regulatory
text. This change is discussed fully in section VI of this preamble.
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B. Proposed Revisions to 40 CFR Part 261--Identification and Listing of
Hazardous Waste
EPA is proposing four changes to the regulations currently in 40
CFR part 261. First, EPA is proposing to add a new provision that would
explain what generator category would apply to a generator that
generates both acute and non-acute hazardous waste in the same calendar
month. Second, the Agency is proposing to revise the regulations at
Sec. Sec. 261.5(h) and (i) and 261.3 that address the mixing of a non-
hazardous waste with a hazardous waste. Third, to make waste management
more efficient in some cases and improve environmental protection, the
Agency is proposing to amend Sec. 261.5(f)(3) and (g)(3) to allow
CESQGs to send their hazardous waste to LQGs that are operated under
control of the same person. Under this proposal, a CESQG that wants to
take advantage of this provision would need to comply with the proposed
requirements. Finally, the Agency is proposing to amend Sec. 261.6(c)
to require biennial reporting for owners or operators of facilities
that recycle but do not store hazardous waste before the recycling.
These proposed changes are discussed in section VII of this
preamble.
C. Proposed Revisions to 40 CFR Part 262--Standards Applicable to
Generators of Hazardous Waste
EPA is proposing a number of changes to the regulations for
generators of hazardous waste at 40 CFR part 262 to improve the
understanding of the RCRA generator regulations in order to encourage
increased compliance by the regulated community. These proposed changes
include the following:
Revising the scope and applicability section to
distinguish between independent requirements and conditions for
exemption for generators of hazardous waste.
Revising the regulations for making hazardous waste
determinations;
Requiring re-notification by SQGs and LQGs;
Revising the regulations for labeling and marking of
containers, tanks, drip pads, and containment buildings when
accumulating hazardous wastes;
Revising the closure provisions for LQGs;
Updating the preparedness, prevention, planning and
emergency procedures provisions for SQGs and LQGs;
Revising the provisions for satellite accumulation areas
(SAA) for SQGs and LQGs;
Revising the SQG regulations for accumulating hazardous
waste on drip pads;
Deleting obsolete regulations that refer to the
Performance Track program;
Revising the biennial reporting provisions for LQGs;
Adding a provision that hazardous waste generators are
prohibited from disposing liquid hazardous waste in landfills.
These proposed changes to the generator regulations in part 262 are
discussed in section VIII of this preamble.
D. Proposed Addition to 40 CFR Part 262 for Generators That Temporarily
Change Generator Category as a Result of an Episodic Event
To provide greater program flexibility, EPA is proposing to allow a
CESQG or an SQG to maintain its existing generator category in the
event of either a planned or unplanned episodic event in which the
CESQG or SQG generates a quantity of hazardous waste in a calendar
month that would otherwise bump the CESQG or SQG into a more stringent
generator regulatory category (e.g., CESQG to either an SQG or an LQG,
or alternatively an SQG to an LQG), provided certain conditions are
met. Because these events would be temporary and episodic in nature,
the generator would only be allowed to take advantage of this provision
once every calendar year. Generators may also petition EPA or the
authorized state to request permission to initiate a second episodic
event during a calendar year.
This proposed addition to the regulations is discussed in section
IX of this preamble.
E. Proposed Revisions to 40 CFR Part 263--Standards Applicable to
Transporters of Hazardous Waste
To improve environmental protection, EPA is proposing to revise the
marking and labeling standards for transporters to be consistent with
the proposed marking and labeling standards for containers for SQGs,
LQGs, and satellite accumulation areas elsewhere in this proposal.
These proposed changes are discussed in section X of this preamble.
F. Proposed Revisions to 40 CFR Parts 264 and 265--Standards for Owners
and Operators of Hazardous Waste TSDFs and Interim Status Standards for
Owners and Operators of Hazardous Waste TSDFs
The Agency is proposing modifications to the biennial reporting
provisions in 40 CFR parts 264 and 265 to specifically include
facilities receiving hazardous wastes without a permit, such as
reclaimers that do not store incoming materials and reclaimers
operating under a variance. EPA is also proposing to modify the special
conditions for ignitable and reactive wastes at Sec. 265.176 to allow
LQGs to apply for a waiver from their local fire departments if they
are unable to meet the condition that hazardous waste be stored at
least 15 meters (50 feet) from the site's boundary.
These proposed changes are discussed in section XI of this
preamble.
G. Proposed Revisions to 40 CFR Part 268--Land Disposal Restrictions
EPA is proposing to revise the marking and labeling requirements at
Sec. 268.50 to be consistent with the proposed marking and labeling
standards for containers at SQGs, LQGs, and satellite accumulation
areas elsewhere in this proposal. These proposed changes are discussed
in section XII of this preamble.
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H. Proposed Reorganization of Hazardous Waste Generator Regulations
In addition to the proposed program changes outlined in this
notice, EPA is proposing to reorganize the regulations for hazardous
waste generators to consolidate most of the generator regulations into
40 CFR part 262 and reduce cross-referencing where possible. EPA
believes this reorganization will assist CESQGs, SQGs, and LQGs in
understanding their regulatory responsibilities.
The reorganization is discussed after completion of the other
proposed changes in this proposal so that readers can more easily
compare the existing regulatory framework with this proposal.
The reorganization is discussed in section XIII of this preamble.
I. Technical Corrections and Conforming Changes to 40 CFR Parts 260
Through 265, 270, 273, and 279
The Agency is proposing a number of technical corrections and
conforming changes to correct existing errors in the hazardous waste
generator regulations, as well as in other areas of the hazardous waste
regulations, such as typographical mistakes, incorrect or outdated
citations, and omissions of text. In addition, EPA is proposing
technical changes to address the impacts of reorganizing the hazardous
waste regulations.
These changes are discussed in section XIV of this preamble.
J. Request for Comment on Use of Electronic Tools To Streamline
Hazardous Waste Reporting and Recordkeeping Requirements
As part of this proposed rule, the Agency is also exploring the
feasibility of using electronic tools to streamline the hazardous waste
recordkeeping and reporting requirements. EPA requests comment on the
usefulness of such tools to help the regulated community comply with
the recordkeeping and reporting requirements in the RCRA hazardous
waste regulations.
This request for comment is discussed in section XV of this
preamble.
V. Background
A. History of the Hazardous Waste Generator Program
As originally promulgated in 1980, the basic regulatory framework
for hazardous waste generators consisted of two categories: Small
quantity generators (SQGs) and large quantity generators (LQGs). Since
then, there have been three major changes. First, as a result of the
Hazardous and Solid Waste Amendments (HSWA) of 1984, a rule was
promulgated that created a third generator category by splitting the
SQG category in two and creating conditionally exempt small quantity
generators (CESQGs). (51 FR 10146, March 24, 1986).\4\
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\4\ Known as the Small Quantity Generator rule.
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Second, also as a result of HSWA, the Land Disposal Restriction
(LDRs) regulations required hazardous waste generators to ensure that
their hazardous waste either met a specified treatment standard or
performance standard, or, if not, was treated to specified
concentrations or performance standards prior to land disposal.\5\
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\5\ Land Disposal Restrictions, http://www.epa.gov/osw/hazard/tsd/ldr/index.htm.
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Third, the Agency modified the Uniform Hazardous Waste Manifest
regulations and associated manifest document used to track hazardous
waste from a generator's site to its ultimate disposition (70 FR 10776,
March 4, 2005; 70 FR 35034, June 16, 2005). The revisions to the
Uniform Hazardous Waste Manifest standardized the content and
appearance of the manifest form, made the forms available from a
greater number of sources, and adopted new procedures for tracking
certain types of hazardous waste shipments with the manifest.
Otherwise, the changes that have occurred to the hazardous waste
generator regulatory program have been, for the most part, relatively
minor.
B. The Current Hazardous Waste Generator Regulations
1. Determining Generator Category
The hazardous waste generator regulatory program is structured
around the quantity of hazardous waste a person (or generator)
generates in a calendar month (by site). The quantity of hazardous
waste generated determines a generator's category for the month, which
in turn determines what requirements are applicable to the generator
(including determining how the generator can qualify for an exemption
from other regulations, such as having to get a storage permit).
The three generator categories--LQG, SQG, and CESQG--are based on
the quantities of acute and non-acute hazardous waste generated by the
generator.
For non-acute hazardous waste, the thresholds are as follows:
--LQGs generate 1,000 kilograms or greater of hazardous waste in a
calendar month.
--SQGs generate greater than 100 kilograms but less than 1,000
kilograms of hazardous waste in a calendar month; and
--CESQGs generate no more than 100 kilograms of hazardous wastes in
a calendar month.
For acute hazardous waste, the regulations at 40 CFR 261.5(e) state
that if a generator generates acute hazardous waste in a calendar month
in quantities greater than a total of one kilogram of acute hazardous
waste listed in Sec. 261.31 or 261.33(e) or a total of 100 kilograms
of any residue or contaminated soil, waste, or other debris resulting
from the cleanup of a spill of any acute hazardous waste listed in
Sec. 261.31 or 261.33(e), then all quantities of that acute hazardous
waste are subject to the full set of LQG requirements.\6\
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\6\ One of the technical corrections EPA is proposing with this
rulemaking is to replace the word ``waste'' in this definition with
the word ``water.'' This would return the definition to what it read
before it was changed, we believe accidentally, in 1985. See section
XIV of this preamble for a discussion of the proposed technical
corrections.
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In order to determine what requirements are applicable, a generator
must first identify all the hazardous waste it generates subject to
regulation using the four-step process below:
1. Determine whether the material is a solid waste subject to RCRA
regulations at Sec. 261.2;
2. If the material is a solid waste, then determine whether the
solid waste is specifically excluded from regulation by examining the
exclusions at Sec. 261.4(a) and (b);
3. If not excluded, then determine whether the solid waste is a
hazardous waste at Sec. 262.11; and
4. If the material is a hazardous waste, then determine whether it
is exempt from being counted towards its generator category by
reviewing the exemptions at Sec. 261.5(c) and (d).
Once that is completed, the generator must count the amount of
regulated hazardous waste generated during the calendar month to
determine its generator category.
Once a generator determines its generator category for the month,
it then must manage the hazardous waste it generates and accumulates in
a manner that complies with specified requirements, including
requirements that qualify the generator for an exemption from having to
obtain a permit.\7\ Therefore, determining a generator's category is
essential to
[[Page 57922]]
determining the part 262 requirements a generator must comply with.
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\7\ Note that the exemptions provided by the regulations are not
just for a permit exemption. The exemption is also from RCRA section
3004(a)(1)-(6) regulations; i.e., the regulations in 262 and 264,
267, etc.
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2. Types of Generator Standards: Requirements and Conditions
When RCRA was enacted in 1976, the law did not explicitly address
whether a permit would be required for generators accumulating
hazardous wastes. However, it was clear in the legislative history of
RCRA that Congress did not want to interfere with commerce and impose
permitting requirements on every generator who accumulated hazardous
wastes. Therefore, Congress deferred to EPA in how it would reconcile
this issue. When EPA developed the regulations applicable to
generators, it established two types of requirements for them: (1)
Independent requirements that would apply to generators regardless of
whether or not they choose to obtain an exemption from the permit
requirement and from other applicable requirements (``independent
requirements''); and (2) requirements to meet in order to achieve the
specific purpose of obtaining such an exemption from permitting and
from other applicable requirements (``conditions for exemption'').
An ``independent requirement'' in the context of the RCRA hazardous
waste generator regulations is an unqualified standard. For example,
the requirements of 40 CFR part 262 subpart D (Recordkeeping and
Reporting), and the requirements in Sec. Sec. 262.30 through 262.33,
are among the independent requirements applicable to generators. If a
generator violates an independent requirement, it may be subject to an
enforcement action under section 3008 of RCRA. Unlike conditions for an
exemption, independent requirements have no direct relationship to the
option of obtaining or maintaining an exemption from certain RCRA
regulations.\8\
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\8\ EPA is proposing to make the distinction between
``independent requirement'' and ``condition for exemption'' more
clear by placing definitions of these terms in the regulations at
Sec. 262.1. See section VIII.A.1 for additional discussion.
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A ``condition for exemption,'' on the other hand, is a prerequisite
that is necessary to occur or be met in order for something else to
take legal effect. Thus, in the context of the RCRA hazardous waste
generator regulations, a RCRA ``condition for exemption'' is a
requirement that a generator must comply with in order to obtain or
maintain an exemption from RCRA permitting requirements in part 270 and
the requirements in part 264 or part 265. For example, a conditionally
exempt small quantity generators (CESQGs) must meet a condition for
exemption in order for its hazardous waste to be exempt from the
requirements in parts 124, 262 through 266, 268, or 270, or from any
requirement for notification under section 3010 of RCRA for its
hazardous waste. A CESQG that fails to meet all of the conditions for
an exemption for CESQGs in Sec. 261.5 would now be subject to all
these requirements.
The conditions for exemption available to large and small quantity
generators are found in the current regulations at Sec. 262.34.\9\
Should a small quantity generator or large quantity generator fail to
meet all the conditions for an exemption, it would not only be subject
to having to obtain a permit under part 270 but also to the
requirements in part 264 or part 265.
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\9\ Under this proposed rule these conditions for exemption
would be moved to proposed sections Sec. Sec. 262.14 through
262.17.
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As stated above, complying with the conditions for exemption is not
required because it is not mandatory for a generator to obtain and
maintain an exemption from RCRA permitting requirements. Instead, when
a generator does not comply with a certain condition or conditions for
exemption, the consequence is that the generator either fails to
obtain--or loses--the exemption from the RCRA permitting requirements
(unless it has complied with all of the conditions for a different
applicable exemption from those requirements). This means that, because
there is no exemption, permitting requirements become applicable to the
generator for the same time period that the generator is out of
compliance with the conditions for exemption.
3. Types of Conditional Exemptions
The current RCRA regulations afford generators two types of
conditional exemptions: (1) An exemption from most of the 40 CFR part
262 requirements, available to farmers and to CESQGs, and (2) an
exemption from 40 CFR parts 124, 264 through 268, 270, and 279
requirements, and from the notification requirements of section 3010 of
RCRA, available to SQGs and LQGs that accumulate hazardous waste.
The first conditional exemption is available only to farmers and
CESQGs. With respect to farmers, this conditional exemption is found in
part 262 subpart G and is limited to waste pesticides that are RCRA
hazardous wastes that the farmer generates, provided the farmer triple
rinses each emptied pesticide container in accordance with Sec.
261.7(b)(3) and disposes of the pesticide residues on his own farm in a
manner consistent with the disposal instructions on the pesticide
label. This exemption from part 262 relieves farmers and CESQGs from
the requirements related specifically to the generation, management,
and transportation of hazardous wastes provided such waste meets
certain conditions, including that the waste is treated or disposed of
on site or is delivered to an off-site treatment, storage, or disposal
facility which is located in the United States and is one of seven
specified types of facilities. Provided the farmer and/or CESQG meets
these conditions, they are not subject to the 40 CFR part 262, as well
as other hazardous waste management requirements.
The second type of conditional exemption relieves generators that
accumulate hazardous waste from the permitting and other requirements
applicable to treatment, storage, and disposal facilities and makes
temporary accumulation of hazardous waste possible for generators and
is found in Sec. 262.34. In EPA's experience, virtually every
generator accumulates or stores its hazardous waste on site for some
period before sending it to either an on-site or off-site permitted or
interim status treatment storage or disposal facility (TSDF) or other
RCRA-authorized disposal site. However, provided the generator meets
the conditions in this exemption, they would not be subject to the
permitting requirements and operations requirements applicable to a
hazardous waste management facility for storage, or a ``storage
facility.'' \10\
---------------------------------------------------------------------------
\10\ See 40 CFR 270.2 (``hazardous waste management facility'').
---------------------------------------------------------------------------
The generator regulations in part 262, therefore, are made up of
both independent requirements and conditions for exemptions. All
generators are subject to at least one requirement in part 262 (i.e.,
making a hazardous waste determination); however, the total number of
part 262 requirements applicable to a generator depends on the total
quantity of hazardous waste it generates each calendar month and
therefore what generator category it is for that month. All generators
can choose the extent of their regulation under RCRA by either meeting,
or failing to meet, all of the conditions for an exemption from
regulation as a storage facility.
Of all the generators, LGQs are subject to the most independent
requirements. The current regulations at Sec. 262.34(a) are quite
clear for LQGs where they state that a generator may accumulate
hazardous waste on-site for 90 days or less without a permit or without
having
[[Page 57923]]
interim status, provided that it meets the listed conditions for the
exemption. These conditions relate to the technical requirements for
containers, tanks, drip pads, and containment buildings, in addition to
marking and labeling of containers, closure, personnel training,
emergency response procedures, and contingency planning. In effect,
should an LQG not meet any one of these conditions, it would be
operating illegally without a permit. The same regulatory framework
applies to CESQGs and SQGs, but with different conditions.
SQGs have fewer independent requirements and conditions for
exemption than LQGs. In particular, SQGs have longer accumulation time
limits than LQGs (up to 180 days, or 270 days, if the hazardous waste
is shipped greater than 200 miles) and have fewer regulations related
to personnel training, contingency planning, and emergency response
procedures. SQGs also do not have to submit biennial reports. However,
like LQGs, SQGs must obtain an EPA ID number, meet the technical
standards for containers and tanks, comply with manifesting
regulations, and send their hazardous waste to a RCRA permitted
hazardous waste TSDF. In addition, SQGs may not accumulate more than
6,000 kilograms of hazardous waste at any one time.
CESQGs have very few conditions. Specifically, in order for CESQGs
to be excluded from 40 CFR parts 124, 262 through 266, 268, and 270 and
the notification requirements of section 3010 of RCRA, they must (1)
make correct hazardous waste determinations; \11\ (2) accumulate no
more than 1,000 kilograms of hazardous waste at any one time or
accumulate no more than the quantities of acute hazardous wastes set
forth in Sec. 261.5(e)(1) or (2) at any one time; and (3) send
hazardous waste to one of seven specified types of facilities described
in Sec. Sec. 261.5(e)(3) and 261.5(g)(3).\12\ All other regulations
applicable to LQGs and SQGs are not applicable to CESQGs that comply
with these conditions.
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\11\ Making a correct hazardous waste determination is a
condition for the exemption for CESQGs but an independent
requirement for SQGs and LQGs.
\12\ A CESQG may send hazardous waste to the following types of
facilities: (1) A hazardous waste facility permitted by EPA; (2) an
interim status hazardous waste facility; (3) a hazardous waste
facility permitted by an authorized state; (4) a facility permitted,
licensed or registered by a state to manage municipal solid waste;
(5) a facility permitted, licensed or registered by a state to
manage non-municipal non-hazardous solid waste; (6) a facility which
beneficially uses or reuses or legitimacy recycles or reclaims its
wastes or treats its waste prior to beneficial use or reuse or
legitimacy recycling or reclamation; or (7) universal waste handler
or destination facility subject to the requirements in 40 CFR part
273. The Agency is proposing an eighth location where CESQGs would
be allowed to send their hazardous wastes (e.g., an LQG within the
same company provided specified conditions are met).
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Table 1--Summary of Generator Regulations provides a summary of
requirements that represent conditions for an exemption for CESQGs,
SQGs and LQGs. As noted in the table, the category ``Conditions for
Exemption'' applies to such requirements as the quantity generated and
accumulated, accumulation time, the technical standards for containers,
tanks, drip pads and containment buildings, marking and labeling,
personnel training, contingency planning and emergency procedures. It
is important to note that a waste determination is an independent
requirement for SQGs and LQGs, whereas it is a condition for exemption
for CESQGs as defined at Sec. 261.5(f)(1) and (g)(1).\13\
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\13\ Note that state hazardous waste programs may be more
stringent than the federal program and also broader in scope.
Table 1--Summary of Generator Regulations
----------------------------------------------------------------------------------------------------------------
CESQGs SQGs LQGs
----------------------------------------------------------------------------------------------------------------
Generator Category............... <=100 kg/month........... >100 and <1,000 kg/month >=1,000 kg/month
<=1 kg/month of acute <=1 kg/month of acute >1 kg/month of acute
hazardous waste. hazardous waste. hazardous waste
<=100 kg/month of acute <=100 kg/month of acute >100 kg/month of acute
spill residue or soil. spill residue or soil. spill residue or soil
Sec. Sec. 261.5(a) and Sec. Sec. 262.34(d) Sec. Sec. 262.34(a)
(e). and 261.5(e). and 261.5(e).
----------------------------------------------------------------------------------------------------------------
Conditions for Exemption
----------------------------------------------------------------------------------------------------------------
Hazardous Waste Determination.... Sec. 262.11............ N/A..................... N/A.
On-Site Accumulation Quantity.... <=1,000 kg............... <=6,000 kg.............. No limit.
<=1 kg acute............. Sec. 262.34(d)(1).....
<=100 kg of acute spill
residue or soil.
Sec. 261.5(f)(2) and
(g)(2).
Satellite accumulation........... Not applicable........... Sec. 262.34 (c)(1) and Sec. 262.34 (c)(1) and
(2). (2).
Accumulation Time Limits......... None..................... <=180 days or <=270 days <=90 days.
(if greater than 200 Sec. 262.34(a).
miles).
Sec. 262.34(d)(2) and
(3).
Accumulation Conditions.......... Sec. 261.5 (f)(1) and Reduced standards for Full compliance for
(2); Sec. 261.5 (g)(1) the management of management of hazardous
and (2). hazardous waste in waste in containers,
containers and tanks. tanks, drip pads, or
Sec. 262.34(d)(2) and containment buildings.
(3). Sec. 262.34(a).
Sent To:......................... One of seven state RCRA permitted/interim RCRA permitted/interim
approved or RCRA status facility. status facility.
permitted/interim status
facilities.
Sec. 261.5(f)(3) and
(g)(3).
Personnel Training............... Not required............. Reduced training Full compliance with
standards. Sec. Sec. 265.16 and
Sec. 262.34(d)(5)(iii) 262.34(a)(4).
Marking and labeling............. Not required............. Sec. 262.34 (a)(2) and Sec. 262.34 (a)(2) and
(3). (3).
Contingency Plan................. Not required............. Reduced standards....... Full compliance with
Sec. 262.34(d)(5)(i).. part 265 subparts C and
D.
Sec. 262.34(a)(4).
[[Page 57924]]
Emergency Procedures............. Not required............. Part 265 subpart C...... Full compliance with
Sec. 262.34(d)(5)(iv). part 265 subparts C and
D.
Sec. 262.34(a)(4).
Closure.......................... Not required............. Not required............ Sec. 262.34(a)(1)(iv)/
Sec. Sec. 265.111
and 265.114.
Land Disposal Restrictions....... Not required............. 40 CFR 262.34(a)(4)/40 40 CFR 262.34(a)(4)/40
CFR part 268. CFR part 268.
----------------------------------------------------------------------------------------------------------------
C. Hazardous Waste Generator Demographics
In 2011, 16,447 generators reported generating approximately 34.4
million tons of hazardous waste.\14\ Of the 16,447 generators, 14,262
were LQGs and 2,185 were non-LQGs, meaning these entities submitted a
biennial report but did not report generating sufficient amounts of
hazardous waste to be categorized as an LQG.
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\14\ EPA's National Biennial RCRA Hazardous Waste Report (Based
on 2011 Data) http://www.epa.gov/osw/inforesources/data/br11/index.htm.
---------------------------------------------------------------------------
The fifty largest hazardous waste generators reported generating
28.7 million tons, or 83 percent of the total. Additionally, 3,148
generators, or approximately 19 percent of the total reporting
universe, reported generating only one hazardous waste stream, while
8,435 generators, or 51 percent of the total reporting universe,
reported generating between one and five hazardous waste streams.\15\
At the other extreme were 843 generators, or 5 percent of the total
reporting universe, that reported generating 41 or more hazardous waste
streams. These generators included sites from the waste treatment
industry as well as academic and industrial laboratories.
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\15\ Summary of the number of GM forms submitted by LQGs in 2011
Biennial Report.
---------------------------------------------------------------------------
Of the 34.4 million tons of hazardous waste generated in 2011, 30.5
million tons, or 89 percent, were generated in just five industrial
sectors: Basic Chemical Manufacturing (which alone accounted for 55
percent of the hazardous waste generated); Petroleum and Coal Products
Manufacturing, Waste Treatment and Disposal; Pesticide, Fertilizer, and
Other Chemical Manufacturing; and Iron and Steel Mills and Ferroalloy
Manufacturing.
Unlike LQGs, who must submit a biennial report every two years
describing the types and quantities of hazardous waste generated and
its subsequent disposition, SQGs are not required to provide such
information to the Agency. Consequently, the Agency lacks the level of
detail for SQGs that is available for LQGs. However, based on a review
of biennial report data provided by treatment, storage, and disposal
facilities (which must report waste received from all hazardous waste
generators) and site identification data (from SQGs obtaining an EPA ID
number), EPA estimates the number of SQGs to range from 45,762 to
59,702.\16\
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\16\ Estimate of Total Number of SQGs and CESQGs, July 2013. We
estimated this range by doing the following: (1) Identifying
hazardous waste generators who shipped hazardous waste off site in
2007, 2009, and 2011 using the Biennial Report's WR form and (2)
cross walking that universe with data received from Site ID forms to
identify the ``active'' SQG universe. The high-end estimate
represents SQGs who shipped hazardous waste off site in any one of
the three Biennial Report cycles, since many hazardous waste
generators fluctuate in the regulatory status from year to year. The
estimate also includes new SQGs who notified after the 2011 biennial
report. The low-end represents SQGs who shipped hazardous waste off
site in 2011 only as well as new SQG notifiers. A copy of the
results can be found in the docket to this proposal.
---------------------------------------------------------------------------
Because CESQGs are not required to obtain a RCRA ID, the
information available to the Agency is limited to those states that
require their CESQGs to obtain a RCRA ID. Therefore, in estimating the
size of the CESQG universe, the Agency developed a methodology that
extrapolated the size of the CESQG universes based on the data
available in those states that require CESQGs to obtain a RCRA ID. We
first established a ratio of SQGs to CESQGs in those states where
information was available on the CESQG universe and then used that
ratio to estimate the size of a state's CESQG universe where CESQG
information was unavailable. Using this methodology, EPA currently
estimates the size of the CESQG universe to range from 302,807 to
425,752.\17\ However, we believe this range most likely underestimates
the true number of CESQGs because we believe there are many more
facilities unaware of their obligations under the RCRA hazardous waste
regulations and the need to conduct correct hazardous waste
determinations.
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\17\ Methodology to Estimate the National Number of CESQGs, July
2013.
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D. 2004 Hazardous Waste Generator Program Evaluation
On April 22, 2004, EPA published the ``Hazardous Waste Generator
Program Evaluation'' Advanced Notice of Proposed Rulemaking (69 FR
21800). The purpose of the April 2004 notice was to seek information
from stakeholders in order to evaluate the effectiveness of the RCRA
hazardous waste generator program, as well as to identify areas for
potential improvement.
Specifically, the April 2004 notice requested that stakeholders
answer a series of questions in a number of areas of the hazardous
waste generator regulatory program, including program effectiveness,
improvements, redundancy, innovation, performance, burden reduction,
pollution prevention and recycling, and priorities. Questions included
whether the existing RCRA hazardous waste generator regulatory program
is meeting its goal of protecting human health and the environment and
whether the regulations are easy to understand, including questions
asking which specific regulations are unclear or have been interpreted
inconsistently.
EPA also included in the April 2004 notice a list of program areas
that had previously been identified by stakeholders as needing
improvement. These program areas included waste accumulation times,
waste generation quantity thresholds and counting rules for LQGs, SQGs,
and CESQGs, episodic generator provisions, waste sampling and testing,
waste management standards, satellite accumulation, generator
accumulation and treatment in containers or tanks, closure standards
for generators, co-generator standards, RCRA identification numbers,
waste minimization, and land disposal restriction requirements
applicable to generators. During the comment period, EPA also held four
public meetings in May 2004 in Boston, MA, Chicago, IL, Washington, DC,
and Seattle, WA.
In response to the April 2004 notice and the May 2004 public
meetings, EPA received over 500 comments from 55 organizations and
individuals, including 9 states, 5 federal agencies, 2
[[Page 57925]]
universities, 12 trade associations, and 22 companies.\18\ Overall,
EPA's effort to seek information regarding the effectiveness of the
hazardous waste generator regulatory program received a favorable
response.
---------------------------------------------------------------------------
\18\ Public comments can be found in Docket ID No. RCRA-2003-
0014.
---------------------------------------------------------------------------
Many commenters agreed that implementation of the generator
regulations has made significant improvements in managing hazardous
waste and has resulted in fewer releases of hazardous waste to the
environment. However, many commenters identified several improvements
they believed needed to be made to regulations. Specifically, they
suggested the following:
Simplify the regulations to make them more user-friendly
and easy to understand, such as eliminating cross-referencing and
codifying guidance into regulations, where applicable.
Improve the efficiency of the program by clearing up
ambiguities and removing potential redundancies, such as defining what
constitutes a closed container and clarifying parts of the satellite
accumulation regulations.
Provide greater flexibility in the regulations, such as
regulations that allow for episodic generation and that allow wastes to
be shipped from remote locations to a centralized location to enable
better waste management.
Require re-notification to ensure better data quality to
support compliance monitoring of SQG facilities (state commenters).
Improve regulations on hazardous waste determinations,
including when it is appropriate to use generator knowledge instead of
analytical testing (Industry commenters).
In response to the comments on the April 2004 notice, EPA took
several actions to help improve the hazardous waste generator program
in order to foster better compliance. Actions included (1) improving
EPA's Web site for the hazardous waste generator regulatory
program,\19\ (2) developing an online guide to the hazardous waste
generator regulations,\20\ (3) releasing guidance for management of
hazardous waste in closed containers,\21\ (4) issuing a technical
corrections direct final rule,\22\ and (5) conducting an evaluation of
the hazardous waste determination program.\23\ While these actions have
helped to improve the hazardous waste generator program, the Agency
recognizes that many of the changes identified by commenters can only
be made through rulemaking. Thus, this proposed rule requests comment
on a number of changes to the hazardous waste generator regulations.
---------------------------------------------------------------------------
\19\ http://www.epa.gov/osw/hazard/generation/index.htm.
\20\ ``Hazardous Waste Generator Regulations: A User-Friendly
Reference Document'' (http://www.epa.gov/osw/hazard/downloads/tool2012.pdf).
\21\ Memorandum from Betsy Devlin, Acting Director of EPA's
Waste Recovery and Waste Management Division, to RCRA Division
Directors, ``Closed Container Guidance: Questions and Answers (Qs &
As), November 3, 2011, incorporating Memorandum from Robert
Dellinger, Director of EPA's Materials Recovery and Waste
Management. Division, to RCRA Division Directors, ``Guidance on 40
CFR 264.173(a) and 265.173(a): Closed Containers,'' December 3,
2009, RCRA Online 14826.
\22\ 75 FR 12989, March 18, 2010.
\23\ Hazardous Waste Determination Program Evaluation, April
2013 (http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf).
---------------------------------------------------------------------------
VI. Proposed Revisions to 40 CFR Part 260--Hazardous Waste Management
System: General
A. Generator Category Definitions (40 CFR 260.10)
EPA is proposing to codify definitions for the three categories of
hazardous waste generators (CESQG, SQG and LQG). The term ``small
quantity generator'' is codified in the regulations, but is outdated,
whereas ``conditionally exempt small quantity generator'' and ``large
quantity generator'' have been used within the RCRA hazardous waste
community for several decades, but their exact definitions have not
been codified. The regulations differentiate between the categories by
stating the quantity of hazardous waste generated in a calendar month
in each instance.
As the terms are most commonly used, CESQGs are generators that
generate 100 kilograms or less of non-acute hazardous waste and 1
kilogram or less of acute hazardous waste in a calendar month; SQGs are
generators that generate greater than 100 kilograms of non-acute
hazardous waste but less than 1,000 kilograms of non-acute hazardous
waste and 1 kilogram or less of acute hazardous waste in a calendar
month; and LQGs are generators that generate 1,000 kilograms or greater
of non-acute hazardous waste and/or greater than 1 kilogram of acute
hazardous waste in a calendar month. However, generators often fail to
consider residues from the cleanup of a spill of acute hazardous waste
or do not count both the non-acute and acute hazardous waste they
generate in a calendar month. The proposed definitions have been
drafted to incorporate all the various categories of hazardous wastes--
that is, acute hazardous waste, non-acute hazardous waste, and residues
for the cleanup of a spill of acute hazardous wastes.
Considering the significance a generator's category has in
determining the appropriate set of regulations that the generator must
comply with, the Agency believes it is necessary to define the specific
hazardous waste generator categories in the regulations.
The proposed generator category definitions are based solely on the
amount of hazardous waste generated. While EPA acknowledges that
accumulation limits may trigger different generator regulations, those
accumulation limits do not affect a generator's generation category,
which is based on how much hazardous waste is generated in a calendar
month.
Therefore, EPA is proposing to add the following definitions to
Sec. 260.10:
Very small quantity generator is a generator who generates less
than or equal to the following amounts in a calendar month: (1) 100
kilograms (220 lbs) of non- acute hazardous waste; and (2) 1 kilogram
(2.2 lbs) of acute hazardous waste listed in Sec. 261.31 or Sec.
261.33(e); and (3) 100 kilograms (220 lbs) of any residue or
contaminated soil, water, or other debris resulting from the cleanup of
a spill, into or on any land or water, of any acute hazardous waste
listed in sections Sec. 261.31 or Sec. 261.33(e);\24\
---------------------------------------------------------------------------
\24\ As part of this rulemaking, EPA is proposing to change the
name of ``conditionally exempt small quantity generator (CESQG)'' to
``very small quantity generator (VSQG).'' This change is discussed
in section VI.B. For the sake of a consistent discussion, however,
EPA is using the term CESQG throughout the preamble unless directly
stating the content of the proposed regulatory text.
---------------------------------------------------------------------------
Small quantity generator is a generator who generates the following
amounts in a calendar month: (1) Greater than 100 kilograms (220 lbs)
but less than 1000 kilograms (2200 pounds) of non-acute hazardous
waste; and (2) less than or equal to 1 kilogram (2.2 lbs) of acute
hazardous wastes listed in Sec. 261.31 or Sec. 261.33(e); and (3)
less than or equal to 100 kilograms (220 lbs) of any residue or
contaminated soil, water, or other debris resulting from the cleanup of
a spill, into or on any land or water, of any acute hazardous waste
listed in Sec. 261.31 or Sec. 261.33(e);
Large quantity generator is a generator who generates any of the
following amounts in a calendar month: (1) Greater than or equal to
1000 kilograms (2200 lbs) of non-acute hazardous waste; or (2) greater
than 1 kilogram (2.2 lbs) of acute hazardous waste listed in Sec.
261.31 or Sec. 261.33(e); or (3) greater than 100 kilograms (220 lbs)
of any residue or contaminated soil, water, or other debris resulting
from the cleanup of a spill, into or on any land or water,
[[Page 57926]]
of any acute hazardous waste listed in Sec. 261.31 or Sec. 261.33(e).
EPA is also proposing to add definitions to Sec. 260.10 for the
terms ``acute hazardous waste'' and ``non-acute hazardous waste,''
which are both used in the above definitions for generator categories.
The term acute hazardous waste is used for hazardous wastes that are
particularly dangerous to human health and is defined as those
hazardous wastes that meet the listing criteria in Sec. 261.11(a)(2)
and are therefore listed in Sec. 261.31 and assigned the hazard code
of (H) or are listed in Sec. 261.33(e), also known as the RCRA P-list.
In this proposal, any distinctions between acute and non-acute
hazardous wastes are only being made in the context of determining
generator category. Generally the term ``hazardous waste'' refers to
both acute and non-acute hazardous waste.
As previously stated, the definitions of generator categories are
based solely on the amount of hazardous waste generated in a calendar
month and are generally consistent with how the regulated community
understands the various categories based on EPA's references in
existing publications to how much hazardous waste is generated in a
calendar month. Additionally, these definitions reflect that a
generator may only have one generator category in a calendar month even
if the generator generates both acute hazardous waste and non-acute
hazardous waste in the same calendar month, a topic discussed further
in section VII.A.
In practice, five waste generation scenarios exist with different
combinations of acute hazardous waste, non-acute hazardous waste, and
residues from the cleanup of spills of acute hazardous waste generated
in a calendar month. These scenarios are summarized in Table 2--
Generator Categories Based on Quantity of Waste Generated.\25\
---------------------------------------------------------------------------
\25\ EPA is proposing to include this table in the regulations
as Table 1 in Sec. 262.13.
Table 2--Generator Categories Based on Quantity of Waste Generated
----------------------------------------------------------------------------------------------------------------
Quantity of
Quantity of acute Quantity of non- residues from the
hazardous waste acute hazardous cleanup of acute
# generated in a waste generated in hazardous waste Generator category
calendar month a calendar month generated in a
calendar month
----------------------------------------------------------------------------------------------------------------
1............................... > 1 kg............ Any amount........ Any amount........ LQG.
2............................... Any amount........ >= 1,000 kg....... Any amount........ LQG.
3............................... Any amount........ Any amount........ > 100 kg.......... LQG.
4............................... <= 1 kg........... > 100 kg and < <= 100 kg......... SQG.
1,000 kg.
5............................... <= 1 kg........... <= 100 kg......... <= 100 kg......... VSQG/(CESQG).
----------------------------------------------------------------------------------------------------------------
Note: When calculating generator categories, the quantities of
acute hazardous waste and non-acute hazardous waste are considered
separately.
In three of the scenarios in Table 2--Generator Categories Based on
Quantity of Waste Generated, the generator would be an LQG, in one
scenario the generator would be an SQG, and in one scenario the
generator would be a CESQG. In the first three scenarios, the generator
is an LQG if it generates any of the following in a calendar month,
regardless of the amounts of hazardous waste generated in the other
categories: more than 1 kilogram of acute hazardous waste, 1,000
kilograms or more of non-acute hazardous waste, or more than 100
kilograms of residues from the cleanup of a spill of acute hazardous
waste. This is made clear in the proposed regulatory definition of
``LQG'' by use of the word ``any'' and by the use of the word ``or''
between (1), (2), and (3). In these scenarios, the generator would need
to comply with the independent requirements and conditions for the
exemption for LQGs (specified in proposed Sec. 262.17), as well as any
applicable regulations for SAAs at Sec. 262.15.
In the fourth scenario, the generator would be an SQG if, in a
calendar month, it generates greater than 100 kilograms and less than
1,000 kilograms of non-acute hazardous waste and also 1 kilogram or
less of acute hazardous waste and 100 kilograms or less of residues
from the cleanup of a spill of acute hazardous waste.\26\ The proposed
regulatory text expresses this scenario by using the word ``and''
between (1), (2), and (3) in the definition of SQG. As a result, the
generator would need to comply with the independent requirements and
conditions for the exemption for SQGs (specified in proposed Sec.
262.16), as well as any applicable regulations for SAAs at Sec.
262.15.
---------------------------------------------------------------------------
\26\ Amount of hazardous waste accumulated on site at any given
time can also impact what regulations the SQG must comply with.
---------------------------------------------------------------------------
Finally, in the fifth scenario, if a generator generates 1 kilogram
or less of acute hazardous waste and 100 kilograms or less of non-acute
hazardous waste and 100 kilograms or less of residue from the cleanup
of a spill of acute hazardous waste, then the generator is a CESQG for
that calendar month. The proposed regulatory text expresses this
scenario by using the word ``and'' between (1), (2), and (3) in the
definition. As a result, the generator would need to comply with the
conditions for the exemption for CESQGs (specified in proposed Sec.
262.14).\27\
---------------------------------------------------------------------------
\27\ EPA is proposing to move the CESQG regulations from
Sec. Sec. 261.5 to 262.14. See section XIII of this preamble for
more information.
---------------------------------------------------------------------------
EPA requests comment on these proposed changes.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
B. Renaming CESQG to VSQG (40 CFR 260.10)
Currently only one of the three generator categories--CESQG--uses
the words ``conditionally exempt'' in its title; however both SQGs and
LQGs, which typically accumulate hazardous waste on site, are also
conditionally exempt from obtaining a RCRA permit or complying with the
interim status standards in 40 CFR parts 264 and 265, respectively,
provided they meet certain conditions. In addition, while CESQGs are
subject to few conditions for exemption, they are still considered
hazardous waste generators, and must comply with the relevant
regulations. If a CESQG does not comply, it would be out of compliance
with the hazardous waste regulations and potentially subject to
enforcement action. This inconsistency in terminology has caused some
confusion throughout the regulated community. Therefore, EPA is
proposing to change the name of the category from ``conditionally
exempt small quantity generator (CESQG)'' to ``very small quantity
generator (VSQG).''
[[Page 57927]]
EPA notes that this change is consistent with some states, such as
Minnesota, which are already using the VSQG term. All regulations
applicable to a CESQG would apply to a VSQG.
EPA requests comment on this proposed change.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
C. Definition of Central Accumulation Area (40 CFR 260.10)
The Agency is also proposing to define the term ``central
accumulation area'' in Sec. 260.10 to mean any on-site hazardous waste
accumulation area with hazardous waste accumulating in units subject to
either Sec. 262.16 (for small quantity generators) or Sec. 262.17
(for large quantity generators).\28\ The definition also states that a
central accumulation area at an eligible academic entity that chooses
to be subject to part 262 subpart K must also comply with Sec. 262.211
when accumulating unwanted material and/or hazardous waste.
---------------------------------------------------------------------------
\28\ This proposed definition includes citations to new sections
of part 262 that we are proposing to include as part of the
reorganization of the generator regulations. The existing small
quantity generator regulations are at Sec. Sec. 262.34(d) through
(f) and the existing large quantity generator regulations are at
Sec. 262.34(a). For a full discussion of the proposed
reorganization, see section XIII of the preamble.
---------------------------------------------------------------------------
LQGs may accumulate hazardous waste on site without a permit or
complying with the interim status standards for up to 90 days provided
they comply with Sec. 262.34(a) and SQGs may do the same for up to 180
days, provided they comply with Sec. 262.34(d) though (f).\29\ Over
the years, stakeholders have used different terms to refer to these on-
site generator accumulation areas, including ``generator accumulation
areas,'' ``less-than-90-day areas,'' and ``less-than-180-day areas.''
In December 2008, EPA promulgated a definition of ``central
accumulation area'' in subpart K of part 262 to refer to these types of
areas (``Academic Labs Rule''; 73 FR 72912, December 1, 2008). As
explained in the preamble to the proposed Academic Labs Rule, EPA
codified the term ``central accumulation area'' for the sake of
convenience to distinguish these types of accumulation areas from
satellite accumulation areas and laboratories, which are both subject
to different regulations than central accumulation areas are. At the
time, EPA promulgated the term in Sec. 262.200 and indicated that the
definition only applied to part 262 subpart K. Since then, the term has
become more widely used and EPA is now proposing to define the term
``central accumulation area'' in Sec. 260.10 to allow its use when
referring to generator accumulation areas that are not operating under
part 262 subpart K.
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\29\ As noted previously, SQGs can accumulate hazardous waste
for up to 270 days if they ship the hazardous waste greater than 200
miles.
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EPA emphasizes that we are proposing to define the term ``central
accumulation area'' only as a matter of convenience. It is helpful for
both the regulated community and the implementers to have a common term
to use when referring to locations where generators accumulate
hazardous waste other than satellite accumulation areas. Furthermore,
the term is helpful for EPA to use when writing regulations, preamble,
and guidance. The addition of the term does not establish any new
regulatory standards or burden on generators. Generators may continue
to have more than one central accumulation area on site; the use of the
word ``central'' does not limit a generator to one area.
We have rephrased the proposed definition from how it currently
appears in part 262 subpart K to make this clearer. The definition, as
it appears in part 262 subpart K, currently states that a central
accumulation area means an on-site hazardous waste accumulation area.
We are proposing to revise the definition to say that a central
accumulation area means any on-site hazardous waste accumulation area.
Further, the use of the word ``central'' does not indicate that the
generator must establish the central accumulation area in a location
that is centrally located within the site. The use of the word
``central'' is used because many generators use a central accumulation
area to consolidate or centralize their hazardous waste from multiple
satellite accumulation areas prior to shipment off-site.
Because the proposed definition to be added to Sec. 260.10 will
now reference part 262 subpart K (the definition states that a central
accumulation area at an eligible academic entity that chooses to be
subject to part 262 subpart K must also comply with Sec. 262.211 when
accumulating unwanted material and/or hazardous waste), we are
proposing to remove the definition of central accumulation area from
part 262 subpart K.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The definition of ``central accumulation
area'' references other regulatory citations that are part of the
proposed reorganization. The reorganization is discussed in section
XIII of this preamble.
VII. Proposed Revisions to 40 CFR Part 261--Identification and Listing
of Hazardous Wastes
EPA is proposing four changes to the regulations currently in 40
CFR part 261. First, the Agency is proposing to add a new provision
that would explain what generator category would apply to a hazardous
waste generator that generates both acute and non-acute hazardous waste
in the same calendar month. Second, EPA is proposing to modify the
regulations at Sec. Sec. 261.5(h) and (i) and 261.3 that address the
mixing of a non-hazardous waste with a hazardous waste. Third, the
Agency is proposing to amend Sec. 261.5(f)(3) and (g)(3) to allow a
CESQG to send its hazardous waste to an LQG under control of the same
person. Finally, the Agency is proposing to amend Sec. 261.6(c) to
require biennial reporting for owners or operators of facilities that
recycle hazardous waste without storing them before they are recycled.
A. Generators That Generate Both Acute and Non-Acute Hazardous Waste in
the Same Calendar Month (40 CFR 261.5)
When a generator is determining what category it belongs in, it
must consider three relevant categories of hazardous waste: hazardous
waste (or non-acute hazardous waste, for purposes of this discussion),
acute hazardous waste, and residues from the cleanup of a spill of
acute hazardous waste. EPA is proposing regulations that make clear
what a generator's category is for a calendar month when it generates
any combination of non-acute hazardous waste, acute hazardous waste,
and residues from the cleanup of a spill of acute hazardous waste in
the same calendar month and which set of regulations apply. Currently,
the RCRA hazardous waste regulations do not address situations
involving combinations of wastes and Agency statements about this issue
have been inconsistent.
According to the November 19,1980, FR notice discussing changes to
Sec. 261.5, ``the regulation is revised to clarify that the lower
exclusion levels for acutely hazardous waste apply only to generators
who otherwise are deemed small quantity generators.\30\ The Agency
believes that a generator who produces more than 1,000 kilograms of
hazardous waste a month and is therefore subject to full regulation
should handle his
[[Page 57928]]
acutely hazardous wastes in the same manner as his other wastes'' (45
FR 76622).
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\30\ Note: Prior to 1986, there were only two categories of
generators: large quantity generators and small quantity generators.
When the small quantity generator regulations were promulgated in
1986, a third category of generators, conditionally exempt small
quantity generators, was established.
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In other words, if a generator generates 1,000 kilograms or more of
non-acute hazardous waste in a calendar month, it would be considered
an LQG for that month and therefore should, for both practical and
environmental reasons, manage the acute hazardous wastes under the same
regulations as an LQG (even if the amount of acute hazardous waste
generated in a calendar month is less than 1 kilogram). However, a
provision regarding how to determine one's generator category when
generating a combination of non-acute hazardous waste, acute hazardous
waste, and residues from the cleanup of a spill of acute hazardous
waste was not included in the regulatory language.
Conversely, in a September 2, 1987, letter concerning the
accumulation time for acute hazardous waste and non-acute hazardous
waste in the same month, the Agency stated, ``Acute hazardous wastes
are counted and managed separately from hazardous wastes (Sec.
261.5(e)). In the example given, the generator would have 90 days to
send the acute hazardous waste off site, but would have 180 days for
the non-acute hazardous waste.'' \31\ These different Agency
interpretations have ultimately led to confusion regarding which
regulations apply to hazardous waste generators that generate different
categories of hazardous waste in the same calendar month.
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\31\ Letter from Marcia E. Williams, Director of EPA's Office of
Solid Waste, to Fred Hutchison, University of Idaho, September 2,
1987, RCRA Online 11288.
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The Agency believes the more practical approach is for a generator
to be in only one generator category in a calendar month, the approach
outlined in the 1980 Federal Register discussion. When a generator
generating only non-acute hazardous wastes counts its waste, it must
consider the total amount of all its different kinds of non-acute
hazardous waste, not the amount of each type of hazardous waste (such
as, type of waste identified by individual EPA hazardous waste number)
separately. Considering the combination of acute hazardous wastes, non-
acute hazardous wastes, and residues from the cleanup of a spill of
acute hazardous waste generated in a calendar month when determining
what category a generator belongs to follows the same logic. In
addition, many of the regulations for LQGs are site-wide, such as
submitting the biennial report, developing a contingency plan, and
conducting training, and therefore a generator would still have to
comply with these conditions and would not gain a significant economic
advantage by having more than one generator category. We note that many
EPA Regions and states have taken this same approach in implementing
the RCRA hazardous waste program.
This is why EPA is proposing to expressly state in the definitions
which generator category would apply to hazardous waste generators that
generate a combination of non-acute hazardous waste, acute hazardous
waste, and/or residues from the cleanup of spills of acute hazardous
waste in a calendar month as discussed in section VI of this preamble.
In conjunction with these changes, EPA is proposing a new section Sec.
262.13 explaining how a generator determines which generator category
applies to it. This topic is fully discussed in section VIII of this
preamble. The Agency is soliciting comment on the proposal to revise
the existing regulations to indicate that a generator can only have one
generator category in a calendar month, according to the quantity of
acute and non-acute hazardous waste it generates.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. All the proposed definitions of generator
categories would be found in Sec. 260.10. The reorganization is
discussed in section XIII of this preamble.
B. Generators That Mix a Non-Hazardous Waste With a Hazardous Waste
EPA is proposing to modify how mixtures of non-hazardous waste and
hazardous waste would affect the generator categories of CESQGs and
SQGs. Additionally, EPA is proposing to add a reference in 40 CFR part
262 that assists LQGs with finding the regulations applicable to mixing
hazardous waste with non-hazardous waste.
1. CESQGs That Mix a Non-Hazardous Waste With a Hazardous Waste (40 CFR
261.5(h) and (i))
With the partitioning of the original 1980 SQG regulations into two
sets of regulations for CESQGs and SQGs in 1986, potential confusion
surrounds the current reading and implementation of Sec. 261.5(h) and
(i). When the regulations at Sec. 261.5(h) and (i) were promulgated on
November 19, 1980 (45 FR 76623), the title of Sec. 261.5 was ``Special
requirements for hazardous waste generated by small quantity
generators.'' At that time, there were only two hazardous waste
generator categories: LQGs and SQGs. Prior to the promulgation of the
new SQG regulations on March 24, 1986 (52 FR 10146), an SQG was a
generator who generates less than 1,000 kilograms of hazardous waste in
a calendar month; the regulations did not make a distinction between
SQGs and CESQGs at that time. Prior to 1986, paragraphs (h) and (i) of
section 261.5 read as follows:
``(h) Hazardous waste subject to the reduced requirements of
this section may be mixed with non-hazardous waste and remain
subject to these reduced requirements even though the resultant
mixture exceeds the quantity limitations identified in this section,
unless the mixture meets any of the characteristics of hazardous
waste identified in subpart C.
(i) If a small quantity generator mixes a solid waste with a
hazardous waste that exceeds a quantity exclusion level of this
section, the mixture is subject to full regulation.''
With the promulgation of the SQG regulations in 1986, SQGs were
broken into two classes of generators: (1) CESQGs (generators who
generate up to 100 kilograms of hazardous waste in a calendar month)
and (2) SQGs (generators who generate greater than 100 kilograms and
less than 1,000 kilograms of hazardous waste in a calendar month). The
regulations for CESQGs were established at Sec. 261.5, while those for
SQGs were moved to Sec. 262.34 (d)-(f). Similarly the title of Sec.
261.5 was changed to read, ``Special requirements for hazardous waste
generated by conditionally exempt small quantity generators'' [emphasis
added]. The language of Sec. 261.5(h) did not change when the SQG
regulations were promulgated, while paragraph (i) was modified slightly
to read: ``If any person mixes a solid waste with a hazardous waste
that exceeds a quantity exclusion level of this section, the mixture is
subject to full regulation.'' The phrase ``any person'' was substituted
for the phrase ``small quantity generator.''
EPA believes that the readability of these regulations could be
improved, particularly for paragraph (i), to expressly state whether
the regulation applies to situations where the hazardous waste being
mixed exceeds the CESQG quantity exclusion level or to situations where
the mixture exceeds the CESQG quantity exclusion level. Additionally,
``full regulation,'' could be interpreted as regulation commensurate
with an LQG, even if the resultant mixture exceeds CESQG quantity
levels, but not SQG quantity levels.
For these reasons, EPA is proposing to modify the language
regarding mixing of non-hazardous waste with hazardous waste by CESQGs
(which is currently
[[Page 57929]]
located at Sec. 261.5(h) and (i)) to make these points clear.
Specifically, it states that a CESQG may mix listed or characteristic
hazardous waste with non-hazardous waste and remain eligible for the
conditional exemption provided that either of the following is true:
\32\ (1) The mixture does not exhibit any of the characteristics of
hazardous waste identified in subpart C of part 261 of this chapter; or
(2) the mixture does not cause the generator to exceed the very small
quantity generator calendar month quantity limits identified in the
definition of very small quantity generator at Sec. 260.10.\33\
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\32\ EPA is proposing to use the term ``very small quantity
generator (VSQG)'' in place of ``conditionally exempt small quantity
generator.'' See section VI.B of this preamble for more information.
\33\ This regulatory citation is the proposed new location for
the definition of a VSQG. See section VI.B of this preamble for more
information.
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For example, if a CESQG mixed 50 kilograms of characteristic
hazardous waste with 100 kilograms of non-hazardous waste and the
resultant 150 kilograms mixture did not retain the characteristics of
hazardous waste, then the generator could still comply with the CESQG
conditions. However, if a CESQG mixed 50 kilograms of characteristic
hazardous waste with 100 kilograms of non-hazardous waste and the
resultant 150 kilograms mixture did retain the characteristics of
hazardous waste, then the generator would no longer be a CESQG, but an
SQG, and the generator would need to comply with all applicable
regulations for an SQG for that calendar month. Similarly, if a CESQG
mixed 50 kilograms of characteristic hazardous waste with 1,000
kilograms of non-hazardous waste and the resultant 1,050 kilograms
mixture retained the characteristics of hazardous waste, then the
generator would no longer be a CESQG, but an LQG, and the generator
would need to comply with all applicable regulations for an LQG for
that calendar month.\34\
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\34\ Additionally, the generator would have to comply with the
SQG or LQG regulations for as long as its total quantity of
hazardous waste accumulated on-site was greater than or equal to the
CESQG accumulation limit of 1000 kg.
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EPA notes that the regulations covering mixing of hazardous and
non-hazardous waste would apply regardless of when the initial wastes
are generated. In other words, when a generator mixes a hazardous waste
with a non-hazardous waste, the generator may have changed the
properties of the hazardous waste and thus must make a hazardous waste
determination on the resultant mixture. For example, if a CESQG mixed
50 kilograms of characteristic hazardous waste that it generated at
different points over the last three months with 100 kilograms of non-
hazardous waste and the resultant mixture did retain the
characteristics of hazardous waste, then the generator would no longer
be a CESQG at the point that the mixture was generated, but an SQG, and
the generator would need to comply with all applicable regulations for
an SQG for that calendar month during which the mixing occurred. The
time period for the accumulation of wastes begins at the point the
mixture is generated and the generator becomes a SQG.
In modifying the language, the Agency is not changing the intent of
the existing hazardous waste regulations, but is improving the
readability of the regulatory text. Thus, this change in language does
not impose any additional burden on CESQGs.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The reorganization of the generator
regulations would move these provisions to 262.14(b). The
reorganization is discussed in section XIII of this preamble.
2. LQGs and SQGs That Mix a Non-Hazardous Waste With a Hazardous Waste
(40 CFR 261.3)
LQGs and SQGs are subject to the mixture rule in Sec. 261.3. In
short, the mixture rule has three parts: (1) If non-hazardous waste is
mixed with listed hazardous waste, then the mixture is considered the
listed hazardous waste (Sec. Sec. 261.3(a)(2)(iv) and 261.3(b)(2));
(2) if non-hazardous waste is mixed with listed hazardous waste that is
listed solely for exhibiting an ignitability, corrosivity, or
reactivity characteristic in part 261 subpart C (such as F003 hazardous
waste), then the mixture is considered hazardous waste only if it
exhibits a characteristic (Sec. 261.3(g)(2)(i)); and (3) if non-
hazardous waste is mixed with characteristic hazardous waste, then the
mixture is considered hazardous waste only if the mixture exhibits a
characteristic of hazardous waste (Sec. 261.3(b)(3)) (45 FR 33066, May
19, 1980; 66 FR 27266, May 16, 2001).
However, because the mixture rule appears in Sec. 261.3 and the
SQG and LQG regulations appear in 40 CFR part 262, the regulated
community may not totally appreciate how the mixture rules apply to
SQGs and LQGs. Therefore, EPA is proposing to include references in
Sec. Sec. 262.16(c) and 262.17(f) that assist SQGs and LQGs with
finding the regulations applicable to the mixing of hazardous waste
with non-hazardous waste. Additionally, EPA wants to modify the
regulations to improve understanding of what circumstances an SQG may
mix hazardous waste with non-hazardous waste and still remain subject
to the SQG requirements.
Specifically, EPA is proposing to add a provision for SQGs that
states that a small quantity generator may mix its hazardous waste with
non-hazardous waste and remain eligible for the conditional exemption
applicable to a small quantity generator under two circumstances: (1)
The mixture is not a hazardous waste according to the mixture rules in
Sec. Sec. 261.3(a)(2)(iv), 261.3(b)(2), 261.3(b)(3), and
261.3(g)(2)(i); or (2) if the mixture is a hazardous waste, the mixture
does not cause the generator to exceed the small quantity generator
quantity limits for a calendar month, as identified in the definition
of small quantity generator at Sec. 260.10.\35\
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\35\ This regulatory citation is the proposed new location for
the definition of SQG. See section VIII of this preamble for more
information.
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For example, if an SQG mixed 100 kilograms of listed hazardous
waste (that was not listed solely for the ignitability, corrosivity
and/or reactivity characteristic) with 1,000 kilograms of non-hazardous
waste, then the resultant 1,100 kilogram mixture would be considered a
listed hazardous waste and the generator would no longer be an SQG, but
rather an LQG. The generator would then need to comply with all
applicable regulations for an LQG for that month during which the SQG
mixed the waste.\36\
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\36\ Additionally, a generator would have to comply with the LQG
regulations for as long as its total quantity of hazardous waste
accumulated on-site was greater than or equal to the SQG
accumulation limit of 6000 kg.
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However, if an SQG mixed 100 kilograms of either characteristic
hazardous waste or listed hazardous waste (that was listed solely for
the ignitability, corrosivity and/or reactivity characteristic) with
1,000 kilograms of non-hazardous waste and the resultant 1,100
kilograms mixture did not retain the characteristics of hazardous
waste, then the generator could still comply with the SQG regulations
because the resulting mixture would no longer be considered a hazardous
waste (although it would still be subject to applicable land disposal
restriction requirements in 40 CFR part 268).
EPA is also proposing to add a provision for LQGs that states that
mixtures of hazardous waste with non-hazardous waste are subject to the
mixture rule in Sec. 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i).
In modifying the language, the Agency is not changing the existing
hazardous waste regulations, but is improving the readability of the
[[Page 57930]]
regulatory text. Thus, this change does not impose any additional
burden on SQGs and LQGs.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. EPA is proposing to address the mixing
regulations for SQGs at Sec. 262.16(c) and the mixing regulations for
LQGs at Sec. 262.17(f). The reorganization is discussed in section
XIII of this preamble.
3. Request for Comment
The Agency requests comment on whether the proposed language for
CESQGs and SQGs improves the understanding of the regulations regarding
how mixtures of non-hazardous waste and hazardous waste would affect
the generator category for CESQGs and SQGs. Additionally, EPA requests
comment on whether the proposed language for LQGs assists LQGs in more
easily finding the applicable mixture regulations.
C. Allowing CESQGs To Send Hazardous Waste to LQGs Under the Control of
the Same Person
EPA is proposing to allow CESQGs to send their hazardous waste to
an LQG that is under the control of the same person, as defined at
Sec. 260.10, provided both the CESQG and LQG comply with specified
conditions.\37\
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\37\ EPA is also proposing to rename ``CESQG'' to ``VSQG'' (very
small quantity generator) (see section VIII.A.1 of the preamble for
more information). However, for this discussion, we continue to use
CESQG as this term is most familiar to the regulated community.
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1. Purpose
Under the existing regulations at Sec. 261.5(f)(3) for acute
hazardous waste, and Sec. 261.5(g)(3) for non-acute hazardous waste, a
CESQG may either treat or dispose of its hazardous waste on site or
ensure delivery to an off-site treatment, storage, or disposal
facility, which can include RCRA-permitted hazardous waste facilities,
interim status hazardous waste facilities, municipal solid waste
facilities, non-municipal non-hazardous waste facilities, recycling
facilities, and universal waste handlers. The existing CESQG
regulations do not allow a generator to send its hazardous waste off
site to another generator, unless the receiving generator has a storage
permit or is otherwise one of the types of facilities cited above.
Thus, persons looking to reduce their overall environmental liability
across multiple sites are prohibited from managing their CESQG
hazardous waste at one or more of their LQG sites without first
obtaining a permit or complying with the interim status standards, both
of which would increase regulatory burden and costs.
EPA believes that allowing CESQGs to send their hazardous waste to
an LQG that is under the control of the same person would provide an
additional option for CESQGs to manage their hazardous waste. It may
also improve the management of that hazardous waste for four main
reasons.
First, LQGs are subject to more stringent management conditions,
such as accumulation time, labeling, training, emergency planning, and
containment standards, as compared to CESQGs. In addition, LQGs may
only transport hazardous waste to a RCRA-permitted or interim status
hazardous waste TSDF, which in turn, is subject to more stringent
management standards than the municipal or non-municipal solid waste
facilities that CESQGs are allowed to use. Therefore, allowing
hazardous waste generated by a CESQG to be sent to an LQG under the
control of the same person could improve overall oversight and
management of the hazardous waste and enable more effective
environmental protection. Furthermore, a company, because of economies
of scale, may reduce its overall waste management costs, as well as its
potential financial liabilities for hazardous waste it generates at
CESQG facilities, as it would be handled under the more comprehensive
LQG and TSDF regulatory programs.
Second, whereas LQGs have up to 90 days to accumulate hazardous
waste in compliance with all the LQG conditions for exemption without
having to obtain a RCRA storage permit or comply with all the other
standards otherwise applicable, CESQGs may accumulate up to 1,000
kilograms of non-acute hazardous waste or up to 1 kilogram of acute
hazardous waste or up to 100 kilograms of residues from the cleanup of
a spill of acute hazardous waste without any time constraint. Even
though the amount of hazardous waste allowed on site by CESQGs at any
one time is limited, the longer that hazardous waste is accumulated on
site the greater the risk of adverse impacts to human health and the
environment. Allowing CESQGs to send their hazardous waste to an LQG
under the control of the same person may reduce the overall time that
the CESQG accumulates hazardous waste on site, which would further
reduce the potential risk to human health and the environment.
Third, this proposed change would allow consolidation by an LQG of
hazardous waste generated by several CESQGs under its control, which
increases the potential opportunities for hazardous waste recycling by
the LQG.
Fourth, this proposed change would give companies flexibility in
allocating labor and resources required to manage the company's total
quantity of hazardous waste generated, as the company would be allowed
to consolidate its hazardous waste from CESQG facilities at its LQG
sites.
EPA has received requests over the years from industry for the
regulations to allow CESQGs to send their hazardous waste to LQGs for
consolidation. EPA believes that such a change in the regulations would
enable generators to employ greater control over the management of
their hazardous waste, thereby resulting in improved efficiency and
reduced liability for the generator. EPA believes numerous situations
exist where CESQGs and LQGs under the same ownership could take
advantage of this proposed change. For example, Army National Guard and
Reserve units that may be CESQGs would have the opportunity to send
their hazardous waste to an active Army base that is an LQG. The same
situation applies to Air Force, Navy, and Marine Corps reserve units as
well. Additionally, many universities have engineering, medical, and
science laboratories located on campus, with each laboratory building
possibly qualifying as a CESQG. Allowing different laboratory buildings
within a university or industrial environment that are CESQGs to send
their hazardous waste to another university or industrial entity that
is an LQG would provide both economic and environmental benefits.
Furthermore, utilities, retailers, and remote oil and gas production
facilities also represent examples of industrial sectors that may
realize benefits from the intra-company transfer of hazardous waste
from CESQGs to LQGs.
2. Scope
As discussed above, EPA is proposing to amend the regulations under
the existing regulatory framework at Sec. 261.5(f)(3) and (g)(3) to
allow CESQGs to send hazardous waste to an LQG under the control of the
same person.\38\ ``Person'' is defined in Sec. 260.10 to mean an
individual, trust, firm, joint stock company, federal agency,
corporation (including a government corporation), partnership,
association, state, municipality, commission, political subdivision of
a state or any interstate
[[Page 57931]]
body. For the purposes of this section, ``control'' would mean the
power to direct the policies of the facility, whether by the ownership
of stock, voting rights, or otherwise, except that contractors who
operate facilities on behalf of a different person shall not be deemed
to ``control'' such facilities.
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\38\ EPA is proposing to reorganize the regulations for CESQGs
by moving provisions from Sec. 261.5 to Sec. 262.14. The proposed
revision to allow CESQGs to send hazardous waste to LQGs under
control of the same person can be found at Sec. 262.14(b)(3)(viii).
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The Agency believes limiting transfers to facilities under control
of the same person is appropriate because it ensures common control is
maintained over both facilities and takes advantage of strong
incentives to ensure the hazardous waste is safely managed.
Additionally, if a CESQG sends hazardous waste to an LQG under the
control of the same person, the LQG is likely to be familiar with the
type of hazardous waste generated by the CESQG. Furthermore, questions
regarding liability and responsibility for such hazardous waste are
likely to be clearer than is the case with facilities from unrelated
companies.
EPA is also proposing some labeling and marking standards for CESQG
waste being transferred to LQGs under the control of the same person
under this provision. Note that aside from these two conditions, the
same standards for management of CESQG waste apply to materials going
to an LQG under this provision as to other CESQG waste, including the
exemption from the requirement to ship using a hazardous waste
manifest. DOT shipping requirements do still apply.
3. Conditions for Exemption
Condition for Exemption for CESQGs
As part of this provision, CESQGs would be required to meet the
following conditions for exemption, proposed at Sec. 262.14(a)(viii).
Under control of the same person. As described above, the CESQG and
the LQG would have to be under control of the same person, according to
the existing definitions in Sec. 260.10.
Labeling and marking of containers. The Agency is proposing that a
CESQG transferring waste to an LQG under the control of the same person
label its containers with (1) the words ``Very small quantity generator
hazardous waste''; (2) other words that identify the contents of the
containers (e.g., the name of the chemical(s), such as ``acetone'' or
``methylene dichloride'' or the type or class of chemical, such as
``organic solvents'' or ``halogenated organic solvents'' or, as
applicable, the proper shipping name and technical name markings used
to comply with Department of Transportation (DOT) requirements at 49
CFR part 172 subpart D); (3) an indication of the hazards of the
contents of the container, such as the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the DOT requirements at 49 CFR part
172 subpart E (labeling); a label consistent with the Occupational
Safety and Health Administration (OSHA) Hazard Communication Standard
at 29 CFR 1920.1200; a chemical hazard label consistent with the
National Fire Protection Association (NFPA) code 704; a hazard
pictogram consistent with the United Nations' Globally Harmonized
System (GHS); or any other marking and labeling commonly used
nationwide in commerce that would alert workers and emergency
responders to the nature of the hazards associated with the contents of
the containers; and (4) the applicable EPA hazardous waste number(s)
(EPA hazardous waste code) in subparts C and D of part 261 to assist
the receiving LQG in managing the hazardous waste received. This
condition is also consistent with the changes proposed for labeling and
marking of containers in the revisions to 40 CFR parts 262, 263, and
268 discussed in various sections elsewhere in this preamble. A
generator subject to DOT shipper/carrier packaging requirements should
be familiar with and aware of the marking requirements at 49 CFR
172.301 and 49 CFR 172.304, as well as prohibited labeling and label
visibility requirements at 49 CFR 172.401 and 172.406, respectively.
Because the hazardous waste generated and accumulated by a CESQG
will be subsequently sent off site to an LQG under the same company in
compliance with DOT hazardous material regulations, the CESQG may
choose to use an appropriate DOT proper shipping name found in the 49
CFR 172.101 hazardous materials table to identify the contents of the
container while hazardous waste is accumulating on site. That way, the
generator will fulfill EPA and DOT requirements simultaneously;
however, EPA is not proposing to require the use of the DOT shipping
names while the hazardous waste is accumulating on site. We only
suggest that the DOT shipping name may be one way that some generators
may choose to identify the contents of the container.
EPA believes use of the DOT marking requirement should be
sufficient in many situations involving DOT Class 9 hazardous materials
that are also hazardous waste, with the DOT shipping name ending in
N.O.S. (not otherwise specified). As noted at 49 CFR 172.301(b),
generators using a DOT shipping name ending in N.O.S. must also provide
the technical name of the hazardous material in association with the
proper shipping name. However, the Agency is requesting comment on
examples of when the DOT shipping name would not meet EPA's intent of
``identifying the contents of the container'' and suggestions for
addressing this situation.
EPA believes that CESQGs should label and mark containers of
hazardous waste sent to LQGs in order to communicate the contents of
the containers to facility personnel that can then safely manage the
hazardous waste in compliance with the LQG regulations. Since CESQGs
already must make a hazardous waste determination to determine if and
what types of hazardous waste they generate, the Agency does not
believe this condition will pose an undue burden. In fact, if the CESQG
was not required to provide this information, the burden to the LQG
receiving the hazardous waste may increase because the LQG would then
have to do so.
Conditions for Exemption for LQGs
EPA is proposing that LQGs receiving hazardous waste from CESQGs
under the control of the same person comply with the following
conditions for exemption, all proposed at Sec. 262.17(g).
a. Notification. EPA is proposing that LQGs receiving hazardous
waste from CESQGs under the control of the same person submit a
notification to EPA or their authorized state using EPA form 8700-12
(i.e., the Site Identification (Site ID) form) 30 days prior to
receiving the first shipment of hazardous waste from the CESQG. LQGs
would be required to identify in the Comments section of the Site ID
form the name(s), site address(es), and contact information for the
CESQG(s) that will be transferring hazardous waste to the LQG. LQGs
would also be required to submit an updated Site ID form within 30 days
should the name, site address, or contact information for the CESQG
change.
Notification in this instance serves to inform the regulatory
authorities of which LQGs are receiving hazardous waste from which
CESQGs under control of the same person. The Agency believes
notification is necessary in order to communicate to inspectors the
origin of the hazardous waste received by the LQG and to ensure that
the received shipment is managed in compliance with the conditions of
the provision. EPA also believes that notification by the LQG, rather
than notification by the CESQG, is more efficient and less burdensome,
because LQGs are already required to submit
[[Page 57932]]
Site ID forms as part of obtaining a RCRA Identification Number and as
part of the biennial reporting process. Additionally, it is more
efficient for one LQG to notify on behalf of many CESQGs.
EPA has recently made available an electronic interface for states
and the regulated community to use to submit Site ID forms
electronically, which will further reduce burden on LQGs. Facilities
should check with their states regarding whether their state will use
EPA's electronic submittal process.
b. Recordkeeping. LQGs would be required to maintain records for
three years from the date the hazardous waste was received from the
CESQG with the following information:
The name, site address, and contact information for each
CESQG; and
A description of each waste shipment received from the
CESQG, including the quantity, EPA hazardous waste number(s) of each
waste received, and the date the hazardous waste was received.
EPA believes recordkeeping is necessary to ensure the requirement
that the CESQG and LQG are under control of the same person is met, as
well as to ensure that the hazardous waste from the CESQG is managed
according to the other conditions for exemption of this provision, such
as that LQGs are receiving shipments of hazardous waste from CESQGs in
quantities commensurate with the CESQG's generator category. EPA
believes this recordkeeping condition could be fulfilled through
routine business records, such as a bill of lading, and would not
present undue burden to the LQG. Additionally, the LQG could use this
information in order to report the hazardous waste from the CESQG on
its biennial report forms.
c. Labeling and marking of containers. The Agency is proposing that
LQGs comply with the labeling and marking conditions for exemption
under proposed Sec. 262.17(a)(5), including the date accumulation
started (i.e., the date the hazardous waste was received from the
CESQG). (Note: These are the same proposed standards that CESQGs must
comply with in labeling and marking containers that they send to LQGs,
as discussed above.) If the LQG is consolidating incoming hazardous
waste from a CESQG with either its own hazardous waste or with
hazardous waste from another CESQG, the LQG would be required to mark
each container with the earliest date any hazardous waste in the
container was accumulated on site.
Because the LQG must manage the hazardous waste it receives from
CESQGs according to the LQG regulations, EPA believes that the same
labeling and marking regulations should apply to hazardous waste from a
CESQG that is accumulated and managed by an LQG. EPA believes that it
is important that employees, transporters, downstream handlers,
emergency personnel, EPA, and the states know as much as possible about
the potential hazards of the contents in containers that LQGs
accumulate, transport, and manage.
d. Waste management. Under this proposal, an LQG would be required
to manage all incoming hazardous waste from a CESQG in compliance with
the regulations applicable to its LQG generator category. In other
words, there would be no difference in how the hazardous waste from a
CESQG was managed relative to the management of the LQG's own hazardous
waste, although hazardous waste from a CESQG would not be eligible for
management under the satellite accumulation regulations (proposed Sec.
262.15).
4. Biennial Reporting
An LQG would also be required to report the hazardous waste it
receives from CESQGs on its biennial report, as required under Sec.
262.41. EPA plans to include a new source code in the biennial report
instructions (if this provision is made final) that LQGs would use to
identify the hazardous waste as being received from a CESQG (to
differentiate from hazardous waste the LQG generates on site).
Generators would be required to report hazardous waste they receive
from CESQGs by type of hazardous waste. In other words, if an LQG
receives the same type of hazardous waste from multiple CESQGs, it
would only need to report the total quantity of that hazardous waste
received from all CESQGs. This provision is consistent with the
existing provision that LQGs must report information on the quantities
and types of hazardous waste they generate as part of the biennial
reporting process. It will also enable states and EPA to better
understand the additional volumes and types of hazardous wastes managed
at an LQG, which will assist in prioritizing compliance assistance.
5. No Maximum Limit of Hazardous Waste LQGs Receive From CESQGs
Because LQGs currently have no maximum limit on the amount of
hazardous waste they can accumulate, and because the regulations that
are applicable to LQGs are protective, the Agency believes there is no
need to establish a maximum limit on the amount or types of hazardous
waste that an LQG could receive from CESQGs. In fact, we believe the
more hazardous waste that is shipped to LQGs, the greater potential for
reduced risk, since these hazardous wastes would be managed under the
more comprehensive hazardous waste regulations, as opposed to
potentially being sent to non-hazardous waste disposal facilities.
6. Enforcement
EPA believes the proposed conditions to allow CESQGs to send their
hazardous waste to an LQG under the control of the same person are
necessary to ensure protection of human health and the environment.
Failure to meet one or more of the conditions could lead to potential
mismanagement of the hazardous waste, potentially resulting in a
release of hazardous waste or hazardous waste constituents to the
environment. Persons taking advantage of the proposed provision that
fail to meet one or more of the conditions for exemption would be
subject to an enforcement action under RCRA section 3008 for violations
of applicable independent requirements in part 264, 265, 267, 268, and
270. EPA and authorized states would also have the authority to cease
certain transfers of hazardous waste from CESQGs to an LQG in the
context of an enforcement action. EPA also notes that failure on the
part of the LQG to meet one of the conditions for exemption would not
mean that the CESQG is subject to permitting or other standards in 264,
265, and 270, provided that the CESQG met its conditions for exemption
and vice versa.
7. Interstate Shipments
Under RCRA, authorized state programs may be more stringent than
the federal program and thus states may choose not to adopt the
proposed provision allowing CESQGs to send their hazardous waste to an
LQG under the control of the same person. In the case of interstate
shipments where a CESQG wants to transfer its waste to an LQG located
in a different state than the CESQG, the CESQG must ensure that both
states have adopted the provision in order to ship the hazardous waste
to an LQG. Additionally, if a CESQG wants to transfer its waste through
states that have not adopted the proposed provision, these transit
states may also impose state requirements on the shipment while it is
being transported through the state. Therefore, EPA recommends that
generators contact any states through which the hazardous
[[Page 57933]]
waste will be shipped to ascertain their policy about such shipments.
8. Request for Comment
EPA requests comment regarding its proposal to allow CESQGs to ship
their hazardous waste to an LQG under the control of the same person.
EPA is also requesting comment on whether to establish a process
that would allow an entity (whether CESQG or LQG) to request approval
from its EPA Regional Administrator or the authorized state to transfer
hazardous waste from CESQGs to LQGs that are not under the control of
the same person. For example, such inter-company transfers could occur
between high school laboratories and university laboratories or other
waste management companies, such as those assisting with school
chemical clean-outs. While the Agency believes that this should not be
allowed as a general matter, we also recognize that there may be
instances where such an arrangement may be appropriate, and thus, are
taking comment on allowing such arrangements on a case-by-case basis.
EPA is interested in whether such inter-company transfers would produce
the same benefits as for intra-company transfers in enabling greater
control over the management of CESQG hazardous waste, thereby resulting
in improved efficiency and reduced liability for the generator.
The request for approval submitted to the state or Regional office
would have to include the name, address, and contact information for
each entity involved in the arrangement, how the entities will assign
responsibility for the safe management of the hazardous waste during
transport to and accumulation by the LQG, as well as a description of
the actual practices that will be followed by the CESQG and LQG to
ensure the safe management of the hazardous waste. EPA does not believe
that these requests for approval would need publication in the Federal
Register and, instead, would either be approved or denied by the EPA
Regional Administrator or the authorized state. If a request is granted
by the EPA Regional Administrator or the authorized state, the CESQG(s)
and LQG would need to comply with the conditions discussed above for
those CESQGs and LQGs that are ``under control'' of the same person. In
addition, the LQG would need to keep a copy of the request for
approval, as well as EPA's or the state's approval for as long as the
CESQG sends their hazardous waste to the LQG.
EPA is requesting comment on an additional variation for allowing
LQGs to consolidate CESQG hazardous waste when the generators are not
under the control of the same person with a self-implementing request
for approval. Under this variation, the implementing agency would have
sixty days from the date the request was sent to approve or deny it.
After sixty days, the generator may start consolidating regardless of
whether it has heard back from the implementing agency. This option
provides the state or Regional office the ability to deny requests that
pose a risk to human health or the environment or that come from
entities that have a history of not managing waste responsibly, but
puts a limit on how long a generator must wait for a response to its
request for approval.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The reorganization of the generator
regulations would move the conditions for CESQGs from Sec. 261.5 to
Sec. 262.14 and the conditions for LQGs from Sec. 262.34 to Sec.
262.17. The reorganization is discussed in section XIII of this
preamble.
D. Requiring Biennial Reporting for Owners or Operators of Facilities
That Recycle Hazardous Waste Without Storing It (40 CFR 261.6(c)(2))
EPA is proposing to modify 40 CFR 261.6(c)(2) to require owners or
operators of facilities that recycle hazardous waste without storing it
prior to recycling to comply with the biennial reporting requirements
at 40 CFR 265.75. Because these entities receive hazardous waste using
a hazardous waste transporter and hazardous waste manifest, similar to
a permitted TSDF or a facility with interim status, the Agency is
proposing to amend its regulations and instructions to specify that
such facilities must complete and submit a biennial report to EPA.
Without this information, the Agency and states may have an incomplete
picture of which facilities recycle hazardous waste and the quantities
of regulated hazardous wastes that are recycled, impeding their ability
to provide adequate oversight for those facilities.
The Agency believes that only a few recycling facilities will be
affected by this change. Additionally, considering that most facilities
already have sophisticated information systems to manage and track
incoming shipments of hazardous waste, we believe the burden imposed on
such facilities should be minimal.
The Agency requests comment on this proposed change. Additionally,
the EPA is interested in information regarding whether these facilities
already routinely submit biennial reports or are required by the states
to submit biennial reports.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
VIII. Proposed Revisions to 40 CFR Part 262--Standards Applicable to
Generators of Hazardous Waste
A. Proposed Addition of Terms Used in This Part and Changes to Purpose,
Scope, and Applicability (40 CFR 262.1 and 262.10)
As previously discussed, one of the objectives of this proposal is
to revise the hazardous waste generator regulations to make them more
user-friendly and easily understood by both the regulated community and
federal and state regulators. Currently, the hazardous waste generator
regulations are located primarily in three different parts of the CFR
(40 CFR parts 261, 262, and 265). In some cases, it is difficult to
determine what components of the regulations apply to different
categories of hazardous waste generators.
The proposed reorganization will address many of these problems by
moving the regulations at Sec. 261.5 and some of the technical
standards of part 265 into part 262 and by organizing the regulations
based on a generator's category so generators can more easily determine
which regulations they are subject to. That is, EPA is proposing that
Sec. 262.14 contain conditions for exemption for conditionally exempt
small quantity generators, that Sec. 262.15 contain conditions for
exemption for satellite accumulation areas, that Sec. 262.16 contain
conditions for exemption for small quantity generators, and that Sec.
262.17 containing conditions for exemption for large quantity
generators.
In concert with the reorganization of the generator conditions for
exemption, EPA is proposing to add some regulatory language to more
clearly explain how the regulations work for generators and to lay out
which provisions the various categories of generators are responsible
for complying with. The proposed addition of Sec. 262.1 and the
proposed revisions to Sec. 262.10 are meant to achieve these goals.
1. Proposed Addition of 40 CFR 262.1
One concern regarding the current generator regulations is that
they are not sufficiently clear about the distinction between the two
types of generator requirements: Those that a generator must meet
because it is an entity that generates hazardous waste--independent
requirements--and those that a generator must meet only if it
[[Page 57934]]
wants the benefits of an exemption from RCRA permitting--conditions for
exemption. In order to make the regulations clearer regarding this
distinction, EPA is proposing to include definitions for these terms in
a new section of the regulations at Sec. 262.1.
The difference between independent requirements and conditions for
exemption, as discussed previously in this preamble, lies in the nature
of each, and in the consequences that result when each is not met. An
independent requirement is an unqualified or unconditional requirement
imposed without reference or regard to obtaining an optional exemption
from regulation. That is, independent requirements must be met whether
or not the generator accumulates hazardous waste. An independent
requirement is applicable and enforceable, independent of whether the
generator is attempting to obtain an exemption.
A condition for exemption, on the other hand, is a requirement that
is contingent in nature, in that it is only necessary to meet in order
to obtain an optional exemption from other requirements. As an example,
the regulations in Sec. 262.34(a) introduce the conditions of the LQG
exemption by stating that the LQG may accumulate hazardous waste on
site for 90 days or less without a permit or without having interim
status, provided that it meets the conditions listed in that paragraph.
This distinction is relevant because while an entity can
``violate'' and be penalized for violating an independent requirement,
an entity cannot be penalized for not complying with a condition for an
optional exemption. Instead, if the entity does not comply with the
conditions of the exemption, that exemption no longer applies and the
entity becomes subject to full regulation. Violation of an independent
requirement, such as an SQG failing to obtain an EPA identification
number, can result in a notice of violation and enforcement action for
that particular provision. Noncompliance with a condition for
exemption, such as an LQG accumulating hazardous waste for more than 90
days, however, can result in an entity losing its conditional status
and becoming the operator of a non-exempt storage facility subject to
the applicable requirements for storage facilities in parts 124, 264,
265, 267, 268 and 270, and for generators in part 262.
EPA is proposing to define an ``independent requirement'' as a
requirement of any of part 262 that states an event, action, or
standard that must occur or be met and that applies without relation
to, or irrespective of, the purpose of obtaining a conditional
exemption from a permit or having interim status under Sec. 262.14,
262.15, 262.16, or 262.17.
EPA is proposing to define a ``condition for exemption'' as any
requirement in Sec. 262.14, 262.15, 262.16, or 262.17, that states an
event, action, or standard that must occur or be met in order to obtain
a conditional exemption from any requirement in parts 124, 262 through
268, or 270, or from any requirement for notification under section
3010 of RCRA.
We will be using these terms throughout this preamble to
distinguish between these two types of provisions for generators.
EPA is requesting comment on this proposed change to the
regulations, particularly whether it clarifies implementation of the
generator regulations by industry and the regulating entities.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
2. Proposed Changes to 40 CFR 262.10(a)
As part of the reorganization of the generator regulations, Sec.
262.10(a), which addresses the purpose, scope, and applicability of the
hazardous waste generator regulations, will list which generator
provisions are independent requirements and which are conditions for a
generator exemption from part 124, from the applicable standards of
parts 264 through 268, from the permitting requirements of part 270,
and from section 3010 of RCRA.
Specifically, EPA is proposing two changes to Sec. 262.10(a): (1)
Stating that a hazardous waste generator is subject to all the
applicable independent requirements of part 262 and listing those
independent requirements and (2) stating that a generator that
accumulates hazardous waste on site is also considered to be a facility
storing hazardous waste unless it meets the conditions for one of the
generator exemptions in Sec. 262.14, 262.15, 262.16, or 262.17.
a. Independent requirements. As stated above, under the RCRA
hazardous waste program, certain regulations are independent
requirements and certain regulations are conditions for exemption from
RCRA permitting and the interim status standards.
To be clear about the distinctions between these types of
standards, EPA is proposing to state at Sec. 262.10(a)(1) that a
person who generates a hazardous waste as defined by 40 CFR part 261 is
subject to all the applicable independent requirements in the subparts
and sections listed, unless the person is a conditionally exempt small
quantity generator (or ``very small quantity generator,'' in the
terminology of the proposed rule) that meets the conditions for
exemption in Sec. 262.14. This new addition will reinforce to
generators that they must meet these independent requirements whether
or not they accumulate hazardous waste on site.
b. Conditional exemption for CESQG, SQG, and LQG. The RCRA
hazardous waste generator regulations provide generators that
accumulate hazardous waste on site with exemptions from the hazardous
waste permitting standards and compliance with interim status standards
in 40 CFR parts 264 and 265, provided certain conditions are met.
Therefore, EPA is proposing to state at Sec. 262.10(a)(2) that a
generator that accumulates hazardous waste on site is also considered a
facility that stores hazardous waste, unless it is excluded because it
meets the conditions of being a generator. The paragraph then lists the
generator categories and where to find the relevant conditions for
each, in Sec. 262.14, 262.16, or 262.17.
These proposed changes to Sec. 262.10 do not constitute
substantive changes to the hazardous waste generator regulations.
Rather, these changes simply reorganize the independent requirements
and conditions for exemption applicable to all hazardous waste
generators based on their generator category into one section of the
regulations. EPA also believes these changes will reduce confusion for
the regulated community in the context of enforcement actions. It has
been the Agency's longstanding position that generators that do not
comply with a condition of a generator exemption fail to qualify for
the exemption and, if they have not qualified for any other exemption,
they would be considered an operating TSDF without a permit and/or in
violation of the storage facility operating standards in parts 264 or
265. The Agency believes this proposed reorganization will improve the
use of and compliance with the regulations.
EPA is requesting comment on these proposed changes.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The reorganization is discussed in section
XIII of this preamble.
3. Proposed Deletion of Sec. 262.10(c)
Section 262.10(c) of the hazardous waste regulations is a provision
that describes the requirements for a generator who treats, stores, or
disposes of hazardous waste on-site and includes
[[Page 57935]]
a list of provisions these generators must comply with. EPA believes
that this provision in the regulation is outdated and confusing and can
be removed. EPA is proposing to delete and reserve this paragraph.
When Sec. 262.10(c) was initially promulgated on February 26,
1980, the hazardous waste generator regulations distinguished between
the generators that sent hazardous waste to be managed off site and
those that managed their hazardous waste on site. Generators that sent
hazardous waste off site could manage it for 90 days in an accumulation
area, but generators that managed hazardous waste on site were expected
to manage it under their permits or under interim status regulations.
The purpose of Sec. 262.10(c) was to provide the list of requirements
that generators managing hazardous waste were required to follow in
addition to those permits or interim status requirements.
This distinction meant that the two types of generators had very
different standards for the areas where newly generated hazardous waste
was managed. Significantly, generators sending hazardous waste off site
could easily make physical changes to their accumulation areas, whereas
a similar generator managing hazardous waste on site under a permit had
to go through the permit modification process to make the same kind of
changes. EPA effectively eliminated the distinctions by revising these
regulations (45 FR 76624, November 19, 1980 and 47 FR 1248, January 11,
1982). The final rule promulgated in January 11, 1982, made a change to
Sec. 262.10(c) that added the generator accumulation provisions at
Sec. 262.34 to the list of things a generator who treats, stores, or
disposes of hazardous waste on site must comply with. Currently, the
Agency does not make this distinction between generators that send
waste for treatment off site and those that manage waste on site. This
revision is therefore outdated and not well understood and can be
deleted and reserved without disruption to the generator hazardous
waste regulations.
EPA seeks comment on whether anyone is using this provision or has
objection to its removal and what the reasoning for that objection is.
Effect of the Proposed Reorganization: This proposed deletion is
not affected by the proposed reorganization.
4. Generators Are Subject To Enforcement of Applicable Requirements and
Penalties Under Section 3008 of RCRA if They Fail To Meet the
Independent Requirements Made Applicable by the Failure To Obtain a
Conditional Exemption (40 CFR 262.10(g))
The existing regulation at Sec. 262.10(g) states that a generator
is subject to the compliance requirements and penalties prescribed in
section 3008 of [RCRA] if it does not comply with the requirements of
that part. However, this paragraph does not expressly state that a
generator that is not meeting the conditions of its exemption--and is,
therefore, an illegal TSDF--is liable under section 3008 of RCRA for
failing to meet the requirements for TSDFs in parts 124, 264 through
268, and 270.
Therefore, EPA is proposing to revise Sec. 262.10(g) to state that
a generator is subject to enforcement of the applicable requirements
and penalties under section 3008 of RCRA if it fails to meet its
applicable independent requirements under part 262: Sec. 262.11
(Hazardous waste determinations and recordkeeping), Sec. 262.12
(Obtaining an EPA identification number), part 262 subpart B
(Manifest), Sec. Sec. 262.30 through 260.33 (Pre-transport) and part
262 subpart D (Recordkeeping and reporting). The new language would
further explain that a generator is subject to enforcement of the
applicable requirements and penalties under section 3008 of RCRA if it
fails to meet the applicable requirements of parts 124, 263 through
268, and 270, including such requirements made applicable when such
person is not meeting the conditions of the generator exemption.
EPA is requesting comment on these proposed changes.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
5. Proposed Deletion of Laboratory XL Project Regulations (40 CFR
262.10(j) and Part 262 Subpart J)
The Laboratory XL Project was created for Boston College, the
University of Massachusetts, and the University of Vermont, and was
finalized in the Federal Register on September 28, 1999 (64 FR 53292).
Originally, the program was to expire on September 30, 2003. But on
June 21, 2006, EPA extended the program and the new expiration date was
changed to April 15, 2009 (71 FR 35550). Since the program has now
expired, EPA is proposing to remove paragraph (j) from Sec. 262.10, as
well as part 262 subpart J.
EPA is requesting comment on this proposed change.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
6. Generators Shall Not Transport to a Non-Designated Facility
The Agency is proposing to add a new provision at Sec.
262.10(a)(3) that would clearly and succinctly state that a generator
cannot offer or otherwise cause its waste to be sent to a facility that
is not authorized to accept it.
As the Agency has stated numerous times in the development and
implementation of the RCRA hazardous waste program, a fundamental
aspect of the program is the responsibility placed on the generator of
hazardous waste to ensure its hazardous waste is properly managed from
cradle to grave. Numerous existing regulatory provisions are designed
to ensure that generators send their hazardous waste only to authorized
TSDFs or other authorized facilities. See for example, Sec. Sec.
262.12(c), 262.20(b), 262.40(a). However, from experience with the
program, the Agency has found situations where a generator failed to
send its hazardous waste to a facility authorized to receive that
waste, thus creating both regulatory and potential hazardous waste
mismanagement problems. The Agency believes this provision is necessary
to ensure generators understand they have this obligation and, for that
reason, is placing it in the initial provisions of the generator
regulations.
This provision is being added to the regulatory framework and not
replacing Sec. Sec. 262.12(c), 262.20(b), 262.40(a), as those
provisions are aimed at other aspects of the generator program (for
example, ensuring manifests are properly completed).
The Agency requests comment on adding this new provision.
B. Waste Determinations (40 CFR 262.11)
EPA is proposing to revise the hazardous waste determination
regulations at Sec. 262.11 in order to provide a more complete
explanation of the regulation and improve compliance by hazardous waste
generators. The proposed changes are intended to provide more
information about when a waste determination must be made, as well as
to better explain the methods and procedures for generators to
determine whether they have a listed hazardous waste or a
characteristic waste. The proposed changes also address some
deficiencies in the current recordkeeping regulations.
[[Page 57936]]
Specifically, the proposed changes discussed in this section are
the following: (1) Confirming that a generator's waste must be
classified at its point of generation and, for wastes potentially
exhibiting a hazardous characteristic, at any time during the course of
its management when the properties of the wastes may change; (2)
revising the language on making a determination for a listed hazardous
waste in Sec. 262.11 to explain more fully how generators can make
this kind of determination, including use of acceptable kinds of
generator knowledge; (3) explaining more completely in the regulations
in Sec. 262.11 how a generator should evaluate its waste for hazardous
characteristics; (4) moving the independent recordkeeping and retention
requirements for hazardous waste determinations currently found at
Sec. 262.40(c) into Sec. 262.11 to integrate this provision more
directly into the hazardous waste determination regulations; (5)
revising the hazardous waste determination recordkeeping regulations to
require that SQGs and LQGs maintain records of any test results, waste
analyses, or other determinations made in accordance with Sec. 262.11
for at least three years, including waste determinations where a solid
waste (as defined in Sec. 261.2) is found not to be a RCRA hazardous
waste (as defined in Sec. 261.3); (6) revising the hazardous waste
determination regulations by copying Sec. 262.40(d) into Sec. 262.11
to address situations where an enforcement action has been initiated
and the period of record retention (e.g., three years from when the
record was generated) must be extended automatically during the course
of any unresolved enforcement action regarding the regulated activity
or as requested by the Administrator; and (7) making clear at the very
beginning of Sec. 262.11 that the hazardous waste determination must
be accurate.
In addition, EPA is asking for comment in this section on two
additional potential changes regarding the accuracy of hazardous waste
determinations and the length of time records must be maintained.
Finally, EPA discusses the potential development of an electronic
decision making tool for hazardous waste determinations and takes
comment on whether that would be a helpful tool to generators.
The revisions proposed at Sec. 262.11 are designed to improve
compliance by generators in making a hazardous waste determination for
their solid wastes. To a great extent, the success of the RCRA
hazardous waste regulatory program begins with and relies on generators
making this determination. Failure to make an accurate hazardous waste
determination may lead to mismanagement of the waste, with potential
adverse consequences to human health and the environment. As described
below, generators may have a difficult time making an accurate
hazardous waste determination for a variety of reasons.
Many of the proposed changes at Sec. 262.11 derive from policy
statements and clarifications the Agency has made through the years in
FR notices, guidance documents, and policy letters to help explain how
hazardous waste determinations should be made. The proposed changes
also derive from issues identified in EPA's 30 years of experience
implementing the RCRA hazardous waste program.
1. Background
The regulations at Sec. 262.11 require generators of solid waste
(as defined at Sec. 261.2) to determine whether their waste is also a
hazardous waste. Under RCRA, a solid waste may be hazardous if it is
either listed as hazardous or exhibits a hazardous waste
characteristic. Listed hazardous wastes are wastes that the Agency has
specifically evaluated and determined may present a risk to human
health and the environment, if improperly managed. Such wastes can be
generated by specific processes of particular industries or by many
different types of industry (e.g., spent degreasing solvents) or
hazardous commercial chemical products being discarded as surplus, off
specification, or for another reason. Wastes that exhibit any of the
four hazardous characteristics (ignitability, corrosivity, reactivity,
toxicity) are also classified as hazardous. Hazardous wastes are
subject to a number of handling and disposal requirements intended to
prevent them from damaging human health or the environment.
Once a generator has determined from Sec. 261.2 that it has
generated a solid waste, the regulations at Sec. 262.11 currently
provide the following method for a generator to determine if a waste is
a hazardous waste:
(1) It should first determine if the waste is excluded from
regulation under the exclusions found in 40 CFR 261.4.
(2) It must then determine if the waste is listed as a hazardous
waste in subpart D of 40 CFR part 261. Note that even if the waste is
listed, the generator still has an opportunity under 40 CFR 260.22 to
demonstrate to the Administrator that the waste from his particular
facility or operation is not a hazardous waste.
(3) For purposes of compliance with the land disposal restrictions
in 40 CFR part 268, or if the waste is not listed in subpart D of 40
CFR part 261, the generator must then determine whether the waste is
identified in subpart C of 40 CFR part 261 by either:
(A) Testing the waste according to the methods set forth in subpart
C of 40 CFR part 261, or according to an equivalent method approved by
the Administrator under 40 CFR 260.21; or
(B) Applying knowledge of the hazard characteristic of the waste in
light of the materials or the processes used.
(4) Finally, if the waste is determined to be hazardous, the
regulations state that the generator must refer to parts 261, 264, 265,
266, 267, 268, and 273 of this chapter for possible exclusions or
restrictions pertaining to management of the specific waste.
A generator's responsibility begins with applying due diligence
through knowledge of its processes, feedstocks, and wastes generated,
and/or testing to make an accurate hazardous waste determination for
the solid waste it has generated (see Sec. 261.2). The Agency
considers the application of the above information (e.g., knowledge of
the production processes, feedstocks, and wastes generated and/or
information from testing) to be acceptable types of generator
knowledge. Failure to consider any relevant types of knowledge could be
viewed critically if a situation arose in which a particular
generator's waste determination came under scrutiny. Once a
determination has been made that a generator's solid waste is a
hazardous waste, then the generator can initiate the process of
quantifying the total amount of hazardous waste generated in a calendar
month to determine its generator category, and from that, determine the
regulations with which it must comply. If an incorrect hazardous waste
determination is made (i.e., a hazardous waste is identified as non-
hazardous), there is a strong possibility that the waste will not be
managed appropriately, potentially leading to environmental releases
and damage.
From experience with the waste determination program, the Agency
has found that there are a number of situations in which generators may
misclassify their wastes. In some cases, generators overlook certain
wastes that are unrelated to their production processes, discarding
them in the trash without realizing that they have discarded a
hazardous waste. In other cases, generators may not understand how the
hazardous waste characteristics or listings regulations may apply to
the waste. There are also instances in which
[[Page 57937]]
generators have not even known that RCRA and its regulations apply to
their wastes.
States have also identified difficulties generators have in making
hazardous waste determinations as a concern. A study conducted by the
State of New Hampshire found that generators often overlooked hazardous
wastes they had generated apart from their main production operations,
for example, solvent-contaminated wipes and aerosol
cans.39 40
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\39\ A final rule for solvent-contaminated wipes was published
in the Federal Register on July 31, 2013. This rule provides an
exclusion from the definition of solid waste for solvent-
contaminated wipes that are recycled and an exemption from the
definition of hazardous waste for discarded wipes provided specific
conditions are met (78 FR 46447).
\40\ Summary of Waste Determination Meetings with VT and NH
State Officials on September 27-28, 2010.
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The Georgia Department of Natural Resources (GADNR) has also
highlighted this problem in one of its publications, stating ``Many
solid waste streams at facilities tend to be overlooked as hazardous
wastes because the solid waste usually does not resemble what one would
think a hazardous waste looks like [i.e., wastes that are not a liquid
chemical waste (rags, absorbents, or filters); or wastes that are not
directly generated in manufacturing process (universal wastes,
computers, electronics, or sludge in drains or sumps); wastes that are
newly regulated (electronics); or wastes that are similar to household
hazardous wastes (mercury thermometers, aerosol cans, batteries, and
lamps), which are excluded as hazardous waste in accordance with Sec.
261.4(b)(1).].'' \41\
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\41\ ``10 Most Common Hazardous Waste (RCRA) Violations in
Georgia: 40 CFR 262.11 ``Hazardous Waste Determination,'' Georgia
Department of Natural Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf.
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The importance of generators making an accurate hazardous waste
determination cannot be over-emphasized. In 2013, a contractor for EPA
completed a third-party program evaluation of the hazardous waste
determination regulations to better understand the reasons generators
may have difficulty making reliable hazardous waste determinations.\42\
This study involved examining national compliance statistics associated
with hazardous waste determinations and meeting with representatives of
three state programs--Texas, Minnesota, and Colorado--and the regulated
community in those states. Questions focused on rates of non-compliance
with the hazardous waste determination regulations, obstacles to
generator compliance, the role of state waste management programs and
the role of third parties, such as environmental services companies or
industry trade organizations. The interviewers also solicited
stakeholder recommendations for improvement of the waste determination
regulations.
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\42\ Hazardous Waste Determination Program Evaluation, IEc,
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.
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The evaluation reported the following findings. First, the average
non-compliance rate with the RCRA hazardous waste determination
regulations across the United States is approximately 34 percent. This
figure is based on an analysis of hazardous waste determination
violations during EPA compliance inspections recorded in EPA's RCRAInfo
data system from 2001 to 2011.\43\ These results are supported by the
results of other EPA analyses. For example, in a review of inspection
reports of the foundry sector by EPA's Office of Compliance, EPA found
26 of 69 facilities, or 38 percent, with hazardous waste determination
violations.\44\ Additionally, an EPA analysis of inspections at CESQG
facilities conducted by the State of Kansas inspectors for the 2009-
2012 time period found a waste determination non-compliance rate of 21
percent, and an EPA analysis of inspections of Iowa CESQG facilities
conducted by EPA Region 7 inspectors for the same time period found a
waste determination violation rate of 36 percent.45 46
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\43\ RCRAInfo is EPA's national repository for hazardous waste
generation and management data.
\44\ ``Review of RCRA Inspection Report Practices,'' May 2007.
\45\ EPA administers Iowa's hazardous waste program.
\46\ Iowa CESQG Inspections 2009-2012, October 2012; Kansas
CESQG Inspections 2009-2012, December 2012.
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Probably the most comprehensive analysis involved examining all
compliance evaluation inspections of LQGs, SQGs, and CESQGs conducted
by both the EPA Regions and the states for fiscal years 2008-2012.\47\
Of the 62,003 compliance evaluation inspections conducted during that
time period, EPA and the states found 8,148 waste determination
violations, resulting in a non-compliance rate of 13.1 percent. While
the estimates of waste determination violation rates vary somewhat
across the studies examining them, all of them identify violation rates
that are significant.
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\47\ State Compliance Evaluation Inspections (CEI) for FY 2008-
2012.
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The evaluation also discussed a number of implementation challenges
that lead to non-compliance with the hazardous waste determination
regulations. The evaluation identified 30 recurring themes that
describe various obstacles, challenges, and factors that influence
hazardous waste generators' compliance with the hazardous waste
determination regulations. These 30 themes fall into three overarching
categories: (1) Challenges related to the regulations; (2) challenges
related to generators; and (3) challenges related to regulatory
agencies.\48\
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\48\ Hazardous Waste Determination Program Evaluation, IEc,
April 2013. http://www.epa.gov/evaluate/pdf/waste/haz-waste-determination.pdf.
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The Agency is proposing changes intended to address the two
challenges identified that are related to the regulations. These are
(1) difficulty understanding the regulations as written and (2)
difficulty interpreting and applying the regulations to specific
circumstances. The proposed changes to Sec. 262.11 are intended to
elaborate on the meaning and intent of these regulations to make them
easier for generators to understand. We believe the better
understanding resulting from these changes will also make it easier to
appropriately apply the requirements to a broader range of specific
circumstances.
2. Improvements to the Existing Hazardous Waste Determination
Regulations
EPA's evaluation of the waste determination regulatory program
noted that improving compliance in making accurate waste determinations
is a multi-faceted problem. The Agency believes improving the clarity
of the regulatory text is an important step because it represents the
foundation from which all subsequent EPA and state outreach, technical
assistance and enforcement efforts begin. In this regard, EPA
identified several particular areas for possible improvements to the
current regulations:
--Confusion about where and when to make a hazardous waste
determination, particularly when further management of that material
may result in a change in the hazardous waste determination.
--Sec. 262.11(b), which relates to whether or not a solid waste is
a listed hazardous waste, does not describe how a generator should
determine if the material in question is a listed hazardous waste.
--Sec. 262.11(c) states that a generator can either test its waste
or use process knowledge or knowledge about its waste to determine
whether a solid waste is a characteristic hazardous waste.
[[Page 57938]]
However, there is little guidance in the regulation on using knowledge
to classify waste.
--The existing regulatory text notes that test methods are included
in the hazardous characteristic definitions in subpart C of part
261,but does not note that tests are not provided for all aspects of
the hazardous characteristics identified there.
The Agency has provided guidance on these issues over the past 30
years and through these proposed regulatory revisions intends to
incorporate key aspects of that guidance into the regulatory language.
Finally, EPA is proposing to address deficiencies in the
recordkeeping for hazardous waste determinations. These deficiencies
include both a lack of specificity regarding what materials used in a
hazardous waste determination must be maintained and lack of a specific
statement that the independent requirement to maintain records is
extended when there is an unresolved enforcement action. In addition,
there are large number of hazardous waste determinations for which
records are not being kept because the generator determines that the
material in question is not a hazardous waste. Failure to maintain
records in these cases makes it difficult for regulatory agencies to
determine how a generator made the determination and to quickly assess
whether the determination is accurate.
3. When and Where To Make a Hazardous Waste Determination
To respond to generator concerns about identifying the most
appropriate point at which to make a hazardous waste determination, EPA
is proposing to revise Sec. 262.11 to add a paragraph (a), which would
state that a hazardous waste determination must be made at the point of
waste generation (i.e., when the material becomes a solid waste).\49\
The RCRA statute makes clear that the term ``hazardous waste
generation'' means the act or process of producing hazardous waste.\50\
By requiring that the initial hazardous waste determination be made at
the point of generation, the regulation clarifies that the
determination cannot be made downstream in the process where other
materials could be mixed with the waste or where the waste changed its
physical characteristics simply as a result of time elapsing affecting
the hazardous waste determination. This standard must be met even in
instances in which another entity, such as a waste management facility,
makes the waste determination on behalf of the generator.
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\49\ A material must be a solid waste before it can be a
hazardous waste under RCRA.
\50\ See Solid Waste Disposal Act, Sec. 1004, page 9.
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The 1980 preamble to the original hazardous waste regulations
explicitly discussed this scenario, stating that a solid waste which is
a hazardous waste because it is listed in part 261 subpart D must begin
to be managed as a hazardous waste when it first meets the subpart D
listing description. The preamble explains that most of the hazardous
wastes listed in Sec. Sec. 261.31 and 261.32 of subpart D (the F-list
and the K-list) are process residues, emission control dusts, or
wastewater treatment sludges and the point in time when they are
created is generally well defined. For other hazardous wastes, such as
spent solvents or those hazardous wastes listed in Sec. 261.33, the
point at which they meet the listing description is somewhat less well
defined, but generally occurs when their intended use has ceased and
they begin to be accumulated or stored for disposal, re-use, or
reclamation. The preamble then goes on to provide several examples
illustrating how this provision would operate in practice (45 FR 33095-
96, May 19, 1980).
The 1980 regulatory preamble also addressed this issue for
characteristic hazardous waste. In defining what waste is considered
hazardous, Sec. 261.3(b)(3) states that ``a solid waste becomes a
hazardous waste . . . when the waste exhibits any of the
characteristics.'' EPA elaborated on this regulatory definition in 1980
by noting that ``paragraph (b) provides that a solid waste is a
hazardous waste whenever it exhibits one or more of the
characteristics. As a practical matter, this means that persons
handling solid waste must determine whether they meet the
characteristics whenever the management of the waste would be subject
to EPA's part 262-265 regulations'' (45 FR 33095, May 19, 1980).
This implies that a generator's waste characterization obligations
may continue beyond the determination made at the initial point of
generation. In the case of a non-hazardous waste that may, at some
point in the course of its management, exhibit a hazardous waste
characteristic, there is an ongoing responsibility to monitor and
reassess its regulatory status if changes occur that may cause the
waste to become hazardous. Thus, the generator must monitor the waste
for potential changes if there is reason to believe that the waste may
physically or chemically change during management in a way that might
cause the waste, or a portion of the waste, to become hazardous.
The preamble to the final rule for the toxicity characteristic
reiterated that the current rules require that the determination of
whether a waste is hazardous is to be made at the point of its
generation (i.e., when the material becomes a solid waste).\51\ In the
preamble to that rule, EPA stated that it believes that the
determination of the regulatory status of a waste at the point of
generation continues to be appropriate and that EPA was retaining the
existing approach of requiring that a determination be made at the
point of generation (55 FR 11830, March 29, 1990).
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\51\ A material must be a solid waste before it can be a
hazardous waste under RCRA.
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Thus, for determining whether a waste exhibits a hazardous
characteristic, generators of solid waste are required to make a
hazardous waste determination at the initial point of generation, in
the form the waste is generated in (i.e., ``as is''), following the
procedure described in Sec. 262.11, which allows use of generator
knowledge and/or testing, as appropriate. A generator's hazardous waste
determination at the initial point of generation is critical to ensure
proper management of the waste not only by the generator, but also by
transporters and TSDFs who rely upon the generator's determination to
allow them to safely manage the waste and provide appropriate
treatment.\52\
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\52\ Note that making a solid and hazardous waste determination
is also applicable for the exemptions identified at Sec. Sec. 261.2
and 261.4 since such exemptions negate the determination.
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As an example, in a letter regarding a waste consisting of solvents
mixed with water that separates and becomes biphasic over time, the
Agency stated that in this situation, the generator must make the
hazardous waste determination not only at the initial point of
generation, but also after the waste separates into phases. This letter
went on to say that a generator's responsibility to make a hazardous
waste determination may continue beyond the determination made at the
initial point of generation. In the case of a nonhazardous waste that
may, at some point in the future, exhibit a hazardous waste
characteristic, there is an ongoing responsibility to monitor and
reassess if changes occur that may cause the waste to become hazardous.
Again, if there is reason to believe that the waste may physically
or chemically change during management in a way that might cause the
waste, or portion of the waste, to become hazardous, the generator must
monitor the waste for these changes. The generator should also notify
any subsequent handlers of the waste so they are aware that they
[[Page 57939]]
should also monitor the waste for changes. This is analogous to and
consistent with situations the Agency has discussed in the past such as
when, over time, sludges that exhibit the characteristic of toxicity
settle out of nonhazardous wastewaters managed in surface
impoundments.\53\
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\53\ Letter from Betsy Devlin, Director of EPA's Materials
Recovery and Waste Management Division, to Gary Jones, Printing
Industries of America, November 20, 2012, RCRA Online 14834.
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Therefore, to clarify that hazardous waste determination must be
made at the point of generation, the Agency is proposing to revise the
regulations at 40 CFR 262.11 by adding a new paragraph (a) that would
state that a hazardous waste determination for each solid waste must be
made at the point of waste generation, before any dilution, mixing, or
other alteration of the waste occurs, and at any time in the course of
its management that it has, or may have, changed its properties as a
result of exposure to the environment or other factors that may change
the properties of the waste.
This addition of paragraph (a) would change current Sec. 262.11(a)
into Sec. 262.11(b) and bump all subsequent paragraphs in that
section.
EPA requests comments on the proposed changes to Sec. 262.11 and
in particular is soliciting comment on whether the proposed new
language is sufficient to improve the existing regulatory text and
better assist generators in making effective hazardous waste
determinations. Additionally, EPA is interested in comments regarding
improvements the Agency could make to the proposed regulatory text.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
4. Determining Whether a Waste Is a Listed Hazardous Waste
a. Identifying listed hazardous wastes. As a general matter,
determining whether a waste is a listed hazardous waste consists of
comparing the waste that the generator generates to the hazardous waste
listing descriptions in Sec. Sec. 261.31 through 261.33. For many
wastes, identifying the origin of the waste is sufficient to determine
whether it is a listed waste and this determination is rather
straightforward. However, this is not always the case. Sometimes
additional information about the waste, the process that generated it
(including production feedstocks), and the listing regulations is
needed to make a reliable determination, including the following: (1)
The regulatory language of the hazardous waste listing; (2) the
regulatory intent of the original hazardous waste listing (as evidenced
by FR notices and technical support documents and interpretative
letters from the original listings); and (3) facts specific to the
waste stream at issue.\54\
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\54\ Note that once listed at Sec. Sec. 261.31-33 wastes remain
listed as hazardous wastes unless and until they are delisted in
accordance with Sec. Sec. 260.20 and 260.22 or unless they are
specifically excluded from Sec. 261.3, regardless of their actual
composition and constituent concentrations even if the manufacturing
and/or treatment processes do not use any of the constituents for
which the wastes were listed.
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These three types of information can be considered as acceptable
types of generator knowledge about a waste stream for making a
hazardous waste determination. A November 20, 1997, Federal Register
notice elaborates on the use of knowledge to make a listing
determination--that is, determining whether a waste is a listed
hazardous waste can be accomplished by comparing information on the
waste stream origin with the RCRA listings set forth in 40 CFR part 261
subpart D. These listings are separated into four major categories or
lists and are identified by EPA hazardous waste numbers starting with
the letters K, F, P, or U, depending on the category of the waste. The
hazardous waste numbers are associated with a specific waste
description, specific processes that generate the wastes, or certain
chemical compounds. For example, EPA hazardous waste number K103 is
defined as ``Process residues from aniline extraction from the
production of aniline.'' A generator that produces such residues should
know, without any sampling or analysis, that these wastes are
``listed'' RCRA hazardous wastes by examining the K103 hazardous waste
description in the hazardous waste lists and comparing this with the
production process that generated the waste.
Other hazardous waste listings describe wastes generated from
generic processes that are common to various industries and activities.
They include, for example, waste solvents (e.g., EPA hazardous waste
numbers F001-F005), which are often used in the degreasing or cleaning
processes of manufacturing operations, and thus are widely generated.
EPA hazardous waste number F001 is a listed waste from a non-specific
source that is defined by providing a list of spent halogenated
solvents at a particular concentration before use and stating that they
are F001 when used in degreasing. Because this listed waste is from a
non-specific source, the generator would compare this listing
description to any industry operation where solvent degreasing is
conducted to determine whether this waste meets the specific listing
description.
Note that these spent solvents are regulated as hazardous under
RCRA, but only if the total of all the solvent constituents before use
is greater than or equal to ten percent of the material's volume. This
adds a layer of complexity to the hazardous waste determination and
requires that the generator have knowledge of the composition of the
unused solvent before the waste is generated.
Finally, the hazardous waste regulations include the ``derived
from'' and ``mixture'' rules, which state that any solid waste derived
from the treatment, storage, or disposal of a listed RCRA hazardous
waste, or any solid waste mixed with a listed RCRA hazardous waste,
respectively, is itself a listed RCRA hazardous waste until delisted
(see Sec. 261.3(a)(2)(iv) and Sec. 261.3(c)(2)(i), respectively) (62
FR 62082, November 20, 1997). The exception to these rules is when the
waste is listed solely because it exhibits a hazardous waste
characteristic, but the particular waste in question no longer exhibits
any hazardous characteristic (Sec. 261.3(g)).
b. Proposal to provide further explanation in regulatory text about
listed waste determinations. The current regulation at Sec. 262.11(b)
provides minimal information to generators for determining whether
their waste is a listed hazardous waste. EPA is proposing that this
paragraph be expanded and that it be redesignated as Sec. 262.11(c) to
make room for existing paragraph (a) of Sec. 262.11, which would be
redesignated as paragraph (b) under the proposed new regulatory
framework at Sec. 262.11 and which addresses the generator
determination of whether the solid waste it has generated is excluded
from regulation under 40 CFR 261.4.
The new Sec. 262.11(c) would identify the types of acceptable
information that the generator could consider in evaluating its waste
against the hazardous waste listing descriptions and would assist them
in determining if they have generated a listed hazardous waste. This
proposed paragraph would state that if the waste is not excluded under
40 CFR 261.4, the person must then use knowledge of the waste to
determine if the waste meets any of the listing descriptions under
subpart D of 40 CFR part 261. Acceptable knowledge that may be used in
making an accurate determination as to whether the waste is listed
includes, but is not limited to, waste origin, composition, the process
producing the waste, feedstock, and
[[Page 57940]]
other relevant information. If the waste is listed, the person may file
a delisting petition under 40 CFR 260.20 and 260.22 to demonstrate to
the Administrator that the waste from this particular site or operation
is not a hazardous waste.
EPA requests comments on these proposed modifications to Sec.
262.11(c).
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization, but the contents of the current Sec.
262.11(b) are proposed to be revised and moved to Sec. 262.11(c) to
account for the proposed inclusion of a new Sec. 262.11(a).
5. Determining Whether a Waste Is a Characteristic Hazardous Waste
The RCRA hazardous waste regulations identify four characteristics
that can result in a hazardous waste classification: ignitability,
corrosivity, reactivity, and toxicity. Wastes exhibiting any of these
characteristics have EPA hazardous waste numbers starting with the
letter ``D'' and the regulations defining these characteristics are at
Sec. Sec. 261.20 through 261.24. The current Sec. 262.11 regulations
identify two methods for determining whether a solid waste is hazardous
because it exhibits a hazardous characteristic: (1) Testing of the
waste or (2) using knowledge of the hazard characteristic and the
materials and processes used in generating the waste. Further, even if
a waste is a listed hazardous waste, the regulations require the
generator to determine whether it also exhibits a hazardous
characteristic to ensure that all waste treatment obligations under
part 268 are met. This ensures that the waste can be treated to
mitigate hazards posed by chemicals or properties for which it was
listed, and also any characteristic hazards, which may be different
from hazards that are the basis for listing.
a. Use of testing to identify waste exhibiting a hazardous
characteristic. The current regulations at Sec. Sec. 261.20 through
261.24 describe two different ways to determine whether a solid waste
is a hazardous waste because it exhibits certain characteristics. In
some cases, the regulations identify specific test methods, the results
of which can be used directly to determine whether the waste exhibits
that characteristic (although testing is not required, and knowledge
may be used). These include for example, the pH test for the
corrosivity characteristic, the flashpoint test for liquids for the
ignitability characteristic, and the toxicity characteristic leaching
procedure (TCLP) for the toxicity characteristic. Other hazardous
characteristics are defined narratively, such as the definitions for
ignitable solids or oxidizers in the ignitability characteristic, and
the reactivity characteristic. When there is no regulatory test, then
knowledge of the waste's origin, production processes, feedstocks,
chemical composition, and other relevant information is acceptable and
necessary for determining whether wastes exhibit one of these
characteristics. Testing that may illustrate and support identification
of the properties of the waste (even though it is not part of the
regulation) can be part of the generators' knowledge of the waste.
The proposed language associated with testing at Sec. 262.11(d)(1)
specifies that generators testing their waste must obtain a
representative sample for testing, as defined at Sec. 260.10 and as
required by all of the hazardous characteristic regulations. For those
characteristics that include a specific test as part of the regulation,
the results of that test, when properly performed and compared with
regulatory thresholds, are definitive for determining whether the waste
is hazardous. The tests specified by the regulations are available in
EPA's ``Test Methods for Evaluation Solid Waste, Physical/Chemical
Methods,'' EPA Publication SW-846. This document which contains all of
OSWER's analytical methods, is available on EPA's Web site at: http://www.epa.gov/epawaste/hazard/testmethods/index.htm.
When evaluating a waste for one of the hazardous characteristics
for which there is a regulatory test, generators are not required to
use the test provided the generators' knowledge about the waste is
adequate to make a reliable determination about the RCRA status of the
waste, as discussed in the next section. However, if a disagreement
arises between a generator and an inspector about whether a particular
waste is hazardous, we would recommend that the generator use the
regulatory test, since the results of the test, when properly
performed, should resolve such a disagreement.
For those characteristics that do not include a specific test, but
provide a narrative definition, the generator can use appropriate
tests, such as those identified in SW-846 that identify hazardous
properties as part of their knowledge about the waste to help determine
whether the waste exhibits the hazardous waste characteristic. In
addition, test methods used by DOT, the National Fire Protection
Association, or other third-party testing organizations may be useful
or relevant for evaluating a particular waste. However, the generator
would need to show the relevance of the test to the waste evaluation.
The Agency has discussed the use or requirement of testing in
various Federal Register notices, guidance documents, and letters. In
promulgating the toxicity characteristic regulations in 1990, EPA
considered whether to require TCLP testing. However, the Agency
determined that the flexibility of the current approach resulted in a
more effective and practical program overall and that liability for
incorrect determinations would provide a strong incentive for
generators to not misclassify their wastes as non-hazardous (55 FR
11829-30, March 29, 1990). In a 1992 letter, the Agency re-emphasized
that generators are not required to test their waste to determine
whether it is hazardous. As part of that letter, the Agency made clear
that to ensure proper handling and treatment, the generator must
identify all the hazardous characteristics a waste may exhibit as
identified in part 261 subpart C.\55\ In another letter, the Agency
discussed the importance of testing a representative sample of the
waste, as required by the hazardous characteristics regulations.\56\
The introductory chapters (1-13) of SW-846 provide guidance on a number
of important analytical issues, including development of sampling plans
and sampling methods, as well as quality control and an overview of the
different types of methods in the guidance.
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\55\ Letter from Sylvia Lowrance, Director of EPA's Office of
Solid Waste to Basil Constantelos, Safety-Kleen, October 28, 1992,
RCRA Online 13570.
\56\ Letter from Sylvia Lowrance, Director of EPA's Office of
Solid Waste to James Maes, Blue Beacon International, Inc., May 1,
1991, RCRA Online 11603.
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b. Use of knowledge to identify waste exhibiting a hazardous
characteristic. As we discussed previously with respect to the
identification of listed hazardous wastes, EPA is also proposing to
modify Sec. 262.11 to include the acceptable types of information that
a generator can consider when applying generator knowledge for making
hazardous waste determinations for potentially characteristic hazardous
waste. Much of this information has been discussed in Federal Register
notices and other guidance documents over the past 30 years.
Specifically, several FR notices discuss what constitutes ``process
knowledge'' for making a hazardous waste determination and include the
following potential sources: (1) Waste analysis data or studies on
wastes generated from processes similar to that
[[Page 57941]]
which generated the original waste; \57\ (2) waste analysis data
obtained by TSDFs from the specific generators that generated the waste
and sent it off site, and (3) waste analysis data obtained by
generators or TSDFs from other generators, TSDFs, or areas within a
facility that test chemically identical wastes.\58\ In addition,
information about chemical and physical properties of manufacturing
feedstocks or product contained in Material Safety Data Sheets (MSDS),
or Safety Data Sheets (SDS) under OSHA's regulations implementing the
UN Global Harmonized System of Classification and Labelling of
Chemicals (GHS), or other reliable data sources may be used to assist
the generator in determining whether any of the product's constituents
or properties would make it a characteristic waste, when discarded.\59\
Also, an FR notice from 2003 identifies still other information that
the Agency has considered appropriate and useful in using knowledge to
classify waste, including special handling of waste by the generator to
temporarily prevent it from exhibiting a hazardous characteristic
(e.g., keeping it either wet or dry to prevent reaction to air or
water, respectively); testing using non-regulatory tests that may
illustrate some of the waste's properties; classification under certain
Department of Transportation hazardous material designations that may
be similar to or overlap with RCRA hazardous characteristics, as well
as identification of environmental damage attributable to mismanagement
or disposal of the waste.60 61 All of the above examples are
considered as acceptable types of knowledge that can be used by a
generator.
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\57\ 62 FR 62081-2, November 20, 1997; 58 FR 48111-12, September
14, 1993.
\58\ 62 FR 62081-2, November 20, 1997.
\59\ Letter from Matt Hale, Director of EPA's Office of Solid
Waste, to Michael Beckel, 3E Company, June 6, 2008, RCRA Online
14790, and 68 FR 59940, October 20, 2003.
\60\ 68 FR 59939-40, October 20, 2003.
\61\ Test methods developed by the UN Committee on Transport of
Dangerous Goods, the National Fire Protection Association, or others
may be useful and relevant for evaluating a particular waste.
However, the generator must show the relevance of the test to waste
evaluation.
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Some states have also provided guidance to their generators on some
of the challenges of only using process knowledge. For example, the
Connecticut Department of Energy and Environmental Protection notes
that although knowledge of process information can be very useful
(especially in identifying hazardous constituents that are known to be
present), it may not always be adequate to fully and properly
characterize a waste. In particular, knowledge of the process may not
account for factors such as trace contaminants that may not be listed
on an MSDS (only chemicals present at concentrations greater than 1%
are typically identified), contaminants introduced during use, and
cross-contamination from other wastes. As a result, some sampling may
be required by the state to properly characterize a waste.\62\
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\62\ See Connecticut Department of Environmental Protection Web
site, Hazardous Waste Determinations/Knowledge of Process at http://www.ct.gov/deep/cwp/view.asp?a=2718&q=325422&deepNav_GID=1967.
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Similarly, the Georgia DNR has highlighted some of the challenges
of only using process knowledge. In particular, a GADNR publication
states, ``Using [process] knowledge alone to make a hazardous waste
determination may not always be adequate due to the variability of the
waste, or the lack of knowledge of chemical processes in generating the
waste. In those cases where the waste generated is variable, generators
may choose to make a determination that the waste is hazardous waste
rather than testing the waste each time it is generated. In addition,
in the case of a hazardous waste that is always hazardous, but is
characteristic for certain constituents at times, but not at others,
the generator may choose to be inclusive of all potential waste codes,
rather than test the waste each time it is generated. If the generator
with a variable waste chooses not to treat the waste as described above
in this paragraph, the waste must be tested as generated.'' \63\
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\63\ ``10 Most Common Hazardous Waste (RCRA) Violations in
Georgia: 40 CFR 262.11 ``Hazardous Waste Determination,'' Georgia
Department of Natural Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf.
---------------------------------------------------------------------------
The Georgia DNR has also issued useful guidance for its generators
regarding the testing and recordkeeping for waste, stating that, ``If
test methods are used to determine if the waste exhibits a
characteristic, a description of how the waste was sampled to obtain a
representative sample and copies of the analytical results for that
sample should be included as documentation of the hazardous waste
determination. The generator may apply knowledge of the waste and the
generation process to determine which constituents/parameters to
include in analyses, as well as where and when sampling is most
appropriate. However, if the full suite of analyses is not applied, the
generator must have sufficient documentation to demonstrate why only
certain analyses were applied, and not all. Adequate documentation
includes a list of constituents/chemicals that make up the waste, their
physical and chemical properties, the effects of the process on the
product/materials in the waste, and whether the product/material picks
up additional hazardous constituents (contaminants) in the process; all
of which provide knowledge as to what constituents should be included
in the analyses.'' \64\ Other states have also issued guidance
illustrating the need for generators to understand the wastes they
generate and to consider all factors affecting waste composition and
properties in making hazardous waste determinations.
---------------------------------------------------------------------------
\64\ ``10 Most Common Hazardous Waste (RCRA) Violations in
Georgia: 40 CFR 262.11 ``Hazardous Waste Determination,'' Georgia
Department of Natural Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf.
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c. Proposal on using process knowledge. In consideration of the
above discussion and to better assist generators in making hazardous
waste determinations, EPA is proposing to revise the regulations
associated with using knowledge to identify waste exhibiting a
hazardous characteristic currently found at Sec. 262.11(c)(2). Under
this proposed rule, Sec. 262.11(c)(2) would move to Sec. 262.11(d)(2)
and would identify various types of information that EPA has identified
in the past as potentially relevant and acceptable for making a RCRA
waste determination, including information about chemical feedstocks
and other inputs to the production process; knowledge of products, by-
products, and intermediates produced by the manufacturing process;
chemical or physical characterization of wastes; information on the
chemical and physical properties of the chemicals used or produced by
the processor or otherwise contained in the waste; testing that
illustrates the properties of the waste; or other reliable and relevant
information about the properties of the waste or its constituents.
A test other than a test method set forth in subpart C of 40 CFR
part 261, or an equivalent method approved by the Administrator under
40 CFR 260.21, is also acceptable and may be used as part of a person's
knowledge to determine whether a solid waste exhibits a characteristic
of hazardous waste. However, such tests do not, by themselves, provide
definitive results and the generator may need to identify why the test
is relevant.
The Agency requests comments on the proposed changes associated
with revising Sec. 262.11(c) and moving it to
[[Page 57942]]
Sec. 262.11(d). In particular, EPA requests comment on whether the
proposed language is sufficient to improve the existing regulatory text
and better assist generators in making more effective hazardous waste
determinations or whether other improvements should be made to the
proposed regulatory text.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization, but the contents of current Sec.
262.11(c) are being revised and bumped to Sec. 262.11(d) to account
for the new Sec. 262.11(a).
6. Documenting and Maintaining Records for Hazardous Waste
Determinations
The Agency is proposing to make one organizational change and
several revisions to the recordkeeping provisions associated with
making a hazardous waste determination, a provision found currently at
Sec. 262.40(c). Section 262.40(c) currently states that a generator
must keep records of any test results, waste analyses, or other
determinations made in accordance with Sec. 262.11 for at least three
years from the date that the waste was last sent to on-site or off-site
treatment, storage, or disposal. This independent recordkeeping
requirement is applicable to SQGs and LQGs only. CESQGs are not
affected by this section.
First, the Agency is proposing that this paragraph be moved to
Sec. 262.11(e) to integrate this provision with the hazardous waste
determination regulations in that section. Additionally, EPA is
proposing to revise the wording to better articulate the types of
information acceptable to making an accurate hazardous waste
determination that must be maintained and to emphasize the importance
of this section.
These records must include, but are not limited to, the following
types of information that have been used by the generator in making the
waste determination: The results of any tests, sampling, or waste
analyses; records documenting the tests, sampling, and analytical
methods used and demonstrating the validity (or quality assurance/
quality control) and relevance of such tests; records consulted in
order to determine the process by which the waste was generated,
information on the composition of the waste and the properties of the
waste; and records which explain the basis for the generator's
determination as described at Sec. 262.11(d)(2).
Second, the Agency is also restating that these records must be
maintained for at least three years from the date that the waste was
last generated by the facility and also stating that should the
generator be involved in any unresolved enforcement action regarding a
waste determination, then the periods of record retention are extended
automatically or if requested by the Administrator. An ``unresolved
enforcement action'' means any formal administrative, civil or criminal
enforcement action which has been filed or issued against a generator
by EPA or authorized state pursuant to RCRA subchapter III or VII and
for which all rights of appeal have not been exhausted.
Additionally, EPA is proposing to revise the wording of the section
to better articulate the types of waste determination information that
must be maintained and to emphasize the importance of this section. In
an effort to improve compliance with the hazardous waste determination
regulations, and therefore improve environmental protection, EPA is
proposing to revise the recordkeeping regulations to require small and
large quantity generators making a waste determination to document and
maintain records of all their hazardous waste determinations, including
determinations where a solid waste is found not to be a hazardous
waste.\65\ In many respects, this proposed change also relates to the
above proposed change in the regulations to clarify that generators
must use due diligence in making a hazardous waste determination by
applying process knowledge and/or testing results to the solid waste
they generated. The Agency believes it is very important that
generators make accurate hazardous waste determinations to avoid
potential adverse impacts to human health and the environment from the
possible mismanagement of hazardous waste. Therefore, we believe the
benefits to human health and the environment far outweigh the minimal
costs of requiring SQGs and LQGs to document hazardous waste
determinations, including determinations where the solid waste was
found not to be a hazardous waste.
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\65\ As will be discussed later in this section, the Agency does
not intend for this provision to apply to those generators that
generate a solid waste that clearly has no potential to be a
hazardous waste.
---------------------------------------------------------------------------
CESQGs would not be affected by this change. However, maintaining a
copy of their hazardous waste determinations may be beneficial to a
CESQG to support any questions posed during an inspection by EPA or
state inspector, as well as to support their waste generator category.
In analyzing Kansas and Iowa inspection data of CESQG facilities,
instances were found where the generator failed to make an accurate
hazardous waste determination resulting in the generator moving into a
higher generator category and becoming subject to the regulations of
either an SQG or LQG.
The hazardous waste determination process is the gateway to the
hazardous waste generator regulatory program and, to a great extent,
its ultimate success. If a generator can accurately identify the types
of hazardous wastes it generates, it can then identify the applicable
regulations it must comply with to ensure safe management of that
waste. Conversely, if a generator fails to make an accurate hazardous
waste determination, that failure can potentially lead to the
mismanagement of hazardous waste and environmental damages. In
addition, the generator could then be cited in an enforcement action
not only for that violation, but also for failing to comply with other
generator regulations, including operating without a RCRA permit (see
Sec. 262.34(a) and (d)).
The Agency made this point clear when it initially promulgated the
hazardous waste generator rules in February 1980, where it stated,
``The determination is the crucial, first step in the regulatory
system, and the generator must undertake this responsibility
seriously'' (45 FR 12727, February 26, 1980). Unfortunately, as
previously discussed, there is a high rate of noncompliance with the
hazardous waste determination regulations.
Under the current regulations at Sec. 262.40(c), a generator is
required to document and maintain records of any test results, waste
analyses, or other determinations made in accordance with Sec. 262.11
for at least three years from the date that the waste was last sent to
on-site or off-site treatment, storage, or disposal. When an inspector
sees a container or other waste management unit, that inspector has the
authority to ask the generator how it determined the regulatory status
of the waste, and the generator should be able to articulate how that
determination was made. In many instances, the inspector will also ask
to see any documentation supporting a questionable determination that a
material is not a hazardous waste in order to understand how the
generator applied process knowledge or the results of testing the waste
to support its non-hazardous waste determination.
The Agency strongly believes that documentation must be maintained
for waste determinations, not only when a solid waste is a hazardous
waste but also when a solid waste is determined by the generator to not
be a hazardous
[[Page 57943]]
waste. The primary obligation for generators is to accurately determine
whether or not a solid waste is a hazardous waste. Requiring
documentation of this determination, regardless of the outcome, is
critical in ensuring compliance with the current hazardous waste
determination regulations.
The requirement that a generator maintain records of determinations
that a solid waste is not a hazardous waste was originally discussed in
the preamble to the 1978 proposed rule for the hazardous waste
regulatory program. In fact, the Agency proposed the following at 40
CFR 250.10(d)(1)(iii): ``Generators who determine that their waste is
not hazardous shall retain copies of the evaluation performed and shall
repeat the necessary evaluation or testing when there is a significant
change in their feed material or operations which may alter the test
results.'' (43 FR 58955, December 18, 1978). In the February 26, 1980,
final rule for hazardous waste generators, however, the Agency did not
make this requirement final. Rather, the Agency simply promulgated the
provision stating that a generator must keep records of any test
results, waste analyses, or other determinations made in accordance
with Sec. 262.11 for at least three years from the date the waste was
last sent to on-site or off-site treatment, storage or disposal (45 FR
12734), which could be interpreted to mean either that a generator was
required to keep records or that a generator was not required to keep
records of solid wastes that were not hazardous wastes. (This provision
is currently located at Sec. 262.40.)
The Agency next discussed this issue in a March 29, 1990, Federal
Register notice which clarified the rules by stating that recordkeeping
for determinations that a solid waste was not a hazardous waste was not
necessary. Specifically, the preamble to this final rule stated, ``If a
waste is determined to be hazardous, the generator must keep records
establishing the basis for that determination (40 CFR 262.40(c)). These
records must be maintained for at least 3 years after the generator no
longer handles the waste in question. Neither of these recordkeeping
requirements, however, applies to solid waste generators who do not
generate hazardous wastes'' (55 FR 11829, March 29, 1990).
At the time the 1980 rules were finalized, the Agency had no
experience with their implementation and whether documentation
associated with determinations that a waste was not a hazardous waste
was necessary. The Agency now believes that the original approach was
insufficient. We now have 30 years of experience and compliance data to
support an independent requirement that, as part of their obligation to
determine whether a waste is hazardous under Sec. 262.11, generators
need to keep records and documentation of their waste determinations,
including determinations that a solid waste is not a hazardous waste.
As an example, Georgia DNR requires that, in using generator
knowledge, the determination must be valid, correct, and supported by
documentation, especially when that determination is that the waste is
not a hazardous waste or does not carry certain waste codes (contain
certain contaminants).\66\ Even in cases where state regulations do not
explicitly require documentation supporting a determination that a
solid waste is not a hazardous waste, they will seek documentation
supporting that determination when evidence suggests the material is a
hazardous waste. Should documentation not be presented, EPA and the
states will often take a sample to answer their own questions about
waste status.
---------------------------------------------------------------------------
\66\ ``10 Most Common Hazardous Waste (RCRA) Violations in
Georgia: 40 CFR 262.11 ``Hazardous Waste Determination,'' Georgia
Department of Natural Resources https://epd.georgia.gov/sites/epd.georgia.gov/files/related_files/site_page/guidehwdet.pdf.
---------------------------------------------------------------------------
The Agency does not believe requiring generators to retain
documents used to make their non-hazardous waste determinations will
pose an undue burden. In a review of 26 state waste determination
regulations as well as discussions with several state agencies, the
Agency found that 17 states already require documentation and
recordkeeping of a solid waste that is not a hazardous waste.\67\ In
EPA's discussions with states, several states mentioned that they
interpret the term ``other determinations'' at Sec. 262.40(c) to mean
determinations that a solid waste is not a hazardous waste. Further,
generators should already have this information collected as part of
their compliance with other parts of Sec. 262.11.
---------------------------------------------------------------------------
\67\ As an example, some states interpret the term ``other
determinations'' at 40 CFR 262.40(c) to mean determinations that a
solid waste is not a hazardous waste.
---------------------------------------------------------------------------
An examination of biennial report data for a small sample of LQGs
for both 2009 and 2011 reporting cycles demonstrated that the majority
of generators generate the same hazardous waste streams from year to
year. In other words, the Agency believes that, for the most part, SQGs
and LQGs will make a hazardous waste determination once and will not
need to make a new solid waste determination unless something changes
in their process, thereby reducing the need to document waste
determinations. This suggests that the burden of documenting a non-
hazardous waste determination should be relatively minimal.\68\
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\68\ Assessment of the Potential Costs, Benefits, and Other
Impacts of the Improvements to the Hazardous Waste Generator
Regulatory Program, As Proposed, prepared for U.S. Environmental
Protection Agency by Industrial Economics, Incorporated, May 2015,
page 3-8.
---------------------------------------------------------------------------
In light of the importance of making accurate hazardous waste
determinations, and because of the high rates of non-compliance with
Sec. 262.11 among generators, the Agency is proposing to modify Sec.
262.11 to specifically require that SQGs and LQGs document and maintain
records of all determinations, including determinations that their
solid waste is not a hazardous waste. Again, the Agency is not
proposing to apply this independent requirement to CESQGs.
A key issue with this provision will be defining the scope of
applicable entities for this requirement. First, documentation will not
be required for entities that do not generate a solid waste, as defined
by Sec. 261.2, or that generate a solid waste that has been excluded
or exempted from RCRA Subtitle C controls. However, all potential
entities, with the exception of households, must determine whether they
generate a solid waste as defined by Sec. 261.2 for purposes of the
existing RCRA hazardous waste regulations. Solid wastes under Sec.
261.2 include spent materials, sludges, by-products, scrap metal, and
commercial chemical products (CCPs) that are discarded. Specifically:
Spent materials as defined in Sec. 261.1(c)(1), include
any material that has been used and as a result of contamination can no
longer serve the purpose for which it was produced without processing.
Sludge, as defined in Sec. 260.10, means any solid, semi-
solid, or liquid waste generated from a municipal, commercial, or
industrial wastewater treatment plant, water supply treatment plant, or
air pollution control facility.
A by-product, as defined in Sec. 261.1(c)(3), is a
material that is not one of the primary products of a production
process and is not solely or separately produced by the production
process. Examples are process residues such as slags or distillation
column bottoms. The term does not include a co-product that is produced
for the general public's use and is ordinarily used in the form it is
produced by the process.
[[Page 57944]]
Scrap metal, as defined in Sec. 261.1(c)(6), is bits and
pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or
metal pieces that may be combined together with bolts or soldering,
which when worn or superfluous can be recycled.
CCPs are those materials listed in Sec. 261.33 or those
CCPs which exhibit one or more of the hazardous waste characteristics.
The tern CCP includes those chemical substances which are manufactured
or formulated for commercial or manufacturing use and consist of
commercially pure grades of the chemical substance, any technical
grades of the chemical substance that are produced or marketed, and all
formulations in which the chemical substance is the sole active
ingredient. CCPs do not include or refer to wastes, such as a
manufacturing process residue, that contain any of the chemical
substances.
Where there is a potential for a discarded material to be a
hazardous waste listed under part 261 subpart D or when the material
may contain hazardous constituents that would exhibit a characteristic
of hazardous waste (i.e., ignitability, reactivity, corrosivity or
toxicity) under part 261 subpart C, these entities must make a
hazardous waste determination and document that determination,
including for those solid wastes that are not hazardous wastes.
If an entity is generating a hazardous waste (and is, therefore, a
hazardous waste generator) and if it is generating sufficient amounts
of hazardous waste in a calendar month to be considered an SQG or an
LQG, then these generators would be responsible for documenting
determinations under this proposed revision.
We would note that the existing hazardous waste regulations already
require every generator to make a waste determination and that the only
additional provision that this proposal is addressing is that they
document that waste determination, including for those wastes that are
not hazardous waste. The focus of this provision is on solid wastes
that have the potential to be hazardous wastes. Thus, for the purposes
of this proposed provision, the Agency is not interested in entities
that generate solid wastes that clearly have no potential to be
hazardous, such as food waste, restroom waste, or paper products. There
are literally hundreds of thousands of entities who generate such
wastes. In addition, lawyers and accountants, business offices,
religious organizations, governmental organizations, engineering and
architectural firms, among other sectors, are not meant to be impacted
by this provision for everyday municipal waste that does not have the
potential to be hazardous. Most elementary schools also should not be
affected by this provision unless they have laboratories that use large
amounts of hazardous chemicals where greater than 100 kilograms of non-
acute hazardous waste (or 1 kilogram of acute hazardous waste) is
discarded monthly or another source of potentially hazardous waste.
In addition, as noted previously, for the purposes of this proposed
provision, the Agency is not interested in entities that generate 100
kilograms or less of non-acute hazardous waste or 1 kilogram or less of
acute hazardous waste in a calendar month (e.g., CESQGs). The Agency
requests comment on verifying the above sectors and identifying other
industrial or non-industrial sectors where the probability is high that
generators either do not generate solid wastes that would be identified
or characterized as hazardous under RCRA, or if they do, they generate
small enough amounts to most likely qualify as a CESQG.
The Agency does not believe the cost of documenting a waste
determination, whether non-hazardous waste or hazardous waste, will be
substantial. As previously discussed, generators may use either the
results of testing their waste or process knowledge to make a hazardous
waste determination. If a generator tests its waste or hires a third
party to do so, then the written results of those tests will be the
documentation. Similarly, if generator knowledge is used to make the
waste determination, then a statement describing what the basis of that
knowledge was (e.g., information about chemical feedstocks and other
inputs to the production process and how those chemical feedstocks may
change when introduced into the production process; knowledge of
products, by-products, and intermediates produced by the manufacturing
process; chemical or physical characterization of wastes; information
on the chemical and physical properties of the chemicals used or
produced by the processor or otherwise contained in the waste; testing
that illustrates the properties of the waste; or other reliable and
relevant information about the properties of the waste or its
constituents) will most likely be sufficient.
In estimating the impact of requiring SQGs and LQGs to document
their non-hazardous waste determinations, the Agency examined the
relationship of the number of hazardous wastes generated per facility
to non-hazardous waste generated per facility and established an
approximate relationship of 60% to 40%. As part of this analysis, the
Agency also found from examining the biennial report data that 50
percent of LQGs generate from one to five hazardous waste streams
annually and that many of these generators continue to generate the
same waste streams from year to year.\69\ Therefore, for most LQGs, the
incremental cost to document their non-hazardous waste determinations
should be minimal. The Agency believes that many SQGs also generate the
same waste streams from year to year.
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\69\ Assessment of the Potential Costs, Benefits, and Other
Impacts of the Improvements to the Hazardous Waste Generator
Regulatory Program, As Proposed, prepared for U.S. Environmental
Protection Agency by Industrial Economics, Incorporated, May 2015,
page 3-8.
---------------------------------------------------------------------------
However, from examining biennial report data, the Agency is also
aware of situations where a generator generates many different
hazardous waste streams each year. Examples include academic and
industrial laboratories, chemical manufacturers, and TSDFs. As an
example, an analysis of the 2011 Biennial Report identified 843 LQGs
reporting that they generated 41 or more hazardous waste streams. This
analysis derived an average of 17 hazardous waste streams being
generated by LQGs. EPA can infer that these entities also generate
numerous types of solid, but not hazardous, waste streams.\70\
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\70\ A more detailed discussion of this analysis can be found in
the Regulatory Impact Analysis that accompanies this preamble and
that can be found in the docket to this rulemaking.
---------------------------------------------------------------------------
Although TSDFs and chemical manufacturers may generate many
different types of hazardous waste, many of them also have
sophisticated protocols and testing procedures in place to make a
hazardous waste determination. These processes should be sufficient to
provide the proposed documentation to verify that the solid waste is or
is not a hazardous waste. Other organizations may not and the Agency is
interested in how best to address this important subject.
The Agency believes that requiring SQGs and LQGs to document their
non-hazardous waste determinations is important to the success of RCRA
hazardous waste program in protecting human health and the environment.
Additionally, the Agency believes the proposed change will encourage
generators to develop better internal processes and improve overall
compliance with the RCRA hazardous waste regulations. At issue is how
best to implement this provision in the most cost-effective manner
possible. Therefore, the Agency seeks comment
[[Page 57945]]
on how to balance the burden of recordkeeping with the benefits from
ensuring waste is properly identified and managed.
The Agency seeks comment from those generators that generate many
new wastes each year, on ways that could be used to reduce burden while
maintaining sufficient protection. The Agency also seeks comment on
whether there are particular industrial sectors where many, if not
most, solid wastes generated could be clearly determined not to be
hazardous wastes and whether there are families of solid wastes where
it is clear that they will not be hazardous wastes and thus can be
eliminated from this provision.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization and is located at Sec. 262.11(e) of the
proposed regulation. The proposed reorganization is discussed in
section XIII of this preamble.
7. Specifically Stating That the Hazardous Waste Determination Must Be
Accurate
Generators have an obligation to apply due diligence in making an
accurate hazardous waste determination by using either knowledge of
their processes and waste and/or testing of their waste. As discussed
above, RCRA inspectors often cite generators for ``failing to make a
waste determination'' at Sec. 262.11. By that we mean the generator
failed to accurately identify a material that could be a solid waste,
or failed to accurately make a hazardous waste determination. In both
cases, the generator's failure to make accurate solid and hazardous
waste determinations may result in adverse impacts to human health and
the environment.
As previously stated, at the core of the RCRA hazardous waste
program is the need for generators to make an accurate hazardous waste
determination. Therefore, to emphasize this point the Agency is
modifying the regulatory text at 40 CFR 262.11 to emphasize and make
clear that a generator who generates a solid waste, as defined in 40
CFR 261.2, must accurately determine if that waste is a hazardous
waste.
A 1993 FR notice states that in the case where a generator sends
waste off site for treatment, storage, or disposal, the TSDF may rely
on process knowledge supplied by the generator as a basis for the
TSDF's waste characterization (40 CFR 264.13). The notice points out
that while using process knowledge is ``seemingly attractive because of
the potential savings associated with using existing information (such
as published data), the facility must ensure that this information
accurately characterizes applicable wastes'' (58 FR 48111, September
14, 1993).
Generators often rely on a third party, such as a TSDF, to help
them make a hazardous waste determination. Whether the generator uses a
third party or not, the generator is responsible for that
determination. As such, the generator should still apply its due
diligence to ensure a solid waste is not a hazardous waste, and if a
hazardous waste, that it is characterized accurately.
Also with respect to characterizing a hazardous waste accurately, a
generator identifying all possible RCRA waste numbers (or RCRA
hazardous waste codes) on its manifest or container marking does not
satisfy the requirement to make an accurate waste determination. First,
the TSDF will not be able to treat the waste effectively or efficiently
to comply with land disposal restriction requirements because it will
not know precisely what waste it needs to treat. Second, the generator
clearly did not apply its due diligence seriously.
The Agency also realizes that generators, whether inadvertently or
intentionally, often make a hazardous waste determination when the
material is actually a non-hazardous solid waste. The intent of this
proposed change would not impact such determinations. The generator is
always free to manage its solid waste as a hazardous waste if it so
desires. However, the Agency is concerned about other related
situations, such as when a generator applied due diligence but still
made an incorrect hazardous waste determination potentially posing a
risk to the environment, or where a generator intentionally tried to
circumvent waste determination requirements.
EPA specifically requests comment on reasons why it may not be
feasible to require a generator's solid and hazardous waste
determinations to be accurate and how best the Agency can make clear
that generators are responsible for making an accurate hazardous waste
determination. EPA also requests comment regarding ways the proposed
regulatory text could be improved to better assist generators in making
more effective hazardous waste determinations.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
8. Taking Comment on Maintaining Records Until the Generator Closes
EPA is also using this notice to take comment on an additional
revision to the hazardous waste determination regulations at Sec.
262.11, but is not proposing any regulatory text for this change. The
Agency requests comment on requiring SQGs and LQGs to maintain records
of their waste determinations until the generator closes its site,
rather than for at least three years from the date that the waste was
last sent to on-site or off-site treatment, storage and disposal.
Because an inspector may not be able to inspect every SQG and LQG
within three years from when the solid or hazardous waste was first
generated, a generator may discard its waste determination records
prematurely. For practical reasons, the Agency believes a generator
will want to maintain records of its solid and hazardous waste
determinations to support and respond to any questions an inspector may
have about a particular waste determination--even if it is more than
three years from when it was first generated. Similarly, the Agency
believes generators that generate large numbers of solid and hazardous
waste streams annually will computerize their records, making it easy
to store and retrieve them when necessary. For these reasons, the
Agency does not believe requiring SQGs and LQGs to maintain records of
their active solid and hazardous waste streams should be overly
burdensome.
Finally, while the Agency is not proposing that CESQGs maintain
documentation of their non-hazardous waste determinations, the Agency
does seek comment on the economic costs and environmental benefits of
potentially requiring CESQGs to maintain documentation of their
hazardous waste determinations, including their non-hazardous waste
determinations. The Agency realizes that the total number of CESQGs is
very large--ranging from an estimated 293,000 to 463,000; however, the
Agency believes that based on the number of waste streams generated by
SQGs and LQGs that such generators should only be generating a few
solid waste streams and in many cases using their knowledge of the
process and process materials in making hazardous waste determinations.
In other words, the burden of documenting their hazardous waste
determination should not be that costly for each CESQG.
Conversely, the costs of not making an accurate hazardous waste
determination could be significant environmentally and financially to
the CESQG. For
[[Page 57946]]
example, in the case that a CESQG fails to make an accurate hazardous
waste determination, resulting in the CESQG actually being either a SQG
or LQG, hazardous wastes will likely be illegally managed. Hazardous
wastes that should have been sent to a RCRA-permitted treatment,
storage or disposal facility would instead be sent to a municipal solid
waste landfill, potentially posing future environmental problems for
that landfill and community. EPA requests comment on the potential
environmental benefits that could be achieved if the Agency were to
require that CESQGs document determinations that their solid waste is
or is not a hazardous waste.
9. Hazardous Waste Determination Electronic Decision Tool
Building upon the above discussion and the importance of making
accurate hazardous waste determinations, the Agency also seeks comment
on the feasibility of developing a user-friendly electronic hazardous
waste determination decision tool that generators could use to assist
them in making a hazardous waste determination. This electronic tool
would guide generators through a series of analytical decision-type
(Yes or No) questions to assist them in determining whether the solid
waste they have generated is also a hazardous waste subject to the
applicable RCRA hazardous waste regulations. As part of this decision
tool, generators would be able to document reasons why the solid waste
is a hazardous waste, or conversely, why the solid waste is not a
hazardous waste.
Given the large number and great variety of hazardous waste
streams, a key challenge would be to determine how best to design this
decision tool if the Agency went forward in developing it. Potential
approaches include designing the tool conceptually around the
following: (1) Industrial sectors; (2) families of industrial materials
(i.e., solvents, acids, metals, etc.); (3) broad type of hazardous
secondary material (i.e., spent material, by-product, sludge, etc.);
(4) listed hazardous waste organized by specific industrial sector or
non-specific sectors (e.g., solvents, electroplating wastes, and
characteristic hazardous waste), or (5) an eclectic approach that
combined different aspects of the approaches in (1) through (4).
This decision tool could assist generators to make the following
determinations under Sec. 262.11:
Whether the waste is excluded from regulation under Sec.
261.4 [Sec. 262.11(a)]
Whether the waste meets any of the hazardous waste listing
descriptions in part 261 subpart D [Sec. 262.11(b)]
Whether the waste exhibits one or more hazardous
characteristics of hazardous waste, as identified in part 261 subpart C
[Sec. 262.11(c)]
What are all applicable EPA hazardous waste codes for
wastes determined to be hazardous [Sec. 262.11(f)]
An electronic decision tool could also possibly provide a way for
SQGs and LQGs to maintain records supporting their waste determinations
[Sec. 262.11(e)].
Developing this decision tool would be a major investment on the
part of the Agency and could take several years to fully develop, test,
and make operational, with different components produced for use over
time. However, even when completed (assuming it was a worthwhile Agency
investment to pursue), this decision tool would never be able to
account for all the industrial sector/family of industrial materials/
type of hazardous secondary material possibilities that exist in
industry. Therefore, scoping such a decision tool to capture as much of
the most likely industrial sector/family of industrial materials/type
of hazardous secondary material possibilities would be the Agency's
goal.
Additionally, if such a decision tool were to be developed, the
generator would still be ultimately responsible for making the
hazardous waste determination, since no decision tool could ever
account for its site-specific circumstances.
Hazardous waste determination software or tools could be web-based,
off-the-shelf, or both. The software or tools could be developed by
EPA, by authorized states and tribes, by private parties, or by public
and private sector collaboration.
The Agency particularly requests comment on the feasibility of the
private sector developing electronic application software (apps). An
initial search for preexisting hazardous waste determination software
identified no relevant, privately-developed, off-the-shelf software
products to assist generators in making accurate waste determinations.
However, EPA did identify a variety of state and academic internet-
based hazardous waste determination tools and workbooks.\71\ At issue
is whether there is a market for such an app and what EPA could do to
facilitate software development. The Agency estimates the universe of
hazardous waste generators to be approximately 400,000 to 500,000, with
a large majority being conditionally-exempt small quantity generators
that generate up to 220 pounds in a calendar month.
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\71\ See, for example, the Washington Department of Ecology
created an Excel program titled ``Designation Tool 2.0 for Excel
2007,'' to help business make accurate waste designations in the
state of Washington. http://www.ecy.wa.gov/programs/hwtr/manage_waste/des_intro.html; the Texas Commission on Environmental
Quality created an online hazardous waste determination tool, the
``Waste Designation Decision Matrix.'' http://www.tceq.texas.gov/assistance/waste-matrix/matrixenter.html, and The Connecticut
Department of Energy and Environmental Protection's RCRA Help page
provides a guide designed to help businesses and individuals figure
out which hazardous waste requirements apply and how to comply with
them. http://www.ct.gov/deep/cwp/view.asp?a=2718&q=434308&deepNav_GID=1967%20.
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EPA is seeking comment on whether development of an electronic
hazardous waste determination decision tool is feasible and by whom.
The Agency requests comment on what circumstances would encourage the
private sector to develop such a tool or app and on what generators
would like to see in terms of components and organization that would
facilitate a generator using it.
C. SQG and LQG Re-notification (40 CFR 262.12)
1. Background
Under existing 40 CFR 262.12, SQGs and LQGs are required to notify
EPA using EPA form 8700-12 (Site ID form) in order to obtain an EPA
identification number (EPA ID). Without such identification, a
generator cannot treat, store, dispose of, or transport, its hazardous
waste. Once a generator applies for and receives an EPA ID, information
provided by the generator (e.g., name, address, contact, industrial
sector, EPA hazardous waste numbers) is entered into the state system
and/or EPA's national data system (RCRAInfo) to support program
management activities.
Subsequent to obtaining an EPA ID, there is no federal regulation
requiring LQGs or SQGs to re-notify EPA to update their site
information or confirm the information remains accurate. However, LQGs
do update their site information as part of the biennial report.
EPA believes that about half the states require annual reporting by
LQGs and some require periodic reporting by SQGs in order to determine
user fees based on the amount of hazardous waste they generate.
However, the data from these annual reports may not always be submitted
to EPA's national RCRA database. Additionally, although many LQGs
currently submit a Site ID form as part of their biennial report, this
[[Page 57947]]
independent requirement does not apply to SQGs or to entities that
initially notified as an LQG, but were an SQG during the biennial
reporting year and, thus, were not required to submit a biennial
report.
2. Problems With Outdated Information
The lack of re-notification at the federal level greatly impairs
EPA's and the states' ability to use the information for compliance
monitoring and programmatic purposes. This is because a one-time
notification provides no assurance that the information collected in
EPA's and the states' databases over time will accurately reflect which
facilities are generating hazardous waste. For example, a recent
examination of EPA's data reveals that there are thousands of SQGs who
last notified over 20 years ago.\72\ EPA is concerned that the
probability a generator that last notified prior to 1990 is still
active and still an SQG is quite small. Because of the outdated
information, it is difficult for EPA to ascertain even simple
statistics, such as the number of SQGs currently operating, let alone
information that can be reliably used for programmatic and compliance
monitoring purposes.
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\72\ Count of SQGs by Year of Last Notification Received,
December 12, 2012. Developed from RCRAInfo data system using Form
8700-12 Site Identification Form information.
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Because of the lack of integrity in the data, the Agency and states
must spend their limited resources to `clean up' the data every time
regulatory authorities try to use it, for example, to estimate
regulatory burden and benefits to the regulated community, offer
compliance assistance, or produce public reports on hazardous waste
generation. Furthermore, regulatory authorities may waste time and
resources monitoring compliance at entities that no longer generate
hazardous waste. This inefficient use of resources lowers the
effectiveness of regulators to monitor compliance overall and could
potentially increase the risk of environmental damage from
mismanagement of hazardous waste. In summary, the Agency and many
states have, for the most part, an outdated, incomplete, and inaccurate
understanding of the LQG and SQG universe. Consequently, over time,
this undermines the ability of EPA or the states to make effective
programmatic decisions.
3. Proposed Periodic Re-Notification
EPA is proposing to add an explicit independent requirement to the
regulations that both LQGs and SQGs re-notify EPA using the Site ID
form (EPA form 8700-12). \73\ The intent of this re-notification
provision is to provide basic information to the regulatory agencies
about who is generating and managing hazardous waste. The information
required in the Site ID form includes:
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\73\ To the extent that other parts of the RCRA regulations
require the submittal of EPA form 8700-12, for example, used oil
generators or handlers, the proposed re-notification provision would
not impact them, unless they were also an LQG or SQG of hazardous
waste.
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Site name, address, contact information, and EPA ID number
NAICS (North American Industry Classification System) code
Information regarding the entity's legal owner and
operator
Type of regulated waste activity (e.g., hazardous waste
generator category and whether the entity is a transporter, treater,
storer, disposer, or recycler of hazardous waste)
Universal waste activities
Used oil activities
Notification for opting into or withdrawing from managing
laboratory hazardous waste under 40 CFR part 262 subpart K
Description of hazardous waste, including a list of
applicable federal and state hazardous waste numbers
Notification of hazardous secondary material activity
managed under certain definition of solid waste exclusions.
Certification signed by the entity's legal owner,
operator, or authorized representative.
The specific information included in the notification will enable
regulatory agencies to monitor compliance adequately and to ensure
hazardous wastes are managed according to the appropriate RCRA
hazardous waste regulations. The information can be used to assist RCRA
inspectors in determining which facilities may warrant greater
oversight and provides a basis for setting enforcement priorities.
Notification information is collected in EPA's RCRAInfo database, which
is the national repository of all RCRA Subtitle C site identification
information, whether collected by a state authority or EPA. EPA
provides public access to this information through EPA's public Web
site at http://www.epa.gov/enviro/html/.
Once an initial notification (to obtain an EPA ID number) is
submitted, to re-notify, a generator need only review the previous
notification and either make changes if necessary or confirm that the
information remains accurate. Furthermore, EPA has recently made
available an electronic system for the regulated community to use to
submit Site ID forms electronically, which will further reduce burden
on generators. Facilities should check with their states regarding
whether their state will use EPA's electronic submittal process.
The proposed rule would require LQGs, having first obtained an EPA
ID number, to re-notify EPA using the Site ID form prior to March 1 of
each even-numbered year. This time frame is the same as that for the
biennial reports in 40 CFR 262.41. Adding this provision to Sec.
262.12 in the existing regulations (which is Sec. 262.18 in the
proposed reorganization in this proposed rule) reflects existing
processes by which LQGs already submit Site ID forms as part of the
biennial reporting process. EPA also believes that the requirement to
re-notify is particularly important considering generators may change
regulatory status from LQGs to SQGs and vice versa.
EPA is also proposing that SQGs, having first obtained an EPA ID
number, must re-notify EPA using the Site ID form prior to February 1
of each even-numbered year. We propose the two-year time frame to mimic
the current biennial reporting process for LQGs; however, we propose to
require that SQG re-notifications (due by February 1 of each even-
numbered year) to occur one month prior to the due date for LQG re-
notifications (due by March 1 of each even-numbered year) to help
reduce the burden on states that must process the re-notifications. We
are also taking comment on whether re-notifying every four years would
be appropriate for SQGs.
EPA also considered whether to require SQGs to re-notify on
alternate years--that is, by March 1 of each odd-numbered year, from
LQGs, in order to further reduce the burden on states. However, this
may complicate the regulations because a generator can change its
generator category year-to-year. For example, it is possible that a
generator who is an LQG during the SQG-reporting year and an SQG during
the LQG-reporting year would not have to submit any notification to
EPA. Furthermore, requiring SQG and LQG re-notifications during the
same year enables EPA to include information regarding SQGs in its
National Biennial RCRA Hazardous Waste Report.
EPA believes that requiring a set due date (i.e., February 1) will
ease implementation and compliance with the re-notification provision.
However, one alternative that the Agency seeks comment on is to allow
for `rolling' notifications, in that generators could re-notify at any
time of the year as long as they re-notified within two years of the
date of their last notification. EPA understands that this alternative
may further reduce burden on the states that would process the re-
notifications, in
[[Page 57948]]
that the state would receive the notifications throughout the year
rather than all at once; however, it may also complicate compliance by
the regulated community, as well as compliance monitoring by the states
and EPA, as each LQG and SQG would have a unique `due date' that must
be individually tracked.
Another alternative to requiring periodic notification (e.g., every
two years) that the Agency seeks comment on would be for EPA to require
an SQG or LQG to re-notify only in the event of a change to certain
information, such as (1) change in ownership and (2) change in
generator category.\74\ The Agency believes that updating this specific
information is particularly important because:
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\74\ EPA is also proposing a notification requirement for (1)
generators undergoing closure (section VIII.G.); (2) LQGs that
receive hazardous waste from CESQGs (section VII.C) and (3) episodic
generators (section IX), which are discussed in other parts of this
preamble.
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Re-notifying when a generator has a change of ownership is
important so that EPA and the states understand who is legally
responsible for managing the generated hazardous waste.
Re-notifying due to a change in generator category
provides EPA and the state with information regarding what regulations
apply to the generator and thus assist with compliance assistance and
monitoring activities.
EPA notes that, because an EPA ID number is specific to a site
location, a change in site address for an entity already requires the
entity to apply for a new EPA ID number using the Site ID form.
In this case, EPA would require re-notification within 30 days of
when the change occurred. Re-notification in the event of change to
these two items may further reduce burden on LQGs and SQGs, because EPA
assumes that these changes would happen fairly infrequently. However,
EPA also notes that although LQGs and SQGs would only have to re-notify
in the event of a change in its ownership or generator category, re-
notification would require a complete submittal of all information
included in the Site ID form. EPA understands that this alternative may
also increase the complexity of implementing the regulation because it
would be difficult for regulatory authorities to ensure that re-
notifications were received according to the regulations. For example,
if a facility last notified ten years ago, it would be difficult for
EPA and the states to ascertain whether the generator has failed to re-
notify in compliance with the regulations or that the generator's
information simply hasn't changed since its last notification.
Additionally, EPA notes that re-notification based on a change does not
result in data that is as reliable as data provided in periodic re-
notifications because it provides no information on generators that
have stopped operations.
4. Request for Comment
EPA requests comment on its proposed change to require re-
notification for SQGs and LQGs, including information regarding the
benefits and burden of such a provision. EPA also requests comment on
whether such re-notification should be every two years or one of the
other alternatives discussed above. Finally, EPA requests comment on
any other alternatives for an independent re-notification requirement,
including suggestions that would reduce the burden on states that must
process re-notifications.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. EPA is proposing to move Sec. 262.12 (EPA
identification numbers) to Sec. 262.18 and is proposing to revise the
title of the section to read ``EPA identification numbers and re-
notification for large quantity generators and small quantity
generators.''
D. Determining Generator Category (Proposed New Section 262.13)
EPA is proposing a new section Sec. 262.13, which would describe
how a generator determines which generator category it would be subject
to. Proposed Sec. 262.13 discusses the framework for making a
generator determination in paragraph (a) and stresses that the
calculation is made monthly and that the generator category can change
from month to month. The proposed regulatory text would state that a
generator's category is determined each month by the amount of
hazardous waste it generates and may change from month to month. The
regulation sets forth procedures to determine whether a generator is a
very small quantity generator, a small quantity generator, or a large
quantity generator for a particular month, as defined in Sec. 260.10.
The discussion in Sec. 262.13(a) is not a new requirement for
generators, but these steps are not currently laid out in the
regulations in as succinct a manner. EPA believes that the addition of
the definitions of generator categories to Sec. 260.10 and this
paragraph on how to make a generator category determination should
provide specific instructions on this matter for the regulated
community and thereby improve compliance with the generator
regulations.
Proposed paragraph (b) of Sec. 262.13 would specifically address
the situation in which a generator generates any combination of non-
acute hazardous waste, acute hazardous waste, and the residues from the
cleanup of a spill of acute hazardous waste. This paragraph presents a
series of steps for a generator to follow when determining its
generator category to ensure that it selects the appropriate category
for the total amount and types of hazardous waste generated.
Proposed Sec. Sec. 262.13(c) and (d) are existing provisions that
we are proposing to move from Sec. Sec. 261.5(c) and (d) of the
existing regulations with a few small wording changes to reinforce that
category determinations are made monthly and do not otherwise represent
a change in the generator regulations.
EPA is requesting comment on the proposal to add this description
of how a generator is to determine its generator category to the
regulations.
Effect of the Proposed Reorganization: This section is partially
affected by the proposed reorganization. Some of the language proposed
for Sec. 262.13 on what materials to count when determining generator
category are moved from existing Sec. 261.5, but much of this proposed
regulation is new text.
E. Requiring Hazardous Waste Numbers When Marking of Containers Prior
to Shipping Hazardous Waste Off Site to a Designated RCRA Facility (40
CFR 262.32)
The Agency is proposing to modify 40 CFR 262.32 to require SQGs and
LQGs to mark their containers with the applicable EPA hazardous waste
number (RCRA hazardous waste code) prior to transporting their
hazardous waste off site to a designated RCRA facility for subsequent
management. EPA is proposing this revision so that TSDFs can readily
identify the contents of hazardous waste containers they are receiving
from generators and effectively treat the wastes to meet land disposal
restriction requirements (LDRs). As described elsewhere in this
proposal, the Agency is proposing revisions to the marking and labeling
of containers and other waste accumulation units in order for
employees, inspectors, emergency responders, and waste handlers to
better understand the potential hazards associated with the contents of
hazardous waste contained in a unit.
This proposed provision should not increase burden on generators as
it reaffirms commonly used waste management practices. Most generators,
or their designated waste handlers, already mark their containers with
the
[[Page 57949]]
applicable EPA hazardous waste numbers prior to transporting their
hazardous waste off site. In fact, requiring that applicable EPA
hazardous waste numbers be marked on containers decreases overall
burden because it avoids the need for a TSDF to identify the hazardous
waste or send it back to the generator for proper identification.
The Agency requests comment on this proposed change.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
F. Modifications to Management of Containers, Tanks, Drip Pads, and
Containment Buildings (40 CFR 262.34(a)(2) and(3) and 40 CFR
262.34(a)(1))
The existing regulations for LQGs that address the conditions for
exemption related to marking and labeling are at Sec. 262.34(a)(2) and
(3) for containers and at Sec. 262.34(a)(3) for tanks. The marking and
labeling condition for SQGs who accumulate hazardous waste in both
tanks and containers are at Sec. 262.34(d)(4), which references Sec.
262.34 (a)(2) and (3). For practical reasons, there are no requirements
to mark drip pads or containment buildings that accumulate hazardous
waste other than requiring that documentation must exist that describes
the procedures to ensure that each waste volume remains in the unit for
no more than 90 days.
EPA is proposing to modify Sec. 262.34(a)(2) to strengthen the
marking and labeling conditions for exemption for containers and to
modify Sec. 262.34(a)(3) to strengthen and consolidate the marking and
labeling conditions for exemption for hazardous waste tanks, drip pads,
and containment buildings by LQGs. The Agency is also proposing to
modify Sec. 262.34(d) to strengthen the marking and labeling
conditions of containers, tanks, drip pads, and containment buildings
by SQGs.
The proposed changes are consistent with the applicable discussion
of marking and labeling of containers in SAAs in section VIII.I. Where
differences may occur is when the container may be shipped off-site as
opposed to when the contents of the container are managed on-site, or
temporarily managed on-site (e.g., when the container is moved from the
SAA to a central accumulation area and then shipped off-site to a
TSDF).
1. Container Marking and Labeling for LQGs and SQGs (40 CFR
262.34(a)(3))
Currently, Sec. 262.34(a)(3) requires each container and tank to
be labeled or marked clearly with the words, ``Hazardous Waste.''
However, while the words ``Hazardous Waste'' on containers and tanks
provide some measure of information regarding the contents of these
units, this information fails to describe the specific hazards of the
contents and what risk these wastes could pose to human health and the
environment. EPA believes it is important that employees, transporters,
downstream handlers, emergency personnel, and EPA and state inspectors
know as much as possible about the potential hazards of the contents in
containers being accumulated, transported, and managed, whether on-site
and/or off-site, so that the hazardous wastes are managed in an
environmentally sound manner.
The Agency is proposing two modifications that would strengthen the
labeling and marking conditions for LQGs and SQGs accumulating
hazardous waste in containers. These changes are similar to those
proposed for containers stored in satellite accumulation areas (see
section VIII.I.) First, the Agency is proposing that SQGs and LQGs
accumulating hazardous waste in containers mark their containers with
both the words ``Hazardous Waste'' and other words that identify the
contents of the containers that a third party, such as an emergency
responder, co-worker unfamiliar with the material, or even the general
public may recognize. Although the words ``Hazardous Waste'' are
important to convey that the container contains a waste, as opposed to
a product, and that a hazardous waste determination has been made for
the contents, it does not convey more practical information regarding
the contents of the container. Examples of other words that identify
the contents of the container may include, but are not limited to the
name of the chemical(s), such as ``acetone'' or ``methylene
dichloride''; or the type or class of chemical, such as ``organic
solvents'' or ``halogenated organic solvents.'' Another option for
complying with this provision is to use the proper shipping name and
technical name markings used to comply with DOT requirements at 49 CFR
part 172 subpart D. The Agency does not consider chemical formulas,
such as CH2Cl2 for methylene dichloride, to be
``words that identify the contents of the container'' since chemical
formulas may not be widely known among emergency responders, workers,
and hazardous waste handlers other than chemists.
If the hazardous waste will subsequently be sent off-site for
treatment and disposal, an SQG or LQG may choose to use an appropriate
DOT proper shipping name found on the hazardous materials table at 49
CFR 172.101 to identify the contents of the container while it is
accumulating on-site. That way, the generator will fulfill EPA and DOT
requirements simultaneously; however, EPA is not proposing to require
the use of the DOT shipping names while the hazardous waste is
accumulating on-site. We only suggest that the DOT shipping name may be
one way that some generators may choose to identify the contents of the
container.
EPA also believes use of the DOT marking requirement should be
sufficient in many situations involving DOT Class 9 hazardous materials
that are also hazardous waste, with the DOT shipping name ending in
N.O.S. (not otherwise specified). As noted at 49 CFR 172.301 (b),
generators using a DOT shipping name ending in N.O.S. must also provide
the technical name of the hazardous material in association with the
proper shipping name. However, the Agency is requesting comment on
examples of when the DOT shipping name would not meet EPA's intent of
``identifying the contents of the container'' and suggestions for
addressing this situation. EPA notes that additional pre-transport
requirements, other than the DOT shipping name, apply when shipping
hazardous waste off-site. We are not proposing to change EPA's existing
requirements for pre-transport requirements that are currently found in
Sec. Sec. 262.30 through 262.33. Similarly, for packages subject to 49
CFR, the generator or shipper/carrier should be familiar with and aware
of the marking requirements at 49 CFR 172.304 and prohibited labeling
and label visibility requirements at 49 CFR 172.401 and 172.406,
respectively.
The second modification we are proposing for labeling containers in
central accumulation areas is to add a provision that SQGs and LQGs
mark and label their containers with an indication of the hazards of
the contents of the containers. SQGs and LQGs will have flexibility in
how to comply with this new provision. That is, generators can indicate
the hazards of the contents of the container using any of several
established methods, including, but not limited to an EPA hazardous
waste characteristic(s) (ignitable, corrosive, reactive or toxic); a
hazard class label consistent with the DOT requirements at 49 CFR part
172 subpart E (labeling); a label consistent with the OSHA Hazard
Communication Standard at 29 CFR 1920.1200; a chemical hazard label
consistent with NFPA code 704; or a hazard pictogram consistent with
the
[[Page 57950]]
United Nations' Global Harmonized System (GHS). Generators also may use
any other marking or labeling commonly used nationwide in commerce that
would alert workers and emergency responders to the nature of the
hazards associated with the contents of the containers.
EPA believes that placing both the appropriate label and marking on
containers during hazardous waste accumulation will enable persons who
may come in contact with it to be aware of the hazardous contents of
the container with little or no additional cost to generators. In many
instances, this proposed condition will already have been satisfied if
the generator elects to move a container accumulating hazardous waste
in a satellite accumulation area to a central accumulation area.
In summary, EPA is proposing to modify Sec. 262.34(a)(3) and
require LQGs and SQGs to mark containers with the following: (1) the
words ``Hazardous Waste,'' (2) other words that identify the contents
of the containers, and (3) an indication of the hazards of the
container's contents. We are not proposing to change Sec.
262.34(a)(2), which requires LQGs and SQGs to mark clearly and visibly
the date accumulation began on each container and make that marking
visible for inspection.
The Agency requests comment on the proposed changes for container
marking and labeling for LQGs and SQGs.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization in that the labeling and marking
regulations would be moved from Sec. 262.34 to Sec. 262.16(b)(6) (for
SQGs) and to Sec. 262.17(a)(5) (for LQGs). The reorganization is
discussed in section XIII of this preamble.
2. Tank Marking and Labeling for LQGs and SQGs (40 CFR 262.34(a)(3))
The Agency is proposing to modify the regulations at Sec.
262.34(a)(3) to require LQGs and SQGs to use inventory logs, monitoring
equipment, or records indicating the date the hazardous waste first
entered the tank in order to support a generator's determination that
it has not exceeded its 90 day accumulation time limit, or in the case
of an SQG, its 180-day time limitation. Exceeding the 90- or 180-day
time limitation for LQGs and SQGs, respectively, would be a violation
of a condition for an exemption from permitting requirements. Records
from tank level sensors also may be used which could be either
automatically logged from the sensors to a computer record, or recorded
as part of a tank's operational daily inspection (see 40 CFR 265.195).
Generators may also use any other methods that clearly demonstrate the
date hazardous waste first entered the tank and show that the hazardous
waste was subsequently emptied within 90 days of the date it first
entered that tank, or 180 days in the case of an SQG (unless the
hazardous waste must travel greater than 200 miles to a TSDF in which
case 270 days is allowed). The generator must also use inventory logs
to identify the hazardous waste contents and hazards of the tank.
With respect to the accumulation start date, in the preamble to the
promulgation of the SQG regulations (51 FR 10160, March 24, 1986), EPA
stated that Sec. 262.34 contains the conditions for exemption for
generators that accumulate hazardous waste on site. Under Sec.
262.34(a), an LQG may accumulate hazardous waste on site in tanks or
containers in any quantity for up to 90 days (and up to 180 days for a
SQG unless the hazardous waste must travel greater than 200 miles to a
TSDF in which case 270 days is allowed) without the need to have
interim status or obtain a storage permit under RCRA, provided the
generator complies with the conditions of Sec. 262.34, which include
marking the date upon which the period of accumulation begins. While
the preamble mentions marking tanks and containers, the final
regulation at Sec. 262.34(a)(2) requires generators to mark the date
upon which each period of accumulation begins only on containers.
As part of EPA's Hazardous Waste Technical Corrections and
Clarifications Direct Final Rule (75 FR 12989, March 18, 2010), the
Agency sought to correct this oversight by including what it thought to
be the appropriate clarifying language. The proposed regulatory
language required generators to mark the date upon which each period of
accumulation begins on each container and tank, which would bring the
regulation in line with the preamble to the 1986 rule. However, EPA
received numerous adverse comments regarding this change and as a
result withdrew that proposed change. The comments stated, among other
things, that, unlike containers, the Agency failed to realize that
generators do not actually mark their tanks with the date upon which
each period of accumulation begins because the tank is often a fixture
that is used and emptied repeatedly. Commenters argued that marking
tanks would cause confusion since there would be numerous markings all
over the tank making it difficult for the generator and inspector to
identify when the last period of accumulation began or could cause an
extra effort of removing the old marking before applying a new one.
At least one commenter also cited an EPA letter clarifying Sec.
262.34(a)(l)(ii) in connection with the turnover of hazardous waste
stored in generator accumulation tanks.\75\ In that letter, EPA stated
that ``LQGs utilizing a batch process must meet the requirements of
Sec. 262.34(a)(l)(ii). For example, the use of inventory records in
conjunction with tank markings may provide confirmation that the tank
has been emptied within an appropriate time period. Specifically, the
inventory records typically show the dates and quantity of hazardous
waste entering the tank, as well as the dates the tank was emptied.
Shipping or hazardous waste manifest records also may be used to verify
when the tank was emptied. Likewise, tanks accumulating hazardous
wastes may have information indicating the time and date hazardous
waste first entered the tank.'' The Agency went on to say that there
may be other methods to demonstrate that a tank has been emptied, but
any method used to confirm compliance with Sec. 262.34(a)(l)(ii) must
be reasonable and easily discernible to EPA or an authorized state.
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\75\ Letter from Matt Hale, Director of EPA's Office of Solid
Waste to John Hopewell, National Paint and Coatings Association,
February 16, 2007, RCRA Online 14764.
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Later in this letter, EPA stated that LQGs accumulating hazardous
wastes through a continuous flow process must ``demonstrate that the
hazardous waste has not been stored for more than 90 days . . . For
example, a generator could confirm that the volume of a tank has been
emptied every 90 days by recording the results of monitoring equipment
both entering and leaving a tank. This recordkeeping, in conjunction
with the tank volume, would enable inspectors, as well as [site]
personnel, to demonstrate compliance with Sec. 262.34(a)(l)(ii).
Likewise, in marking the tank, a generator could mark both the tank
volume and estimated daily throughput to allow inspectors to determine
the number of days that hazardous wastes resides in a tank to determine
compliance with Sec. 262.34(a)(l)(ii). As noted above, there may be
other methods to demonstrate that the tank has been emptied, but any
method or demonstration to confirm compliance must be reasonable and
easily discernible to EPA or an authorized state.''
Subsequent to withdrawing the provision at Sec. 262.34(a)(2) as
part of
[[Page 57951]]
EPA's Hazardous Waste Technical Corrections and Clarifications Direct
Final Rule due to adverse comment, EPA also confirmed with state
officials that current operating practices do not include generators
physically marking their tanks. Instead, generators are able to use
inventory logs, monitoring equipment, or other methods to demonstrate
that a tank has been emptied within 90 days of the date hazardous waste
first entered the tank.
Therefore, with respect to the accumulation start date for tanks,
EPA is proposing that generators may use inventory logs, monitoring
equipment or records indicating the date the hazardous waste first
entered the tank, as long as this information is immediately accessible
for inspection. Records from tank level sensors also may be used that
are either automatically logged from the sensors to a computer record
or recorded as part of a tank's operational daily inspection (required
by 40 CFR 265.195). Generators may also use any other methods that
clearly demonstrate the date hazardous waste first entered the tank and
was subsequently emptied within 90 days of the date hazardous waste
first entered that tank.
The same issue potentially applies to a generator physically
marking and labeling the contents of the tank and its associated
hazards. If the contents and associated hazards frequently change, then
physically marking the tank could result in numerous markings and
labels on the tank, making it difficult for employees and others to
identify its contents. Therefore, following the same logic, the Agency
is proposing that generators use inventory logs or records to identify
the contents of the tank and its associated hazards. The Agency is also
proposing that such tank logs be immediately accessible by the
generator should the need arise.
The Agency requests comment on the feasibility and effectiveness of
using inventory logs or records to identify the contents and hazards of
a hazardous waste tank. The Agency also requests comment on alternative
methods of identifying the contents and hazards of a hazardous waste
tank in a more cost-effective manner.
Consistent with the existing regulations for tanks at Sec.
262.34(a)(3), the Agency will continue to require that hazardous waste
tanks be labeled with the words ``Hazardous Waste.''
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The labeling and marking regulations would
be moved from Sec. 262.34 to Sec. 262.16(b)(6) (for SQGs) and to
Sec. 262.17(a)(5) (for LQGs). The reorganization is discussed in
section XIII of this preamble.
3. Drip Pad and Containment Building Marking and Labeling for LQGs and
SQGs (40 CFR 262.34(a)(3)) \76\
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\76\ Note: Under a separate provision discussed in section
VIII.J, the Agency is proposing to allow hazardous waste to be
accumulated by SQGs in drip pads and containment buildings.
---------------------------------------------------------------------------
The existing regulations for drip pads at Sec. 262.34(1)(iii)(A)
and (B) require generators to produce a description of the procedures
that will be followed to ensure that all wastes are removed from the
drip pad and associated collection system at least every 90 days, and
to produce documentation of each waste removal, including the quantity
of waste removed from the drip pad and the sump or collection system
and the date and time of removal. Likewise, the existing regulations
for containment buildings at Sec. 262.34(1)(iv)(A) and (B) require the
generator to produce a written description of the procedures to ensure
that each waste volume remains in the containment building for no more
than 90 days, a written description of the waste generation and
management practices for the facility showing that they are consistent
with respect to the 90-day limit, and documentation that the procedures
are complied with. However, in both instances, the existing regulation
explicitly fails to account for when the hazardous waste is first
placed in or on the unit, which raises questions as to how a generator
documents that it has met the 90-day limit.
Therefore, to address this shortcoming, and because the risks for
accumulating hazardous wastes on drip pads and containment buildings
are similar to those accumulating in tanks, and for purposes of
consistency and uniformity with the marking and labeling provisions for
tanks, the Agency is proposing the same marking and labeling regulatory
framework for hazardous wastes accumulated on drip pads and in
containment buildings that it is proposing for tanks.
Specifically, the Agency is proposing that hazardous waste
accumulated on drip pads and in containment buildings be labeled in a
conspicuous place near these units with the words ``Hazardous Waste.''
The Agency is also proposing to revise the existing marking regulations
and clarify that LQGs and SQGs document the date that the hazardous
waste was first placed on the drip pad and the sump or collection
system in order to verify that the removal or turnover of the hazardous
wastes on the drip pad took place within 90 days or less in order to
support a generator's determination that it has not exceeded its 90-day
accumulation time limitation. Exceeding the 90-day time limitation for
LQGs and SQGs, respectively would be a violation of a condition for an
exemption from permitting requirements. Note that this is also
important because, as described in section VIII.J below, SQGs may move
their wastes from one type of unit to another (e.g., drip pad to
containers), and without knowing the start and end dates, the generator
will not be able to confirm that it met the appropriate accumulation
time limitations.
Consistent with current drip pad regulations in 40 CFR
262.34(a)(1)(iii)(A) and (B), these provisions will continue to include
a description of the procedures to be followed by both SQGs and LQGs to
ensure that all wastes are removed from the drip pad and associated
collection system at least once every 90 days as well as documentation
of each waste removal.
Finally, the Agency is proposing that generators use inventory logs
or records to identify the contents of the drip pad and its associated
hazards and that such logs and records be immediately accessible. The
Agency believes that these requirements are necessary to ensure that
workers and emergency responders handling or coming in contact with the
waste understand the hazards and dangers that they may be exposed to.
In addition, as with the proposed changes for hazardous wastes
accumulated in tanks and on drip pads, the Agency is proposing to
clarify that LQGs and SQGs may use inventory logs, monitoring
equipment, or any other effective means to document the date the
hazardous waste was first placed in the containment building and the
date when the hazardous waste was removed to verify that the waste was
accumulated no more than 90 days at any one time.
Consistent with the existing regulation at Sec.
262.34(a)(1)(iv)(A) and (B) for containment buildings, the proposed
regulation for both LQGs and SQGs will state that the generator must
maintain the following records and that they can do so by using
inventory logs, records from monitoring equipment, or any other
effective means:
(1) A professional engineer certification that the building
complies with the design standards specified in 40 CFR 265.1101 in the
facility's operating record prior to operation of the unit; and
(2) A written description of procedures to ensure that each waste
volume remains in the unit for no more
[[Page 57952]]
than 90 days by identifying the date hazardous waste first started to
be accumulated, a written description of the waste generation and
management practices for the site showing that they are consistent with
respecting the 90 day limit, and documentation that the procedures are
complied with; or
(3) Documentation that the unit is emptied at least once every 90
days.
Finally, the Agency is proposing that generators use inventory logs
or records to identify the contents of the containment building and its
associated hazards and that such logs and records be immediately
accessible. As with the proposed changes to the marking and labeling of
drip pads, the Agency believes that these requirements are necessary to
ensure that workers and emergency responders handling or coming in
contact with the waste understand the hazards and dangers that they may
be exposed to.
As with the proposed changes to the tank marking and labeling
regulations at Sec. 262.34(a)(3), the Agency requests comment on the
necessity and effectiveness of explicitly requiring generators to use
inventory logs or records to identify the contents and hazards of
hazardous waste accumulated on a drip pad or in a containment building.
The Agency also requests comment on alternative methods of identifying
the contents and hazards of a hazardous waste on a drip pad or in a
containment building in a more cost-effective manner. Lastly, the
Agency requests comment on how a generator can more effectively mark or
label a drip pad or containment building with the words ``Hazardous
Waste.''
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The labeling and marking regulations would
be moved from Sec. 262.34 to Sec. 262.16(b)(6) (for SQGs) and Sec.
262.17(a)(5) (for LQGs). The reorganization is discussed in section
XIII of this preamble.
4. Request for Comment on Documentation of Waste Accumulation Unit
Inspections
a. Container inspections at Sec. Sec. 262.34. The Agency is
requesting comment in this proposal on requiring both LQGs and SQGs, as
a condition for exemption to record the results of their required ``at
least weekly'' inspections to emphasize the importance of these
inspections in preventing releases into the environment and to provide
a measure of accountability that a generator inspection of its
containers actually took place.
As part of the proposed reorganization to make the generator
regulations more user-friendly, the Agency is proposing to incorporate
parts of the existing regulatory text at Sec. 265.174 (Container
Inspections) into Sec. 262.34 (Sec. 262.16(b)(2) for SQGs and Sec.
262.17(a)(1) for LQGs under the proposed reorganization) and to revise
these paragraphs to incorporate the existing regulatory text at Sec.
265.171 for remedial action that is required if deterioration or leaks
are detected.
The requirement for container inspections at Sec. 265.174 states
that the owner or operator must inspect areas where containers are
stored at least weekly and that the owner or operator must look for
leaking containers and for deterioration of containers caused by
corrosion or other factors.
Currently, neither SQGs nor LQGs are required to record the results
of their weekly inspections. As a result, EPA and some states have no
reliable way to verify that such inspections took place unless, by the
rare chance, an inspector is inspecting a generator site at the same
time that the ``at least weekly'' inspection occurs or an inspector
notices a release from a container during an inspection. This problem
is compounded by the fact that generators accumulating hazardous wastes
in containers are not required to have any type of secondary
containment for their containers. Therefore, should a release occur,
these problems could be compounded if the ``at least weekly''
inspection fails to occur.
A review of state programs found that many states already require
generators accumulating hazardous waste in containers to maintain
records of their weekly inspections. Many of these states provide
templates for generators to use to assist them in recording the results
of their inspections.\77\
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\77\ See Sample of States With Container Documentation
Requirements in the docket for this rulemaking.
---------------------------------------------------------------------------
EPA does not believe the burden imposed upon generators to record
the results of its weekly inspections would be significant,
particularly if generators use a template of some type to document the
results of inspections (see examples of templates provided by states to
generators to assist them in recording the results of inspections in
the docket to this proposal).
The Agency also believes that best management practices for
generators would already include documenting the results of their
weekly inspections to not only prevent any releases, but also identify
situations, such as a damaged container, that could lead to a potential
release to the environment. That is, the Agency believes that the
incremental cost of documenting the results of weekly inspections would
be less than the costs of having to clean up after a release.
The Agency is also seeking comment on modifying the generator
accumulation conditions (the proposed language at Sec. Sec.
262.16(b)(2)(iv) and 262.17(a)(1)(v) under the reorganization) to add a
provision that generators document their weekly inspections of
containers in central accumulation areas and keep the log of the
inspections at the site for at least three years. The record of each
inspection would document the following: the visual inspection of
containers to identify any hazardous wastes accumulated in rusting,
bulging, or leaking containers; a description of any discrepancies or
problem areas encountered in the inspection and corrective actions
taken; and the signature or initials of the inspector and the date of
the inspection.
In requesting comment on documenting the results of ``at least
weekly'' container inspections, the Agency is interested in the
environmental and economic impacts of requiring all generators
accumulating hazardous waste in containers to document weekly container
inspection, as a condition for exemption. Additionally, the Agency
requests comment on whether to require documentation of such
inspections if the generator has a secondary containment system to
control leaks in the event of a release of hazardous wastes or other
such incidents. The Agency also requests comment on whether this
documentation requirement should be limited to those generators that
accumulate a certain amount of hazardous waste at any one time or
generators that accumulate more than a certain number of containers in
a central accumulation area at any one time. Lastly, the Agency also
seeks comment from generators in states who already must maintain
records of their container inspections on their experience with this
provision and whether there are effective alternative options worth
considering that achieve the same goals.
b. Tank inspections for SQGs at Sec. 262.34(d)(3) with cross-
reference to Sec. Sec. 265.201(c) and (d). The Agency also requests
comment on requiring small quantity generators accumulating hazardous
waste in tank systems to document the results of their tank inspections
in order to emphasize the importance of these inspections in preventing
releases into the environment and to provide a measure of
accountability that a generator inspection of its tanks actually took
place. Unlike LQGs accumulating
[[Page 57953]]
hazardous wastes in tanks, who must document the results of their
inspections, SQGs have no such provision in part 262. EPA proposes to
incorporate the regulatory text of Sec. 265.201(c) and (d) into Sec.
262.16.
The regulations at Sec. 265.201(c)(1) through (5) state that SQGs
must inspect discharge equipment, data from monitoring equipment, and
levels of waste in a tank daily, unless the tanks have secondary
containment and leak detection equipment or procedures, in which case
these can be inspected at least weekly. In addition, SQGs must inspect
the construction of tanks and of discharge confinement structures like
dikes and the areas immediately surrounding them at least weekly.
Section 265.201(d) also requires that SQGs with full tank secondary
containment to document in the facility's operating record when an
alternative inspection schedule is used. However, neither Sec.
265.201(c) nor (d) contains a requirement to document the results of
any inspection findings. Therefore, the Agency requests comment on
adding a paragraph to Sec. 262.16 that would require that generators
record in a log the daily and weekly results of inspecting their tanks
and maintain a record of those inspections on site for at least three
years.
Similarly, the Agency requests comment on adding a similar
provision to Sec. 262.16 to address tanks with secondary containment
and leak detection systems or practices to ensure that leaks that are
identified, that the generator would be required to record in a log the
results of inspecting these areas, including any leakage that may occur
and maintain a record of those inspections on site for at least three
years.
In commenting on this matter, please consider, in particular,
whether it is environmentally and economically worthwhile to require
SQGs accumulating hazardous waste in tanks to document the results of
daily and weekly tank inspections. The Agency also requests comment on
whether to require the documentation of such inspections if the SQG has
a secondary containment system to control leaks in the event of the
release of hazardous wastes. Additionally, the Agency requests comment
on whether this documentation requirement should be limited to those
generators that accumulate a certain amount of hazardous waste at any
one time or generators that accumulate hazardous waste in more than a
certain number of tanks in a central accumulation area. Lastly, the
Agency also seeks comment from SQGs in states who already must maintain
records of their tank inspections on their experience with this
requirement and whether there are effective alternative options worth
considering that achieve the same goal.
c. Drip pad inspections for both SQGs and LQGs at Sec. 262.34. The
Agency also requests comment on requiring both LQGs and SQGs
accumulating hazardous waste on drip pads to document the results of
their drip pad inspections. The current regulation in Sec.
262.34(a)(1)(iii) references subpart W of part 265. Section 265.444 in
subpart W currently requires that after installation, liners and covers
must be inspected to ensure tight seams and joints and the absence of
tears, punctures, or blisters and that while a drip pad is in
operation, it must be inspected weekly and after storms to detect
evidence of various types of damage to the drip pad or the systems that
prevent and detect run-off and leakage.
As with hazardous waste accumulated in containers by LQGs and SQGs
and hazardous waste accumulated in tank systems by SQGs, there is no
regulation requiring them to document the results of drip pad
inspections. Therefore, the Agency requests comment on modifying the
generator accumulation conditions (Sec. Sec. 262.16(b)(4) and
262.17(a)(3) in the proposed reorganization) to add a condition that
the generator record in a log the results of weekly inspections and
inspections after storms and that the records address deterioration,
malfunctions or improper operation of run-on and run-off control
systems; the presence of leakage in and proper functioning of leakage
detection systems; and deterioration or cracking of the drip pad
surface. The generator would be required to keep a record of the
inspections on site for at least three years from the date of the last
inspection.
In commenting, please consider whether it is environmentally and
economically worthwhile to require SQGs accumulating hazardous waste on
drip pads to document the results of weekly drip pad inspections.
Additionally, the Agency requests comment on whether this documentation
requirement should be limited to those generators that accumulate a
certain amount of hazardous waste at any one time. The Agency also
seeks comment from SQGs and LQGs in states who already must maintain
records of their drip pad inspections on their experience with this
provision, including whether it makes environmental and economic sense
to ensure releases do not occur and whether there are effective
alternative options that achieve the same goals.
G. Generator Closure Regulations
EPA is proposing three changes to the closure conditions for
exemption from permitting for LQGs in Sec. 262.34(a)(1)(iv)(B). First,
EPA is proposing to consolidate the closure regulations for LQGs
accumulating hazardous waste at Sec. 262.17(a)(8). This consolidation
would include both the general performance requirements found at
Sec. Sec. 265.111 and 265.114 for containers, tanks, drip pads, and
containment buildings, and the unit specific requirements found at
Sec. 265.197 for tanks, Sec. 265.445 for drip pads, and Sec.
265.1102 for containment buildings.
Second, EPA is proposing to strengthen the closure regulations for
LQGs accumulating hazardous waste in containers in central accumulation
areas that plan to stop hazardous waste accumulation in those
containers by requiring them to meet the same type of closure
regulations that apply for tanks, drip pads and containment buildings,
including in those situations where a generator is not able to
demonstrate that its contaminated soils can be practicably removed or
decontaminated.
Third, EPA is proposing to require an LQG to notify EPA or the
authorized state using EPA form 8700-12 at least 30 days prior to
closing the generator's site or when the generator closes a unit
accumulating hazardous waste. Additionally, EPA is proposing that an
LQG notify EPA or their authorized state within 90 days after closing
the site or the unit accumulating the hazardous waste. This
notification would state that the LQG has clean closed or failed to
clean close and therefore must close as a landfill.
1. Consolidation of Closure Regulations for LQGs in Part 262
EPA is proposing to consolidate all of the closure regulations for
LQGs accumulating hazardous waste in tanks, drip pads, and containment
buildings in the generator accumulation conditions (Sec. 262.17(a)(8)
under the proposed reorganization). EPA believes that the current
structure of these regulations can be confusing and difficult to
follow.
Currently, the closure regulations for LQGs are found at Sec.
262.34(a)(1). These regulations refer to the general performance
requirements for closure at Sec. Sec. 265.111 and 265.114. Section
265.111 references the unit specific closure regulations found at
subpart J of part 265 (for tanks), subpart W of part 265 (for drip
pads) and subpart DD of part 265 (for containment buildings). The
[[Page 57954]]
closure regulations for LQGs refer to the TSDF regulations because the
waste accumulation units at LQGs (tanks, drip pads, and containment
buildings) are similar to those at TSDFs and, thus, present the same
potential for adverse impacts to human health and the environment if
closure is not conducted properly.
However, while Sec. Sec. 265.111 and 265.114 cite the specific
closure regulations for different types of units, missing from Sec.
265.111 is a reference to drip pads and missing from Sec. 265.114 is a
reference to both drip pads and containment buildings. The Agency
believes these are inadvertent oversights where EPA failed to make the
appropriate conforming changes when the regulations for drip pads and
containment building were promulgated in 1990 and 1992,
respectively.\78\
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\78\ Memo from Robert Springer, Director of EPA's Office of
Solid Waste, to RCRA Directors, September 24, 2003, RCRA Online
14681; Drip Pad Closure Notification and Certification Requirements,
November 1, 1997, RCRA Online 14130; and RCRA/Superfund Hotline
Monthly Report, December 1998, RCRA Online 14321, that states:
``LQGs are subject to the most stringent requirements, which include
general closure provisions and unit-specific ones. The general
closure requirements appear in Section 265.111 and Section 265.114
(Section 262.34(a)(1)).'' Additionally, the report states: ``LQGs
storing or treating waste in tanks, on drip pads, or in containment
buildings are also subject to closure requirements specific to these
types of units.''
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Furthermore, as with other parts of the hazardous waste generator
regulations, the accumulation regulations at Sec. 262.34 often
reference the detailed technical regulations of part 265 to reduce
duplication. Part 265 describes the technical regulations for interim
status TSDFs. Usually, the technical requirements in part 265 are clear
in distinguishing the generator standards from standards for interim
status TSDFs (e.g., Sec. 265.201 specifies that the provisions of that
paragraph are only for SQGs); however, this is not the case for the LQG
closure regulations.
Finally, EPA believes the closure regulations are unnecessarily
confusing. For example, the tank system regulations for LQGs at Sec.
262.34(a)(1)(ii) make clear that the requirements of Sec. 265.197(c)
do not apply to LQGs. Yet, LQGs must comply with Sec. 265.111, which
in turn, at paragraph Sec. 265.111(c) requires LQGs to comply with
Sec. 265.197, which includes paragraph (c). One commenter wrote about
this confusion when the Agency proposed to clarify the closure
regulations for LQGs as part its March 18, 2010, Hazardous Waste
Technical Corrections and Clarifications Direct Final Rule (75 FR
12989).\79\ The Agency has made clear in guidance that generators are
not subject to Sec. 265.111(c), except if the facility cannot clean
close its waste accumulation unit(s), but we believe that a regulatory
change would make this even more clear.\80\
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\79\ Comments from the National Mining Association, May 3. 2010.
Docket ID No: ID EPA-HQ-RCRA-2008-0678.
\80\ RCRA/Superfund Hotline Monthly Report, December 1998, RCRA
Online 14321.
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Therefore, as a first step in improving the usefulness of the
closure regulations for LQGs accumulating hazardous waste in
containers, tanks, drip pads, and containment buildings, EPA is
proposing to consolidate and integrate all relevant closure provisions
for LQGs accumulating hazardous waste in tanks, drip pads, and
containments buildings at Sec. 262.17(a)(8). The closure regulations
include the following: (1) the general closure performance standards
found at Sec. 265.111(a) and (b); (2) a modified version of the
standards found at Sec. 265.114 (Disposal or decontamination of
contaminated equipment, structures, and soils) that incorporates
regulatory language applicable to containers, tanks, drip pads, and
containment buildings undergoing closure; (3) the unit-specific closure
regulations relevant to tanks, drip pads, and containment buildings
found at Sec. Sec. 265.197(a) and (b), 265.445(a) and (b), and
265.1102(a) and (b), respectively;\81\ (4) a provision addressing the
disposition of any hazardous waste generated in the process of closing
either the generator's site or unit(s) accumulating hazardous waste,
and (5) a provision addressing the situation when a waste accumulation
unit or site cannot clean close and must close as a landfill. This
includes situations where an LQG accumulating hazardous wastes in
containers cannot clean close. More specifically, the proposed new
closure regulations in the generator accumulation conditions at Sec.
262.17(a)(8)(ii) would require LQGs at closure to close the waste
accumulation unit or site in a manner that achieves all of the
following:
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\81\ Note: During the partial and final closure periods, all
contaminated equipment, structures and soil must be properly
disposed of, or decontaminated unless specified otherwise in Sec.
265.197, 265.228, 265.258, 265.280, or 265.310. By removing all
hazardous wastes or hazardous constituents during partial and final
closure, the owner or operator may become a generator of hazardous
waste and must handle that hazardous waste in accordance with all
applicable requirements of part 262.
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(1) Minimizes the need for further maintenance by controlling,
minimizing, or eliminating, to the extent necessary to protect human
health and the environment, the post-closure escape of hazardous waste,
hazardous constituents, leachate, contaminated run-off, or hazardous
waste decomposition products to the ground or surface waters or to the
atmosphere;
(2) Properly disposes of or decontaminates all contaminated
equipment, structures and soil and any remaining hazardous waste
residues from waste accumulation units including containment system
components (pads, liners, etc.), contaminated soils and subsoils,
bases, and structures and equipment contaminated with waste. Any
hazardous waste residues remaining in the unit(s) being closed must be
removed from the unit(s). Any leakage must also be decontaminated or
removed and managed as a hazardous waste unless Sec. 261.3(d) applies;
(3) Manages any hazardous waste generated in the process of closing
either the generator's site or unit(s) accumulating hazardous waste in
accordance with all applicable requirements of parts 260 through 270,
including removing any hazardous waste contained in these units within
90 days of generating it and managing these wastes in a RCRA Subtitle C
hazardous waste permitted or interim status treatment, storage and
disposal facility or interim status facility; and
(4) Ensures that if the generator demonstrates that all
contaminated soils cannot be practicably removed or decontaminated as
required in this section, then the generator must close the waste
accumulation unit(s) and perform post-closure care in accordance with
the closure and post-closure care regulations that apply to landfills
(Sec. 265.310). In addition, for the purposes of closure, post-
closure, and financial responsibility, such a waste accumulation unit
is then considered to be a landfill, and the generator must meet all of
the standards for landfills specified in subparts G and H of part 265.
2. Closure Regulations for LQGs Accumulating Hazardous Waste in
Containers
As an additional condition to qualify to accumulate hazardous waste
without a permit or interim status, EPA is proposing to require LQGs
accumulating hazardous wastes in containers in central accumulation
areas that plan to stop hazardous waste accumulation in those
containers to meet the same type of closure regulations discussed
above--that is, the closure regulations for tanks, drip pads, and
containment buildings. This includes situations where an LQG
accumulating hazardous wastes in containers can demonstrate that any
[[Page 57955]]
contaminated soils cannot be practicably removed or decontaminated and
as a result, the generator must close the waste accumulation unit(s)
and perform post-closure care in accordance with the closure and post-
closure care requirements that apply to landfills (Sec. 265.310). In
addition, for the purposes of closure, post-closure, and financial
responsibility, such a waste accumulation unit is then considered to be
a landfill, and the generator must meet all of the requirements for
landfills specified in subparts G and H of part 265.
Supporting these proposed regulations are damage cases by
generators who accumulated hazardous wastes in containers. An
examination of Superfund removal actions shows LQGs accumulating
hazardous waste in containers have sometimes closed their doors or
abandoned their sites, resulting in environmental problems.\82\ Most
LQGs use containers to accumulate hazardous wastes. Some LQGs may
generate relatively small quantities of hazardous waste and therefore
may not need many containers to accumulate their hazardous wastes, but
other generators generate a sufficient quantity of hazardous waste to
require the use of a large number of containers each day. Not ensuring
that these sites are closed properly increases the risk of more damage
cases.
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\82\ See EPA's On Scene Coordinator (OSC) Web site: http://www.epaosc.org.
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For LQGs that accumulate hazardous waste in containers or container
units, EPA is proposing closure regulations that replicate the
regulations in paragraphs Sec. 262.17(a)(8)(ii), mentioned above. The
Agency believes the closure regulations are applicable to LQGs who have
accumulated hazardous waste in containers as well as to LQGs who have
accumulated hazardous waste in tanks, drip pads and containment
buildings in order to prevent adverse impacts to human health and
environment. Therefore, as with LQGs that accumulate hazardous wastes
in tanks, drip pads, and containment buildings, should a generator
decide to close a container or stop accumulating hazardous waste in
containers at the site altogether, it would be responsible for
complying with the regulations proposed at Sec. 262.17(a)(8)(ii) and
removing all relevant hazardous wastes accumulated within 90 days of
generating it and any hazardous wastes that also may have been
accumulated in SAAs. Otherwise, the generator would fail to meet the
conditions for the exemption from permitting and would be subject to
the requirements of 40 CFR parts 264, 265, 267 and the permit
requirements of part 270.
3. Notification by LQGs Upon Closure of their Hazardous Waste
Accumulation Units
EPA is also proposing that an LQG notify either EPA or its
authorized state at least 30 days prior to closure of a hazardous waste
accumulation unit, such as a container, tank, drip pad, or containment
building, or closure of the site altogether. EPA is also proposing that
such generators subsequently notify EPA or its authorized state no
later than 90 days after closure of the site or a hazardous waste
accumulation unit that they have either clean closed (e.g., complied
with the applicable generator closure regulations) or, if they cannot
clean close, that they must close as a landfill. If these changes are
finalized, EPA will amend EPA form 8700-12 to incorporate collection of
this information.
The hazardous waste regulatory program is a ``cradle to grave''
system in which any hazardous waste generated by an LQG (or SQG) must
be subsequently managed, either on site or off site at an appropriate
RCRA destination facility. Missing from the current regulatory
framework is knowledge by the regulatory authority that the LQG, upon
closing either a waste accumulation unit or closing the site
altogether, properly closed the accumulation unit in compliance with
the applicable closure regulations. Without this knowledge, regulatory
authorities do not know whether generators have abandoned the site,
leaving behind hazardous waste that could subsequently result in a
release to the environment and adverse impacts to human health and the
environment. Thus, these closure notifications are important to ensure
that LQGs close their waste accumulation unit, or site, in compliance
with the applicable closure regulations. Fail to properly close would
be a violation of the waste accumulation exemption.
4. Request for Comment
EPA requests comment regarding its proposal to consolidate the
closure regulations for hazardous waste generated by LQGs in Sec.
262.17(a)(8) and whether this approach would improve the readability/
understandability of the rules, and thus, improve compliance. EPA also
requests comment on whether parts of the proposed closure regulations
at Sec. 262.17(a)(8) should be modified.
EPA also requests comment regarding its proposal to strengthen the
closure regulations for LQGs accumulating hazardous waste in
containers.
In addition, EPA requests comment on whether it should require LQGs
to notify EPA regarding closure both prior to closure (e.g., at least
30 days prior to closure) and after closure (e.g., notify no later than
90 days after the site has closed one or all of its hazardous waste
accumulation units either by clean closure or closed as a landfill) or
whether EPA should just require notification only once--that is, after
closure (e.g., no later than 90 days after closure). Requiring
notification only after closure of the hazardous waste accumulation
unit or site reduces the generator's paperwork burden in half and
allows EPA and the state to focus on results. However, requiring
notification both before and after closure creates greater visibility
for this important activity. The notification creates an incentive for
the generator to take all appropriate actions once the unit or site is
closed and also provides notice to EPA and the state to be aware of
this important activity and to plan for a possible inspection to verify
clean closure has successfully occurred or determine if additional
closure efforts are needed. EPA is currently of the opinion that the
additional environmental benefits accrued from requiring both
notifications will exceed the additional paperwork costs to the
generator. In conjunction with an LQG notifying EPA no later than 90
days after closure, EPA is also requesting comment on whether, as part
of the closure notification requirements, LQGs should be required to
certify that they have clean closed or failed to clean close all
applicable hazardous waste accumulation units. This type of
notification would have the added benefit of ensuring EPA knows that an
LQG performed their due diligence in closing and can certify to either
clean closing or closing as a landfill.
Because there are no federal regulations for closure of a waste
accumulation unit or site closure by SQGs, SQGs are not required to
comply with the clean closure regulations, as well as notify when they
close any or all waste accumulation units. Unlike LQGs, which have no
waste accumulation limits as long as they remove any hazardous waste
within 90 days of generating it, SQGs do have a waste accumulation
quantity limitation of 6,000 kilograms. Given this waste accumulation
quantity limitation, EPA sees no reason at this time to propose
requiring SQGs to clean close or close as a landfill if they cannot
clean close. However, EPA sees a potential benefit in having SQGs
notify EPA when SQGs
[[Page 57956]]
close to allow the regulatory authority to follow-up and ensure that
all hazardous waste was removed and properly managed. Therefore, EPA is
requesting comment regarding whether SQGs that stop accumulating and
close any or all of their hazardous waste accumulation units should
notify EPA within 60 days after closing.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The LQG closure regulations would move to
Sec. 262.17(a)(8). The reorganization is discussed in section XIII of
this preamble.
H. Changes to the Preparedness, Prevention, and Emergency Procedures
Provisions (40 CFR 262.34(a)(4) and 262.34(d)(4) and (5))
EPA is proposing a number of modifications to the conditions for
exemption for both SQGs and LQGs regarding preparedness, prevention and
emergency procedures. The conditions for SQGs are found at Sec. Sec.
262.34(d)(4) and (5) (which refer to the technical standards at 40 CFR
part 265 subpart C) and the conditions for LQGs are found at Sec.
262.34(a)(4) (which refers to the technical standards at part 265
subparts C and D).
The proposed revisions are organized in this section as follows:
(1) Revising the scope of the contingency planning and emergency
procedures regulations; (2) revising Sec. 265.37(a) to state that when
making arrangements with local authorities regarding emergency
procedures, an SQG or LQG must first attempt to make emergency
preparedness and procedures agreements with its Local Emergency
Planning Committee (LEPC), and, if this attempt is not successful (or
there is no LEPC in the area), the generator must make an arrangement
with its local fire department and other emergency responders; (3)
modifying the regulations for contingency plans for LQGs in Sec. Sec.
265.52 and 265.53 to add an executive summary to the plan that a new
LQG would submit to the LEPC and to adjust the content of an element of
the required contingency plan; (4) making two revisions to the
technical standards regarding required equipment that are part of the
preparedness and prevention regulations in part 265 subpart C that are
applicable to both SQGs and LQGs; (5) modifying the preparedness and
prevention provisions for SQGs at Sec. 262.34(d)(5) regarding posted
emergency coordinator information and responsibility for cleaning up a
spill; (6) modifying the personnel training provision for LQGs; (7)
taking comment on what personnel should have mandated personnel
training, and (8) taking comment on whether any of these proposed
revisions would be appropriate for TSDFs in addition to generators.
Recent catastrophic chemical accidents in the United States, such
as the 2013 West, Texas, fire and explosion that killed 15 people, the
2010 explosion and fire at Tesoro Refinery in Anacortes, Washington,
that killed seven employees, and the 2012 Chevron Refinery hydrocarbon
fire in Richmond, California, that affected 15,000 people in the
surrounding area, highlight the need for continued improvement in a
number of areas related to chemical facility safety. To address these
concerns, the President issued Executive Order 13650--Improving
Chemical Facility Safety and Security (EO) on August 1, 2013.\83\ The
EO directed the Department of Homeland Security, EPA, the Department of
Labor, the Department of Justice, the Department of Agriculture, and
the Department of Transportation to identify ways to improve
operational coordination with state, local, tribal, and territorial
partners; enhance federal agency coordination and information sharing;
modernize policies, regulations, and standards to enhance safety and
security in chemical facilities; and work with stakeholders to identify
best practices to reduce safety and security risks in the production
and storage of potentially harmful chemicals.
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\83\ http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security.
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One of the key goals the EPA is addressing through this effort is
enhancing and providing additional support to State Emergency Response
Commissions (SERCs) and LEPCs to assist them in collecting and
analyzing the chemical information they receive from local facilities
and developing local emergency response plans to mitigate or prevent a
devastating chemical disaster. Several of the proposed requirements are
aligned with these EO efforts and will assist in furthering this goal
and with those of the EO in general because they update the regulations
to make them compatible with the current infrastructure of emergency
planning and response by referencing LEPCs. Additionally, these
revisions would provide a more usable contingency plan to emergency
responders en route to a time-sensitive emergency at a generator of
hazardous waste. Before finalizing these provisions, EPA will ensure
that they are aligned with the efforts to improve chemical plant safety
and security under the EO.
This preamble also discusses how EPA might incorporate modern
technology into the emergency planning and procedures regulations for
generators in order to provide information more quickly to emergency
responders when faced with an event at a generator.
In addition to the changes listed above, as part of the
reorganization of the preamble discussed in section XIII, EPA is
proposing to copy the preparedness and prevention regulations for SQGs
into Sec. 262.16 and to create a new subpart in part 262--subpart M--
that would contain the more extensive preparedness, prevention, and
emergency procedures regulations for LQGs. Copying a version of these
regulations into part 262 allows most of the preparedness, prevention,
and emergency procedures regulations for generators to be easily found
without accessing part 265 and with minimal cross-referencing.\84\
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\84\ Note that throughout this section, although we are
referring to the regulations by their current citations, the fact
that we are also proposing in most cases to reorganize those
requirements and copy them into the generator requirements in part
262 means that the revisions discussed in this section would not
automatically apply to interim status TSDFs, as the proposed
revisions only apply to the version of these regulations that is
being proposed to be in part 262.
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As part of this reorganization, our proposed regulation has
replaced the word ``facility'' in the regulations with ``site'' because
``facility'' is defined in Sec. 260.10 as specific to TSDFs. Another
small revision that we propose because of the reorganization of these
regulations is folding the ``comment'' in Sec. 265.55 into the body of
the corresponding proposed regulation at Sec. 262.264. We are
proposing this because Federal Register style no longer permits this
kind of comment in new regulations.
1. Areas Subject to Preparedness, Contingency Planning, and Emergency
Procedures Regulations
The current preparedness and emergency procedures regulations do
not clearly state whether they are applicable to the entire generator
site or only to areas where hazardous waste is generated and
accumulated on site (or where allowable treatment may occur in
accumulation units) and when transported off site for subsequent
treatment, storage, and disposal. EPA is proposing that the regulations
for preparedness and prevention and for contingency planning and
emergency procedures apply only to those areas of a generator's site
where hazardous waste
[[Page 57957]]
is generated and accumulated and, where applicable, to those areas
where allowable treatment may occur in accumulation units.
The Agency is proposing to explicitly state that the RCRA
preparedness and emergency procedures regulations are limited strictly
to areas where hazardous waste is generated and accumulated.
The Agency has previously signaled that these requirements do not
apply to the entire generator site. In a November 7, 2006, letter, EPA
stated that the 40 CFR part 265 regulations for LQGs set forth in Sec.
262.34(a)(4) apply to units accumulating hazardous wastes. The letter
states that in order to comply with the part 265 requirements
referenced in Sec. 262.34(a)(4), LQGs only need to address those
tanks, containers, drip pads, and containment buildings that accumulate
hazardous wastes and are subject to the 90-day generator accumulation
provision. As an example, the letter states that when developing a
contingency plan, LQGs would only need to include those 90-day
accumulation units involving the on-site management of hazardous
waste.\85\
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\85\ Memorandum from Matt Hale, Director of EPA's Office of
Solid Waste, to RCRA Division Directors, November 7, 2006, RCRA
Online 14758.
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It makes sense to limit the applicability of these regulations only
to these areas because several other statutes already address the
development and implementation of contingency plans associated with
other areas of a generator site, such as the storage of chemical
materials other than hazardous wastes. We also note that considerable
overlap exists in the requirements in the various statutes and, since
1997, the federal government has encouraged facilities to develop
integrated contingency plans and has provided guidance for doing so in
the Federal Register. The integrated contingency plan is discussed
further in section VIII.H.3, below.
The language EPA is proposing to change currently appears in
Sec. Sec. 265.30 and 265.50, though we are proposing to move it to a
new part 262 subpart M to make it specific to generators. EPA proposes
that subpart M apply only to those areas of a large quantity generator
where hazardous waste is generated and accumulated on site in
accordance with the conditions in Sec. 262.17. This proposal includes
a parallel change for the emergency procedures regulations for small
quantity generators in Sec. 262.16.
The Agency requests comment on making it explicit in the
regulations that the preparedness, prevention, and emergency procedures
regulations apply only to those areas of the generator's site where
hazardous waste is generated and accumulated, and where applicable,
those areas where allowable treatment may occur in accumulation units.
Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed revisions would appear at Sec.
262.250 in a new subpart M of part 262 and would not appear in part
265. The reorganization is discussed in section XIII of this preamble.
2. Making Arrangements With the Local Emergency Planning Committee
Sections 262.34(a)(4) and (d)(4) set forth conditions for LQGs and
SQGs that accumulate without a permit. Both these paragraphs include
references to part 265 subpart C, which contains a reference to Sec.
265.37. Section 265.37(a) states that ``The owner or operator must
attempt to make the following arrangements, as appropriate for the type
of waste handled at his facility and the potential need for the
services of these organizations'' and goes on to list the types of
local emergency officials that should be informed about hazardous waste
at a facility, such as fire departments and emergency response teams,
and the information the generator should provide them.
The Agency is proposing to revise this provision for generators to
state that SQGs and LQGs must first attempt to enter into agreements
with their LEPC, but if there is no LEPC in the area or if the LEPC
does not respond or is unwilling to enter an agreement, the generator
must enter into an agreement(s) with the local fire department and
other emergency responders. This proposed revision would add to the
regulations both a reference to LEPCs and an explicit statement that
generators must enter into an agreement with emergency planning
officials, rather than just attempt to enter into an agreement.
a. Local emergency planning committees. The Agency is proposing to
revise regulations that were finalized in 1980. The national and local
infrastructure for emergency planning and response has changed
significantly since that time, but these regulations have not been
updated to reflect those changes. The proposed revision to specifically
name LEPCs in this regulation addresses that deficiency.
The Superfund Amendments and Reauthorization Act (SARA) was enacted
in 1986. Title III of SARA is also known as the Emergency Planning and
Community Right-To-Know Act (EPCRA). EPCRA helps increase the public's
knowledge and access to information regarding chemicals at individual
facilities, their uses, and releases into the environment. States and
communities, working with facilities, can use the information to
improve chemical safety and protect public health and the environment.
EPCRA requires both small and large entities to report chemical
information to the SERC, the LEPC, the local fire department, and
tribal nations.
EPCRA requires LEPCs to prepare a comprehensive plan for local
communities designed to help them prepare for and respond to
emergencies involving extremely hazardous substances (EHS). Facilities
covered by EPCRA planning provisions are required to cooperate in
emergency plan preparation and designate a facility emergency
coordinator to participate in the planning process as well as notify
their SERC and LEPC within 60 days of becoming subject to the emergency
planning requirements (when an EHS is first present at the facility
from a shipment or production). Additionally, as part of the community-
right-to-know provisions of EPCRA, facilities that have hazardous
chemicals for which they must have or prepare an MSDS or SDS and have
at or above the threshold amount of those chemicals must also annually
complete and submit an Emergency and Hazardous Chemical Inventory form
(also known as a Tier II) to the LEPC, to the SERC, and to the local
fire department by March 1. These facilities must send copies of their
MSDS, SDS, or a list of hazardous chemicals to the LEPC, to the SERC,
and to the fire department.\86\
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\86\ The regulations implementing the emergency planning and
notification requirements of EPCRA can be found at 40 CFR part 355.
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In turn, LEPCs must develop an emergency response plan, review it
at least annually, and provide information about chemicals in the
community to citizens. These plans are developed by LEPCs with
stakeholder participation. There are more than 3,000 designated local
emergency planning districts, although not all of these districts have
functioning LEPCs. The LEPC membership must include (at a minimum)
elected state and local officials; police, fire, civil defense, and
public health professionals; environment, transportation, and hospital
officials; facility representatives; and representatives from community
groups and the media. Although in many areas the LEPCs are the main
organizing entities for emergency response, the RCRA hazardous waste
regulations do not
[[Page 57958]]
mention them or their role in contingency planning.
The proposed language directly references LEPCs, stating that the
generator must make arrangements with the Local Emergency Planning
Committee for the types and quantities of hazardous waste handled at
the site.\87\ This modification merely updates the RCRA hazardous waste
regulations to match the current emergency planning landscape.
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\87\ Although much of the discussion of these provisions for the
purposes of this rule revolves around hazardous waste generators,
because the provisions are located in part 265 for interim status
hazardous waste TSDFs, they will refer to the persons regulated as
``owner or operator'' and the entity being regulated as the
``facility.''
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Consistent with this proposed modification at Sec. 265.37, the
Agency is also proposing that when the language in current Sec.
265.52(c) is copied into part 262, it state that the plan must describe
arrangements agreed to with the Local Emergency Planning Committee.
Should there be no Local Emergency Planning Committee, should it not
respond, or should the Local Emergency Planning Committee determine
that it is not the appropriate organization to make arrangements with,
then the large quantity generator must make arrangements with its local
fire department and other relevant emergency responders (e.g., police
and hospitals) to coordinate emergency services, pursuant to Sec.
262.256.
The Agency requests comment on this proposal to modify the language
in Sec. Sec. 265.37(a) and 265.52(c) when they are copied into part
262.
Effect of Proposed Reorganization: These sections are affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec. 262.16(b)(8)(vi) and in the new part 262
subpart M for LQGs at Sec. 262.256 for arrangements and Sec.
262.261(c) for the content of the contingency plan. The reorganization
is discussed in section XIII of this preamble.
b. Making required arrangements. The other proposed modification to
the language currently in Sec. 265.37(a) when it is copied into part
262 addresses the ambiguity of the current language, which requires
only that the owner or operator ``attempt to make'' arrangements with
local emergency response authorities.
Section 265.37(a) states that the owner or operator must attempt to
make arrangements with local fire and emergency organizations, as
appropriate for the type of waste handled at the facility and the
potential need for the services of these organizations. Paragraph
(a)(1) makes clear that these arrangements involve familiarizing these
organizations with the layout of the facility, properties of the
hazardous waste handled at the facility and associated hazards, places
where facility personnel would normally be working, entrances to roads
inside the facility, and possible evacuation routes. Because an SQG is
not required to submit a contingency plan, this language suggests that
SQGs need only invite local officials to visit and familiarize
themselves with the site as compared to LQGs, which are required to
develop a written contingency plan and provide it to local officials.
Given the importance of emergency preparedness and planning, EPA is
proposing to require that an SQG or an LQG must make direct
arrangements with its LEPC as part of this condition. The Agency
believes the LEPCs, in turn, will work with their local responders to
integrate the activities of SQGs and LQGs into the overall emergency
response plan.
Many SQGs and LQGs may already have arrangements with their LEPCs
because most SQGs and LQGs either have EHSs that require reporting to
the LEPC, which triggers EPCRA emergency planning requirements, or use
chemicals that require an SDS, triggering the EPCRA community right-to-
know requirement to report to LEPCs. However, in the case that a
hazardous waste generator does not have a relationship with the LEPC,
that LEPC may view working with non-EPCRA facilities as outside the
scope of their authority. Alternatively, there may be a hazardous waste
generator in a location where there is no organized LEPC. Therefore, as
part of this regulation, EPA proposes to require that an SQG or LQG
attempt to make formal arrangements with its LEPC unless there is no
LEPC, the LEPC does not respond, or the LEPC determines that it is not
the appropriate organization to make an arrangement with. In this case,
the SQG or LQG would be required to make arrangements with its local
fire department, as well as with other relevant emergency responders,
such as the police department and local hospitals.
The proposed regulatory text for this condition would state that
the generator must make arrangements with the Local Emergency Planning
Committee for the types and quantities of hazardous waste handled at
the site, as well as the potential need for the services of the local
police department, other emergency response teams, emergency response
contractors, equipment suppliers, and local hospitals.\88\ Should there
be no Local Emergency Planning Committee, should it not respond, or
should the Local Emergency Planning Committee determine that it is not
the appropriate organization to make arrangements with, then the
generator must make arrangements with the local fire department and
other relevant emergency responders (e.g., police and hospitals).
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\88\ This condition is being proposed at Sec.
262.16(b)(8)(vi)(A) for SQGs and Sec. 262.256 for LQGs due to the
proposed reorganization.
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EPA is also proposing regulatory text that describes procedures for
how a facility that is not able to make arrangements with the LEPC
would make such arrangements with the fire department and other local
emergency services. Much of this language corresponds with the existing
standards for making arrangements with emergency responders. These
mandated steps are not necessary in the case of arrangements with the
LEPC because that group is likely to have standardized procedures of
its own to follow to make these arrangements with facilities.
The Agency requests comment on its proposal to require an SQG or an
LQG to enter into arrangements with its LEPC unless there is no LEPC,
the LEPC does not respond, or the LEPC determines that it is not the
appropriate organization to make arrangements with, in which case the
SQG or LQG would enter into an arrangement with its local emergency
responders.
EPA is also proposing to add new language to supplement this
condition because current Sec. 265.37(a) does not specify the
frequency that hazardous waste generators must make arrangements with
local authorities. For example, should arrangements be updated
according to a set schedule or only when modification is needed.
Considering that some SQGs and LQGs may already coordinate with their
LEPCs annually as part of their EPCRA requirements, the Agency is of
the opinion that it is not necessary to include time frames for
updating in this rule. The Agency requests comments on whether the
regulations should mandate how frequently a generator must communicate
with its LEPC or local fire department if it has not otherwise
communicated with them.
Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed regulation would appear in the
SQG standards at Sec. 262.16(b)(8)(vi) and in the new part 262 subpart
M for LQGs at Sec. 262.256. The reorganization is discussed in section
XIII of this preamble.
[[Page 57959]]
c. Documenting arrangements. As noted above, the EPA thinks it is
important for both SQGs and LQGs to make arrangements with their LEPCs.
In addition, EPA believes that documentation of these arrangements
would be useful in ensuring that generators have taken the necessary
steps to prepare for an emergency and have a clearly defined plan with
the LEPC for emergency response. Therefore, when EPA copies this
condition into part 262, EPA is proposing to modify the language to
state that the generator shall maintain records documenting the
arrangements with the Local Emergency Planning Committee, or if
appropriate, with the local fire department as well as any other
organization necessary to respond to an emergency. This documentation
may include a certified letter or any other documentation that confirms
such arrangements actively exist.
One alternative suggested as part of the 2004 Program Evaluation of
the hazardous waste generator regulatory program would be to require
hazardous waste generators to list the emergency response agencies that
have agreed to respond in the event of an emergency with some
documentation confirming that the arrangements exist. In addition to
helping generators prepare for emergencies, documentation of these
arrangements would provide the necessary information for inspectors
when determining compliance. The Agency believes this alternative may
be the most effective approach to addressing the ambiguity that exists
with the existing regulations at Sec. 265.37(b).
The Agency seeks comment on this proposed change to documentation,
in particular whether local ordinances already require generators to
have documentation of arrangements with local emergency response
organizations.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec. 262.16(b)(8)(vi) and in the new part 262
subpart M for LQGs at Sec. 262.256(b). The reorganization is discussed
in section XIII of this preamble.
d. Request for comment on emergency procedures at large facilities
with internal emergency teams. Many large organizations, particularly
those that operate 24 hours a day, such as airports and military bases,
have their own emergency response capabilities. This raises the
question of whether and under what circumstances arrangements with
local authorities would not be needed to ensure effective emergency
response. The Agency seeks comment on the feasibility of providing a
waiver from requiring either an SQG or LQG to enter into arrangements
with an LEPC or, if appropriate, other local authorities when they have
24-hour on-site emergency response capabilities, particularly under
what circumstances a waiver would be granted.
3. Changes to Contingency Plan Regulations for LQGs
Under Sec. 262.34(a)(4), LQGs are required to comply with 40 CFR
part 265 subpart D, Sec. Sec. 265.50-265.56, which describes the
regulations on contingency planning and emergency procedures. These
regulations address the purpose of the contingency plan, what it must
contain, who receives copies, how to amend the contingency plan, and
responsibilities of the facility's emergency coordinator and emergency
procedures. One important thing to note is that the owner or operator
of the facility can develop one contingency plan that meets all the
regulatory standards for the various statutory and regulatory
provisions for contingency planning:
EPA's Oil Pollution Prevention Regulation (SPCC and
Facility Response Plan Requirements) at 40 CFR 112.7(d), 112.20, and
112.21;
EPA's Risk Management Programs Regulation at 40 CFR part
68;
EPA's Resource Conservation and Recovery Act Contingency
Planning Requirements at 40 CFR part 264 subpart D, 40 CFR part 265
subpart D, and 40 CFR 279.52;
Department of Interior's Bureau of Safety and
Environmental Enforcement (BSEE) Facility Response Plan Regulation at
30 CFR part 254;
Pipeline and Hazardous Materials Safety Administration
(PHMSA) Response Plans for Onshore Oil Pipelines at 49 CFR part 194;
U.S. Coast Guard's (USCG) Facility Response Plan
Regulation at 33 CFR part 154 subpart F;
OSHA's Emergency Action Plan Regulation at 29 CFR
1910.38(a);
OSHA's Process Safety Standard at 29 CFR 1910.119; and
OSHA's HAZWOPER Regulation at 29 CFR 1910.120.
EPA recommends that generators base their contingency plan on the
National Response Team's Integrated Contingency Plan Guidance (One
Plan), discussed in the Federal Register on June 5, 1996, at 61 FR
28642.
In this action, EPA is proposing three modifications to the
contingency planning regulations for generators: One is meant to
improve the ability of emergency response teams to respond to an
emergency at an LQG and the other two are technical changes to the
content of the contingency plan.
a. Submitting a contingency plan executive summary to emergency
management authorities. The Agency is proposing to require that a new
LQG, as of the effective date of the rule, submit an executive summary
of its contingency plan to the emergency management authorities. As
part of this revision, EPA proposes to change the language of the
regulation to include LEPCs, as discussed above in section VIII.H.2.
The current regulations at Sec. 265.53 state that a copy of the
contingency plan must be submitted to all local police departments,
fire departments, hospitals, and state and local emergency response
teams that may be called upon to provide emergency services.
In discussions with EPA, emergency management professionals
indicated that the length of the facility contingency plans prevents
first responders from being able to fully review a facility's
contingency plan when responding to an emergency.\89\ Instead, they
need readily available information that describes what they must
confront when they arrive at the scene. Once the incident is under
control, the first responders can then review the detailed contingency
plan to determine their next steps, if applicable. Thus, the Agency
believes that a shorter document, such as an executive summary of the
contingency plan would be more effective for an emergency responder
when responding to an incident at a facility accumulating hazardous
waste. As currently happens in practice, once the incident is under
control, then the emergency responders can review the more detailed
contingency plan if necessary for long-term responses.
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\89\ Notes from discussion with Phil Oakes and Jim Narva,
International Association of Fire Marshalls, concerning Contingency
Planning and Emergency Response Regulations, July 2012.
---------------------------------------------------------------------------
A review of the information required as part of a RCRA contingency
plan in Sec. 265.52, as well as information required by the local fire
department, identified certain components that would be useful in an
executive summary and EPA used this information in developing this
proposed regulation. Specifically, the Agency is proposing to require
that the following information be included in an executive summary to
assist emergency responders in the event of an incident: (1) The types/
names of hazardous wastes in layman's terms and the associated hazard
associated with each waste present at any one time (e.g., toxic paint
wastes,
[[Page 57960]]
spent ignitable solvent, corrosive acid); (2) the estimated maximum
amount of each waste that may be present at any one time; (3) the
identification of any hazardous wastes where exposure would require a
unique or special treatment by medical or hospital staff; (4) a map of
the site showing where hazardous wastes are generated and accumulated
and routes for accessing these wastes; (5) a street map of the facility
in relation to surrounding businesses, schools, and residential areas
to understand how best to get to the facility and also evacuate
citizens and workers; (6) the locations of water supply (e.g., fire
hydrant and its flow rate, drafting locations); (7) the identification
of on-site notification systems (e.g., a fire alarm that rings off-
site, smoke alarms); and (8) the name of the emergency coordinator and
24/7 emergency telephone number.
EPA believes these are the appropriate elements for the executive
summary but is taking comment on them. In addition, for identification
of the hazardous waste under element (1), EPA is taking comment on
whether providing the name of the waste in layman's terms is sufficient
for ensuring that first responders will be able to identify the
appropriate actions to take in response. A reference to the material in
the North American Emergency Response Guide, where appropriate, would
likely reduce the time it takes for first responders to get the
necessary information for managing the situation. EPA is interested in
whether this type of reference would be useful to first responders and
whether generators can easily access this information to add to their
contingency plans.
EPA is also taking comment on whether the executive summary should
add to element (3) a requirement that the generator provide information
on the medical information for exposure to those hazardous wastes that
do require special treatment. EPA is specifically interested in whether
this information is readily available to the generator to be included
in the executive summary of the contingency plan and whether first
responders would find this additional information useful for responses.
Under the proposed condition for contingency plans at LQGs, EPA is
proposing that an LQG that becomes subject to this rule after the
rule's effective date be required to develop and submit an executive
summary of its contingency plan to the LEPC in addition to the full
contingency plan. The Agency is not proposing to require that an LQG
that has already developed and submitted a contingency plan to local
emergency responders develop an executive summary because of the
additional burden that would be imposed on existing LQGs to go back to
their contingency plans and develop this summary. The Agency has
determined that developing the executive summary during the initial
writing of the contingency plan would not be a significant extra step.
However, we recommend that an LQG that is not required to develop an
executive summary of its contingency plan may want to do so and submit
that executive summary to the LEPC when doing a periodic update on its
contingency plan to ensure that the emergency responders have the
appropriate information on hand in the event of an emergency.
EPA, therefore, is proposing to modify the condition regarding
copies of the contingency plan to require that a copy of the
contingency plan and all revisions to the plan must be maintained at
the large quantity generator's site and the large quantity generator
must submit a copy of the contingency plan to the Local Emergency
Planning Committee. If there is no Local Emergency Planning Committee,
if it does not respond, or if the Local Emergency Planning Committee
determines that it is not the appropriate organization to make
arrangements with, the facility must then submit the copy to the local
emergency responders.
We are proposing to list in the regulations the eight elements
described above as the most valuable items for emergency responders.
The Agency requests comment on this proposed revision. In addition,
EPA requests comment on whether an existing LQG that has already
provided its full contingency plan should also be required to submit an
executive summary to the LEPC or, if appropriate, the fire department
or other emergency responders.
The Agency also requests comment on whether an SQG should be
required to develop an executive summary of a contingency plan. The
major differences between the preparedness, prevention, and emergency
procedures regulations applicable to SQGs and those applicable to LQGs
are the development and implementation of a contingency plan and more
rigorous responsibilities for the LQG emergency coordinator. Realizing
that many SQGs may already have developed contingency plans to comply
with other statutory and regulatory requirements, however, many of the
elements of an executive summary may already be available and that the
only addition would be summary information on the types and quantities
of hazardous waste on site, their associated risks, and their location
within the facility. Therefore, requiring SQGs to provide an executive
summary of a contingency plan to first responders could provide
information that is critical during emergencies with little extra
effort by the SQGs.
Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. These proposed regulations would appear in the
new part 262 subpart M for LQGs at Sec. Sec. 262.261 and 262.262. The
reorganization is discussed in section XIII of this preamble.
b. Eliminating employee personal information in LQG contingency
plans. As stated above, the condition for exemption for LQGs at Sec.
262.34(a)(4) references part 265 subpart D, which includes a list of
what the contingency plan must contain. The Agency is also proposing to
modify the language currently at Sec. 265.52(d) when it is copied into
part 262 to now allow an LQG the flexibility to eliminate unnecessary
employee personal information that is currently required in the
contingency plan. This would protect those individuals' privacy, but
still provide necessary information to address emergencies. Section
265.52(d) currently states that the plan must list names, addresses,
and phone numbers (office and home) of all persons qualified to act as
emergency coordinator (see Sec. 265.55), and requires that this list
be kept up to date. It specifies that where more than one person is
listed, one must be named as primary emergency coordinator and others
must be listed in the order in which they will assume responsibility as
alternates. The proposed revision would remove the unnecessary
references to addresses in this language and change the reference to
home and office telephone numbers to ``emergency telephone number.''
Also as part of this revision, the Agency is proposing revisions to
address situations where the facility has an emergency coordinator on
duty 24 hours every day of the week. In those situations, the plan may
list the staffed position (e.g., operations manager, shift coordinator,
shift operations supervisor), as well as an emergency telephone number
that can be guaranteed to be answered 24 hours a day, 7 days a week,
365 days a year. The EPA proposes to add language stating that in
situations where the generator site has an emergency coordinator
continuously on duty because it operates 24 hours per day, every day of
the year, the plan may list the staffed position (e.g., operations
manager, shift coordinator, shift operations supervisor,
[[Page 57961]]
or some other similar position) as well as an emergency telephone
number that can be guaranteed to be answered at all times.
The Agency requests comment on this proposed modification.
Effect of Proposed Reorganization: This section is affected by the
proposed reorganization. The proposed regulation would appear in the
new part 262 subpart M for LQGs at Sec. 262.261(d). The reorganization
is discussed in section XIII of this preamble.
c. Request for comment to include alternative evacuation routes in
contingency plan (40 CFR 265.52(f)). The Agency also requests comment
on modifying the condition on alternative evacuation routes in a
contingency plan, currently found at Sec. 265.52(f). This paragraph
currently states that the plan must include an evacuation plan for
facility personnel where there is a possibility that evacuation could
be necessary and that this plan must describe signal(s) to be used to
begin evacuation, evacuation routes, and alternate evacuation routes
(in cases where the primary routes could be blocked by releases of
hazardous waste or fires).
At issue is whether a contingency plan must contain information
about alternative evacuation routes or whether a different approach for
addressing alternative evacuation routes would be more effective. As
part of the 2004 Program Evaluation of the hazardous waste generator
regulatory program, the Agency received a comment stating that it does
not make sense to include in the contingency plan the hundreds of
possible evacuation routes that may be present at a facility depending
on its configuration. The commenter argued that the regulation should
be modified to require that evacuation routes be posted and drills be
conducted but that the regulations should not require the routes to be
in the contingency plan.\90\
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\90\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------
The Agency does not believe the current regulation requires all
potential evacuation routes be identified and believes emergency
responders may need this type of information in order to determine the
most efficient and timely approach to reach the facility, which raises
the question of whether the regulation should be modified in this way.
However, the Agency seeks comment on whether the commenter's proposal
to require the posting of evacuation routes and holding annual
evacuation training and drills would be an effective substitute to
maintaining alternative evacuation routes in the contingency plan. The
Agency also seeks comment on whether this paragraph of the regulations
should discuss shelter-in-place as part of contingency plans.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. Under the reorganization, the proposed
regulation would appear in the new part 262 subpart M for LQGs at Sec.
262.261(f). The reorganization is discussed in section XIII of this
preamble.
d. Request for comment on the usefulness of a potential electronic
RCRA contingency planning application.
The Agency requests comment on whether contingency plans should be
submitted electronically to emergency responders to enhance their
ability to respond safely and effectively to an emergency at an LQG and
what EPA's role should be in electronic submittals. Currently EPA makes
numerous electronic databases and tools available for helping first
responders with emergency management. These tools include CAMEO
(Computer-Aided Management of Emergency Operations), which assists with
data management requirements under EPCRA, such as the required annual
submittal of an Emergency Hazardous Chemical Inventory Form to the
LEPC. EPA is taking comment on whether an additional tool to manage
contingency plans under RCRA would be a useful addition to this
software suite and whether it would assist LEPCs by integrating the
contingency plan with their existing data on facilities, making the
information available to the first responders in the most usable way.
Specifically, we request comment on the feasibility and
effectiveness of private sector parties or non-profit or governmental
entities developing software that LQGs could use to provide important
information to emergency responders in responding to an emergency.
Building on the concept of a standard list of information to be
included in a contingency plan executive summary that was discussed
above, private sector or non-profit parties could design electronic
software to identify the appropriate information emergency responders
quickly need to assess an emergency. In turn, LQGs would then input
that information into the application and provide that information to
their local LEPC or emergency response organization for use should an
emergency arise. The objective would be to allow emergency responders
to more quickly and effectively analyze and respond to emergencies
rather than having to review a lengthy document.
4. Technical Changes Applicable to Both SQGs and LQGs
The Agency is proposing two additional clarifications and
modifications to the existing preparedness, prevention, and emergency
procedures regulations for SQGs and LQGs and is taking comment on one
more.
The Agency is proposing revisions based on 30 years of experience
with these rules, feedback from stakeholders as part of the Agency's
2004 Program Evaluation of the hazardous waste generator regulatory
program and discussions and communication with stakeholders. EPA
believes these clarifications will foster improved compliance without
adversely affecting the protection of human health and the environment.
a. Proposed technical changes to introductory paragraph on required
equipment. Sections 262.34(a)(4) and (d)(4) include the condition that
LQGs and SQGs comply with part 265 subpart C, which includes Sec.
265.32. Section 265.32 requires that all facilities must be equipped
with certain types of equipment unless none of the hazards posed by
waste handled at the facility could require that particular kind of
equipment. The paragraph goes on to list required equipment such as an
internal communications system, a telephone or radio, fire
extinguishers, and access to adequate water. The existing regulation is
not clear as to whether the required equipment must be placed in those
areas of operation where hazardous waste is generated and accumulated,
(or treated, stored and disposed in the case of an interim status TSDF)
or whether other parts of the facility could store this equipment--that
is, where hazardous waste is not generated or accumulated.
The Agency believes it may not always be appropriate or safe to
have this equipment stored in the actual waste generation or
accumulation area and instead, we are proposing that the regulation
state that the hazardous waste generator should have this equipment
located where it can be immediately accessed without jeopardizing a
timely and effective response to any emergency. For example, the waste
generation area may be in an enclosed room. Should a fire occur in the
enclosed room, it might be more appropriate to exit the room and call
the fire department rather than stay inside and be exposed to smoke
inhalation and other risks. EPA believes
[[Page 57962]]
the existing regulatory text should be revised to explain that while
this equipment applies to only those areas applicable to the generation
and accumulation (and treatment, as appropriate) of hazardous waste,
the generator has the flexibility to store this equipment in other
areas of the facility to address those situations where it is
infeasible or inappropriate for safety reasons to have the equipment
immediately next to hazardous waste generation and accumulation areas.
Therefore, EPA is proposing to modify the introductory paragraph to
provide generators subject to subpart C of part 265 the flexibility to
determine the most appropriate locations within the facility to locate
equipment necessary to prepare for and respond to emergencies.
The proposed regulation would state that all areas where hazardous
waste is either generated or accumulated must be equipped with the
listed types of equipment (unless none of the hazards posed by waste
handled at the site could require a particular kind of equipment or the
actual waste generation or accumulation area does not lend itself for
safety reasons to have a particular kind of equipment). It would also
state that a generator may determine the most appropriate locations
within its generator site to locate equipment necessary to prepare for
and respond to emergencies.
The Agency requests comment on its proposal to modify Sec. 265.32.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec. 262.16(b)(8)(ii) with some changes to make
it specific to SQGs and in the new part 262 subpart M for LQGs at Sec.
262.252. The reorganization is discussed in section XIII of this
preamble.
b. The meaning of ``immediate access.'' Sections 262.34(a)(4) and
(d)(4) include the condition that LQGs and SQGs comply with part 265
subpart C, which also includes Sec. 265.34. Section 265.34(a) states
that whenever hazardous waste is being poured, mixed, spread, or
otherwise handled, all personnel involved in the operation must have
immediate access to an internal alarm or emergency communication
device, either directly or through visual or voice contact with another
employee, unless such a device is not required under Sec. 265.32. At
issue is whether the phrase ``immediate access'' is clearly understood
or whether additional clarity is necessary. As part of the Agency's
2004 Program Evaluation of the hazardous waste generator program,
stakeholders raised a concern about whether the regulated community has
a sufficient understanding about what this phrase means and we are
proposing to address that concern here.
In the interest of clarity, the Agency is proposing to modify this
language to read, ``immediate access (e.g., direct or unimpeded
access).'' The Agency believes that adding this parenthetical example
provides further guidance on the meaning of ``immediate access.'' This
phrase is used again in the next paragraph in a similar context and EPA
is proposing to add the words ``(direct or unimpeded access)'' in that
case as well.
The Agency requests comment on the usefulness of modifying this
language.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The proposed regulation would appear in
the SQG standards at Sec. 262.16(b)(8)(iv) and in the new part 262
subpart M for LQGs at Sec. 262.254. The reorganization is discussed in
section XIII of this preamble.
5. Technical Changes Applicable to SQGs
Current preparedness and prevention standards for SQGs are found at
Sec. 262.34(d)(5). SQGs must comply with the following:
Sec. 262.34(d)(5)(i)--have at least one employee either
on the premises or on call with the responsibility for coordinating all
emergency response measures (e.g., the emergency coordinator);
Sec. 262.34(d)(5)(ii)--post specified information next to
the telephone, including the name and telephone number of the emergency
coordinator; the location of fire extinguishers and spill control
material, and, if present, fire alarm; and the telephone number of the
fire department, unless the facility has a direct alarm;
Sec. 262.34(d)(5)(iii)-- ensure that all employees are
thoroughly familiar with proper waste handling and emergency
procedures, relevant to their responsibilities during normal facility
operations and emergencies; and
Sec. 262.34(d)(5)(iv)-- have the emergency coordinator or
his designee follow the specified procedures in the event of a fire,
spill, or explosion.
EPA is proposing changes to two of these provisions.
a. Require certain information be posted ``next to the telephone''
(40 CFR 262.34(d)(5)(ii)). The Agency is proposing to revise Sec.
262.34(d)(5)(ii) in order to facilitate improved compliance on the part
of SQGs. This language requires, among other items, that certain
information be posted ``next to the telephone,'' such as the name and
telephone number of the emergency coordinator and the location of fire
extinguishers and spill control material. Based on experience and
feedback received from the regulatory community, the Agency believes it
is unclear in this description where in the facility this information
should be posted. A facility may have many operations and components
that have no relationship with the generation and accumulation of
hazardous waste.
Stakeholders have recommended deletion of Sec. 262.34(d)(5)(ii)
because, in this age of near-universal 911 availability, they state it
is simply not important from a regulatory point of view to have
emergency telephone numbers posted. They argue that locations of fire
extinguishers, spill control material, fire alarms, etc., should be
conveyed to relevant employees and displayed in a worker break area
rather than the facility office and that posting the name and telephone
number of the emergency coordinator is also not necessary. For the
majority of the SQG universe, the emergency coordinator is the owner or
shop supervisor.\91\
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\91\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------
EPA disagrees with eliminating this provision because we believe
that posting this information is important for workers and others to
have readily available information so that they would know what to do
and where to go in the case of an emergency. However, the Agency
believes that the regulation should be modified to state clearly that
the pertinent information should be posted where hazardous waste is
generated and accumulated, since facility personnel can quickly seek
assistance from it there.
Also unstated is whether the telephone number refers to the
emergency coordinator's home phone or business phone. Over the years
the Agency has received requests that we modify this provision to
ensure that personal information not be used or distributed,
particularly to individuals or organizations that could use such
information to cause harm to the individual.\92\ With cell phones and
other means of instant communication now prevalent, EPA is proposing to
clarify this provision to provide the hazardous waste generator with
the necessary flexibility to allow its emergency coordinator to perform
specified responsibilities effectively
[[Page 57963]]
using the emergency telephone number of the emergency coordinator.
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\92\ Letter to Jim O'Leary from Derek Swick, American Petroleum
Institute, September 28, 2011.
---------------------------------------------------------------------------
Therefore, EPA is proposing that Sec. 262.34(d)(5)(ii) be modified
to state that the small quantity generator must post the name and
emergency telephone number of the emergency coordinator next to
telephones or in areas directly involved in the generation and
accumulation of hazardous waste. Section 262.34(d)(5)(ii)(B) and (C)
are unchanged.
EPA requests comment on this proposed change.
Effect of the Reorganization: This section is affected by the
reorganization and would move to Sec. 262.16(b)(9)(ii)(A). The
reorganization is discussed in section XIII of this preamble.
b. Allow containment and cleanup to be conducted by a contractor
(40 CFR 262.34(d)(5)(iv)(B)). Section 262.34(d)(5)(iv)(B) currently
reads, ``In the event of a spill, contain the flow of hazardous waste
to the extent possible, and as soon as is practicable, clean up the
hazardous waste and any contaminated materials or soil.'' If such a
spill were considered an emergency under OSHA's regulations in 29 CFR
1910.120, an SQG would be required to take a minimum of eight hours of
initial training with an annual refresher, and in certain circumstances
additional hours of training. Feedback from stakeholders suggests that
most SQGs would hire a spill cleanup contractor to provide such
services, if needed, rather than train employees to perform the
response. We would agree that allowing an SQG to hire a contractor that
is trained to address hazardous waste spills would certainly be
appropriate. However, the regulations in Sec. 262.34(d)(5)(iv)(B)
arguably do not provide this flexibility.\93\
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\93\ Summary of Hazardous Waste Generator Regulatory Program
Evaluation, November 2004. See also public comments in Docket ID No.
RCRA-2003-0014.
---------------------------------------------------------------------------
Therefore, the Agency is proposing to modify Sec.
262.34(d)(5)(iv)(B) and place the responsibility on the SQG to either
perform the necessary cleanup of hazardous wastes or contract out the
cleanup. The proposed language would state that in the event of a
spill, the small quantity generator is responsible for containing the
flow of hazardous waste to the extent possible, and as soon as is
practicable, cleaning up the hazardous waste and any contaminated
materials or soil. The proposal would allow such containment and
cleanup to be conducted either by the small quantity generator or by a
contractor on behalf of the small quantity generator.
The Agency requests comment on the proposed revision to Sec.
262.34(d)(5)(iv)(B) and whether any unintended consequences arise from
providing SQGs with this flexibility.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization and would move to Sec.
262.16(b)(9)(iv)(B). The reorganization is discussed in section XIII of
this preamble.
6. Technical Changes on Personnel Training Applicable to LQGs
The Agency is proposing to modify the condition regarding personnel
training for LQGs, currently found at Sec. 262.34(a)(4), which refers
to Sec. 265.16. The proposed modification would allow a generator to
use online computer training, in addition to classroom instruction and
on-the-job training, to complete the personnel training requirements.
Since the personnel training regulations were promulgated in the 1980s,
use of computerized training has become a common practice for
generators to teach their workers about the management of hazardous
waste. In fact, many generators already use this method for training
workers and this modification would simply bring the hazardous waste
personnel training regulations up to date with existing industry
practices.
The proposal would modify the first sentence of this provision by
adding the words ``online training'' and would state that site
personnel must successfully complete a program of classroom
instruction, online training, or on-the-job training that teaches them
to perform their duties in a way that ensures compliance with this
part.
The Agency requests comment on the proposed modification.
Effect of the Proposed Reorganization: This section would be
affected by the proposed reorganization. Under the reorganization this
provision would be found at Sec. 262.17(a)(7)(i)(A). The proposed
reorganization is discussed in section XIII of this preamble.
7. Taking Comment on Applicability of Personnel Training
The Agency seeks comment on clarifying what positions within an LQG
must be responsible for receiving training associated with the
management of hazardous waste, as well as identifying those positions
for which a written job description is necessary. Under the current
regulations, LQGs are responsible for complying with Sec.
262.34(a)(4), which references, among other technical requirements, the
personnel training provisions in Sec. 265.16. Under the proposed
reorganization discussed in section XIII, this condition for LQGs would
move into 40 CFR 262.17.
The current regulations are not specific about which personnel at
an LQG must complete the hazardous waste training. Other than stating
that under Sec. 265.16(a)(3) personnel must be able to respond
effectively to emergencies by familiarizing them with emergency
procedures, emergency equipment, and emergency systems, no other areas
of hazardous waste management are cited.
At issue is the scope of these training standards and the
applicability of the training provision to employees that are not
assigned to work in the 90-day accumulation areas. The Agency is
considering whether to require training and a written job description
for specific types of employees working in areas of hazardous waste
management related to 90-day accumulation areas. This clarification
would have the benefit of assisting LQGs in determining more readily
the scope of their hazardous waste training program.
The Agency, with the assistance of staff from the states of
Vermont, Connecticut and New York,\94\ have identified the following
areas of hazardous waste management for which personnel training and a
written job description should be required: Anyone who (1) completes
and/or signs the hazardous waste manifest, (2) manages hazardous waste
in areas where hazardous wastes are accumulated, (3) maintains
hazardous waste inventory, (4) conducts daily or weekly inspections of
areas where hazardous wastes are accumulated, and (5) plans or responds
to emergencies that involve hazardous wastes.
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\94\ Correspondence between Steve Simoes, State of Vermont, with
Ross Bunnell and Bill Yeman, from Connecticut and New York,
respectively, a copy of which is found in the docket to this
proposal.
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The Agency seeks comment on whether the regulations should
specifically identify positions at LQGs where hazardous waste training
would be required and for which a written job description is necessary
and what those areas should be. In addition, the Agency seeks comment
on whether personnel involved in handling or managing hazardous wastes
in SAAs should be required to undergo hazardous waste training. Current
Agency guidance excludes staff working in satellite accumulation areas
from the training requirements.\95\ The Agency is of the
[[Page 57964]]
opinion that such personnel have a similar need to know the risks
associated with hazardous wastes as personnel working in central
accumulation areas.
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\95\ Memorandum from Robert Springer, Director of the Office of
Solid Waste to RCRA Directors, EPA Regions 1-10, ``Frequently Asked
Questions about Satellite Accumulation Areas,'' March 17, 2004, RCRA
Online 14703 http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/0ac9e15424b2897d8525770600609793!OpenDocument.
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8. Taking Comment on Applying Emergency Planning and Procedures
Revisions to Parts 264 and 265
The proposed revisions discussed throughout this section of the
preamble on the emergency planning and procedure regulations would only
pertain to generators, as the proposed language would be found in the
expanded generator regulations in part 262. However because many of the
preparedness and emergency procedure provisions discussed in this
section are taken from part 265 with only slight revisions, we are
taking comment on whether these same proposed revisions should also be
made in the applicable paragraphs of parts 264 and/or 265 as well to
ensure consistency between the generator regulations and those for
permitted facilities or facilities operating under interim status. The
Agency requests comment on whether these revisions for consistency
would be helpful and appropriate for facilities operating under part
264 or part 265 or whether the regulations should remain unchanged
despite the result that generators and TSDFs would be left with some
regulations that are very similar but not exactly the same.
I. Revisions to Satellite Accumulation Area Regulations for SQGs and
LQGs (40 CFR 262.34(c))
The Agency is proposing a number of changes that would revise and
strengthen the conditions for exemption for satellite accumulation
areas (SAA) at Sec. 262.34(c). These include (1) requiring SQGs and
LQGs accumulating hazardous waste in SAAs to comply with the special
requirements for incompatible wastes found at Sec. 265.177; (2)
providing limited exceptions to the regulation requiring generators to
keep containers closed at all times; (3) strengthening the marking and
labeling standards for SAAs (note these marking and labeling changes
are the same as those proposed for containers in central accumulation
areas); (4) confirming that three days means three consecutive calendar
days, not business days; (5) providing a maximum weight for the
accumulation of acute hazardous waste in SAAs in addition to a volume;
(6) rewording the regulations for when the maximum volume or weight is
exceeded in an SAA; (7) rescinding a guidance memo regarding the
accumulation of reactive (D003) hazardous waste away from the point of
generation; and (8) providing examples in the preamble to help
generators better understand the term ``under the control of the
operator,'' which is used in the SAA regulations.
In addition to these proposed changes, the SAA regulations would be
moved as part of the proposed reorganization. These regulations would
all be found together in Sec. 262.15. The reorganization is discussed
in section XIII of this preamble.
Using an SAA is not required of hazardous waste generators, but the
regulations allowing them and setting the conditions for their use are
designed to assist generators who generate and accumulate small amounts
of hazardous waste in different parts of their facilities. SQGs and
LQGs, however, may choose to accumulate hazardous waste only in central
accumulation areas (CAAs) rather than SAAs or they may accumulate up to
55 gallons of non-acute hazardous waste and/or one quart of acute
hazardous waste within each facility's SAAs and once that threshold has
occurred, ship the hazardous waste to a designated facility. A
generator may also accumulate hazardous waste within an SAA(s) and
never move the waste to a CAA once the 55 gallons limit is reached, but
instead, ship the waste directly to a RCRA designated facility.
1. Requiring SQGs and LQGs to Comply with the Special Requirements for
Incompatible Wastes for Containers Accumulating Hazardous Wastes in
SAAs
Under the current regulations in Sec. 262.34(c)(1)(i), generators
accumulating hazardous waste in SAAs must meet the conditions for
exemption, including complying with the container requirements at
Sec. Sec. 265.171, 265.172, and 265.173(a). These container
requirements include accumulating hazardous waste in containers of good
condition, ensuring the waste is compatible with, or will not react
with, the contents of the container, and ensuring that the container
accumulating hazardous waste is closed, except when it is necessary to
add or remove waste. We are proposing to modify this part of the SAA
container management standards by requiring that hazardous wastes not
be mixed or be placed in the same container with other hazardous waste
that are incompatible and could potentially result in fires,
explosions, gaseous emissions, leaching, or other discharge of
hazardous waste or hazardous waste constituents.\96\
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\96\ See Comment in Sec. 265.177.
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The Agency believes that in developing the regulations for SAAs, it
inadvertently failed to account for the potential for accumulating
incompatible wastes, especially since the current regulations already
prohibit placing hazardous waste in containers that it may react with
and that impair the containers ability to contain the hazardous waste.
Therefore, the Agency is proposing that SQGs and LQGs accumulating
hazardous waste in SAAs also comply with the part 265 subpart I
container management standards for incompatible hazardous wastes at
Sec. 265.177. The Agency believes most generators already are aware of
and comply with this best management practice at their SAAs since they
must comply with this regulation when they move the SAA container(s)
into a 90-day or 180-day central accumulation area.
The Agency requests comment on this proposed modification.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(iii). The reorganization is discussed in section XIII of
this preamble.
2. Limited Exceptions to Keeping Containers Closed at all Times in SAAs
As noted in the previous section, the current regulation in Sec.
262.34(c)(1)(i) for generators accumulating hazardous waste in SAAs
requires containers accumulating hazardous waste to be kept closed,
except when it is necessary to add or remove waste. The SAA regulations
reference the requirement in Sec. 265.173(a) that containers be closed
while accumulating hazardous wastes at interim status treatment,
storage and disposal facilities. We are proposing to modify this
provision from Sec. 262.34(c)(1)(i) in the new section for SAA
conditions at Sec. 262.15, but only as it pertains to SAAs; it will
not affect the requirements for container management at interim status
treatment, storage and disposal facilities. Because this modification
is only meant to apply to containers accumulating hazardous waste in
SAAs, and not to containers being stored at interim status treatment,
storage, or disposal facilities, we are proposing to modify this
requirement by eliminating the reference in the SAA regulations in part
262 to the container management standards for interim status treatment,
storage or disposal facilities at Sec. 265.173(a) and
[[Page 57965]]
incorporating the closed container provision directly into the SAA
regulations in Sec. 262.15, under the proposed reorganization.
Specifically, we are proposing to modify the standard in order to
allow containers of hazardous waste in SAAs to remain open under
limited circumstances. Specifically, we are proposing that containers
of hazardous waste in SAAs may be open when it is necessary either for
the operation of equipment to which the SAA container is attached or to
prevent dangerous situations, such as the build-up of extreme pressure
or heat because closing a container can be more dangerous than keeping
it open temporarily in those situations. Stakeholders have identified
situations where keeping SAA containers closed can interfere with the
operation of equipment when the container is attached directly to the
equipment via piping or tubing. Stakeholders have also identified
situations in which closing a container can be more dangerous than
keeping it open temporarily; for example, when the hazardous waste is
very hot.
Therefore, EPA is proposing to modify the regulations to allow
containers to be vented in such situations. However, we are also
proposing that when the danger passes (e.g., the contents cool), then
the requirement to keep the container closed applies and when the
equipment is not in operation, the requirement to keep the container
closed applies.
As noted above, the flexibility proposed for containers to remain
open in specific situations applies only to containers in SAAs since
that is where hazardous waste initially accumulates. The Agency does
not anticipate that it is necessary to extend this flexibility to
containers of hazardous waste in central accumulation areas.
The Agency requests comment on this proposed modification.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(iv). The reorganization is discussed in section XIII of
this preamble.
3. Strengthening the Marking and Labeling Provisions for Containers in
SAAs
Currently, the regulations for SAAs in Sec. 262.34(c)(1)(ii)
require a generator to mark ``his containers either with the words
`Hazardous Waste' or with other words that identify the contents of the
containers'' [emphasis added]. The Agency is proposing two
modifications that would strengthen the labeling and marking
regulations for containers accumulating hazardous waste in SAAs. First,
EPA is proposing to change the ``or'' to an ``and'' and thus require
that generators mark containers in the SAA with both the words
``Hazardous Waste'' and other words to identify the contents of the
container that are accumulated in SAAs.
Second, EPA is proposing that generators also indicate the hazards
of the contents of the containers. EPA believes these proposed changes
will alert workers, emergency responders, and others to the potential
hazards posed by its contents. Identifying the hazard increases
awareness to workers and others who might come into contact with the
hazardous waste container and reduces potential risks to human health
and the environment from container mismanagement. As discussed
previously in section VIII.E, these changes are similar to those
proposed for containers stored in central accumulation areas.
Specifically, EPA is proposing to modify the marking and labeling
regulations for SAAs to require LQGs and SQGs to mark containers with
the following: (1) The words ``Hazardous Waste''; (2) other words that
identify the contents of the containers. Examples may include, but are
not limited to the name of the chemical(s), such as ``acetone'' or
``methylene dichloride,'' or the type or class of chemical, such as
``organic solvents'' or ``halogenated organic solvents'' or, as
applicable, the proper shipping name and technical name markings used
to comply with DOT requirements at 49 CFR part 172 subpart D; and (3)
an indication of the hazards of the contents of the container. Examples
of hazards include, but are not limited to, the applicable hazardous
waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic);
a hazard class label consistent with the DOT requirements at 49 CFR 172
part 172 subpart E (labeling); a label consistent with the OSHA Hazard
Communication Standard at 29 CFR 1920.1200; a chemical hazard label
consistent with the NFPA code 704; or a hazard pictogram consistent
with the United Nations' GHS. Generators also may use any other marking
and labeling commonly used nationwide in commerce that would alert
workers and emergency responders to the nature of the hazards
associated with the contents of the containers.
The pre-transport requirements of part 262 subpart C already
require hazardous waste generators to comply with the DOT labeling/
marking requirements of 49 CFR part 172. By requiring generators to
include other words that identify the contents of the containers, the
Agency is proposing that generators perform a task that is already
required when preparing the container prior to transporting the
hazardous waste off site for subsequent waste management. In addition,
the Agency is proposing to modify the marking and labeling of
containers prior to shipping the hazardous waste. We are proposing that
SQGs and LQGs can use the DOT hazard class labels to comply with the
new labeling and marking regulation for containers in SAA.
Alternatively, they may choose another method to indicate the hazards
of the container that suits them better, as noted above.
The Agency requests comment on these proposed changes.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1)(v). The reorganization is discussed in section XIII of
this preamble.
4. Clarify What Is Meant by ``Three Days''
The current regulations at Sec. 262.34(c)(2) state that a
generator who accumulates either hazardous waste or acutely hazardous
waste must, with respect to that amount of excess waste, comply
``within three days'' with paragraph (a) of that section or other
applicable provisions of the chapter. The Agency is proposing to state
in the regulations that the term ``three days'' means three consecutive
calendar days, not three business days or three working days. The
Agency has already clarified this term in a memo, which was based on
preamble discussions from the proposed and final SAA
regulations.97 98 As stated in the memo, ``Originally, the
Agency had proposed to use 72 hours as the time limit but realized that
determining when 72 hours had elapsed would have required placing both
the date and time of day on containers. In the final rule the Agency
switched to using three days so that generators only need to date
containers that hold the excess of 55 gallons of non-acute hazardous
waste (or 1 quart of acute hazardous waste).''
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\97\ Memorandum from Robert Springer, Director of EPA's Office
of Solid Waste, to RCRA Regional Directors, ``Frequently Asked
Questions About Satellite Accumulation Areas,'' March 17, 2004, RCRA
Online 14703.
\98\ Proposed rule: January 3, 1983 48 FR 118; Final rule:
December 20, 1984; 49 FR 49569.
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The Agency requests comment on this codification of an existing
interpretation.
[[Page 57966]]
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(2)(i). The reorganization is discussed in section XIII of
this preamble.
5. Providing a Maximum Weight for the Accumulation of Acute Hazardous
Waste in Containers at SAAs
Currently, the regulations at Sec. 262.34(c)(1) impose maximum
volumes of hazardous waste that may be accumulated in an SAA without
requiring a permit, complying with interim status standards, or
complying with the generator accumulation standards. For non-acute
hazardous waste, the maximum volume is 55 gallons. For acute hazardous
waste, the maximum volume is 1 quart. When the SAA regulations were
finalized, EPA explained that 55 gallons was selected for non-acute
hazardous waste in part because it is the size of the most commonly
used accumulation container.\99\ EPA also explained that 1 quart was
chosen for acute hazardous waste because it is the volumetric
equivalent to 1 kilogram of acute hazardous waste used elsewhere in the
regulations and commenters expressed opposition to using a weight
measure. Since then, however, stakeholders have indicated that the 1-
quart volume maximum is not a practical way to measure the accumulation
of some wastes, particularly non-liquid acute hazardous wastes.
Therefore, we are proposing to add a weight measurement to the SAA
regulations for the maximum accumulation of acute hazardous wastes.
Specifically, we are proposing that 1 quart or 1 kilogram (2.2 pounds)
of acute hazardous waste may be accumulated in an SAA. Generators that
accumulate acute hazardous waste in SAAs will have the choice of
whether to use 1 quart or 1 kilogram, but they will be required to
identify which metric they choose to use.
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\99\ December 20, 1984; 49 FR 49569-70.
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We are not proposing to add a similar weight equivalent to the 55-
gallon threshold for non-acute hazardous waste since stakeholders have
not expressed a similar need. However, we request comment on whether it
would be useful to have a maximum weight for the accumulation of non-
acute hazardous waste in SAAs.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(1). The reorganization is discussed in section XIII of this
preamble.
6. Modifying the Language for When the Maximum Volume or Weight Is
Exceeded in an SAA
Currently, the regulation at Sec. 262.34(c)(2) states that when
the maximum volumes are exceeded in an SAA, a generator ``must, with
respect to that amount of excess waste, comply within three days with
paragraph (a) of this section or other applicable provisions of this
chapter.'' The Agency is rewording this regulation in order to more
clearly state the generator's options for managing the materials that
exceed the limit. The proposed regulatory text states that a generator
who accumulates either non-acute hazardous waste or acute hazardous
waste listed in Sec. 261.31 or Sec. 261.33(e) in excess of the
amounts listed in paragraph (a)(1) of this section at or near any point
of generation must remove the excess from the satellite accumulation
area within three calendar days either to a central accumulation area,
an on-site interim status or permitted treatment, storage, or disposal
facility, or an off-site designated facility. Similarly, during the
three-calendar-day period the generator must continue to comply with
paragraphs (a)(1)(i) through (iv) of this section and must mark the
container(s) holding the excess accumulation of hazardous waste with
the date the excess amount began accumulating.
The Agency does not view this as a substantive change to the SAA
regulations. Nevertheless, the Agency solicits comments on this
proposed change.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. The SAA regulations are currently at Sec.
262.34(c). We are proposing to move this provision to Sec.
262.15(a)(6). The reorganization is discussed in section XIII of this
preamble.
7. Rescinding a Memo Regarding Accumulating Reactive Hazardous Waste
Away From the Point of Generation
In a memo dated January 13, 1988, EPA wrote that a storage shed
that is outside of a building where a reactive hazardous waste (D003)
is initially generated, could be considered an SAA.\100\ EPA is
proposing to revoke this interpretation. EPA acknowledges that in some
instances it is safer to accumulate hazardous waste away from the
initial point of generation, such as with hazardous wastes that are
explosive. However, because SAAs are subject to less stringent
conditions than CAAs, EPA believes it is not appropriate for such
dangerous hazardous wastes to be stored in SAAs. Rather, EPA believes
that if a generator accumulates hazardous waste that is so dangerous it
needs to be accumulated away from the point of generation, it should be
accumulated under the more rigorous accumulation standards for central
accumulation areas.
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\100\ Letter from Marcia E. Williams, Director of EPA's Office
of Solid Waste, to Michael E. Young, Atlantic Research Corporation,
January 13, 1988, RCRA Online 11317.
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The Agency requests comment on proposing to revoke this
interpretation of the SAA regulations.
8. Examples of the Meaning of ``Under the Control of the Operator''
The SAA regulation at Sec. 262.34(c)(1) uses the term ``under the
control of the operator.'' EPA has not defined this term in the
regulations, nor have we discussed it in preamble or guidance letters.
However, over the years, the Agency has received inquiries about what
constitutes ``under the control of the operator.'' In an effort to
assist generators to better understand this term and to foster improved
compliance with the SAA provisions, the Agency is providing examples in
this preamble of what constitutes ``under the control of the
operator.'' For example, EPA would consider waste to be ``under the
control of the operator'' if the operator controlled access to an area,
building, or room that the SAA is in, such as with entry by access
card, key or lock box. Another example would be if the operator
accumulates waste in a locked cabinet and controlled access to the key,
even if the cabinet is stored inside a room to which access is not
controlled.
The Agency requests comment on additional practices that would
constitute ``under the control of the operator.''
J. SQGs Accumulating Hazardous Waste on Drip Pads and in Containment
Buildings (40 CFR 262.34(d))
EPA is proposing to modify the regulations at Sec. 262.34(d) to
require SQGs that accumulate hazardous waste for 90 days or less on
drip pads without a permit or interim status to comply with the
technical standards of 40 CFR part 265 subpart W and with all other
conditions for an exemption associated with the accumulation of
hazardous waste by an SQG.
Additionally, EPA is proposing to modify the conditions for an
exemption currently at Sec. 262.34(d) to require SQGs that accumulate
hazardous waste for 90 days or less in a containment building
[[Page 57967]]
without a permit or interim status to comply with the technical
standards of 40 CFR part 265 subpart DD and with all other conditions
for exemption associated with the accumulation of hazardous waste by an
SQG.
1. Accumulation of Hazardous Waste on Drip Pads
On December 30, 1988, EPA issued a proposed rule listing three
additional hazardous wastes from wood preserving operations that use
chlorophenolic, creosote, and/or inorganic (arsenic and chromium)
preservatives, and listing one hazardous waste from surface protection
processes that use chlorophenolics (53 FR 53282). As part of this rule,
the Agency proposed additional standards ``applicable to drip pads in
treated wood storage yards and in kick back areas used in managing
hazardous wastes at wood preserving and surface protection facilities.
These standards are intended to provide for proper handling of treated
wood drippage'' (53 FR 53308).
In terms of the types of RCRA facilities this regulation would
apply to, the proposed rule identified and discussed the regulatory
requirements for two groups: Hazardous waste TSDFs subject to the part
264 permitting standards and LQGs subject to the part 265 interim
status drip pad standards. More specifically, the preamble stated that
``in the event that drippage is collected and is moved from the drip
pad within 90 days following generation, generators may avail
themselves of the 90-day accumulation standards of 40 CFR 262.34, and
would not need Part B permits for their drip pads or tanks (consistent
with Sec. 264.1(g)(3), 265.1(c)(7), and 270.1(c)(2)(i)) provided that
they comply with the Part 265 standards, as required by 40 CFR 262.34''
(53 FR 53309).
When EPA promulgated the final rule for these hazardous wastes (55
FR 50450, December 6, 1990), the discussion addressed the same universe
of facilities (i.e., hazardous waste TSDFs subject to the part 264
permitting standards and LQGs subject to the part 265 interim status
drip pad standards).
Pursuant to Sec. 262.34(a), LQGs may accumulate the hazardous
waste they generate without having to obtain a RCRA permit provided
they comply with several specified conditions, including the technical
standards for containers, tanks, drip pads, or containment buildings
found at part 265 subparts I, J, W, and DD, respectively. Similarly,
pursuant to Sec. 262.34(d), SQGs may accumulate the hazardous waste
they generate without having to obtain a permit, provided they comply
with several specified conditions, including the technical standards
for containers and tanks found at part 265 subparts I and J,
respectively. Although there is no explicit condition for SQGs
accumulating and managing their hazardous waste on drip pads, EPA
intended SQGs accumulating hazardous wastes on drip pads either to
comply with all of the conditions for exemption, as well as any
associated independent requirements for LQGs at part 265 subpart W, or
else obtain a Part B permit for their drip pads (consistent with
Sec. Sec. 264.1(g)(3), 265.1(c)(7), and 270.1(c)(2)(i)).
EPA has consistently interpreted this regulatory requirement to
apply to SQGs. For example, as stated in the wood preserving technical
guidance document issued by EPA in 1996, a copy of which is found in
the docket, ``this 90-day limit applies to both large quantity and
small quantity generators. While small quantity generators may normally
accumulate hazardous waste in accumulation units for up to 180 days,
this is not the case for small quantity generators accumulating waste
on Subpart W drip pads. Owners/operators of wood preserving facilities
who generate between 100-1,000 kilograms of hazardous waste per
calendar month and who accumulate the waste on drip pads are not
eligible for the reduced standards normally provided for small quantity
generators. Instead, these generators must comply with all the
management conditions for large quantity generators accumulating
hazardous waste on drip pads.'' \101\
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\101\ ``Wood Preserving Resource Conservation and Recovery Act
Compliance Guide--A Guide to Federal Environmental Regulation,''
U.S. EPA, EPA-305-B-96-001, June 1996, Section 5-8.
---------------------------------------------------------------------------
Similarly, the RCRA training module for drip pads, a copy of which
is found in the docket to this proposal, reinforced this principle by
stating the following: ``Under Sec. 262.34(d), small quantity
generators (SQGs) are subject to a reduced set of requirements when
accumulating hazardous wastes in tanks or containers meeting the
interim status unit standards. SQGs who accumulate wood-preserving
wastes on drip pads do not qualify for this partial exemption.
Consequently, all generators of more than 100 kilograms of waste per
month who manage wood-preserving wastes on drip pads must comply with
the requirements applicable to LQGs in Sec. 262.34(a). As a result,
the maximum generator accumulation time period on drip pads is 90
days.'' \102\
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\102\ ``Introduction to Drip Pads (40 CFR parts 264 and 265,
subpart W),'' RCRA, Superfund & EPCRA Call Center Training Module,
U.S. EPA, EPA530-K-02-008I, October 2001, page 7.
---------------------------------------------------------------------------
At the end of the same paragraph, the document states, ``Generators
using drip pads must also comply with the requirements that apply to
large quantity generators for personnel training, development of a full
contingency plan, and biennial reporting,'' suggesting that SQGs
accumulating hazardous waste on drip pads must comply with all of the
conditions and independent requirements for LQGs, and not just the
accumulation time limits.
Because of this statement, the Agency believes that confusion may
potentially exist about the applicability of the regulations. As stated
above, if an SQG accumulates hazardous waste in containers, it can
comply with a reduced set of regulations, including accumulation of
hazardous waste for up to 180 days, whereas if the SQG accumulates
hazardous waste on drip pads, it must comply with the regulations for
LQGs. The Agency believes a more effective and efficient approach is to
require SQGs accumulating hazardous waste on drip pads to comply with
the technical standards of part 265 subpart W, including compliance
with the LQG 90-day accumulation limit (as opposed to the SQG 180-day
accumulation limit), but to otherwise comply with less stringent
conditions for SQGs found at 40 CFR 262.34(d). EPA notes that hazardous
waste that is generated elsewhere at the wood preserving facility and
accumulated in tanks or containers (i.e., not accumulated on drip pads)
will remain subject to the SQG accumulation limits. Only waste that is
accumulated on drip pads must comply with the LQG accumulation
limits.\103\
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\103\ ``Wood Preserving Resource Conservation and Recovery Act
Compliance Guide--A Guide to Federal Environmental Regulation,''
U.S. EPA, EPA-305-B-96-001, June 1996, Section 5-8.
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Because both the monthly generation quantities (e.g., greater than
100 kg and less than 1,000 kg) and accumulation total (e.g., not to
exceed 6,000 kg at any one time) for SQGs are significantly less than
the generation and accumulation quantities for LQGs, the Agency
believes that SQGs complying with the less stringent conditions at
Sec. 262.34(d) (e.g., personnel training, contingency plan) will be
protective of human health and the environment. Other than complying
with the management standards at 40 CFR part 265 subpart W, the Agency
sees no difference in the risks associated with hazardous wastes
accumulated in tanks or containers. Therefore, EPA is proposing to
modify the SQG regulations to require SQGs who
[[Page 57968]]
accumulate hazardous waste on drip pads to comply with the technical
standards of 40 CFR part 265 subpart W, with the 90-day accumulation
limit for that hazardous waste, and with all of the other hazardous
waste accumulation standards for an SQG currently found at Sec.
262.34(d).
Situations may also occur where an SQG initially accumulates
hazardous waste on a drip pad but subsequently transfers this waste to
a container or tank for subsequent management. Similarly, the opposite
situation may occur where hazardous wastes are generated and first
accumulated by an SQG in a tank or in containers and then transferred
to a drip pad. The Agency is proposing that the SQG have up to a total
of 180 days to accumulate the hazardous wastes, which includes both the
time the waste is on a drip pad and when it is in a tank or container,
but that the total amount of time to accumulate the hazardous waste on
the drip pad must not exceed 90 days. For example, if an SQG
accumulates hazardous wastes on a drip pad for 80 days prior to
transferring its waste to a tank, the SQG would be able to accumulate
waste up to 100 days in the tank before it would be required to send it
off-site for subsequent waste management, or conversely, treat and
dispose of the waste on-site in compliance with all applicable RCRA
regulations under parts 262 through 268 and 270.
In the case of an SQG first accumulating a hazardous waste in a
tank or container and then transferring the waste to a drip pad, the
generator would still have up to a total of 180 days, depending on the
circumstances, to send the waste off-site for subsequent waste
management, or conversely, treat and dispose of the waste on-site in
compliance with all applicable RCRA regulations under parts 262 through
268 and 270. However, under the proposal, the amount of time allowed
for the SQG to accumulate the hazardous waste on a drip pad may not
exceed 90 days. For example, if an SQG first accumulated hazardous
wastes in a tank or container for 100 days and then transferred the
waste to a drip pad, the SQG would be able to accumulate up to 80 days
more (for a total of 180 days) to accumulate the waste on the drip pad
before the generator would be required to send the waste off-site for
subsequent waste management, or conversely, treat and dispose of the
waste on-site in compliance with all applicable RCRA regulations under
parts 262 through 268 and 270.
However, if an SQG first accumulated hazardous wastes in a tank or
container for 80 days and then transferred the waste to a drip pad, the
SQG would only have 90 days more (or a total of 170 days) to accumulate
the waste on the drip pad before the generator sent the waste off-site
for subsequent waste management, or conversely, treat and dispose of
the waste on-site in compliance with all applicable RCRA regulations
under parts 262 through 268 and 270.
EPA solicits comments on these proposed revisions. In particular,
EPA requests comment on whether SQGs accumulating hazardous waste on
drip pads should be subject to the accumulation time limit of 180 days,
similar to SQGs accumulating hazardous wastes in containers and tanks.
Conversely, EPA is seeking comment on whether SQGs accumulating
hazardous waste on drip pads should be subject to all applicable
conditions and requirements for LQGs, and not just the 90-day
accumulation time limit.
The Agency also requests comment on the procedures for documenting
and ensuring hazardous wastes are removed from the sump or collection
system 90 days or less from being first placed on the drip pad and also
for situations where hazardous waste accumulation involves both drip
pads and containers or tanks.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. As part of the reorganization in this
action, EPA is proposing to move the conditions for exemption for SQGs
accumulating hazardous waste from Sec. 262.34 to Sec. 262.16. The
proposed drip pad conditions for SQGs can be found at Sec.
262.16(b)(4). The reorganization is discussed in section XIII of this
preamble.
2. Accumulation of Hazardous Waste in Containment Buildings
Consistent with the changes proposed for hazardous wastes
accumulated on drip pads by SQGs, the Agency is also proposing that
SQGs that accumulate hazardous waste in containment buildings for 90
days or less without a permit or interim status must comply with the
technical standards of part 265 subpart DD and with all other
conditions associated with the accumulation of hazardous waste by SQGs
currently found at Sec. 262.34(d).
Similar to the drip pad regulations, the containment building
regulations promulgated in 1992 (August 18, 1992, 57 FR 37194) did not
discuss the possibility of an SQG accumulating hazardous wastes in a
containment building, but instead only discussed TSDFs and LQGs
accumulating hazardous waste in containment buildings (57 FR 37212).
Thus, under the current regulations, SQGs that choose to manage
hazardous wastes in containment buildings can only do so if they comply
with the LQG requirements or obtain a Part B permit for their
containment building.
EPA is proposing to modify the regulations to allow SQGs to
accumulate hazardous wastes in containment buildings for 90 days or
less without a permit or without having interim status provided they
comply with the technical standards of part 265 subpart DD and comply
with all other conditions associated with the accumulation of hazardous
waste by an SQG found at Sec. 262.34(d). As with wastes accumulated by
SQGs on drip pads, the Agency believes that SQGs complying with the
less stringent conditions at Sec. 262.34(d) (e.g., personnel training,
contingency plan) will be protective of human health and the
environment and other than complying with the management standards at
40 CFR part 265 subpart DD, the Agency sees no difference in the risks
associated with hazardous wastes accumulated in tanks or containers.
As with drip pads, situations may potentially arise where hazardous
wastes are first accumulated in a containment building and then
transferred to containers for subsequent accumulation, or vice-versa.
The Agency is proposing the same framework as described in the
discussion on drip pads above for how long SQGs may accumulate
hazardous wastes in a containment building to maintain their hazardous
waste accumulation exemption.
EPA solicits comments on this proposed revision. In particular, EPA
requests comment regarding whether SQGs accumulating hazardous waste in
containment buildings should be subject to the accumulation time limit
of 180 days, similar to SQGs accumulating hazardous wastes in
containers and tanks or, conversely, whether SQGs accumulating
hazardous waste in containment buildings should be subject to all
applicable conditions for an exemption and independent requirements for
LQGs, and not just the 90-day accumulation time limit. EPA also seeks
comment on situations where hazardous waste accumulation involves both
containment buildings and containers or tanks.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization. As part of the reorganization in this
action, EPA is proposing to move the conditions for
[[Page 57969]]
exemption for SQGs accumulating hazardous waste from Sec. 262.34 to
Sec. 262.16. The proposed containment building regulations for SQGs
can be found at Sec. 262.16(b)(5). The proposed containment building
regulations for LQGs can be found at Sec. 262.17(a)(4). The
reorganization is discussed in section XIII of this preamble.
K. Deletion of Performance Track Regulations
EPA launched The National Environmental Performance Track in 2000
to provide regulatory and administrative benefits to Performance Track
members. Performance Track was a public-private partnership that
encouraged continuous environmental improvement through use of
environmental management systems, community outreach, and measurable
results. In order to provide regulatory benefits to members, EPA made
changes to the RCRA hazardous waste regulations, among others, that
specifically referenced members of Performance Track.
EPA terminated the Performance Track program in 2009. Therefore,
EPA is proposing to remove obsolete references to Performance Track in
the RCRA hazardous waste regulations as a part of this rulemaking. In
some cases, a whole paragraph of regulation will be removed and in
other instances we will remove just the part of the paragraph that
references Performance Track. The deleted paragraphs would then be
reserved to reduce the possibility of confusion by replacing them with
other regulations. The references that would be removed would be the
following:
Sec. 260.10: Definition of Performance Track member
facility;
Sec. 262.34(j), (k), and (l): Regulations for
accumulation of hazardous waste by LQGs in Performance Track;
Sec. 262.211(c): Two parenthetical references to Sec.
262.34 (j) and (k) in the regulations for academic labs in subpart K of
part 262;
Sec. Sec. 264.15(b)(4) and 265.15(b)(4): References to
the requirements for inspection of areas of the facility subject to
spills in Sec. Sec. 264.15(b)(5) and 265.15(b)(5), respectively;
Sec. Sec. 264.15(b)(5) and 265.15(b)(5): Requirements for
Performance Track member facilities that reduce inspection frequency
for areas subject to spills;
Sec. Sec. 264.174 and 265.174: References to Performance
Track requirements for inspections of areas where containers are
stored;
Sec. Sec. 264.195(e), 265.195(d), and 265.201(e):
Requirements for Performance Track member facilities for inspections of
tank systems;
Sec. Sec. 264.1101(c)(4) and 265.1101(c)(4): Requirements
for Performance Track member facilities for reduced inspections of
containment buildings;
Sec. 270.42(l): Procedures for permit modifications for
Performance Track member facilities; and
Appendix 1 to Sec. 270.42--Classification of Permit
Modification, Section O.1: Indication that a permit modification for
reduced inspections for a Performance Track member facility is a Class
1 permit modification.
The provisions that EPA is proposing to remove were added to the
regulations in the National Environmental Performance Track Program
final rule, dated April 22, 2004 (69 FR 21737), the Resource
Conservation and Recovery Act Burden Reduction Initiative final rule,
dated April 4, 2006 (71 FR 16862), and the Academic Laboratories final
rule, dated December 1, 2008 (73 FR 72912). The Agency is requesting
comment on whether there are additional references to the Performance
Track program in the RCRA hazardous waste regulations that should be
removed as a part of this rulemaking.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
L. Clarification of Biennial Reporting Requirements (40 CFR 262.41)
EPA is proposing to modify the biennial reporting regulations for
generators found at 40 CFR 262.41 in order to make the regulations
consistent with Agency guidance, including its biennial report
instructions and forms. More specifically, the Agency is proposing the
following revisions: (1) Only LQGs need to submit biennial reports; (2)
LQGs must report all of the hazardous waste they generate for the
entire reporting year, not just the month(s) the generator was an LQG;
(3) LQGs completing a biennial report must report all hazardous wastes
they generated in the reporting year, regardless of whether they
transferred the waste off site during the reporting year; and (4) a
reference to the biennial report form (EPA form 8700-13) at Sec.
262.41 rather than the list of specific data elements in currently at
that citation.
Additionally, EPA is proposing to modify the title of subpart D
from ``Recordkeeping and Reporting'' to ``Recordkeeping and Reporting
Applicable to Small and Large Quantity Generators'' in order to
highlight which entities need to comply with this subpart.
1. Biennial Report Requirements Are Only Applicable to LQGs
The first proposed change is to modify the biennial reporting
regulations in Sec. 262.41 to make these only applicable to LQGs (and
thus not applicable to SQGs and CESQGs). Currently, the biennial report
regulations at Sec. 262.41(a) and (b) refer to ``a generator'' and
``any generator,'' but do not further specify which categories of
generators must complete and submit a biennial report. However, current
EPA guidance, as well as a 1986 FR notice, states that only LQGs must
complete and submit a biennial report to EPA.104 105 To
reduce confusion between the regulations and EPA's current guidance
regarding the applicability of biennial reporting requirements, EPA is
proposing to modify Sec. 262.41 to state that only LQGs are required
to complete and submit a biennial report. This proposed change would
not result in a substantive change to the existing regulations, but
would make clear who is required to submit the biennial report.
Additionally, EPA is proposing to modify the phrase ``prepare and
submit'' which is the existing language in Sec. 262.41, to ``complete
and submit'' because the Agency believes that ``complete and submit''
more accurately reflects that LQGs must complete all applicable
elements of the biennial report forms.
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\104\ The Federal Register notice states, ``the Agency is today
finalizing the proposed exemption from the biennial report
requirements of Sec. 262.41 for generators of 100-1000 kg/mo,
including an exemption from the provisions of this section requiring
a description of efforts taken during the reporting year to minimize
waste generation.'' (51 FR 10160, March 24, 1986). Additionally,
EPA's Hazardous Waste Report Instructions and Forms specify that
only LQGs (as well as facilities that treat, store, or dispose of
RCRA hazardous waste on-site) must complete and file the biennial
report (http://www.epa.gov/osw/inforesources/data/biennialreport/index.htm).
\105\ Both EPA and the states have received questions from
generators regarding whether they must submit a biennial report.
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Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
2. LQGs Must Report All Hazardous Waste Generated During the Reporting
Year, Not Just for the Month(s) the Generator Was an LQG
The second proposed change is to modify the biennial reporting
regulations to require LQGs to report all of the hazardous waste they
generate for the entire reporting year, not just the month(s) the
generator was actually an LQG. (Additionally, if EPA were to make final
the proposed provision allowing an LQG to receive hazardous waste from
a CESQG under control of
[[Page 57970]]
the same person, an LQG would also have to report the waste it received
during the reporting year. See section VII.C of the preamble for
discussion of this provision.) The Agency is proposing this change
since there have been different positions provided by EPA regarding
whether LQGs must report on the amount of hazardous waste generated and
managed for the entire reporting year or only for those months they
were an LQG, and, thus, were subject to the LQG standards, including
biennial reporting. In addition, although the vast majority of states
require LQGs to report the total amount of hazardous waste they
generate for the entire reporting year, even if they were an LQG for
only one calendar month, there are at least two states that only
require LQGs to report the amount of hazardous waste generated and
managed for those months they were an LQG.\106\
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\106\ Relatedly, EPA is also proposing to allow CESQGs and SQGs
that generate additional amounts of hazardous waste in response to
an episodic event that would have required a bump up in generator
category to maintain their generator category provided certain
conditions are met. See section IX of this preamble for more
information.
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Specifically, in a 1980 Federal Register notice, the Agency stated,
``The recordkeeping and reporting requirements of part 262 apply,
however, only to those periods in which the generator's hazardous waste
is subject to full regulation under part 262. Thus, for example, the
annual report of a generator whose waste is subject to full regulation
under part 262 for three months in a year would cover the generator's
activity only for those three months'' (45 FR 76621, November 19,
1980). However, current EPA guidance in the Hazardous Waste Report
Instructions and Forms instructs generators to report the total
quantity of hazardous waste generated during the reporting year. The
regulations in Sec. 262.41 are silent on this issue.
In the interest of national consistency, EPA proposes to modify the
regulations at Sec. 262.41 to require LQGs to report the total amount
of hazardous waste generated during the entire reporting year. EPA
believes that this change will ensure a more complete and reliable
estimate on the total amount of hazardous waste generated in order to
support various RCRA program development and implementation efforts by
EPA and the states.
The Agency does not anticipate significant added burden from this
provision. First, EPA knows of only two states (Idaho and Kentucky)
that currently require generators to report only those hazardous wastes
generated during the months the generator was an LQG. Thus, this
modification will only affect a small percentage of the LQG universe
that in certain months are not LQGs. Second, these LQGs are already
completing a biennial report, so the change in burden will be in
reporting the additional amounts of hazardous waste they generate for
the remaining months of the reporting year that they were not an LQG.
Third, generators are already required under Sec. 261.5(c) and (d) to
count the amount of hazardous waste they generate monthly to determine
their regulatory status and thus would be counting hazardous waste
during months they are not LQGs. Fourth, most generators transfer the
hazardous waste they generate off site and, thus, should be able to use
their hazardous wastes manifests to calculate the total amount of
hazardous wastes they generate annually.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
3. LQGs Must Report All Hazardous Waste Generated During the Reporting
Year, Regardless of When the Waste Was Transferred Off Site
The third proposed change requires LQGs completing a biennial
report to report all hazardous wastes they generated during the
reporting year, regardless of when the hazardous waste was transported
off site. Although the current biennial report instructions clearly
state that LQGs should report the total quantity of hazardous waste
that was generated during the reporting year, the regulations do not
address cases in which the generator generates hazardous waste during
the reporting year, but ships the waste off site during the next
calendar year.
For purposes of completeness and to be consistent and avoid
confusion with the current biennial report and its instructions, the
Agency is proposing to state in Sec. 262.41 that LQGs must report all
hazardous wastes they generate in the reporting year, regardless of
when the generated hazardous waste was transferred off site. The Agency
believes that this change will not pose a significant burden since the
information is already available; it is simply stating clearly in which
year the data is reported.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
4. Replace the List of Specific Data Elements With an Independent
Requirement To Complete and Submit All Data Elements Required in the
Biennial Report Form (EPA Form 8700-13)
EPA is proposing to modify the regulations at 40 CFR 262.41 to
eliminate the specific list of data elements and to require the
completion and submission of all data elements contained in the
biennial report form (EPA form 8700-13).
Section 262.41(a) currently requires that the biennial report
include a specific list of data elements, including the name, address,
and EPA ID number of the generator and each transporter and TSDF, the
EPA hazardous waste number for each hazardous waste shipped off site,
and a signed certification, among other things.
In the nearly three decades since the biennial report regulations
were first promulgated, EPA's biennial report form and instructions
have evolved to enable better data analysis and to reduce burden, where
possible. Thus, the regulations at Sec. 262.41 no longer accurately
reflect the data elements currently listed in EPA's biennial report
instructions and forms. For example, current EPA guidance for biennial
reporting requires generators to identify their hazardous wastes using
not only the EPA hazardous waste number, but also using source, form,
and management method codes. Additionally, EPA no longer requires the
collection of the name and EPA identification number of each
transporter in the biennial report. In order to maintain consistency
between the regulations at Sec. 262.41 and the EPA biennial report
instructions and forms, EPA is proposing to remove the list of specific
data elements currently in the regulations and to simply require
completion and submission of all the data elements required in EPA form
8700-13. This change eliminates the need to update the list of data
elements in the regulations, which would require periodic rulemakings,
every time that changes were made to the information to be provided.
At least every three years, EPA's biennial report instructions and
forms are reviewed and approved through the information collection
request (ICR) process under the Paperwork Reduction Act (PRA). The PRA
requires EPA to issue proposed and final notices in the Federal
Register and to provide opportunity for public comment, thus ensuring
that the regulated community is informed and has the opportunity to
comment on the report instructions and
[[Page 57971]]
form. The PRA also requires approval by the Office of Management and
Budget. Eliminating the list of specific data elements currently in the
regulations therefore does not eliminate public input and avoids
duplication with the review and approval processes established under
the PRA.
EPA does not believe this change in any way affects the
enforceability of the biennial reporting regulations. Generators must
complete and submit all information required by EPA form 8700-13. EPA
also notes that this approach is similar to the current regulations at
Sec. 262.12, which require generators to obtain an EPA identification
number using EPA form 8700-12 (Site ID form). Section 262.12 does not
contain an itemized list of specific data elements contained in EPA
form 8700-12. Instead, it requires the completion and submission of the
specified form.
EPA also notes that some states develop their own biennial report
forms, based on the federal forms. EPA does not believe this proposed
change would impact the biennial reporting processes in these states.
Authorized states that use a different form for collecting biennial
report information would simply refer to their authorized state form in
their state regulations.
5. Request for Comment
The Agency requests comment on the proposed changes to Sec.
262.41. EPA also specifically requests whether commenters believe the
proposed change to eliminate the specific data elements in Sec. 262.41
will ease compliance and understanding of the current biennial
reporting procedures.
M. Provision Prohibiting Generators from Disposing of Liquids in
Municipal Solid Waste Landfills (Proposed Sec. 262.14 and Sec.
262.35)
EPA is proposing to add a paragraph at Sec. 262.14 (for CESQGs)
and Sec. 262.35 (for SQGs and LQGs) that hazardous waste generators
are prohibited from disposing of liquid hazardous wastes in landfills.
This is not a new requirement; it is a reflection of existing
regulations found at Sec. 258.28 for municipal solid waste landfills
(MSWLFs), and Sec. Sec. 264.314 and 265.314 for permitted and interim
status hazardous waste landfills. The Agency believes it is important
to emphasize that the responsibility for complying with this provision
not only resides with municipal and hazardous waste haulers and
landfill operators, but also with hazardous waste generators.
The restriction for disposal of liquid hazardous waste in MSWLFs
has been in place since 1991 at Sec. 258.28 and specifically restricts
``bulk or noncontainerized liquid wastes, except (1) household wastes
(other than septic wastes), and (2) leachate and gas condensate that is
derived from the MSWLF unit where the unit is equipped with a composite
liner and a leachate collection system. . . designed and constructed to
maintain less than 30 centimeters of leachate over the liner'' (56 FR
51055, October 9, 1991).\107\
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\107\ The prohibition on liquid wastes in MSWLFs applies to all
liquid wastes and not just liquid hazardous wastes.
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In the same preamble, EPA went on to state that liquids
restrictions are necessary because the disposal of liquids into
landfills can be a significant source of leachate generation and that
restricting the introduction of liquids into landfills would minimize
the leachate generation potential of landfills and reduce the risk of
liner failure and subsequent contamination of the ground water.\108\
The special requirements for bulk and containerized liquids in part 264
address similar concerns about the management of liquids in
landfills.\109\
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\108\ 56 FR 51055, October 9, 1991.
\109\ 40 CFR 264.314(a) and 265.314(a).
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Under current practices and operations, the primary onus for seeing
that hazardous waste liquids are restricted from landfills generally
resides with the hauler. Should a random inspection at a landfill of
the hauler's waste find liquid hazardous waste, the landfill operator
cannot accept the hauler's waste without violating its landfill permit.
As a result, the hauler would be required to transport its waste back
to the generator or to a RCRA-permitted treatment facility and pay the
significantly higher tipping fees for any required treatment prior to
disposal. While the waste management hauler or transporter can provide
a measure of oversight, ultimately the hauler must rely on the due
diligence and waste management practices of the hazardous waste
generator to avoid such an outcome. In other words, the hazardous waste
generator is responsible for ensuring that hazardous waste liquids are
not disposed of in landfills.
Considering the importance of restricting liquid hazardous wastes
in landfills, the Agency believes including a mirror provision in the
40 CFR part 262 hazardous waste generator regulations would increase
awareness, and thus compliance, by generators with the liquids
restriction that currently exists in Sec. Sec. 258.28, 264.314(a) and
265.314(a) Therefore, the Agency is proposing to incorporate this
provision into the generator regulations at part 262.
Effect of the Proposed Reorganization: This section is affected by
the proposed reorganization in that we are proposing to include the
provision as a condition in Sec. 262.14 for CESQGs, as well as in
Sec. 262.35 for SQGs and LQGs.
N. Extending Time Limit for Accumulation Under Alternative Requirements
for Laboratories Owned by Eligible Academic Facilities (40 CFR Part 262
Subpart K)
The Agency is proposing to extend the accumulation time for
unwanted material by eligible academic entities with laboratories
operating under 40 CFR part 262 subpart K from six months to one year.
Under 40 CFR part 262 subpart K eligible academic entities have the
choice of operating their laboratories under the alternative subpart K
standards instead of the satellite accumulation area regulations at 40
CFR 262.34(c). Currently, if the eligible academic entity chooses to
operate its laboratories under subpart K, the entity must remove the
unwanted material from each laboratory under the following two
circumstances: (1) Every 6 months; or (2) within 10 days, if the
laboratory accumulates more than 55 gallons of unwanted material or 1
quart of reactive acutely hazardous unwanted material.
Operating under the SAA regulations, an eligible academic entity
has no time limit for accumulation. Therefore, for smaller eligible
academic entities that do not accumulate 55 gallons in a laboratory,
subpart K's six month accumulation time limit can mean a shorter, more
stringent, accumulation time than they have under the satellite
accumulation area regulations. Eligible academic entities have cited
this shorter accumulation time as a disincentive for opting into the
alternative standards in subpart K. The Agency therefore requests
comment regarding its proposal to increase the accumulation time limit
in an eligible academic entity's laboratory to 12 months.
Lengthening the time would yield a cost savings for those operating
under subpart K compared to the costs they have now. The longer
accumulation time would come with no increased risk because the volume
limits--which are the same as the SAA volume limits--would continue to
be in place for the rare cases where labs do accumulate 55 gallons of
unwanted material or 1 quart of reactive acutely hazardous unwanted
material.
The Agency requests comment on extending the accumulation time for
[[Page 57972]]
unwanted material by eligible academic entities with laboratories
operating under 40 CFR part 262 subpart K, from six months to one year.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
IX. Proposed Addition to 40 CFR Part 262 for Generators that
Temporarily Change Generator Category as a Result of an Episodic Event
EPA is proposing to allow a CESQG or an SQG to maintain its
existing generator category if, as a result of a planned or unplanned
episodic event, the generator would generate a quantity of hazardous
waste in a calendar month sufficient to bump the facility into a more
stringent generator category (i.e., CESQG to either an SQG or an LQG;
or an SQG to an LQG). This proposed change would allow a CESQG or SQG
to generate additional quantities of hazardous waste--exceeding its
normal generator category limits temporarily--and still maintain its
existing regulatory category provided it complies with specified
conditions discussed below. Because these events are considered to be
temporary and episodic in nature, the hazardous waste generator would
only be allowed to take advantage of this provision once every calendar
year. Also as explained below, a CESQG or SQG could petition EPA to
manage one additional episodic event per calendar year.
A. Background
Under the current RCRA regulatory framework for hazardous waste
generators, a generator's category is determined by the quantity of
hazardous waste it generates in a calendar month. For example, if a
generator generates less than or equal to 100 kilograms of non-acute
hazardous waste and 1 kilogram of acute hazardous waste in a calendar
month, then it can comply with the regulations applicable to a
CESQG.\110\ However, if that same generator generates more than 100
kilograms but less than 1,000 kilograms of non-acute hazardous waste
and less than or equal to 1 kilogram of acute hazardous waste in the
following calendar month, then it must comply with all applicable
regulations associated with an SQG.
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\110\ Note: Besides the generation of non-acute hazardous waste,
a generator's category is also determined by the quantities of acute
hazardous waste it generates in a calendar month.
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At issue is when the generator generates an additional quantity of
hazardous waste in a calendar month as a result of an episodic event--
(planned or unplanned)--only to revert back to its normal waste
generation quantities in the following month. For example, a CESQG
plans a short-term demolition project that generates an additional 500
kilograms of hazardous waste in the calendar month, resulting in the
CESQG becoming an SQG for that calendar month. However, once the
demolition project has been completed, the generator's waste generation
drops such that it again qualifies as a CESQG. Other examples of
planned episodic events include tank cleanouts, short-term construction
projects, site remediation, equipment maintenance during plant shut
downs, and removal of excess chemical inventories.
Unplanned episodic events, which may be less frequent, include
production process upsets, product recalls, excess inventory,
accidental spills, or ``acts of nature,'' such as a tornado, hurricane,
or flood. For example, an SQG suffers an unplanned disruption in
production that results in the generation of 3,000 kilograms of an off-
specification product that cannot be sold and must be discarded,
therefore bumping the generator from an SQG to an LQG for that calendar
month.
Currently, for the one month the hazardous waste generator was
subject to more stringent regulations, the generator has two options:
(1) Temporarily change its waste management practices to comply with
those of the more stringent generator category for the duration of the
event or (2) permanently adjust and manage all subsequent quantities it
generates in the more stringent generator category (even though it is
in a less stringent generator category in subsequent months).
Generators that do not comply will be out of compliance with the
applicable regulations.
Under the current regulatory framework, a CESQG must comply with
minimal conditions for an exemption. For non-acute hazardous waste,
these include the following: making a hazardous waste determination;
counting the amount of hazardous waste it generates to ensure it is a
CESQG (e.g., generates less than or equal to 100 kilograms of non-acute
hazardous waste and 1 kilogram of acute hazardous waste in a calendar
month); accumulating no more than 1,000 kilograms on site at any one
time; and sending its hazardous waste for subsequent off-site waste
management to one of several specified designation facilities.\111\
However, if an episodic event were to occur, such as the generation of
an additional 500 kilograms of non-acute hazardous waste resulting from
a disruption in production process, the generator would need to comply
with the SQG regulations that include both independent requirements and
conditions for exemption. Having to obtain a RCRA identification number
would be an example of an independent requirement, whereas managing its
hazardous wastes in containers or tanks subject to the applicable 40
CFR part 265 subparts I and J regulations, and marking and labeling the
containers would be examples of conditions for exemption. EPA believes
requiring a CESQG to comply with the additional SQG or LQG regulations
or an SQG to comply with the LQG regulations for the month its
hazardous waste exceeded the quantity limits based on an episodic event
(planned or unplanned) may be unnecessary to protect human health and
the environment. Instead, the Agency is proposing a more practical
approach to ease compliance for episodic generators and still protect
human health and the environment. By complying with the specified
conditions, the generator would be able to maintain its current
generator category and would not be required to comply with the more
stringent site-wide regulations applicable to the higher generator
category.
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\111\ A CESQG may send its hazardous waste to (1) a hazardous
waste facility permitted by EPA; (2) an interim status hazardous
waste facility; (3) a hazardous waste facility permitted by an
authorized state; (4) a facility permitted, licensed or registered
by a state to manage municipal solid waste; (5) a facility
permitted, licensed or registered by a state to manage non-municipal
non-hazardous solid waste; (6) a facility which beneficially uses or
reuses or legitimacy recycles or reclaims its wastes or treats its
waste prior to beneficial use or reuse or legitimacy recycling or
reclamation; or (7) universal waste handler or destination facility
subject to the requirements in 40 CFR part 273.
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Although EPA does not have specific information regarding the
number of generators that may take advantage of its proposed
alternative episodic standards, we can make certain estimates using
data collected through the biennial report. EPA currently estimates
that 1,270-2,550 generators could potentially take advantage of this
provision if it is finalized.\112\ However, EPA believes that the
potential universe of generators that may want to take advantage of the
episodic event standards may be significantly higher and is seeking
comment on what a more reliable estimate might be. For example, there
may be certain industrial sectors in which generators have a higher
probability of being episodic generators
[[Page 57973]]
than in others (e.g., retail, oil and gas exploration, utilities, and
military bases).
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\112\ Assessment of the Potential Costs, Benefits, and Other
Impacts of the Improvements to the Hazardous Waste Generator
Regulatory Program, As Proposed, prepared for U.S. Environmental
Protection Agency by Industrial Economics, Incorporated, May 2015.
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On February 14, 2014, EPA published a Notice of Data Availability
for the Retail Sector in which the Agency requested, among other
topics, comments from retailers on issues they face in complying with
the RCRA regulations. Some commenters mentioned the challenge posed by
complying with the hazardous waste regulations when an irregular event
causes them to exceed the threshold of their normal generator category
for a single month. This provision would provide a way for retailers
and others to manage that challenge.
B. Proposed Conditions for Episodic Generators
Under the proposed framework, a CESQG or an SQG generating an
increased quantity of hazardous waste because of an episodic event that
resulted in a temporary change in a generator's category would be able
to maintain its existing generator category provided specified
conditions are met as the waste is accumulated. We believe these
conditions will be sufficient to ensure these additional hazardous
wastes are managed in an environmentally sound manner. Similar to the
existing hazardous waste regulatory framework, should a CESQG fail to
meet the specified conditions, it would immediately lose the CESQG
accumulation exemption and be the operator of a non-exempt storage
facility unless it also immediately complied with all of the conditions
for exemption for an SQG or LQG. If an SQG failed to meet any specified
condition for exemption, it would immediately lose its exemption and be
the operator of a non-exempt storage facility unless it had immediately
complied with all of the conditions for an exemption for an LQG.
For both CESQGs and SQGs taking advantage of this provision, the
following conditions must be met:
(1) Episodic events are limited to one per calendar year;
(2) The generator must notify EPA at least 30 calendar days prior
to initiating a planned episodic event or within 24 hours after an
unplanned episodic event or as soon as possible; identify the start and
end dates, which may be no more than 45 days apart, as well as other
information about the event; and identify a facility contact and/or
emergency coordinator with 24-hour telephone access to discuss
notification submittal or respond to emergency;
(3) The generator must obtain an EPA ID number (CESQGs);
(4) The generator must comply with specified hazardous waste
management conditions as the waste is accumulated on-site;
(5) The generator must use a hazardous waste manifest and hazardous
waste transporter to ship the waste generated by the episodic event to
a RCRA-designated facility within 45 calendar days from the start of
the episodic event;
(6) The generator must complete and maintain specified records.
EPA is also proposing a petition process to allow hazardous waste
generators to request from EPA one additional episodic event within the
same calendar year and/or an extension of up to 30 calendar days to
complete an episodic event and still be eligible to maintain its
generator category. An example of how the implementation of these
provisions would work in practice, particularly the start and end dates
in conjunction with normal waste generation and accumulation
operations, follows a discussion of these requirements.
The proposed regulations for episodic generators are located at a
new part 262 subpart L, Sec. Sec. 262.230-232.
1. Number of Episodic Events per Calendar Year
The Agency is proposing that a CESQG or a SQG be allowed to exceed
its generator category limits only once per calendar year without
affecting its generator category.113 114 EPA has several
reasons for this restriction. First, if a CESQG or SQG exceeds its
generator category limits more frequently than once per calendar year,
EPA is concerned that these generators are more likely to be routinely
generating greater amounts of hazardous waste and thus it may be more
appropriate for the generator to comply with the regulations applicable
to the higher generator category, at least for the months they exceed
the quantity limits for their generator category. Second, EPA believes
most hazardous waste generators experience an episodic event
infrequently, such as once every few years, and these events are
typically planned maintenance projects. Third, the Agency does not
consider an episodic event to be limited to one project within the
generator's site. In fact, a generator could start and complete
multiple projects (e.g., a small demolition project, a tank cleanout,
and removal of excess chemicals) at different dates within the 45 day
time limit so long as it stayed within the 45 day start and end dates
identified on the notification form with all hazardous waste generated
considered part of the same episodic event.
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\113\ As discussed later, the length of a generator's episodic
event may overlap two calendar years in which case discretion would
be provided to EPA or the authorized state as to how it would
address a request for another episodic event in the second year by a
generator.
\114\ EPA is proposing a process to petition the Agency for an
additional event, if warranted.
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2. Notification
A SQG or CESQG would have to notify EPA no later than 30 days prior
to initiating a planned episodic event using EPA form 8700-12 (Site ID
form). Should EPA finalize this provision, EPA will provide
instructions in the Site ID form on how to report an episodic event
(for example, using the notes section of the form). The hazardous waste
generator would be required to identify the dates the episodic event
will begin and end--a time frame not to exceed 45 calendar days--as
well as describe the reason for the event and the types and estimated
quantities of hazardous wastes that would be generated during the
event. Should an unplanned event occur, the generator would be required
to notify EPA as soon as possible via phone or email, but must submit
EPA form 8700-12 (Site ID form) within 24 hours of the unplanned event,
or as soon as possible depending upon the circumstances. Unless
notified by EPA or an authorized state, a CESQG or SQG would be allowed
to begin its episodic event on the date identified on its form 8700-12.
The date identified on the notification form as the start date for
the episodic event is assumed to be the date the generator initiates
physical action in generating and accumulating the hazardous waste.
Whether such action actually occurs on that date or after by the
generator will have no impact in changing the end date of the episodic
event identified on the notification form.
No matter what, the end date must be no later than 45 calendar days
from the date identified on the notification form as the start date of
the episodic event. The end date will be the date on which all
hazardous waste generated from the episodic event, and possibly other
hazardous waste also generated during that time period as part of
normal operations, will have had to be removed and sent to a RCRA
designation facility as verified by the hazardous waste manifest. The
Agency does not see any reason to preclude a generator taking advantage
of this provision to also dispose of other hazardous wastes generated
during the time of the episodic event.
[[Page 57974]]
As part of the notification form, a CESQG would have to notify its
local fire department that it was taking advantage of an episodic
event. The notice would need to include the start and end dates and
identify the types and quantities of hazardous wastes that would be
generated.
EPA believes notification is essential to inform regulatory
authorities of the facility's activities in order to enable adequate
compliance monitoring of the facility with the conditions of the
alternative standards.
3. EPA ID Number
A CESQG generating and accumulating quantities of hazardous waste
that would otherwise result in a higher generator category because of
an episodic event (whether planned or unplanned) would be required,
under the proposed regulations, to obtain an EPA ID number using EPA
form 8700-12 if one had not previously been assigned. A generator
cannot initiate a hazardous waste shipment to a RCRA-designated
facility without an EPA ID number. (SQGs are already required to obtain
an EPA ID number.)
4. Waste Management Standards
a. Accumulation standards for CESQGs. Under the current
regulations, a CESQG must not accumulate more than 1,000 kilograms of
non-acute hazardous waste at any one time, but otherwise does not have
any on-site waste management standards when accumulating hazardous
waste, primarily because the quantities generated every month are so
small. EPA is proposing to require a CESQG that generates episodic
hazardous waste that would cause the CESQG to exceed its generator
category limit for the calendar month to comply with the following
accumulation standards for containers and tanks that manage the
episodic wastes if it wants to take advantage of the episodic generator
provision (CESQGs are prohibited from using a drip pad or a containment
building). EPA believes that these standards are necessary because the
quantity of hazardous waste that is accumulated during this episodic
period requires standards for safe management in order to adequately
protect human health and the environment.
When accumulating hazardous waste in containers, the CESQG would be
required to mark its containers with the following: (1) The words
``Episodic Hazardous Waste''; (2) other words that identify the
contents of the containers--examples may include, but are not limited
to the name of the chemical(s), such as ``acetone'' or ``methylene
dichloride,'' or the type or class of chemical, such as ``organic
solvents'' or ``halogenated organic solvents'' or, as applicable, the
proper shipping name and technical name markings used to comply with
DOT requirements at 49 CFR part 172 subpart D; and (3) an indication of
the hazards of the contents of the container--examples of hazards
include, but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic). In the
case of hazardous wastes ultimately treated and disposed of off-site,
the generator could use a hazard class label consistent with the DOT
requirements at 49 CFR part 172 subpart E (labeling), use a label
consistent with the OSHA Hazard Communication Standard at 29 CFR
1920.1200, or use a chemical hazard label consistent with the NFPA code
704; or a hazard pictogram consistent with the United Nations' GHS.
Generators also may use any other marking or labeling commonly used
nationwide in commerce that would alert workers and emergency
responders to the nature of the hazards associated with the contents of
the containers.
These marking standards are the same as those for LQGs and SQGs
accumulating hazardous wastes in containers in the course of normal
business operations and are necessary to protect human health and the
environment. In addition to these, the CESQG would be required to mark
the date that the episodic event began clearly on each container.
For tanks, the CESQG would have to mark or label the tank
containing hazardous waste accumulated during the event with the words
``Episodic Hazardous Waste'' and would be required to use inventory
logs, monitoring equipment, or other records to identify the contents
of the tank, the quantity accumulated as a result of the episodic
event, and the associated hazards and to identify the date that the
episodic event began. The records containing this information would
have to be immediately accessible by the generator.
In addition, the generator would be required to manage the
hazardous waste in a manner that minimizes the possibility of an
accident or release. Management standards are critical to ensure the
hazardous waste does not pose a risk to human health and the
environment. A CESQG may use best management practices to comply with
this condition. In practice, this includes managing the hazardous waste
in containers that are in good condition and chemically compatible with
any hazardous waste accumulated therein and keeping the containers
closed except to add or remove waste. Complying with the standards in
part 265 subpart I would satisfy this condition.
With respect to tanks, the following standards are proposed: (1)
Having procedures in place to prevent overflow (e.g., the tank is
equipped with a means to stop inflow with systems such as a waste feed
cutoff system or bypass system to a standby tank when hazardous waste
is continuously fed into the tank); (2) inspecting the tank(s) at least
once each operating day during the episodic event to ensure all
applicable discharge control equipment, such as waste feed cutoff
systems, bypass systems, and drainage systems, are in good working
order and (3) using appropriate controls and practices to prevent
spills and overflows from tank or secondary containment systems
including at a minimum spill prevention controls (e.g., check valves,
dry disconnect couplings), overfill prevention controls (e.g., level
sensing devices, high level alarms, automatic feed cutoff, or bypass to
a standby tank), maintenance of sufficient freeboard in uncovered tanks
to prevent overtopping by wave or wind action or by precipitation. Such
practices are necessary to prevent the release of the hazardous waste
or hazardous constituents to air, soil, or water, which could threaten
human health and the environment.
As mentioned above, an emergency coordinator (in compliance with
proposed Sec. 262.16(b)(9)(i)) must be identified for the duration of
the episodic event on the notification form. A CESQG taking advantage
of this provision would also need to notify the local fire department
of who their emergency coordinator was if they had not done so already
for other emergency preparedness and planning reasons. An emergency
coordinator is needed because the CESQG will be generating greater
amounts of hazardous waste than normal and, should an accident occur,
the emergency coordinator would need to be prepared to handle the
situation.
EPA believes these management standards are necessary to adequately
protect human health and the environment because of the additional
quantities of hazardous waste generated and accumulated as a result of
an episodic event. The Agency, however, seeks comment on these proposed
management standards. In particular, the Agency is aware of concerns
expressed by generators in the past that the marking and labeling of
tanks with the date the generator first began
[[Page 57975]]
accumulating hazardous waste could prove problematic since the tank
could have numerous markings on it. (See comments found in RCRA Docket
EPA-HQ-RCRA-2008-0678 in response to EPA's Technical Corrections Direct
Final rule, 75 FR 12989.) The Agency has responded to this concern by
allowing generators to use log books and other means to identify the
hazardous waste accumulation start date. However, the Agency is
proposing that CESQGs (and SQGs) label their tanks with the words
``Episodic Hazardous Waste'' so that emergency responders and others
are readily aware of the tank's contents and situation. The Agency
requests comment on whether this requirement could also prove
problematic, and if so, why, and what cost-effective alternatives exist
to address those concerns and still allow emergency responders,
inspectors, workers, etc. to be readily aware of the tank's hazardous
waste contents.
Under the existing regulations, CESQGs may not treat hazardous
waste generated on site in a manner equivalent to SQGs and LQGs under
Sec. 262.34, except in an on-site elementary neutralization unit.
Elementary neutralization units, as defined in Sec. 260.10, are exempt
from RCRA treatment, storage, and disposal standards and permitting
requirements. The elementary neutralization unit exclusion does not
preclude a CESQG from treating waste in the exempt unit as long as the
generator meets the criteria outlined in Sec. Sec. 264.1(g)(6),
265.1(c)(10), and 270.1(c)(2)(v). Specifically, the elementary
neutralization unit must meet the definition of a container, tank, tank
system, transport vehicle, or vessel, and must be used for neutralizing
wastes that are hazardous only because of the corrosivity
characteristic.\115\
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\115\ RCRA Hotline Q & A, February 1996, RCRA Online 13778.
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Considering that CESQGs will be required to meet additional waste
management requirements under this proposed rule for episodic
generation, the Agency seeks comment on whether CESQGs taking advantage
of this provision should be allowed to treat their episodic hazardous
waste on site in a manner equivalent to SQGs and LQGs at Sec. 262.34.
In particular, the Agency seeks comment on whether the volume of
hazardous waste generated from an episodic event exceeds the capacity
and expertise of CESQGs, which are accustomed to managing smaller
quantities of hazardous waste, and whether the Agency should identify a
select list of allowable types of treatment that would not pose a risk
to human health and the environment.
b. Manifest use by CESQGs and management at a RCRA-designated
facility. EPA is proposing to require CESQGs to manifest the hazardous
waste generated from an episodic event and send it to a RCRA-designated
facility. Under current regulations, CESQGs are not required to
manifest their hazardous waste to a RCRA-designated facility, but can
ship them without a manifest and to one of seven types of facilities
listed in Sec. 261.5(f)(3). Because the CESQG will be generating
quantities of hazardous waste that exceed its normal generator category
thresholds, the Agency believes the use of a hazardous waste manifest
and the shipment of the hazardous waste to a RCRA-designated facility
is necessary to protect human health and the environment. However, the
condition to manifest the hazardous waste and send it off site to a
RCRA-designated facility would only apply to the hazardous waste
generated as a result of the episodic event. The condition would not
apply, unless if for economic or logistical reasons, the CESQG desired
to ship off site to a RCRA-designated facility all hazardous waste
generated and accumulated either as a result of the episodic event,
independent of the episodic event, or prior to the event.
c. Accumulation standards for SQGs. Under the current regulations,
SQGs must comply with the waste accumulation, waste management,
employee training, and emergency preparedness and prevention conditions
at 40 CFR 262.34 (d)-(f) with references to 40 CFR 265 subparts C, I,
and J in order to accumulate hazardous waste without a RCRA storage
permit or compliance with interim status standards. SQGs may not take
advantage of this proposed episodic generation provision for wastes
accumulated on drip pads or in containment buildings although EPA does
seek comment on allowing episodic event wastes to be accumulated in
these units prior to sending the hazardous waste off-site for treatment
and disposal to a RCRA designated facility. Under this proposed rule,
EPA is proposing to require an SQG that generates episodic hazardous
waste that would cause the SQG to exceed their generator category
limits for the calendar month to comply with certain standards for
containers and tanks if it desires to take advantage of the episodic
generator provision.
When accumulating hazardous waste generated as a result of an
episodic event in containers, the SQG would be required to mark its
containers with the following: (1) The words ``Episodic Hazardous
Waste''; (2) other words that identify the contents of the containers--
examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride,'' or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with DOT requirements
at 49 CFR part 172 subpart D; and (3) an indication of the hazards of
the contents of the container--examples of hazards include, but are not
limited to, the applicable hazardous waste characteristic(s) (i.e.,
ignitable, corrosive, reactive, toxic). In the case of hazardous wastes
ultimately treated and disposed of off-site, the generator could use a
hazard class label consistent with the DOT requirements at 49 CFR part
172 subpart E (labeling), a label consistent with the OSHA Hazard
Communication Standard at 29 CFR 1920.1200, a chemical hazard label
consistent with the NFPA code 704, or a hazard pictogram consistent
with the United Nations' GHS. Generators also may use any other marking
or labeling commonly used nationwide in commerce that would alert
workers and emergency responders to the nature of the hazards
associated with the contents of the containers.
These standards are the same as those for SQGs accumulating
hazardous wastes in containers in the course of normal business
operations and are necessary to protect human health and the
environment. In addition to these, the SQG would be required to mark
the date that the episodic event began clearly on each container.
For tanks, the SQG would be required to mark or label the tank
containing hazardous waste accumulated during the event with the words
``Episodic Hazardous Waste'' and would be required to use inventory
logs, monitoring equipment, or other records to identify the contents
of the tank and the associated hazards and to identify the date that
the episodic event began and ended. The generator would need to have
records containing this information immediately accessible.
In addition, the SQG would need to comply with all the conditions
of the exemption in Sec. 262.34 (d) through (f) with references to 40
CFR 265 subparts C, I, and J, part 268 land disposal restrictions
(Sec. 262.16 under the proposed reorganization)--that is, the waste
accumulation, waste management, employee training, and emergency
preparedness and prevention conditions.
[[Page 57976]]
d. Manifest use by SQGs. As under the current regulations, EPA is
proposing that SQGs manifest the hazardous waste generated from an
episodic event and send it to a RCRA-designated facility, unless the
waste is managed on site. The Agency believes the use of a hazardous
waste manifest and shipment of the hazardous waste to a RCRA-designated
facility is necessary to protect human health and the environment.
However, unlike CESQGs, the use of the hazardous waste manifest would
apply not only to the wastes generated from the episodic event, but all
other hazardous wastes the SQG generates within its generator category.
5. Forty-five (45) Days or Less Would be Allowed to Treat and Dispose
of Hazardous Wastes On Site (SQGs) or Manifested and Shipped Off Site
(CESQGs or SQGs) to a RCRA-Designated Facility
The Agency is proposing to allow SQGs and CESQGs 45 calendar days
to initiate and complete an episodic event, which includes generation,
accumulation and management (e.g., recycling, treatment and disposal--
either on site, such as waste neutralization in a container, or off
site at a RCRA-designated facility) of all hazardous waste resulting
from the episodic event. The Agency believes 45 days is sufficient time
for a generator to complete management of the hazardous waste from the
time that the generator begins generating and accumulating the
hazardous waste. However, as discussed below, a CESQG or SQG can
petition the Agency for additional time to complete the generation and
removal of the hazardous waste during the episodic event, if necessary.
6. Recordkeeping
Finally, generators would need to keep the following information in
their records: (1) Beginning and end dates of the episodic event; (2) a
description of the episodic event; (3) a description of the types and
quantities of hazardous wastes generated during the episodic event; (4)
a description of how the hazardous waste was managed as well as the
name of the RCRA designated facility that received the hazardous waste;
(5) name(s) of hazardous waste transporters, as appropriate; (6) an
approval letter from EPA, if the generator successfully petitioned to
conduct an additional episodic event during the calendar year; and (7)
an approval letter from EPA, if the generator successfully petitioned
for an additional 30 calendar day extension. These records would need
to be maintained on site by the generator for three years from the
completion date of each episodic event.
EPA believes the recordkeeping condition is critical to enable
effective and credible oversight. We also believe that the information
to be maintained is the minimum information necessary to determine that
any hazardous waste generated during the episodic event is managed
properly.
7. Petitions
a. Petition To Request one Additional Episodic Event
While the Agency believes that most generators will experience an
episodic event infrequently, we also recognize that there may be
situations, often unexpected, where a hazardous waste generator may
have more than one episodic event within a calendar year, such as an
unexpected product recall, a major spill, or an act of nature.
Therefore, the Agency is proposing to allow CESQGs and SQGs to petition
EPA (at least 30 days before initiating a planned episodic event and
within 24 hours after an unplanned event) for permission to manage one
additional episodic event without impacting the hazardous waste
generator category. The petition must include (1) the reason why an
additional episodic event is needed and the nature of the episodic
event; (2) the estimated amount of hazardous waste to be managed from
the event; (3) how the hazardous waste is to be managed; (4) the
estimated length of time needed to complete management of the hazardous
waste generated from the episodic event--not to exceed 45 days; and (5)
information regarding previous episodic event(s) managed by the
generator and whether it complied with the proposed conditions. EPA
will then evaluate this and other site-specific information to
determine whether a generator should be allowed to initiate a second
episodic event under the proposed alternative standards. The petition
by the generator may be made via fax, email, or letter. The generator
may not manage hazardous waste for an additional episodic event until
written approval by EPA (or the authorized state) has been received.
The generator must retain written approval in its records for three
years from the date the episodic event ended.
b. Petition To Request Additional Time To Complete an Episodic Event
Events may arise, particularly unplanned events, such as an ``act
of nature,'' where 45 days is insufficient to complete the event. The
Agency is proposing to allow generators to petition EPA for an
additional 30 days to complete the generation and removal of hazardous
waste, if needed. The petition must include (1) the nature of the
episodic event; (2) the estimated amount of hazardous waste to be
managed from the event; and (3) and the generator's rationale for
needing an extension for an additional 30 days beyond the 45-day limit
to complete the episodic event. EPA will then evaluate the generator's
request to determine whether it should be allowed up to an additional
30 days to complete the episodic event. For example, a situation may
exist where a hazardous waste transporter cannot arrive and remove
hazardous waste generated until the 46th day because of unforeseen
problems with its truck or the generator did not foresee problems with
completing a tank cleanout because cleanout equipment failed to
operate. These are all site-specific situations that EPA or authorized
state would evaluate when making its decision. The generator cannot go
beyond the 45-day limit unless written approval by EPA has been
received.
The generator would need to petition EPA for approval at least 15
days before the original end date of the episodic event. The petition
by the generator may be made via fax, email, or letter. The generator
must retain written approval in its records for three years from the
date the episodic event ended.
Should the generator request an extension from the Agency or
authorized state with less than 15 days remaining and be denied the
extension, then the generator would have to remove all hazardous wastes
generated as a result of the episodic event as of the specified end
date in its notification or be in violation of its exemption.
Unlike rulemaking petitions in part 260 subpart C of the hazardous
waste regulations, the Agency is not proposing to have a notice and
comment period for granting an episodic event or an extension. The
Agency believes a generator's actions and performance will dictate
approval or disapproval of a generator's request. In addition, in some
cases a timely response to these requests is critical, especially with
requests for extension. Taking notice and comment would delay that
response.
8. Tracking and Accounting for Hazardous Waste Generation and
Accumulation as a Result of an Episodic Event Along With Normal
Production Operations
In practice, a generator taking advantage of this rule, in
particular a CESQG or SQG, must track and monitor the start and end
dates of the episodic event in conjunction with the date the
[[Page 57977]]
calendar month ends to ensure compliance with all RCRA regulatory
provisions associated with waste generation and management. An example
may be the best way of explaining how this rule would work.
A CESQG could have a number of facility operations (e.g., tank
cleanouts, disposal of off-spec products it cannot sell or reclaim,
repair work involving the removal of lead paint chips) that will often
result in a temporary change in its regulatory category. The CESQG
decides to notify its authorized state two months prior (as well as
identifying a point of contact and emergency coordinator) that it will
initiate the planned episodic event on July 20 and take advantage of
the full 45 days allowed to conduct the event and end on September 2.
Beginning on July 20, the generator must comply with all of the
regulatory standards of subpart L discussed above to maintain its
exemption as a CESQG. Under this example, if the generator complies
with subpart L, it need not be concerned about the total amount of
hazardous waste it will generate in the calendar months of July and
August (e.g. 100 kg or less) or whether it will exceed the hazardous
waste accumulation total of less than 1,000 kilograms associated with a
CESQG.
However, on or before September 2, the generator must remove and
dispose of all the hazardous wastes it generated over the course of the
last 45 days that represented the episodic event. Provided the
generator meets that deadline, that waste would not count when
determining the generator's status. In this example, the generator
chooses to also dispose of waste generated from its normal operations
by September 2. In this case, it would then not count that waste in
determining its generator status for July, August, and September. The
CESQG would then estimate the quantity of hazardous waste it generates
and accumulates for the remainder of September (starting on September 3
until the end of the month) to determine its regulatory category.
If the generator decides to separate out normal production
operations from episodic event operations, then the waste from normal
operations is counted each month to determine the generator's status.
For example, assume the generator at the beginning of the episodic
event had accumulated 950 kg of hazardous waste and proceeds to
accumulate another 75 kg over the course of the 45-day episodic event
that is associated with normal operations.\116\ On September 3, if the
generator had not disposed of that 1,025 kg of hazardous waste along
with all of the episodic event hazardous wastes it generated and
accumulated, then it would have violated the accumulation provision of
a CESQG at 40 CFR 261.5(g)(2) (e.g., less than 1,000 kg) and would be
in violation of the conditions of the CESQG exemption. A similar
concern might occur if the generator generated 101 kg of hazardous
wastes on September 1 and 2 from normal operations and did not dispose
of it by September 2 with the waste from the episodic event. The
generator would not be in compliance with the CESQG threshold for the
calendar month and would be required to comply with the SQG conditions
for exemption or be in violation of the exemption.
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\116\ Note that it would not matter how much the CESQG had
generated during a calendar month in which the episodic event begins
because all of that hazardous waste is now folded into the hazardous
waste generated as a result of the episodic event. Otherwise, the
rule would not work from a practical viewpoint.
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There are numerous variations on the above example (e.g., request
to extend the length of time for the episodic event, etc.) that a
generator would have to be aware of when it ended its episodic event to
avoid exceeding waste generation totals for the calendar month or waste
accumulation limitation totals.
9. An Episodic Event Involving Two Calendar Years
An episodic event may also involve overlapping two calendar years.
The Agency is proposing that the generator count all the waste from the
episodic event in the year with the most days involved in the episodic
event. In other words, if the episodic event begins on December 16 of
year 1 and ends on January 30 of year 2, the waste would count in year
2.
C. Request for Comment
The Agency requests comment on its proposed approach for addressing
hazardous waste generated during an episodic event. Specifically, the
Agency requests comment on whether the overall approach proposed would
assist generators and allow a CESQG or SQG to maintain its generator
category and not be bumped up into a more stringent generator category
temporarily.
EPA also requests comment on the number of episodic events that
would be allowed under these proposed alternative regulations. As
stated above, we are proposing to allow CESQGs and SQGs to take
advantage of this alternative regulatory framework for one episodic
event per calendar year, with the ability to petition EPA for one
additional event per calendar year. EPA is interested in ideas on how
best to structure this alternative framework in terms of identifying a
reasonable number of episodic events allowed per year and identifying
an appropriate time period allowed to conduct and manage the hazardous
waste from an episodic event in a way that would be effective while
still ensuring protection of human health and the environment.
Additionally, the Agency requests comment regarding its proposed
conditions for CESQGs and SQGs managing hazardous waste generated from
the episodic event, such as the proposed 45-day limit to generate and
manage the waste and the ability for CESQGs and SQGs to petition the
Agency for one additional episodic event per calendar year or an
additional 30 days to complete an episodic event. The Agency also
requests comment on whether the proposed conditions for CESQGs and SQGs
are reasonable and sufficient to protect human health and the
environment.
Finally, the Agency requests comment on whether to allow a CESQG or
SQG to accumulate hazardous waste either on a drip pad or in a
containment building in compliance with 40 CFR part 265 subparts W and
DD, respectively, as a result of an episodic event. As proposed, the
Agency has focused on hazardous wastes accumulated in containers or
tanks as a result of an episodic event since almost all CESQGs and SQGs
accumulate waste in containers with a small percentage accumulated in
tanks. However, there may be circumstances that lend themselves to a
CESQG or SQG accumulating hazardous wastes on a drip pad or in a
containment building.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
X. Proposed Revisions to 40 CFR Part 263--Standards Applicable to
Transporters of Hazardous Waste
The current regulations at Sec. 263.12 for transporters handling
hazardous waste at a transfer facility for ten days or less state that
the transporter is not subject to the storage regulations in 40 CFR
parts 264, 265, 267, 268 and 270. In addition, the regulation
stipulates that containers that hold hazardous waste must meet the
provisions in Sec. 262.30 that reference DOT's packaging regulations
at 49 CFR parts 173, 178, and 179.
The Agency is proposing to change the marking and labeling
requirements for transporters handling hazardous waste at transfer
facilities, found at Sec. 263.12, to be consistent with the proposed
changes for marking and
[[Page 57978]]
labeling conditions for containers for SQGs, for LQGs, and in
SAAs.\117\ In addition to these proposed changes, EPA is also proposing
to require that containers of hazardous waste at transfer facilities be
labeled prior to being transported off site to a RCRA-designated
facility with the applicable EPA hazardous waste number(s) (EPA
hazardous waste codes), which will help the TSDF receiving the
hazardous waste comply with the LDR regulations in 40 CFR part 268. The
Agency is proposing these modifications to ensure that hazardous wastes
are appropriately labeled and marked throughout transportation to a
RCRA-permitted or interim status TSDF or to another transfer facility.
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\117\ EPA is proposing to move these provisions as a part of the
reorganization of the generator regulations. They can be found in
the proposed regulatory text at the following citations: SAAs--Sec.
262.15(a)(1)(iv); SQGs--Sec. 262.16(b)(6)(i); and LQGs--Sec.
262.17(a)(5).
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Specifically, EPA is proposing that transporters storing hazardous
wastes in containers at transfer facilities mark the containers with
the following: (1) The words ``Hazardous Waste''; (2) the applicable
EPA hazardous waste number(s) (EPA hazardous waste codes) in subparts C
and D of part 261; (3) other words that identify the contents of the
containers--examples may include, but are not limited to the name of
the chemical(s), such as ``acetone'' or ``methylene dichloride''; or
the type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with DOT requirements
at 49 CFR part 172 subpart D; and (4) an indication of the hazards of
the contents of the container--examples of which include, but are not
limited to, the applicable hazardous waste characteristic(s) (i.e.,
ignitable, corrosive, reactive, toxic); a hazard class label consistent
with the DOT requirements at 49 CFR part 172 subpart E (labeling); a
label consistent with the OSHA Hazard Communication Standard at 29 CFR
1920.1200; a chemical hazard label consistent with the NFPA code 704;
or a hazard pictogram consistent with the United Nations' GHS. Transfer
facilities also may use any other marking and labeling commonly used
nationwide in commerce that would alert workers and emergency
responders to the nature of the hazards associated with the contents of
the containers.
A transfer facility may choose to use an appropriate DOT proper
shipping name found in the 49 CFR 172.101 hazardous materials table to
identify the contents of the container. That way, the transfer facility
will fulfill EPA and DOT requirements simultaneously; however, EPA is
not proposing to require the use of the DOT shipping names while the
hazardous waste is accumulating on-site. We only suggest that the DOT
shipping name may be one way that some generators may choose to
identify the contents of the container.
As previously discussed, the Agency believes providing this
information on the container will alert workers and other handlers to
the contents of the container and the potential hazards of the
materials therein. This information increases the awareness of workers
and others who might come into contact with the hazardous waste in the
containers and reduces potential adverse impacts from container
mismanagement. The Agency does not believe this proposed change will
adversely impact transfer facility operations since similar marking and
labeling standards are proposed for hazardous waste generators. One
difference, however, is the inclusion of the EPA hazardous waste number
in the list of labeling requirements. Although generators are not
required to have the EPA hazardous waste number on the hazardous waste
while accumulating it, we are proposing in this rulemaking that
generators must include the EPA hazardous waste number on the label
before transporting the hazardous waste off site, so when a container
arrives at the transfer facility it should already have the EPA
hazardous waste number on its label.
Given that containers received by the transfer facility will
already be marked and labeled by the generator, the Agency believes the
additional burden on the transfer facility will be minimal. However,
there may be situations where the transporter would be required to mark
and label a container. One example of when a transfer facility would be
required to mark and label its containers would be when it consolidates
two containers with the same hazardous waste into a new container or
when it is able to combine and consolidate two different hazardous
wastes that are compatible with each other and are able to be
subsequently managed consistently in compliance with the applicable
regulations in parts 264, 265, 267, 268 and 270 of this chapter.
The Agency requests comment on this proposed change, particularly
the identification of any unintended problems from this requirement.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
XI. Proposed Revisions to 40 CFR Parts 264 and 265--Standards for
Owners and Operators of Hazardous Waste Treatment, Storage, and
Disposal Facilities and Interim Status Standards for Owners and
Operators of Hazardous Waste Treatment, Storage, and Disposal
Facilities
The Agency is proposing to modify the biennial report requirements
for facilities subject to 40 CFR 264.75 and 40 CFR 265.75 and the
special requirements for ignitable and reactive wastes at 40 CFR
265.176.
A. Proposed Changes to Biennial Reporting Requirements (40 CFR 264.75
and 40 CFR 265.75)
EPA is proposing to modify the regulations at Sec. Sec. 264.75 and
265.75 to eliminate the list of specific data elements and to require
the completion and submission of all data elements in the biennial
report form (EPA form 8700-13).
Section 264.75 currently requires that the biennial report include
a specific list of data elements, including the name, address, and EPA
ID number of the generator and each transporter and TSDF, the EPA
hazardous waste number for each hazardous waste shipped off site, and a
signed certification, among other things.
Section 265.75 includes the above data elements as well as
requiring monitoring data under Sec. 265.94(a)(2)(ii) and (iii), and
(b)(2), where required.
Similar to the approach EPA is proposing for the biennial reporting
requirements for LQGs in Sec. 262.41, EPA believes removing the
specific data elements in the regulations and replacing it with a
requirement to complete and submit all the data elements required in
the biennial report form will ensure that the regulations and forms
remain consistent. For example, the existing regulations require
closure cost information and, at Sec. 265.75(f), groundwater
monitoring data under Sec. 265.94(a)(2)(ii) and (iii), and (b)(2) to
be submitted as part of the biennial report; however, these data
elements are not collected on EPA's current biennial reporting form
8700-13.\118\ Thus, EPA believes removing this
[[Page 57979]]
list from the regulations will help TSDFs understand what EPA currently
requires to be submitted as part of the biennial report. This approach
eliminates the need to update the list of specific required data
elements through rulemaking and reduces duplication with review and
approval processes established under the PRA.
---------------------------------------------------------------------------
\118\ Closure cost estimates must be submitted in accordance
with Sec. 264.142 or 265.142 which requires owners or operators
using the financial test or corporate guarantee to update closure
costs for inflation within 30 days after the close of the firm's
fiscal year and before submission of updated information to the
Regional Administrator under Sec. 264.143(f)(3) or 265.143(e)(3),
respectively. Additionally, disposal facilities must submit the most
recent post-closure cost estimate under Sec. 264.144 or 265.144,
which requires owners or operators using the financial test or
corporate guarantee to update for inflation within 30 days after the
close of the firm's fiscal year and before the submission of updated
information to the Regional Administrator. Groundwater monitoring
data must be submitted in accordance with Sec. 265.94(b)(2), which
requires the owner or operator to submit annually, until final
closure of the facility, to the Regional Administrator a report
containing the results of the groundwater quality assessment program
no later than March 1 following each calendar year.
---------------------------------------------------------------------------
EPA does not believe this change in any way affects the
enforceability of the biennial report regulations. Owners and operators
must complete and submit EPA form 8700-13.
EPA also notes that some states develop their own state biennial
report forms. EPA does not believe this proposed change would impact a
state's ability to use their own biennial report forms or to collect
more information than is required by the federal forms. Authorized
states that use a different form for collecting biennial report
information would simply refer to their authorized state form in their
state regulations. Additionally, EPA is aware that some states use
their state biennial report form as a vehicle for collecting closure
cost data, required to be submitted under Sec. 264.142, and
groundwater monitoring data, required to be submitted under Sec.
264.97(j). Because the existing federal regulations already specify
collection of this information, EPA would not consider states that
continue collecting this data using their state authorized biennial
report form to be more stringent than the federal program.
Additionally, as discussed in section VIII.L of this preamble, EPA
is proposing to modify the phrase ``prepare and submit,'' which is the
existing language in Sec. Sec. 264.75 and 265.75, to ``complete and
submit'' because the Agency believes that ``complete and submit'' more
accurately reflects that facilities must complete all applicable
elements of the biennial report forms.
The Agency requests comment on these proposed changes to Sec. Sec.
264.75 and 265.75. EPA also specifically requests whether commenters
believe the proposed change to eliminate the specific data elements in
these regulations will ease compliance and understanding of the current
biennial reporting procedures.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
B. Special Requirements for Ignitable and Reactive Wastes
Sections 262.34(a)(1)(i) and 262.34(d)(2) contain conditions for
exemptions for LQGs and SQGs that accumulate hazardous waste on site
for up to 90 or 180 days without a permit. These regulations both
reference part 265 subpart I, which contains regulations for owners and
operators of interim status hazardous waste facilities that store
hazardous waste in containers.
The LQG conditions in Sec. 262.34(a)(1)(i) reference Sec.
265.176. Section 265.176 states that containers holding ignitable or
reactive waste must be located at least 15 meters (50 feet) from the
facility's property line. SQGs are not required to comply with this
provision.
In some cases, to comply with this standard for ignitable and
reactive wastes, LQGs may modify their production feedstocks or
production processes to generate a waste that is not an ignitable or
reactive hazardous waste or reexamine the site's layout to identify
alternative accumulation areas. However, there are some cases where it
may not be physically possible to meet this standard, particularly if
the width of the site is 100 feet or less or when the generator's
operations have expanded such that it no longer has the ability to
accumulate ignitable or reactive waste at least 15 meters (50 feet)
from the site's property line. Insurance companies and local fire
departments often assist hazardous waste generators in minimizing their
environmental hazards and liabilities, but site dimensions may
sometimes physically prevent a facility from complying with this
condition.
Therefore, the Agency is proposing to modify the regulatory text
for generators to allow LQGs to apply for a site-specific waiver from
their local fire department if they are unable to meet the hazardous
waste accumulation property line condition.\119\ The proposed change
would require LQGs to obtain a waiver from this provision, in writing,
from local fire departments. LQGs would then be required to keep the
written waiver in their records. In addition, as part of the
reorganization of the generator regulations, discussed in section XIII
of the preamble, we are also including this provision directly in the
LQG accumulation regulations.
---------------------------------------------------------------------------
\119\ The Agency is not proposing to modify Sec. 265.176 to
allow interim status facilities to apply for a site-specific waiver
from their local fire department if they are unable to meet the
hazardous waste accumulation property line condition.
---------------------------------------------------------------------------
Because it is the local fire department that has the expertise to
address this problem when it arises, EPA is relying on those local fire
departments to work with the generators on any waivers that may be
requested and on finding the most appropriate place on site to
accumulate this hazardous waste.
Section 265.176 contains a comment that references Sec. 265.17(a)
and states that there are additional requirements in that section,
which also contains provisions for ignitable, reactive, and
incompatible wastes. The Agency is also proposing to incorporate the
language from existing Sec. 265.17(a) into Sec. 262.17(a)(1)(vi)(B)
of the generator regulations. EPA is proposing to replace the words
``owner and operator'' with ``large quantity generator'' as part of
this revision. By eliminating the cross-references, generators should
be able to more easily discern what provisions are applicable and
therefore should be better able to properly manage any ignitable or
reactive hazardous waste.
The Agency seeks comment on the proposed addition of this language
to the generator conditions for exemption, as well as the change to
allow LQGs to seek a waiver from the provision that containers holding
hazardous waste must be located at least 15 meters (50 feet) from the
property line. Specifically, EPA requests comment on whether this
waiver option provides a sufficient level of protection for the
facility and the surrounding community and whether generators would
benefit from the increased flexibility. Additionally, EPA requests
comment on whether it is appropriate to delegate the responsibility for
issuing waivers in this case to the fire department and whether EPA
should promulgate criteria that must be met as a condition of the
waiver as part of this provision. For example, conditions may include a
limit on the amount of ignitable or reactive hazardous waste that could
be accumulated at any time or a requirement that the facility have
certain technical controls, such as fire suppression devices or walls
that meet a certain fire-resistance rating. Furthermore, EPA requests
comment on whether the insertion of the language from Sec. 265.17(a)
in this section is helpful.
Finally, EPA requests comment on whether including a waiver to the
provision for ignitable and reactive wastes would also be appropriate
for interim status facilities or for permitted facilities in Sec. Sec.
264.176 and 265.176.
Effect of the Proposed Reorganization: This section is affected by
the proposed
[[Page 57980]]
reorganization. The revised language would appear directly in Sec.
262.17(a)(1)(vi) as a condition for exemption for LQGs, rather than
being located in 40 CFR part 265 subpart I and referenced from the
generator regulations. The reorganization is discussed in section XIII
of this preamble.
XII. Proposed Revisions to 40 CFR Part 268--Land Disposal Restrictions
The Agency is proposing to change the regulations on marking and
labeling of containers by the owner/operator of a hazardous waste TSDF
in Sec. 268.50 to be consistent with the proposed marking and labeling
changes for LQGs, for SQGs, for SAAs, and for transfer facilities.\120\
EPA is also proposing to require that containers be labeled with the
applicable EPA hazardous waste number(s) (EPA hazardous waste codes),
which help the TSDF comply with the LDR regulations. More specifically,
the Agency is proposing to modify Sec. 268.50(a)(2)(i), which states
that one of the requirements for storing hazardous wastes restricted
from land disposal is that each container is clearly marked to identify
its contents and the date each period of accumulation begins.
---------------------------------------------------------------------------
\120\ EPA is proposing to move some of these provisions as a
part of the reorganization of the generator regulations. They can be
found in the proposed regulatory text at the following citations:
SAAs--Sec. 262.15(a)(1)(iv); SQGs--Sec. 262.16(b)(6)(i); and
LQGs--Sec. 262.17(a)(5)(i).
---------------------------------------------------------------------------
Consistent with the other proposed changes that clarify the
contents and hazards posed by the contents of hazardous waste in
containers, the Agency is proposing to modify this language to state
that each container must be clearly marked with (1) the words
``Hazardous Waste''; (2) the applicable EPA hazardous waste number(s)
(EPA hazardous waste codes) in subparts C and D of part 261; (3) other
words that identify the contents of the containers--examples may
include, but are not limited to the name of the chemical(s), such as,
``acetone'' or ``methylene dichloride''; or the type or class of
chemical, such as ``organic solvents'' or ``halogenated organic
solvents'' or, as applicable, the proper shipping name and technical
name markings used to comply with DOT requirements at 49 CFR part 172
subpart D; (4) an indication of the hazards of the contents of the
container (examples include, but are not limited to, the applicable
hazardous waste characteristic(s) (i.e., ignitable, corrosive,
reactive, toxic); a hazard class label consistent with the Department
of Transportation requirements at 49 CFR part 172 subpart E (labeling);
a label consistent with the Occupational Safety and Health
Administration Hazard Communication Standard at 29 CFR 1920.1200; a
chemical hazard label consistent with the National Fire Protection
Association code 704; or a hazard pictogram consistent with the United
Nations' Globally Harmonized System); or any other marking or labeling
commonly used nationwide in commerce that would alert workers and
emergency responders to the nature of the hazards associated with the
contents of the containers. The Agency will continue to require each
container to be clearly marked with the date each period of
accumulation begins.
The Agency believes this proposed change will not adversely impact
facility operations. In fact, because these are consistent with the
requirements for marking and labeling that are proposed elsewhere in
the regulations, we believe it will be easier for all those who manage
the hazardous waste to know and comply with the consistent system of
marking and labeling. In addition, a clear description of what material
is in each container makes the facility safer for employees, first
responders, and the public. The Agency requests comment on this
proposed change.
Effect of the Proposed Reorganization: This section is not affected
by the proposed reorganization.
XIII. Proposed Reorganization of Hazardous Waste Generator Regulations
EPA is proposing to reorganize the hazardous waste generator
regulations to make them more user-friendly, which should facilitate
better generator compliance. As part of the Agency's 2004 Program
Evaluation of the hazardous waste generator program, the most frequent
comment by stakeholders was to improve the user-friendliness of the
regulations.
Although many existing generators are familiar with the current
regulations, every year many generators either enter the hazardous
waste generator program or switch their generator category and
therefore need to become familiar with their obligations. Similarly, an
existing generator may need to examine a particular regulatory citation
to ensure it is complying with the regulations correctly. The Agency
believes that providing these generators with a user-friendly
regulatory framework is an effective way to make the regulations easier
to understand for those who need to comply with them.
Therefore, in response to these concerns, EPA is proposing the
following organizational changes:
(1) Integrate the generator regulations in Sec. 261.5 into the
generator regulations at part 262 by moving Sec. 261.5 (which contains
the regulations applicable to CESQGs, counting of hazardous waste, and
mixing of hazardous wastes with non-hazardous wastes);
(2) Move the existing regulations at Sec. 262.34 for SQGs and LQGs
into three new sections:
(a) Satellite accumulation areas regulations for small and large
quantity generators,
(b) Conditions for exemption for an SQG that accumulates hazardous
waste; and
(c) Conditions for exemption for an LQG that accumulates hazardous
waste;
(3) Use subtitles in these new sections; and
(4) Where reasonable, incorporate regulations that currently cross
reference part 265 into these new sections.
A. Moving and Integrating Regulations from 40 CFR 261.5 into 40 CFR
Part 262
Currently, certain hazardous waste generator regulations are
located in a different part of the regulations (40 CFR 261.5) from the
rest of the generator regulations (40 CFR part 262). Stakeholders have
stated that this current organization is confusing and not user
friendly and have asked EPA to move the CESQG regulations in Sec.
261.5 into part 262 so that all the generator regulations are in the
same place. The Agency believes this reorganization would alleviate
much confusion in the regulated community and, in the process, would
foster greater compliance with the regulations.
Specifically, EPA is proposing to move the definition of a CESQG
that generates non-acute hazardous waste at Sec. 261.5(a) into the
CESQG definition at Sec. 260.10, move Sec. 261.5(c) through (e) to a
new section at Sec. 262.13 titled ``Generator category determination''
and move Sec. 261.5(b) and (f) through (j) to a new section at Sec.
262.14 titled ``Conditions for exemption for a very small quantity
generator.'' \121\
---------------------------------------------------------------------------
\121\ EPA is proposing to rename CESQGs to VSQGs (very small
quantity generators). For a detailed discussion on this proposed
change see section VI.B of this preamble.
---------------------------------------------------------------------------
1. Hazardous Waste Generation Quantity Limits for CESQGs (40 CFR
261.5(a) and (e))
Currently Sec. 261.5(a) sets forth the non-acute hazardous waste
quantity limits for a CESQG and Sec. 261.5(e) provides quantity limits
for generating acute hazardous waste and any residue or contaminated
soil, waste, or other debris resulting from the cleanup of a spill of
[[Page 57981]]
acute hazardous waste. As mentioned previously, EPA is now proposing to
define each category of generator at Sec. 260.10, and, thus, under the
reorganization, Sec. 261.5(a) and (e) will be incorporated into those
definitions.
2. Determining Generator Category (40 CFR 261.5(c) and (d))
Section 261.5(c) and (d) set forth the provisions for a hazardous
waste generator to use in making its generator category determination.
Every hazardous waste generator must determine its generator category
so it knows what regulations are applicable to it. Since these
regulations are applicable to all hazardous waste generators, it makes
sense to move them into 40 CFR part 262 along with the other hazardous
waste generator regulations. To further aid in making the regulations
more user friendly, the Agency is proposing to make a new section for
generator category determination at Sec. 262.13, titled ``Generator
category determination.'' This new section is appropriate because,
after a generator of a solid waste determines it has generated a
hazardous waste (Sec. 262.11), the generator must then determine its
hazardous waste generator category for the calendar month. Table 3--
Crosswalk of Existing Citations to Proposed Citations for Determining
Generator Category provides a summary of the crosswalk between the
existing and proposed regulatory citations for determining a
generator's category.
Table 3--Crosswalk of Existing Citations to Proposed Citations for Determining Generator Category
----------------------------------------------------------------------------------------------------------------
Regulation Existing citation Proposed citation Comment
----------------------------------------------------------------------------------------------------------------
Definitions of Generator Categories.. Sec. Sec. 260.10, Sec. 260.10.......... Current definition of
261.5 and 262.34. SQG in Sec. 260.10
is outdated. Current
usage of generator
categories is based on
Sec. Sec. 261.5 and
262.34.
Hazardous Waste Limits for CESQGs.... Sec. 261.5(a) and (e) Sec. 260.10.......... .......................
Purpose, Scope, and Applicability.... Sec. 262.10.......... Sec. 262.10.......... Not moved, but expanded
significantly.
Hazardous Waste Determination and Sec. Sec. 262.11 and Sec. 262.11.......... Content in Sec.
Recordkeeping. 262.40(c). 262.11 is expanded and
Sec. 262.40(c) is
incorporated.
Generator Category Determination..... Sec. 261.5(c)-(e).... Sec. 262.13.......... .......................
----------------------------------------------------------------------------------------------------------------
3. CESQG Conditions for Exemption (40 CFR 261.5(b) and (f) through (j))
Sections 261.5(b) and (f) through (j) establish a CESQG's
conditions for exemption from regulation as an SQG or LQG. More
specifically, these conditions for exemption establish the regulations
for accumulating acute and non-acute hazardous waste, where the acute
and non-acute hazardous waste may be managed off-site, and what the
implications are when hazardous waste is mixed with solid waste or used
oil. Since these regulations set forth conditions for exemption for
CESQGs, just as the regulations found in existing Sec. 262.34 set
forth conditions for exemption for SQGs and LQGs, EPA is proposing to
move Sec. 261.5(b) and (f) through (j) to the newly created Sec.
262.14 titled, ``Conditions for exemption for a very small quantity
generator.'' All these regulations would then be located parallel to
one another in part 262. Section 262.14 would also include the CESQG
landfill ban for liquids. In addition, CESQGs who episodically generate
higher amounts of hazardous waste could follow the newly proposed
standards for episodic generation in part 262 subpart L in order to
maintain their CESQG status while managing these higher amounts of
hazardous waste. Table 4--Crosswalk of Existing Citations to Proposed
Citations for CESQGs provides a crosswalk between the existing and
proposed CESQG conditions for exemption.
Table 4--Crosswalk of Existing Citations to Proposed Citations for CESQGs
----------------------------------------------------------------------------------------------------------------
Regulation Existing citation Proposed citation Comment
----------------------------------------------------------------------------------------------------------------
CESQG Definition..................... Sec. 261.5(a)........ Sec. 260.10.......... .......................
Conditions for Exemption for a Very Sec. 261.5(b) and (f) Sec. 262.14.......... .......................
Small Quantity Generator. through (j).
CESQG Consolidation by LQGs Within N/A.................... Sec. Proposed new provision.
the Same Company. 262.14(a)(3)(viii).
Landfill Ban for Liquids............. Sec. 258.28.......... Sec. 262.14(d)....... .......................
Episodic Generation.................. N/A.................... Part 262 subpart L..... Proposed new provision.
----------------------------------------------------------------------------------------------------------------
B. SQG and LQG Conditions for Exemption (40 CFR 262.34)
SQGs and LQGs may accumulate their hazardous waste on site without
a permit or without having interim status provided they follow all of
the conditions for exemption established in Sec. 262.34. Section
262.34 can be difficult to navigate because the SQG and LQG conditions
for exemption are intertwined and there are many references to sections
in 40 CFR part 265. Therefore the Agency is proposing to break Sec.
262.34 into three new sections at Sec. Sec. 262.15, 262.16 and 262.17.
Section 262.15 would establish the conditions for exemption for SQGs
and LQGs who wish to operate an SAA, Sec. 262.16 would establish
conditions for exemption for SQGs, and Sec. 262.17 would establish the
conditions for exemption for LQGs.
1. Satellite Accumulation Area Conditions for Exemption for SQGs and
LQGs (40 CFR 262.15)
Many generators use an SAA at their sites. These areas allow
generators to accumulate hazardous waste near the point of generation,
which provides for
[[Page 57982]]
efficiencies and greater safety in the handling of hazardous waste.
When the generator has accumulated 55 gallons of hazardous waste (or
one quart of acutely hazardous waste) in the SAA, the generator must
then move the hazardous waste to the 90- or 180-day central
accumulation area within three days. Currently the conditions for
exemption for operating an SAA are located at Sec. 262.34(c). The
location of this provision in the regulations creates confusion as to
whether it applies to LQGs only or both SQGs and LQGs because it is
located between the hazardous waste accumulation conditions for LQGs
and those for SQGs. Therefore, the Agency is proposing to move 40 CFR
262.34(c) into its own section at Sec. 262.15 titled, ``Satellite
accumulation area regulations for small and large quantity
generators.''
Additionally, the Agency is proposing to duplicate Sec. Sec.
265.171, 265.172 and 265.173(a) (which are currently referenced from
Sec. 262.34(c)(1)(i)) into Sec. 262.15 in order to eliminate cross-
referencing and improve the user friendliness of the regulations. Table
5--Crosswalk of Existing Citations to Proposed Citations for SAAs
provides a summary of the crosswalk between existing and proposed
regulations for SAAs.
Table 5--Crosswalk of Existing Citations to Proposed Citations for SAAs
------------------------------------------------------------------------
Regulation Existing citation Proposed citation
------------------------------------------------------------------------
Satellite Accumulation Area Sec. 262.34(c).. Sec. 262.15.
Provisions.
Selected Part 265 Subpart I Sec. 265.171.... Sec.
Provisions. 262.15(a)(1)(i).
Selected Part 265 Subpart I Sec. 265.172.... Sec.
Provisions. 262.15(a)(1)(ii).
Selected Part 265 Subpart I Sec. 265.173(a). Sec.
Provisions. 262.15(a)(1)(iii)
.
------------------------------------------------------------------------
2. Conditions for Exemption for an SQG Accumulating Hazardous Waste
(Sec. 262.16)
As previously mentioned, the Agency is proposing to create 40 CFR
262.16 titled, ``Conditions for exemption for a small quantity
generator that accumulates hazardous waste.'' This reorganization would
move Sec. 262.34(d) through (f) and (m) into Sec. 262.16.
Specifically, the Agency proposes to move the bulk of Sec. 262.34(d)
to Sec. 262.16(b),\122\ move Sec. 262.34(e) to Sec. 262.16(d), move
Sec. 262.34(f) to Sec. 262.16(e) and move Sec. 262.34(m) to Sec.
262.16(f). Paragraph (c) of Sec. 262.16, which covers the mixing of
hazardous waste, is a new paragraph that EPA is proposing to add in
this rulemaking.\123\ EPA is also proposing to add subtitles and
eliminate several cross-references to 40 CFR part 265 in order to make
the regulations easier to navigate.
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\122\ The portions of Sec. 262.34(d) that state what the
generation limits are for this category of generator would be moved
to the definition of ``small quantity generator'' in Sec. 262.10.
\123\ For a detailed discussion of this proposed addition please
see section VII.B of this preamble.
---------------------------------------------------------------------------
a. Addition of subtitles. EPA is proposing to add subtitles to
Sec. 262.16 to highlight to the reader the topic of each section or
paragraph. Every subtitle is italicized after the regulatory citation.
For example Sec. 262.16(b)(2) addresses ``Accumulation in
Containers.''
b. Incorporating 40 CFR part 265 subpart I, Sec. 265.201, and part
265 subpart C into 40 CFR 262.16. EPA is proposing to integrate three
sections of 40 CFR part 265--subpart I, Sec. 265.201 and subpart C--
into Sec. 262.16. First, at Sec. 262.34(d)(2), the regulations state
an SQG must comply with subpart I of part 265 except for Sec. Sec.
265.176 and 265.178. Therefore, EPA is proposing to incorporate the
text of the appropriate subpart I regulations at Sec. 262.16(b)(2).
Second, at Sec. 262.34(d)(3) the regulation states that an SQG must
comply with Sec. 265.201 in subpart J when using a tank. Thus, EPA is
proposing to incorporate the text of all of Sec. 265.201 except for
paragraph (a) at Sec. 262.16(b)(3). Paragraph (a) of Sec. 265.201 is
not necessary because it describes what is already stated in Sec.
262.16--the requirements for an SQG accumulating hazardous waste in a
tank for less than 180 days and accumulating no more than 6,000 kg on
site at any time. Third Sec. 262.34(d)(4) states an SQG must comply
with subpart C of part 265. Therefore, EPA is proposing to incorporate
the text of subpart C--Preparedness and Prevention--at Sec.
262.16(b)(8).
c. Other part 262 provisions for SQGs. In addition, part 262
subpart L would contain the newly proposed standards for SQGs who
episodically generate higher amounts of hazardous waste to maintain
their designation as SQGs during these episodic events. Also, Sec.
262.35 would include the landfill ban for liquids that applies to SQGs
and LQGs.
Table 6--Crosswalk of Existing Citations to Proposed Citations for
SQGs provides a summary of changes between the existing and proposed
citations for SQGs.
Table 6--Crosswalk of Existing Citations to Proposed Citations for SQGs
----------------------------------------------------------------------------------------------------------------
Regulation Existing citation Proposed citation Comment
----------------------------------------------------------------------------------------------------------------
Definition of Small Quantity Sec. 262.34(d)....... Sec. 260.10.......... .......................
Generator.
Accumulation Time Limit.............. Sec. 262.34(d)....... Sec. 262.16(b)....... .......................
Accumulation Limit................... Sec. 262.34(d)(1) and Sec. 262.16(a) and .......................
(f). (e).
Accumulation in Containers........... Sec. 262.34(d)(2) Sec. 262.16(b)(2).... .......................
references part 265
subpart I.
Accumulation in Tanks................ Sec. 262.34(d)(3) Sec. 262.16(b)(3).... .......................
references part 265
subpart J.
Marking of Tanks and Containers...... Sec. 262.34(d)(4) Sec. 262.16(b)(6).... .......................
references Sec.
262.34(a)(2) and (3).
Preparedness and Prevention.......... Sec. 262.34(d)(4) Sec. 262.16(b)(8) and .......................
references part 265 (9).
subpart C and Sec.
262.34(d)(5).
Land Disposal Restrictions........... Sec. 262.34(d)(4) Sec. 262.16(b)(7).... .......................
references part 268.
[[Page 57983]]
Transporting Over 200 Miles.......... Sec. 262.34(e)....... Sec. 262.16(d)....... .......................
Accumulation Time Limit Extension.... Sec. 262.34(f)....... Sec. 262.16(e)....... .......................
Episodic Generation.................. N/A.................... Part 262 subpart L..... Proposed new provision.
Landfill Ban for Liquids............. Sec. 258.28.......... Sec. 262.35.......... .......................
----------------------------------------------------------------------------------------------------------------
3. Conditions for Exemption for an LQG Accumulating Hazardous Waste (40
CFR 262.17)
As previously mentioned the Agency is proposing to create 40 CFR
262.17 titled, ``Conditions for exemption for a large quantity
generator that accumulates hazardous waste.'' The Agency is proposing
to move Sec. 262.34(a), (b), (g) through (i) and (m) into Sec.
262.17. Specifically, the Agency is proposing to move Sec. 262.34(a)
to Sec. 262.17(a), move Sec. 262.34(b) to Sec. 262.17(b), move Sec.
262.34(g) to Sec. 262.17(c), move Sec. 262.34(h) to Sec. 262.17(d),
move Sec. 262.34(i) to Sec. 262.17(e), and move Sec. 262.34(m) to
Sec. 262.16(g). EPA is additionally proposing to delete paragraphs (j)
through (l), which deal with Performance Track, since the program is no
longer in operation.\124\ Paragraph (f) of Sec. 262.17, which deals
with the mixing of hazardous waste, is a new paragraph being proposed
in this rulemaking.\125\ EPA is also proposing to add subtitles and
eliminate some cross-references to part 265 in order to make the
regulations easier to navigate.
---------------------------------------------------------------------------
\124\ For a detailed discussion of this proposed deletion please
see section VIII.K of this preamble.
\125\ For a detailed discussion of this proposed addition please
see section VII.A.2 of this preamble.
---------------------------------------------------------------------------
a. Addition of subtitles. EPA is proposing to add subtitles to
Sec. 262.17 to highlight to the reader the central concept addressed
by each section or paragraph. Every subtitle is italicized after the
regulatory citation. For example Sec. 262.17(a)(1) addresses
``accumulation in containers.''
b. Incorporating 40 CFR part 265 subpart I into 40 CFR 262.17. EPA
is proposing to incorporate the 40 CFR part 265 subpart I regulations,
which are currently referenced at Sec. 262.34(a)(1)(i), into the
proposed Sec. 262.17(a)(1). EPA also considered incorporating the text
of other subparts of part 265 that contain technical standards for LQGs
and that are currently referenced in Sec. 262.34 into the new section
Sec. 262.17 (i.e., part 265 subparts J, W, AA, BB, and CC), but
ultimately decided not to incorporate these due to the length of these
subparts.
Section 262.35 would also include the landfill ban for liquids that
applies to SQGs and LQGs. EPA requests comment on the proposed changes.
c. Emergency planning and procedures regulations for LQGs in part
265 subpart M. EPA is proposing to remove the reference to part 265
subparts C and D for the preparedness, prevention, and emergency
procedure regulations for LQGs and instead incorporate those
regulations in part 262 with the other generator regulations. However,
due to the length of these subparts, rather than copying the text of
these subparts to Sec. 262.17, EPA is proposing to copy these into a
new subpart M in part 262. EPA believes that including these provisions
in part 262, along with the rest of the generator regulations, will
make the regulations easier to navigate. EPA requests comment on this
proposed change.
d. Other part 262 provisions for LQGs. In addition, Sec. 262.17(g)
would contain the newly proposed standards for LQGs who accept and
consolidate hazardous waste from CESQGs. Also, Sec. 262.35 would
include the landfill ban for liquids that applies to SQGs and LQGs.
Table 7--Crosswalk of Existing Citations to Proposed Citations for
LQGs provides a summary of changes between the existing and proposed
citations for LQGs.
Table 7--Crosswalk of Existing Citations to Proposed Citations for LQGs
----------------------------------------------------------------------------------------------------------------
Regulation Existing citation Proposed citation Comment
----------------------------------------------------------------------------------------------------------------
Definition of Large Quantity N/A.................... Sec. 260.10.......... .......................
Generator.
Accumulation Time Limit.............. Sec. 262.34(a)....... Sec. 262.17(a)....... .......................
Accumulation in Containers........... Sec. 262.34(a)(1)(i) Sec. 262.17(a)(1).... There is still a cross-
references part 265 (Sec. 262.17(a)(1) reference to part 265
subparts I, AA, BB, also references part subparts AA, BB, and
and CC. 265 subparts AA, BB, CC because of the
CC). length of these
regulations.
Accumulation in Tanks................ Sec. 262.34(a)(1)(ii) Sec. 262.17(a)(2) There is still a
references part 265 references part 265 reference to part 265
subparts J, AA, BB, subparts J, AA, BB, CC. because of the length
and CC. of these regulations.
Accumulation on Drip Pads............ Sec. Sec. 262.17(a)(3).... Recordkeeping
262.34(a)(1)(iii). (Sec. 262.17(a)(3) provisions move to
(Sec. also references part part 262.17 and the
262.34(a)(1)(iii) also 265 subpart W). extensive technical
references part 265 standards remain in
subpart W). part 265.
Accumulation in Containment Buildings Sec. 262.34(a)(1)(iv) Sec. 262.17(a)(4).... Recordkeeping
(Sec. (Sec. 262.17(a)(4) provisions move to
262.34(a)(1)(iv) also also references part part 262.17 and the
references part 265 265 subpart DD). extensive technical
subpart DD). standards remain in
part 265.
Marking and Labeling................. Sec. 262.34(a)(2) and Sec. 262.17(a)(5).... .......................
(3).
[[Page 57984]]
Preparedness, Prevention, and Sec. 262.34(a)(4) Sec. 262.17(a)(6) Cross-references remain
Emergency Procedures. references part 265 references part 262 but to a subpart of
subparts C and D. subpart M. the generator
regulations.
Personnel Training................... Sec. 262.34(a)(4).... Sec. 262.17(a)(7).... .......................
Land Disposal Restrictions........... Sec. 262.34(a)(4) Sec. 262.17(a)(6)(ii) .......................
references applicable
parts of part 268.
Extension of Accumulation Times...... Sec. 262.34(b)....... Sec. 262.17(b)....... .......................
Accumulation of F006................. Sec. 262.34(g) Sec. 262.17(c) .......................
through (i). through (e).
Accepting waste from CESQGs to N/A.................... Sec. 262.17(g)....... Proposed new provision.
consolidate before sending to TSDF.
Rejected Loads....................... Sec. 262.34(m)....... Sec. 262.17(h)....... .......................
Landfill Ban for Liquids............. Sec. 258.28.......... Sec. 262.35.......... .......................
----------------------------------------------------------------------------------------------------------------
EPA requests comment on the proposed reorganization to the
hazardous waste generator regulations and, in particular, on whether
the proposed changes would improve the user friendliness and utility of
the regulations.
C. EPA Identification Number (40 CFR 262.12)
In the interest in keeping the generator regulations in a logical
order, EPA is proposing to move existing Sec. 262.12--EPA
identification number--to Sec. 262.18. Section 262.12 would then be
reserved. EPA believes this will improve the flow of the hazardous
waste generator regulations as it places the section addressing EPA
identification number after Sec. 262.13, which addresses how a
generator determines its generator category. This proposed sequence is
appropriate because a hazardous waste generator must first determine
what generator category it belongs to in order to determine which
regulations--including the requirement to obtain an EPA ID number--it
must comply with. (For example, SQGs and LQGs must obtain an EPA
identification number, but a CESQG does not).
EPA is requesting comment on these proposed changes.
XIV. Technical Corrections and Conforming Changes to 40 CFR Parts 260
through 265, 270, 273, and 279
The Agency is also proposing a number of technical corrections and
conforming changes to the hazardous waste generator regulations. This
proposed rule eliminates the regulatory text for discontinued programs,
identifies areas where conforming changes are necessary, updates
existing regulatory text to account for new programs, improves the
readability of certain paragraphs, and corrects typographical errors.
Specifically, the Agency is proposing the following changes, in order
of the existing regulations:
(1) Revise Sec. 260.3, which currently reads, ``As used in parts
260 through 265 and 268 of this chapter.'' This text fails to account
for additional parts of the regulations that were promulgated after
1986, such as parts 266, 267, and 270 through 273. The Agency is
proposing to revise this to read, ``As used in parts 260 through 273 of
this chapter.''
(2) Modify the definitions of ``Treatability Study,'' ``Universal
Waste Handler,'' ``Universal Waste Transporter'' in Sec. 260.10 to
only capitalize the first word (e.g., ``Universal'') in order to match
the formatting in the rest of this section.
(3) Remove the closed parenthesis after ``(e.g.,)'' from Sec.
261.1(c)(6).
(4) Improve the readability of Sec. 261.4(a)(7), which currently
reads, ``Spent sulfuric acid used to produce virgin sulfuric acid,
unless it is accumulated speculatively as defined in Sec. 261.1(c) of
this chapter.'' The Agency is proposing to revise the language to read
``Spent sulfuric acid used to produce virgin sulfuric acid provided it
is not accumulated speculatively as defined in Sec. 261.1(c) of this
chapter.''
(5) Make conforming changes to citations that reference Sec. 261.5
to reflect EPA's proposal to move these regulations. The citations
where references to Sec. 261.5 are to be revised include all the
following: Sec. Sec. 262.10(b), 262.10(l)(2), 262.201(b), 262.204(a),
262.210(b)(3), 262.210(d)(2), 262.211(e)(3), 262.213(a)(2),
262.213(a)(3), 262.213(b)(2), 262.216(b), 264.1(g)(1), 268.1(e)(1),
270.1(c)(2)(iii), and 279.10(b)(3). In Sec. 261.33(e) and (f), EPA is
proposing to altogether remove the references to Sec. Sec. 261.5(e)
and 261.5(a) and (g), respectively, because the quantity limits for
hazardous wastes are contained in EPA's proposed definitions for very
small quantity generator, small quantity generator, and large quantity
generator.
(6) Replace the word ``waste'' with ``water'' in Sec. 261.5(e)(2),
which reads, ``A total of 100 kg of any residue or contaminated soil,
waste, or other debris resulting from the clean-up of a spill, into or
on any land or water. . . .'' Prior to 1985, the word ``waste'' was
``water'' and the Agency is unable to determine why this change
occurred. (In the proposed reorganization, this language is moved to
Sec. 260.10 and is contained in the definitions of large quantity
generator, small quantity generator and very small quantity generator.)
(7) Revise Sec. 261.420 to clarify that the requirement in Sec.
261.411(c) that all employees be familiar with proper waste handling
and emergency procedures relevant to their responsibilities applies to
facilities that generate or accumulate more than 6,000 kg of hazardous
materials as well as to facilities that generate or accumulate less
than that amount.
(8) Remove Notes 1 and 2 from Sec. 262.10. Note 1 states that the
provisions of Sec. 262.34 are applicable to the on-site accumulation
of hazardous waste by generators. Therefore, the provisions of Sec.
262.34 only apply to owners or operators who are shipping hazardous
waste which they generated at that facility. Note 2 states that a
generator who treats, stores, or disposes of hazardous waste on site
must comply with the applicable standards and permit requirements set
forth in 40 CFR parts 264, 265, 266, 268, and 270. These notes are no
longer necessary should EPA finalize the changes in this proposed rule,
which include replacing Sec. 262.34 with a new reorganization of the
regulations that address Note 1and proposing regulations in Sec.
262.10 that address Note 2.
(9) Remove the extra period in the last line of the paragraph at
Sec. 262.10(l).
[[Page 57985]]
(10) Make conforming changes to sections that reference Sec.
262.34 to reflect EPA's proposal to move these regulations. The
citations where references to Sec. 262.34 are to be revised include
the following: Sec. Sec. 262.10(l)(1), 262.201(a), 262.201(a),
262.216(a), 264.1(g)(3), 264.71(c), 264.1030(b)(2), 264.1050(b)(2),
265.1(c)(7), 265.71(c), 265.1030(b)(2) and (b)(3), 268.7(a)(5) and
270.1(c)(2)(i).
(11) Make conforming change to remove and reserve Sec. 262.40(c)
because this section (regarding records for waste determinations) is
proposed to move to Sec. 262.11.
(12) Correct the statutory citation at Sec. 262.43 that currently
refers to sections 2002(a) and 3002(6) of the Act. The reference to
3002(6) should be to 3002(a)(6). Additionally, the word ``he'' is
removed in order to be gender neutral.
(13) Remove references to Project XL programs that have been
discontinued. These include the New York State Public Utilities Project
XL program at subpart I of 40 CFR part 262 and the University
Laboratories Project XL program at subpart J of 40 CFR part 262. We
have also removed and reserved the reference at Sec. 262.10(j) to the
University Laboratories Project XL.
(14) Make two conforming changes to the definition of ``central
accumulation area'' in Sec. 262.200 in subpart K. We are proposing to
move this definition from this location to Sec. 260.10 with the
following revisions. First, because of the reorganization of the
regulations in 40 CFR part 262, we are proposing to change the
references to the applicable regulations for the central accumulation
areas that are used in the definition of central accumulation area in
Sec. 262.200. For LQGs, we are proposing that the reference to Sec.
262.34(a) be changed to Sec. 262.17 and for SQGs, we are proposing
that the reference to Sec. 262.34(d) through (f) be changed to Sec.
262.16. Second, we are proposing to remove the reference to Performance
Track in the definition of ``central accumulation area'' in Sec.
262.200 of subpart K because the Performance Track program has been
terminated (74 FR 22741; May 14, 2009). Both of these conforming
changes are reflected in the proposed definition of ``central
accumulation area'' being added in Sec. 260.10.
(15) Make conforming changes to citations that use the term
``conditionally exempt small quantity generator'' to reflect EPA's
proposed change to the term ``very small quantity generator.'' The
citations where ``conditionally exempt small quantity generator'' is to
be replaced with ``very small quantity generator'' include: Sec. Sec.
262.200, 262.201(b), 262.202(b), 262.203(a), 262.203(b)(2), 262.204(a),
262.209(b), 262.210(d)(2), 262.213(a)(3), 268.1(e)(1),
270.1(c)(2)(iii), 273.8, 273.8(a)(2), 273.81(b), 279.10(b)(3).
(16) Improve the readability of Sec. 264.170, which currently
reads, ``The regulations in this subpart apply to owners and operators
of all hazardous waste facilities that store containers of hazardous
waste. . . .'' The Agency is proposing to revise this language to read,
``The regulations in this subpart apply to owners and operators of all
hazardous waste facilities that store hazardous waste in containers. .
. .''
(17) Improve the readability of the first sentence in Sec.
264.191(a), which currently reads, ``For each existing tank system. . .
. the owner or operator must determine that the tank system is not
leaking or is unfit for use.'' The Agency is proposing to revise this
language to read, ``For each existing tank system . . . the owner or
operator must determine that the tank system is not leaking or is fit
for use.''
(18) Improve the readability of Sec. 265.1(c)(7), which currently
reads, ``A generator accumulating waste on-site in compliance with
Sec. 262.34 of this chapter, except to the extent the requirements are
included in Sec. 262.34 of this chapter.'' The Agency is proposing to
revise the sentence to read, ``A generator accumulating waste on site
except to the extent the requirements are included in Sec. Sec.
262.16, and 262.17 of this chapter.''
(19) Correct the list of Federal Register notices in Sec. 265.54
to be consistent with the list of references in Sec. 264.54. The
reference to 53 FR 37935, September 28, 1988, is missing from Sec.
265.54.
(20) Add to Sec. 265.111(c) a missing regulatory citation to Sec.
265.445 applicable to drip pads. Section 265.111(c) would then read,
``Complies with the closure requirements of this subpart, including,
but not limited to, the requirements of Sec. Sec. 265.197, 265.228,
265.258, 265.280, 265.310, 265.351, 265.381, 265.404, 265.445, and
265.1102.''
(21) Add to Sec. 265.114 a missing regulatory citation to Sec.
265.445 applicable to drip pads and Sec. 265.1102 applicable to
containment buildings. Section 265.114 would then read, ``During the
partial and final closure periods, all contaminated equipment,
structures and soil must be properly disposed of, or decontaminated
unless specified otherwise in Sec. Sec. 265.197, 265.228, 265.445,
265.258, 265.280, 265.310 or 265.1102. . . .''
(22) Make a conforming change to remove and reserve Sec. 265.201
(Special requirements for generators of between 100 and 1,000 kg/mo
that accumulate hazardous waste in tanks). EPA is proposing to move
this section into proposed Sec. 262.16.
(23) Add a missing reference to 40 CFR part 268 in Sec.
270.1(a)(3), which currently reads, ``The RCRA permit program. . . . in
40 CFR parts 264, 266, and 267.'' Therefore, the Agency is revising
this to read, ``The RCRA permit program . . . in 40 CFR parts 264, 266,
267, and 268.''
XV. Request for Comment on Use of Electronic Tools to Streamline
Hazardous Waste Reporting and Recordkeeping Requirements
As part of this proposed rule, the Agency is also exploring the
feasibility of using electronic tools to streamline hazardous waste
reporting and recordkeeping requirements. Two examples previously
discussed include requesting comment on an electronic hazardous waste
determination decision tool and development of an electronic
application containing information from the executive summaries of
contingency plans that emergency responders can use in responding to an
emergency.
Information technology can be an important step toward improving
RCRA implementation. Many aspects of our lives can currently be managed
electronically. We bank from home, send pictures from phones, and track
packages across the country from our desks. Yet, much of the
information reported to EPA and states by generators is still submitted
on paper, which requires government staff or contractors to manually
enter the data into federal and state data systems. Delays in data
processing can cause important information to go unnoticed. In
addition, errors introduced through manual data entry can require
aggravating and time-consuming correction processes by both regulated
entities and the government.
Use of electronic tools can provide the regulated community,
regulators, and the public with more accurate, complete, and timely
information on regulated activities, pollution, and compliance.
Software that allows for self-correction by flagging potential errors,
as is done by EPA's Toxics Release Inventory--Made Easy web tool or the
Greenhouse Gas Reporting system, can even help prevent mistakes before
they happen, saving both regulated entities and regulators time and
money. Electronic reporting also creates greater transparency as
greater information accessibility can inspire better compliance by
facilities.
[[Page 57986]]
Electronic reporting, in this context, is not simply emailing files
to the government. Rather, it would be a system that begins with an
electronic ``smart'' form or web tool to guide the regulated entity
thru recordkeeping and reporting processes, such as waste
determinations. The system would also include data standards, identity
proofing, and a government database to receive data. Error prevention
and compliance assistance could be integrated into the reporting tool.
For example, forms can be configured to self-populate with data from
prior forms (e.g., names and addresses), to question entries that
appear erroneous (e.g., entries an order of magnitude or more above or
below data from prior years or above or below reasonable levels) and to
prevent submission before required data fields are completed.
The Agency believes electronic tools have the potential to greatly
assist generators in complying with the existing and proposed hazardous
waste regulations. For example, EPA believes that electronic tools
could help generators make more accurate hazardous waste
determinations. As previously discussed, an app could be used as a
decision support tool to help guide generators through the hazardous
waste determination process for each waste stream they generate. This
tool could walk generators through a series of question and answer
steps, identify relevant sources in making the determination,
electronically generate and store all of the associated data and
records that generators may be required to maintain, and provide
assistance on proper management of the identified wastes.
Other examples include using electronic tools to file notifications
required under the rule, such as notifications for episodic generators,
for LQGs that desire to take advantage of consolidating waste from
CESQGs that are within the same company, and for generators that close
a unit that accumulated hazardous waste. In this case, the electronic
tools could be useful in submitting required reports, and in
electronically generating, storing, and filing all reports.
Other areas of the RCRA regulations where electronic tools may
assist with compliance include the following:
Determining monthly generator category;
Maintaining records of shipments;
Maintaining contingency planning and emergency procedures
recordkeeping and reporting requirements;
Maintaining inventory logs for documenting accumulation time
in tanks, drip pads, and containment buildings; and
Maintaining personnel training documents and records.
EPA believes the use of electronic tools would help hazardous waste
generators improve and maintain compliance with the RCRA regulations,
thereby reducing violations and increasing environmental benefits. EPA
also believes the costs of receiving and evaluating reports from
generators could be greatly reduced for EPA and state/tribal agencies.
For example, when the Toxics Release inventory switched from paper
reporting to e-reporting, costs of managing the data went down by 99%
and accuracy was increased.
EPA is not aware of any existing electronic tools that would
specifically assist generators with meeting the RCRA regulatory
requirements. However, EPA did identify a variety of state and academic
internet-based hazardous waste determination tools and workbooks (as
discussed in section VIII.B.8.).
EPA is considering a range of electronic reporting options. The
Agency may explore developing certain tools for use by the regulated
community or may invite third-party vendors to provide such tools. The
latter option could be similar to the Internal Revenue Service (IRS)
model for electronic tax preparation. The IRS model uses third-party
software providers for tax data collection and transmission (e.g.,
TurboTax, TaxACT, or others) from private citizens and businesses.
Under this option, the Agency would not purchase services from any
provider. All financial transactions would be between the providers and
members of the regulated community. EPA would specify the required data
for collection and the requirements necessary for exchanging data
(e.g., data delivery protocols, standards, guidelines, and procedures
compliant with EPA's Cross-Media Electronic Reporting Regulation
(CROMERR) (see 40 CFR part 3)).
EPA welcomes public comment on specific reports and data types that
could be reported electronically if the Agency were to move forward
with exploring electronic reporting, including what the quality
assurance and quality control procedures should be with respect to data
timeliness, accuracy, completeness, and consistency. EPA also asks for
comment on which reports commenters think should be highest priority
for electronic reporting. EPA solicits comment on the option of
allowing software vendors to offer their clients federal electronic
reporting services compliant with the final rule and on potential
methods for determining whether third-party software vendors meet the
minimum federal electronic data requirements. EPA would need to certify
or approve the methods used by the software to authenticate, encrypt,
and possibly send compliance monitoring and other data. EPA would also
like to hear from authorized RCRA programs that have experience in
implementing electronic reporting, especially their experience with
phasing in implementation. EPA also requests comment on whether
electronic tools should be provided by EPA and/or states and tribes.
XVI. Enforceability
Persons that generate hazardous waste must comply with all the
applicable independent requirements of the RCRA hazardous waste
regulations, unless they obtain a conditional exemption from those
requirements, provided by Sec. 262.14 (formerly Sec. 261.5), or by
Sec. 262.15, 262.16, or 262.17 (formerly all contained in Sec.
262.34), or by Sec. 262.70. If a person violates independent
requirements or fails conditions for exemption, EPA may bring an
enforcement action under section 3008 of RCRA for violations of the
independent requirements. Where a generator does not comply with
conditions for an exemption and is therefore no longer exempt, the
enforcement action will allege violations of those independent
requirements from which the generator was attempting to remain exempt.
States may choose to enforce against violations of state hazardous
waste requirements under state authorities.
As with any violation, EPA and authorized states have enforcement
mechanisms available that range in severity. In addition, EPA and
authorized states have flexibility in applying these mechanisms to the
various responsible parties as appropriate to the specific
circumstances. Some of the enforcement mechanisms include sending a
notice of violation, ordering compliance, ordering that the operations
cease, or assessing penalties as appropriate. Nothing in this proposal
affects any of these enforcement mechanisms EPA or the states may
utilize nor the manner in which enforcement cases will be initiated or
pursued.
XVII. State Authorization
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize states to administer
the
[[Page 57987]]
RCRA Subtitle C hazardous waste program. Following authorization, the
authorized state program operates in lieu of the federal regulations.
EPA retains enforcement authority to enforce the authorized state
Subtitle C program, although authorized states have primary enforcement
authority. EPA also retains its authority under RCRA sections 3007,
3008, 3013, and 7003. The standards and requirements for state
authorizations are found at 40 CFR part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a state with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
federal program in that state. EPA did not issue permits for any
facilities in that state, since the state was now authorized to issue
RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new requirements did not
take effect in an authorized state until the state adopted the
equivalent state requirements.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. While states must still adopt HSWA
related provisions as state law to retain authorization, EPA implements
the HSWA provisions in authorized states, including the issuance of any
permits pertaining to HSWA requirements, until the state is granted
authorization to do so.
Authorized states are required to modify their programs only when
EPA promulgates federal requirements that are more stringent or broader
in scope than existing federal requirements.\126\ RCRA section 3009
allows the states to impose standards more stringent than those in the
federal program (see 40 CFR 271.1). Therefore, authorized states may,
but are not required to, adopt federal regulations, both HSWA and non-
HSWA, that are considered less stringent than previous federal
regulations.
---------------------------------------------------------------------------
\126\ EPA notes that decisions regarding whether a state rule is
more stringent or broader in scope than the federal program are made
when the Agency authorizes state programs.
---------------------------------------------------------------------------
B. Effect on State Authorization of Proposed Rule
This notice proposes regulations that amend certain sections of the
hazardous waste generator regulations in 40 CFR parts 260 through 265,
268, 270, 273, and 279. These regulations were promulgated under the
authority of sections 2002, 3001, 3002, 3003, 3004, 3007, and 3010 of
RCRA). This notice proposes changes to the RCRA Subtitle C program
under non-HSWA authority.
Thus, the standards, if finalized, would be applicable on the
effective date only in those states that do not have final
authorization of their base RCRA programs. Moreover, authorized states
are required to modify their programs only when EPA promulgates federal
regulations that are more stringent or broader in scope than the
authorized state regulations. For those changes that are less
stringent, states are not required to modify their programs. This is a
result of section 3009 of RCRA, which allows states to impose more
stringent regulations than the federal program.
Several of the revisions to the proposed hazardous waste generator
regulations are more stringent than those promulgated in various rules
that went into effect when the RCRA hazardous waste Regulations were
first initiated (e.g., 1980-1986). These include the following: (1)
requiring both SQGs and LQGs to document their non-hazardous waste
determinations when they have generated a solid waste (section VIII.B
of this preamble); (2) requiring SQGs to re-notify every two years if
they have not done so otherwise through an alternative process (section
VIII.C of this preamble); (3) requiring SQGs and LQGs to better define
the contents and associated risks of hazardous wastes accumulated in
tanks, containers, drip pads, and containment buildings, as well as
when hazardous waste is accumulated in satellite accumulation areas
(sections VII.E., VIII.F and VIII.I of this preamble); (4) requiring
LQGs to notify EPA or their authorized state when they plan to close
either a hazardous waste accumulation unit or their generator site
(section VIII.G of this preamble); (5) requiring new LQGs to prepare an
executive summary of their contingency plans to assist responders in an
emergency (section VIII.H of this preamble); (6) requiring LQGs to
submit a biennial report that identifies all of the hazardous wastes
generated in the calendar year, not just for the months the facility
was an LQG (sections VIII.L of this preamble); (7) requiring transfer
facilities to identify the contents and associated risks of containers
that have been consolidated with other hazardous wastes (section X of
this preamble); and (8) promulgating prohibitions on storage of
restricted wastes (section XII of this preamble). Therefore, states
that have adopted the base RCRA program would be required to modify
their hazardous waste programs to incorporate equivalent provisions if
these standards are finalized.
On the other hand, three of the proposed revisions would be
considered less stringent than the current hazardous waste regulations.
These revisions include the following: (1) Allowing CESQGs to
voluntarily send hazardous waste to LQGs under the control of the same
person to facilitate the cost-effective management of hazardous wastes
within the same company (section VII.C of this preamble); (2) allowing
CESQGs and SQGs to voluntarily maintain their existing regulatory
status if they have an episodic event that generates additional amounts
of hazardous waste which would have resulted in them moving into a
higher generator category for a short period of time, so long as they
comply with specified conditions (section IX of this preamble); and (3)
allowing LQGs to voluntarily apply for a waiver from their local fire
department to accumulate ignitable and reactive wastes within the 50
foot facility boundary provision (section XI.B of this preamble). Thus,
authorized states may, but would not be required to, adopt these
changes.
This proposed rule also includes several revisions that are neither
more nor less stringent, such as (1) mixing a non-hazardous waste with
a hazardous waste (section VII.B of this preamble); (2) defining
central accumulation area (section VI.C of this preamble); (3)
prohibiting generators from sending hazardous liquids to landfills
(section VIII.M of this preamble); (4) reorganizing the hazardous waste
generator regulations to make them more user-friendly (section XIII of
this preamble); (5) deleting the performance track regulations (section
VIII.K of this preamble); (6) replacing the list of specific data
elements with a requirement to complete and submit all data elements
required in the biennial report form (section VIII.L of this preamble);
and (7) technical corrections and conforming changes to various parts
of the RCRA regulations (section XIV of this preamble). Thus,
authorized states may, but would not be required to, adopt these
changes.
[[Page 57988]]
XVIII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is a ``significant regulatory action'' in that it may raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order. Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011) and any changes made in response
to OMB recommendations have been documented in the docket for this
action.
In addition, EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis is contained in
EPA's Regulatory Impact Analysis (RIA) document titled ``Assessment of
the Potential Costs, Benefits, and other Impacts of the Improvements to
the Hazardous Waste Generator Regulatory Program, As Proposed.'' A copy
of the analysis is available in the docket for this action and the
analysis is briefly summarized here.
Based on the impact estimates presented in the RIA, EPA does not
expect that this action will be ``economically significant'' because
the estimated annualized cost for compliance with the proposed changes
to the hazardous waste generator regulatory program is significantly
less than the $100 million annual effect threshold of Section 3(f)(1)
of Executive Order 12866. The RIA estimates the affected universe is
between 353,000 and 543,000 entities. Of this universe, between 293,000
and 469,000 CESQGs will only be affected if they choose to take
advantage of two voluntary programs being proposed.
EPA estimates the future annualized cost to industry to comply with
the requirements of this proposed action at between $6.2 and $17.4
million (at 7% discount rate). Similarly, the annualized net cost
savings or benefits for facilities opting to take advantage of two
voluntary programs in the rule (e.g., consolidation of CESQG waste by
large quantity generators under the same ownership, and generators who
would not be required to change generator status as a result of an
episodic event) is between $6.2 and $12.2 million (at 7% discount rate)
resulting in a net annualized cost of between $0.1 million and $5.2
million.
In addition to estimating the cost for this proposed rule, the RIA
also provides both quantitative and qualitative (i.e., non-monetized)
descriptions of future expected benefits for this action primarily
consisting of improved industry environmental compliance.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 2513.01. You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
This proposed rule is necessary for EPA and authorized states to
oversee the generation and management of hazardous waste. EPA is
proposing the establishment of these information collection
requirements under the authority of RCRA Subtitle C. There are several
provisions to this rule that will require respondents to either submit
information to EPA or authorized state, or maintain records at their
facility. For example, generators will have to notify EPA or their
authorized state they plan to take advantage of two voluntary
provisions that will provide greater flexibility in how they manage
hazardous waste (i.e., CESQG consolidation of their hazardous waste by
a LQG under the same person or company; and episodic generation of
hazardous waste resulting in a temporary change in regulatory status).
Similarly, SQGs will have to re-notify EPA or their authorized
state every other year that they have not changed their regulatory
category to support effective inspections and program management
activities. In an effort to improve program compliance, both SQGs and
LQGs will be required to maintain records supporting the basis for
their non-hazardous waste determinations (i.e., a generator generated a
solid waste but not a hazardous waste). Similarly, new LQGs will be
required to develop and submit an executive summary of their emergency
response plan to their Local Emergency Planning Committee to
effectively assist emergency responders responding to an emergency.
EPA and state agencies will use the collected information to ensure
that hazardous wastes are managed in a cost-effective manner that
minimizes risks to human health and the environment. Local emergency
response organizations will also use the collected information to
prepare contingency plans to reduce risks to emergency responders and
bystanders. EPA does not expect confidentiality to be an issue in
generators either providing information to EPA or an authorized state
or in maintaining the necessary records supporting a non-hazardous
waste determination. The statutory authority to collect the proposed
information is found at RCRA 3002 (42 U.S.C. 6922) and RCRA 3003 (42
U.S.C. 6923).
Respondents/Affected Entities: Private sector.
Respondent's Obligation to Respond: Mandatory per RCRA 3002 (42
U.S.C. 6922) and RCRA 3003 (42 U.S.C. 6923).
Estimated Number of Respondents: 96,375
Frequency of Response: On occasion.
Total Estimated Burden: 304,318 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total Estimated Cost: $16.8 million (per year), includes $3.9
million annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs via email to
[email protected], Attention: Desk Officer for the EPA.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after receipt, OMB must receive comments no later than
October 26, 2015. The EPA will respond to any ICR-related comments in
the final rule.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. The
small entities directly regulated by this proposed rule include
entities that generate hazardous waste across various industries,
including, but not limited to, printing, petroleum refining, chemical
manufacturing, plastics and resin manufacturing, pharmaceutical
manufacturing, paint and coating, iron and steel mills, metal and metal
product manufacturing, electroplating, printed circuit board
manufacturing, semiconductor manufacturing, motor
[[Page 57989]]
vehicle parts manufacturing, research and development, hazardous waste
treatment and disposal, academic institutions, and hospitals. We have
determined that between 25,550 and 33,800 small entities impacted will
experience an impact of less than 1% of annual sales for all affected
small entities.
Although this proposed rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of this rule on small entities. Many of the
changes in this proposed rulemaking come from outreach efforts to
generators of hazardous waste, including small entities, and are
designed to make the generator regulations more accessible and user
friendly. As part of the proposal, EPA is including several provisions
that would provide increased flexibility for small entities in managing
hazardous waste, such as the ability for hazardous waste generators to
use the episodic generator provisions if they have a distinct event
that would otherwise cause them to have to bump up to a higher
generator category. We continue to be interested in the potential
impacts of the proposed rule on small entities and welcome comments on
issues related to such impacts.
D. Unfunded Mandates Reform Act
This proposed rule does not contain an unfunded mandate of $100
million as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The RIA estimates
that the state government share of future average annualized direct
costs for the proposed rule requirements to range between $1.2 million
and $2.3 million per year. Thus, this proposed rule is not subject to
the requirements of sections 202 or 205 of UMRA.
This proposed rule is also not subject to the requirements of
section 203 of UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small governments. The
rulemaking proposes clarifications and modifications to the hazardous
waste generator regulations, which impacts only those entities that
generate hazardous waste. Small governments would only be subject to
the changes in the proposed rule if they generated hazardous waste
subject to the RCRA hazardous waste requirements.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The proposed rule simply proposes
clarifications and modifications to the existing hazardous waste
generator regulations. Thus, Executive Order 13132 does not apply to
this action. Although section 6 of Executive Order 13132 does not apply
to this action, EPA did consult with state officials in developing this
action.
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on tribal governments, nor
preempt tribal law. Under the RCRA statute, the federal government
implements hazardous waste regulations directly in Indian Country.
Thus, the proposed changes to the hazardous waste regulations would not
impose any direct costs on tribal governments.
The EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this regulation to permit them to have meaningful and
timely input into its development. A summary of that consultation is
provided in the docket for this action.
As required by section 7(a), the EPA's Tribal Consultation Official
has certified that the requirements of the executive order have been
met in a meaningful and timely manner. A copy of the certification is
included in the docket for this action.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. The Agency does not believe that this action presents risks
to the public. In fact, there are several components to this proposed
rule that modify the existing hazardous waste generator regulations to
enhance environmental protection in the local community. Examples
include (1) requiring LQGs and SQGs to document and maintain records of
their waste determinations, including determinations that a solid waste
is a non-hazardous waste; (2) requiring LQGs and SQGs to provide more
detailed marking and labeling information for containers, tanks, drip
pads, and containment buildings accumulating hazardous wastes; (3)
requiring LQGs to notify EPA or an authorized state when they plan to
close either a hazardous waste accumulation unit or their site; (4)
requiring LQGs and SQGs to re-notify EPA or the authorized state on a
periodic basis of their hazardous waste generator activities; and (5)
improving emergency preparedness and response regulations on the part
of SQGs and LQGs.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This proposed rule does not involve the
supply, distribution, or use of energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule increases the level of
environmental protection for all affected populations and thus will not
have disproportionately high and adverse human health or environmental
effects on minority, low-income or indigenous populations.
Specifically, there are several components to this proposed rule that
modify the existing hazardous waste generator regulations to assist
generators in understanding and facilitating improved compliance with
the hazardous waste regulations. Examples include modifying regulations
regarding mixing of non-hazardous waste with a hazardous waste by a
[[Page 57990]]
generator, or when a hazardous waste generator generates both acute and
non-acute hazardous waste in the same calendar month. Additionally, EPA
is proposing to reorganize the hazardous waste generator rules to make
them more user-friendly and therefore assist generators in
understanding their responsibilities in managing the hazardous waste
they generate safely, which support better environmental protection.
Still other components of this proposed rule enhance environmental
protection in the local community, and therefore foster improved
environmental protection, including for minority populations and low-
income populations. They include, for example, (1) requiring LQGs and
SQGs to document and maintain records of their waste determinations,
including determinations that a solid waste is a non-hazardous waste;
(2) requiring LQGs and SQGs to provide more detailed marking and
labeling information for containers, tanks, drip pads, and containment
buildings accumulating hazardous wastes; (3) requiring LQGs to notify
EPA or an authorized state when they plan to close either a hazardous
waste unit or their site; (4) requiring LQGs and SQGs to re-notify EPA
or the authorized state on a periodic basis of their hazardous waste
generator activities; and (5) improving emergency preparedness and
response regulations on the part of SQGs and LQGs.
Furthermore, EPA is also proposing to allow CESQGs to ship their
hazardous waste to an LQG under the control of the same person. As
described in section VII.C of the preamble, this may increase
environmental protection in the local community because hazardous waste
generated by CESQGs would be subject to more stringent requirements
upon receipt by the LQG, including ultimate management by a RCRA
permitted TSDF (as opposed to being managed possibly in a municipal
solid waste landfill). Although this proposed change could result in an
increase in traffic for certain communities, EPA believes the increase
would not be significant given that CESQGs currently may send their
hazardous waste to a number of destinations, including municipal and
non-municipal solid waste management facilities.
Lastly, EPA is proposing alternative standards for CESQGs and SQGs
that would allow these entities to maintain their generator category if
generating hazardous waste from an episodic event. Although these
generators would be allowed to temporarily manage a greater amount of
hazardous waste than their normal generator category allows, EPA is
proposing conditions under which the hazardous waste generated from an
episodic event must be managed in order to maintain protection of human
health and the environment. Therefore, EPA does not anticipate
disproportionately high and adverse human health or environmental
effects on minority, low-income or indigenous populations from these
proposed alternative standards.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Incorporation by reference,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Incorporation by reference,
Labeling, Packaging and containers, Reporting and recordkeeping
requirements.
40 CFR Part 263
Environmental protection, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 264
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds.
40 CFR Part 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.
40 CFR Part 268
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements, Water
pollution control, Water supply.
40 CFR Part 273
Environmental protection, Hazardous materials transportation,
Hazardous waste.
40 CFR Part 279
Environmental protection, Petroleum, Recycling, Reporting and
recordkeeping requirements.
Dated: August 31, 2015.
Gina McCarthy,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 260-- HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934,
6935, 6937, 6938, 6939, and 6974.
0
2. Section 260.3 is amended by revising the introductory paragraph to
read as follows:
Sec. 260.3 Use of number and gender.
As used in parts 260 through 273 of this chapter:
* * * * *
0
3. Amend Sec. 260.10 by:
0
a. Adding in alphabetical order the definitions of ``Acute hazardous
waste'', ``Central accumulation area'', ``Large quantity generator'',
``Non-acute hazardous waste'';
0
b. Removing the definition for ``Performance Track member facility'';
0
c. Revising the definition of ``Small quantity generator'';
0
d. Revising the heading of the definition ``Treatability Study'' to
read ``Treatability study'';
0
e. Revising the heading of the definition ``Universal Waste Handler''
to read ``Universal waste handler''; and
0
f. Revising the heading of the definition ``Universal Waste
Transporter'' to read ``Universal waste transporter''; and
0
g. Adding in alphabetical order the definition of ``Very small quantity
generator''.
The revisions and additions read as follows:
Sec. 260.10 Definitions.
* * * * *
Acute hazardous waste means hazardous wastes that meet the listing
criteria in Sec. 261.11(a)(2) and therefore are either listed in Sec.
261.31 of this chapter with the assigned hazard code
[[Page 57991]]
of (H) or are listed in Sec. 261.33(e) of this chapter.
* * * * *
Central accumulation area means any on-site hazardous waste
accumulation area with hazardous waste accumulating in units subject to
either Sec. 262.16 (for small quantity generators) or Sec. 262.17
(for large quantity generators). A central accumulation area at an
eligible academic entity that chooses to be subject to part 262 subpart
K must also comply with Sec. 262.211 when accumulating unwanted
material and/or hazardous waste.
* * * * *
Large quantity generator is a generator who generates any of the
following amounts in a calendar month:
(1) Greater than or equal to 1000 kilograms (2200 lbs) of non-acute
hazardous waste;
(2) Greater than 1 kilogram (2.2 lbs) of acute hazardous waste
listed in Sec. 261.31 or Sec. 261.33(e) of this chapter; or
(3) Greater than 100 kilograms (220 lbs) of any residue or
contaminated soil, water, or other debris resulting from the cleanup of
a spill, into or on any land or water, of any acute hazardous waste
listed in Sec. 261.31 or Sec. 261.33(e) of this chapter.
* * * * *
Non-acute hazardous waste means all hazardous wastes that are not
acute hazardous waste, as defined in this section.
* * * * *
Small quantity generator is a generator who generates the following
amounts in a calendar month:
(1) Greater than 100 kilograms (220 lbs) but less than 1000
kilograms (2200 lbs) of non-acute hazardous waste;
(2) Less than or equal to 1 kilogram (2.2 lbs) of acute hazardous
waste listed in Sec. Sec. 261.31 or Sec. 261.33(e) of this chapter;
and
(3) Less than or equal to 100 kilograms (220 lbs) of any residue or
contaminated soil, water, or other debris resulting from the cleanup of
a spill, into or on any land or water, of any acute hazardous waste
listed in Sec. 261.31 or Sec. 261.33(e) of this chapter.
* * * * *
Very small quantity generator is a generator who generates less
than or equal to the following amounts in a calendar month:
(1) 100 kilograms (220 lbs) of non-acute hazardous waste; and
(2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in Sec.
261.31 or Sec. 261.33(e) of this chapter; and
(3) 100 kilograms (220 lbs) of any residue or contaminated soil,
water, or other debris resulting from the cleanup of a spill, into or
on any land or water, of any acute hazardous waste listed in Sec.
261.31 or Sec. 261.33(e) of this chapter.
* * * * *
0
4. Section 260.11 is amended by revising the section heading and
paragraph (d)(1) to read as follows:
Sec. 260.11 Incorporation by reference.
* * * * *
(d) * * *
(1) ``Flammable and Combustible Liquids Code'' (1977 or 1981), IBR
approved for Sec. Sec. 262.16, 264.198, 265.198, 267.202(b).
* * * * *
PART 261-- IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
5. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
Sec. 261.1 [Amended]
0
6. Section 261.1, paragraph (c)(6) is amended by removing ``(e.g.,)''
and inserting ``(e.g.,'' in its place.
0
7. Section 261.4 is amended by revising paragraph (a)(7) to read as
follows:
Sec. 261.4 Exclusions.
(a) * * *
(7) Spent sulfuric acid used to produce virgin sulfuric acid
provided it is not accumulated speculatively as defined in Sec.
261.1(c) of this chapter.
* * * * *
Sec. 261.5 [Removed and reserved]
0
8. Remove and reserve Sec. 261.5.
0
9. Section 261.6 is amended by adding paragraph (c)(2)(iv) to read as
follows:
Sec. 261.6 Requirements for recyclable materials.
* * * * *
(c) * * *
(2) * * *
(iv) Section 265.75 of this chapter (biennial reporting
requirements).
* * * * *
0
10. Section 261.33 is amended by revising paragraphs (e) introductory
text and (f) introductory text to read as follows:
Sec. 261.33 Discarded commercial chemical products, off-specification
species, container residues, and spill residues thereof.
* * * * *
(e) The commercial chemical products, manufacturing chemical
intermediates or off-specification commercial chemical products or
manufacturing chemical intermediates referred to in paragraphs (a)
through (d) of this section, are identified as acute hazardous wastes
(H).
* * * * *
(f) The commercial chemical products, manufacturing chemical
intermediates, or off-specification commercial chemical products
referred to in paragraphs (a) through (d) of this section, are
identified as toxic wastes (T).
* * * * *
0
11. Section 261.420 is amended by adding paragraph (g) to read as
follows:
Sec. 261.420 Contingency planning and emergency procedures for
facilities generating or accumulating more than 6000 kg of hazardous
secondary material.
* * * * *
(g) Personnel training. All employees must be thoroughly familiar
with proper waste handling and emergency procedures relevant to their
responsibilities during normal facility operations and emergencies.
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
12. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
Subpart A--General
0
13. Section 262.1 is added to read as follows:
Sec. 262.1 Terms used in this part.
As used in this part:
Independent requirement means a requirement of part 262 that states
an event, action, or standard that must occur or be met; and that
applies without relation to, or irrespective of, the purpose of
obtaining a conditional exemption from a permit or having interim
status under Sec. Sec. 262.14, 262.15, 262.16, or 262.17.
Condition for exemption means any requirement in Sec. Sec. 262.14,
262.15, 262.16, or 262.17, that states an event, action, or standard
that must occur or be met in order to obtain a conditional exemption
from any requirement in parts 124, 262 through 268, or 270, or from any
requirement for notification under section 3010 of RCRA.
0
14. Section 262.10 is amended by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing and reserving paragraph (c);
0
c. Revising paragraph (g);
0
d. Removing and reserving paragraphs (j);
0
e. Revising paragraph (l); and
0
f. Removing Notes 1 and 2.
The revisions and additions read as follows:
[[Page 57992]]
Sec. 262.10 Purpose, scope, and applicability.
(a) The regulations in this part establish standards for generators
of hazardous waste as defined by 40 CFR 260.10.
(1) A person who generates a hazardous waste as defined by 40 CFR
part 261 is subject to all the applicable independent requirements in
the subparts and sections listed below, unless the person is a very
small quantity generator that meets the conditions for exemption in
Sec. 262.14.
(i) Independent requirements of a small quantity generator. (A)
Section 262.11 Hazardous waste determination and recordkeeping;
(B) Section 262.13 Generator category determination;
(C) Section 262.18 EPA identification numbers and re-notification
for large quantity generators and small quantity generators;
(D) Part 262 subpart B--The manifest;
(E) Part 262 subpart C--Pre-transport requirements;
(F) Section 262.40 Recordkeeping;
(G) Section 262.44 Special independent requirements for small
quantity generators;
(H) Part 262 subpart E-subpart F--Imports and exports of hazardous
waste;
(I) Part 262 subpart G--Farmers; and
(J) Part 262 subpart H--Transfrontier shipments of hazardous waste
for recovery within the OECD.
(ii) Independent requirements of a large quantity generator. (A)
Section 262.11 Hazardous waste determination and recordkeeping;
(B) Section 262.13 Generator category determination;
(C) Section 262.18 EPA identification numbers and re-notification
for large quantity generators and small quantity generators;
(D) Part 262 subpart B--The manifest;
(E) Part 262 subpart C--Pre-transport requirements;
(F) Part 262 subpart D--Recordkeeping and reporting, except Sec.
262.44;
(G) Part 262 subpart E-subpart F-- Imports and exports of hazardous
waste;
(H) Part 262 subpart G--Farmers; and
(I) Part 262 subpart H--Transfrontier shipments of hazardous waste
for recovery within the OECD.
(2) A generator that accumulates hazardous waste on site is a
facility that stores hazardous waste and is subject to the applicable
requirements of parts 124, 263 through 270, and section 3010 of RCRA,
unless it is one of the following:
(i) A very small quantity generator that meets the conditions for
exemption in Sec. 262.14;
(ii) A small quantity generator that meets the conditions for
exemption in Sec. Sec. 262.15 and 262.16; or
(iii) A large quantity generator that meets the conditions for
exemption in Sec. Sec. 262.15 and 262.17.
(3) A generator shall not transport, offer its waste for transport,
or otherwise cause its waste to be sent to a facility that is not a
designated facility, as defined in Sec. 260.10, or not otherwise
authorized to receive the generator's waste.
(b) Determining generator category. A generator must use 40 CFR
262.13 to determine which provisions of this part are applicable to the
generator based on the quantity of hazardous waste generated per
calendar month.
* * * * *
(g)(1) A generator's violation of an applicable requirement in 40
CFR part 124, 262 through 268, or 270, or of applicable notification
requirements of section 3010 of RCRA, is subject to penalty and
injunctive relief under section 3008 of RCRA.
(2) A generator's noncompliance with a condition for exemption in
this part is not subject to penalty or injunctive relief under section
3008 of RCRA as a violation of a 40 CFR part 262 condition for
exemption. Noncompliance with a condition for exemption in this part
results in failure to obtain, or to maintain, such exemption. Failure
to obtain or maintain the exemption results in a violation of one or
more applicable independent requirements in 40 CFR part 124, 262
through 268, or 270, or of the notification requirements of section
3010 of RCRA. A generator's violation of an independent requirement is
subject to penalty and injunctive relief under section 3008 of RCRA.
* * * * *
(l) The laboratories owned by an eligible academic entity that
chooses to be subject to the requirements of subpart K of this part are
not subject to (for purposes of this paragraph, the terms
``laboratory'' and ``eligible academic entity'' shall have the meaning
as defined in Sec. 262.200 of subpart K of this part):
(1) The independent requirements of Sec. 262.11 or the regulations
in Sec. 262.15 for large quantity generators and small quantity
generators, except as provided in subpart K, and
(2) The conditions of Sec. 262.14, for very small quantity
generators, except as provided in subpart K.
0
15. Revise Sec. 262.11 and its section heading to read as follows:
Sec. 262.11 Hazardous waste determination and recordkeeping.
A person who generates a solid waste, as defined in 40 CFR 261.2,
must make an accurate determination of whether that waste is a
hazardous waste using the following steps:
(a) A hazardous waste determination for each solid waste must be
made at the point of waste generation, before any dilution, mixing, or
other alteration of the waste occurs, and at any time in the course of
its management that it has, or may have, changed its properties as a
result of exposure to the environment or other factors that may change
the properties of the waste.
(b) A person must determine if the solid waste is excluded from
regulation under 40 CFR 261.4.
(c) If the waste is not excluded under 40 CFR 261.4, the person
must then use knowledge of the waste to determine if the waste meets
any of the listing descriptions under subpart D of 40 CFR part 261.
Acceptable knowledge that may be used in making an accurate
determination as to whether the waste is listed includes, but is not
limited to, waste origin, composition, the process producing the waste,
feedstock, and other relevant information. If the waste is listed, the
person may file a delisting petition under 40 CFR 260.20 and 260.22 to
demonstrate to the Administrator that the waste from this particular
site or operation is not a hazardous waste.
(d) If the waste is not listed in subpart D of 40 CFR part 261 or
if it is a listed waste, which must meet the land disposal restrictions
under 40 CFR part 268, the person then must also determine whether the
waste exhibits one or more hazardous characteristics as identified in
subpart C of 40 CFR part 261 by following the procedures in either
paragraph (d)(1) or (2) of this section.
(1) The person must test the waste according to the methods set
forth in subpart C of 40 CFR part 261 or according to an equivalent
method approved by the Administrator under 40 CFR 260.21 and in
accordance with the following:
(i) Persons testing their waste must obtain a representative sample
of the waste for the testing, as defined at 40 CFR 260.10.
(ii) Where a test method is specified in the regulation, the
results of the regulatory test, when properly performed, are definitive
for determining the regulatory status of the waste.
(2) The person must apply knowledge of the hazard characteristic of
the waste in light of the materials or the processes
[[Page 57993]]
used. Acceptable knowledge may include process knowledge (e.g.,
information about chemical feedstocks and other inputs to the
production process); knowledge of products, by-products, and
intermediates produced by the manufacturing process; chemical or
physical characterization of wastes; information on the chemical and
physical properties of the chemicals used or produced by the processor
or otherwise contained in the waste; testing that illustrates the
properties of the waste; or other reliable and relevant information
about the properties of the waste or its constituents. A test other
than a test method set forth in subpart C of 40 CFR part 261, or
according to an equivalent method approved by the Administrator under
40 CFR 260.21, may be used as part of a person's knowledge to determine
whether a solid waste exhibits a characteristic of hazardous waste.
However, such tests do not, by themselves, provide definitive results.
(e) Recordkeeping for small and large quantity generators. A small
or large quantity generator must maintain records supporting its solid
and hazardous waste determinations, including records that identify a
material as a solid waste, as defined by 40 CFR 261.2, and records
identifying whether that solid waste is or is not also a hazardous
waste, as defined by 40 CFR 261.3. Generators may wish to segregate any
of their municipal solid waste from other solid and hazardous wastes to
avoid potential co-mingling. Records must be maintained for at least
three years from the date that the waste was last generated. These
records must comprise the generator's knowledge of the waste and
support the generator's determination, as described at 40 CFR 262.11(c)
and (d). The records must include, but are not be limited to, the
following types of information: The results of any tests, sampling, or
waste analyses; records documenting the tests, sampling, and analytical
methods used and demonstrating the validity and relevance of such
tests; records consulted in order to determine the process by which the
waste was generated, the composition of the waste, and the properties
of the waste; and records which explain the knowledge basis for the
generator's determination, as described at 40 CFR 262.11(d)(2). The
periods of record retention referred to in this section are extended
automatically during the course of any unresolved enforcement action
regarding the regulated activity or as requested by the Administrator.
(f) If the waste is determined to be hazardous, all applicable EPA
hazardous waste numbers (EPA hazardous waste codes) in subparts C and D
of part 261 must be identified.
(g) If the waste is determined to be hazardous, the generator must
refer to parts 261, 264, 265, 266, 267, 268, and 273 of this chapter
for other possible exclusions or restrictions pertaining to management
of the specific waste.
Sec. 262.12 [Removed and reserved]
0
16. Remove and reserve Sec. 262.12.
0
17. Add Sec. Sec. 262.13 through 262.18 to subpart A to read as
follows:
* * * * *
Sec.
262.13 Generator category determination.
262.14 Conditions for exemption for a very small quantity generator.
262.15 Satellite accumulation area regulations for small and large
quantity generators.
262.16 Conditions for exemption for a small quantity generator that
accumulates hazardous waste.
262.17 Conditions for exemption for a large quantity generator that
accumulates hazardous waste.
262.18 EPA identification numbers and re-notification for small
quantity generators and large quantity generators.
Sec. 262.13 Generator category determination.
(a) Monthly determination. A generator's category is determined
each month by the amount of hazardous waste it generates and may change
from month to month. This section sets forth procedures to determine
whether a generator is a very small quantity generator, a small
quantity generator, or a large quantity generator for a particular
month, as defined in Sec. 260.10 of this chapter.
(b) Generators of both acute and non-acute hazardous wastes. A
generator who generates both acute hazardous waste and non-acute
hazardous waste in the same calendar month shall determine its
generator category for that month by doing the following:
(1) Counting separately the total amount of acute hazardous waste
and the total amount of non-acute hazardous waste generated in the
calendar month;
(2) Subtracting from each total any amounts of waste exempt from
counting as described in paragraphs (c) and (d) of this section;
(3) Determining separately the resulting generator categories for
the quantities of acute and non-acute hazardous waste generated; and
(4) Comparing the resulting generator categories from paragraph
(b)(3) of this section and applying the more stringent generator
category to the accumulation and management of both non-acute hazardous
waste and acute hazardous waste generated for that month.
Table 1 to Sec. 262.13--Generator Categories Based on Quantity of Waste Generated in A Calendar Month
----------------------------------------------------------------------------------------------------------------
Quantity of
Quantity of acute Quantity of non- residues from a
hazardous waste acute hazardous cleanup of acute
# generated in a waste generated in hazardous waste Generator category
calendar month a calendar month generated in a
calendar month
----------------------------------------------------------------------------------------------------------------
1............................... > 1 kg............ Any amount........ Any amount........ Large quantity
generator.
2............................... Any amount........ >= 1,000 kg....... Any amount........ Large quantity
generator.
3............................... Any amount........ Any amount........ > 100 kg.......... Large quantity
generator.
4............................... <= 1 kg........... > 100 kg and < <= 100 kg......... Small quantity
1,000 kg. generator.
5............................... <= 1 kg........... <= 100 kg......... <= 100 kg......... Very small
quantity
generator.
----------------------------------------------------------------------------------------------------------------
(c) When making the monthly quantity-based determinations required
by this part, the generator must include all hazardous waste that it
generates, except hazardous waste that:
(1) Is exempt from regulation under 40 CFR 261.4(c) through (f),
261.6(a)(3), 261.7(a)(1), or 261.8;
(2) Is managed immediately upon generation only in on-site
elementary neutralization units, wastewater treatment units, or totally
enclosed treatment facilities as defined in 40 CFR 260.10;
(3) Is recycled, without prior storage or accumulation, only in an
on-site process subject to regulation under 40 CFR 261.6(c)(2);
(4) Is used oil managed under the requirements of 40 CFR
261.6(a)(4) and 40 CFR part 279;
(5) Is spent lead-acid batteries managed under the requirements of
40 CFR part 266 subpart G;
[[Page 57994]]
(6) Is universal waste managed under 40 CFR 261.9 and 40 CFR part
273;
(7) Is a hazardous waste that is an unused commercial chemical
product (listed in 40 CFR part 261 subpart D or exhibiting one or more
characteristics in 40 CFR part 261 subpart C) that is generated solely
as a result of a laboratory clean-out conducted at an eligible academic
entity pursuant to Sec. 262.213. For purposes of this provision, the
term eligible academic entity shall have the meaning as defined in
Sec. 262.200; or
(8) Is managed under an episodic event in compliance with the
conditions of subpart L of this part.
(d) In determining the quantity of hazardous waste generated in a
calendar month, a generator need not include:
(1) Hazardous waste when it is removed from on-site accumulation;
or
(2) Hazardous waste generated by on-site treatment (including
reclamation) of the generator's hazardous waste, so long as the
hazardous waste that is treated was previously counted once; or
(3) Spent materials that are generated, reclaimed, and subsequently
reused on site, so long as such spent materials have been previously
counted once.
Sec. 262.14 Conditions for exemption for a very small quantity
generator.
(a) Hazardous waste generated by a very small quantity generator is
not subject to the independent requirements of this part, except the
paragraphs of Sec. 262.11 specified below or the requirements of parts
124, 264 through 268, and 270 of this chapter, and the notification
requirements of section 3010 of RCRA. A very small quantity generator
may accumulate hazardous waste on site without a permit or interim
status, and without complying with all the independent requirements of
the above-mentioned parts and the notification requirements of section
3010, provided that it meets all the conditions for exemption listed in
this section:
(1) In a calendar month the very small quantity generator generates
less than or equal to the amounts specified in the definition of ``very
small quantity generator'' in Sec. 260.10 of this chapter;
(2) The very small quantity generator complies with Sec. 262.11(a)
through (d) of this chapter;
(3) Accumulation conditions for exemption--(i) Acute hazardous
waste. If the very small quantity generator accumulates at any time
greater than 1 kilogram (2.2 lbs) of acute hazardous waste or 100
kilograms (220 lbs) of any residue or contaminated soil, water, or
other debris resulting from the cleanup of a spill, into or on any land
or water, of any acute hazardous waste listed in Sec. Sec. 261.31 or
261.33(e) of this chapter, all quantities of that acute hazardous waste
are subject to full hazardous waste regulation under parts 124, 262
through 268, and 270 of this chapter, and the notification requirements
of section 3010 of RCRA. The 90-day accumulation time limit of Sec.
262.17 begins on the date when the accumulated wastes exceed the above
waste quantity limits;
(ii) Non-acute hazardous waste. If the very small quantity
generator accumulates at any time 1,000 kilograms (2,200 lbs) or
greater of non-acute hazardous waste, all quantities of that hazardous
waste are subject to full hazardous waste regulation under parts 124,
262 through 268, and 270 of this chapter, and the notification
requirements of section 3010 of RCRA. The 180-day and 270-day
accumulation time limits of Sec. 262.16 begin on the date when the
accumulated wastes equal or exceed 1000 kilograms (2,200 lbs).
(4) A very small quantity generator that accumulates hazardous
waste within the limits in paragraphs (a)(3)(i) and (ii) of this
section must either treat or dispose of its hazardous waste in an on-
site facility or ensure delivery to an off-site treatment, storage, or
disposal facility, either of which, if located in the U.S., is:
(i) Permitted under part 270 of this chapter;
(ii) In interim status under parts 270 and 265 of this chapter;
(iii) Authorized to manage hazardous waste by a State with a
hazardous waste management program approved under part 271 of this
chapter;
(iv) Permitted, licensed, or registered by a state to manage
municipal solid waste and, if managed in a municipal solid waste
landfill is subject to part 258 of this chapter;
(v) Permitted, licensed, or registered by a state to manage non-
municipal non-hazardous waste and, if managed in a non-municipal non-
hazardous waste disposal unit, is subject to the requirements in
Sec. Sec. 257.5 through 257.30 of this chapter;
(vi) A facility which:
(A) Beneficially uses or reuses, or legitimately recycles or
reclaims its waste; or
(B) Treats its waste prior to beneficial use or reuse, or
legitimate recycling or reclamation;
(vii) For universal waste managed under part 273 of this chapter, a
universal waste handler or destination facility subject to the
requirements of part 273 of this chapter;
(viii) A large quantity generator under the control of the same
person as the very small quantity generator, provided the following
conditions are met:
(A) The very small quantity generator and the large quantity
generator are under the control of the same person as defined in Sec.
260.10 of this chapter. ``Control,'' for the purposes of this section,
means the power to direct the policies of the generator site, whether
by the ownership of stock, voting rights, or otherwise, except that
contractors who operate generator sites on behalf of a different person
as defined in Sec. 260.10 of this chapter shall not be deemed to
``control'' such generator sites.
(B) The very small quantity generator marks its container(s) of
hazardous waste with:
(1) The words ``Very Small Quantity Generator Hazardous Waste'';
(2) Other words that identify the contents of the containers
(examples may include, but are not limited to, the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride'' or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D);
(3) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(4) The applicable EPA hazardous waste number(s) (hazardous waste
codes) in part 261 subparts C and D.
(b) Mixing hazardous waste with non-hazardous waste. A very small
quantity generator may mix listed or characteristic hazardous waste
with non-hazardous waste and remain eligible for the conditional
exemption applicable to a very small quantity generator provided that
either paragraph (b)(1) or (2) of this section is met:
(1) The mixture does not exhibit any of the characteristics of
hazardous waste
[[Page 57995]]
identified in subpart C of part 261 of this chapter; or
(2) If the mixture does exhibit one or more characteristics of a
hazardous waste identified in subpart C of part 261 of this chapter,
the mixture does not cause the generator to exceed the very small
quantity generator calendar month quantity limits identified in the
definition of very small quantity generator at Sec. 260.10 of this
chapter. If the mixture does exceed the quantity limit for a very small
quantity generator, the very small quantity generator, to remain exempt
from the permitting and interim status standards, must meet the
conditions for exemption applicable to either a small quantity
generator or large quantity generator according to the quantity of the
hazardous waste it generated in a calendar month, including the
resultant mixture and the total quantity the very small quantity
generator accumulated on site.
(c) If a very small quantity generator's wastes are mixed with used
oil, the mixture is subject to 40 CFR part 279. Any material produced
from such a mixture by processing, blending, or other treatment is also
regulated under 40 CFR part 279.
(d) The placement of bulk or non-containerized liquid hazardous
waste or hazardous waste containing free liquids (whether or not
sorbents have been added) in any landfill is prohibited.
(e) A very small quantity generator experiencing an episodic event
may accumulate hazardous waste in accordance with subpart L of this
part in lieu of Sec. Sec. 262.15, 262.16, and 262.17.
Sec. 262.15 Satellite accumulation area regulations for small and
large quantity generators.
(a) A generator may accumulate as much as 55 gallons of non-acute
hazardous waste and/or one quart or 1 kg (2.2 lbs) of acute hazardous
waste listed in Sec. 261.31 or Sec. 261.33(e) of this chapter in
containers at or near any point of generation where wastes initially
accumulate which is under the control of the operator of the process
generating the waste, without a permit or interim status and without
complying with Sec. 262.16(b) or Sec. 262.17(a) provided the
generator complies with the following conditions for exemption:
(1) If a container holding hazardous waste is not in good
condition, or if it begins to leak, the generator must transfer the
hazardous waste from this container to a container that is in good
condition and does not leak, or transfer and manage the waste in a
central accumulation area.
(2) The generator must use a container made of or lined with
materials that will not react with, and are otherwise compatible with,
the hazardous waste to be accumulated, so that the ability of the
container to contain the waste is not impaired.
(3) Special standards for incompatible wastes.
(i) Incompatible wastes, or incompatible wastes and materials, (see
appendix V of part 265 for examples) must not be placed in the same
container, unless Sec. 265.17(b) of this chapter is complied with.
(ii) Hazardous waste must not be placed in an unwashed container
that previously held an incompatible waste or material (see appendix V
of part 265 for examples), unless Sec. 265.17(b) of this chapter is
complied with.
(iii) A container holding a hazardous waste that is incompatible
with any waste or other materials accumulated nearby in other
containers, piles, open tanks, or surface impoundments must be
separated from the other materials or protected from them by means of a
dike, berm, wall, or other device.
(4) A container holding hazardous waste must be closed at all times
during accumulation, except:
(i) When adding, removing, or consolidating waste, or
(ii) When venting of a container is necessary
(A) For the proper operation of equipment, or
(B) To prevent dangerous situations, such as build-up of extreme
pressure.
(5) A generator must mark its container with the following:
(i) The words ``Hazardous Waste,'' and
(ii) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D); and
(iii) An indication of the hazards of the contents. (examples
include, but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; or a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit).
(6) A generator who accumulates either non-acute hazardous waste or
acute hazardous waste listed in Sec. 261.31 or Sec. 261.33(e) of this
chapter in excess of the amounts listed in paragraph (a) of this
section at or near any point of generation must do the following:
(i) Remove the excess from the satellite accumulation area within
three calendar days to either
(A) A central accumulation area;
(B) An on-site interim status or permitted treatment, storage, or
disposal facility, or
(C) An off-site designated facility.
(ii) During the three-calendar-day period the generator must
continue to comply with paragraphs (a)(1) through (5) of this section.
The generator must mark the container(s) holding the excess
accumulation of hazardous waste with the date the excess amount began
accumulating.
Sec. 262.16 Conditions for exemption for a small quantity generator
that accumulates hazardous waste.
A small quantity generator may accumulate hazardous waste on-site
without a permit or interim status, and without complying with the
independent requirements of parts 124, 264 through 268, and 270 of this
chapter, provided that all the conditions for exemption listed in this
section are met:
(a) Generation. The generator generates in a calendar month no more
than the amounts specified in the definition of ``small quantity
generator'' in Sec. 260.10 of this chapter.
(b) Accumulation. The generator accumulates hazardous waste on site
for no more than 180 days, unless in compliance with the conditions for
exemption for longer accumulation in paragraphs (c) and (d) of this
section. The following accumulation conditions also apply:
(1) Accumulation limit. The quantity of hazardous waste accumulated
on site never exceeds 6,000 kilograms (13,200 pounds);
(2) Accumulation in containers--(i) Condition of containers. If a
container holding hazardous waste is not in good condition, or if it
begins to leak, the small quantity generator must transfer the
hazardous waste from this container to a container that is in good
condition, or manage the waste in some other way that complies with the
conditions for exemption of this section.
[[Page 57996]]
(ii) Compatibility of waste with container. The small quantity
generator must use a container made of or lined with materials that
will not react with, and are otherwise compatible with, the hazardous
waste to be accumulated, so that the ability of the container to
contain the waste is not impaired.
(iii) Management of containers. (A) A container holding hazardous
waste must always be closed during accumulation, except when it is
necessary to add or remove waste.
(B) A container holding hazardous waste must not be opened,
handled, or accumulated in a manner that may rupture the container or
cause it to leak.
(iv) Inspections. At least weekly, the small quantity generator
must inspect central accumulation areas. The small quantity generator
must look for leaking containers and for deterioration of containers
caused by corrosion or other factors. See paragraph (a)(2)(i) of this
section for remedial action required if deterioration or leaks are
detected.
(v) Special conditions for accumulation of incompatible wastes. (A)
Incompatible wastes, or incompatible wastes and materials, (see
appendix V of part 265 for examples) must not be placed in the same
container, unless Sec. 265.17(b) of this chapter is complied with.
(B) Hazardous waste must not be placed in an unwashed container
that previously held an incompatible waste or material (see appendix V
of part 265 for examples), unless Sec. 265.17(b) of this chapter is
complied with.
(C) A container accumulating hazardous waste that is incompatible
with any waste or other materials accumulated or stored nearby in other
containers, piles, open tanks, or surface impoundments must be
separated from the other materials or protected from them by means of a
dike, berm, wall, or other device.
(3) Accumulation in tanks.
(i) [Reserved]
(ii) A small quantity generator of hazardous waste must comply with
the following general operating conditions:
(A) Treatment or accumulation of hazardous waste in tanks must
comply with Sec. 265.17(b) of this chapter.
(B) Hazardous wastes or treatment reagents must not be placed in a
tank if they could cause the tank or its inner liner to rupture, leak,
corrode, or otherwise fail before the end of its intended life.
(C) Uncovered tanks must be operated to ensure at least 60
centimeters (2 feet) of freeboard, unless the tank is equipped with a
containment structure (e.g., dike or trench), a drainage control
system, or a diversion structure (e.g., standby tank) with a capacity
that equals or exceeds the volume of the top 60 centimeters (2 feet) of
the tank.
(D) Where hazardous waste is continuously fed into a tank, the tank
must be equipped with a means to stop this inflow (e.g., waste feed
cutoff system or by-pass system to a stand-by tank).
(iii) Except as noted in paragraph (a)(3)(iv) of this section, a
small quantity generator that accumulates hazardous waste in tanks must
inspect, where present:
(A) Discharge control equipment (e.g., waste feed cutoff systems,
by-pass systems, and drainage systems) at least once each operating
day, to ensure that it is in good working order;
(B) Data gathered from monitoring equipment (e.g., pressure and
temperature gauges) at least once each operating day to ensure that the
tank is being operated according to its design;
(C) The level of waste in the tank at least once each operating day
to ensure compliance with paragraph (a)(3)(ii)(C) of this section;
(D) The construction materials of the tank at least weekly to
detect corrosion or leaking of fixtures or seams; and
(E) The construction materials of, and the area immediately
surrounding, discharge confinement structures (e.g., dikes) at least
weekly to detect erosion or obvious signs of leakage (e.g., wet spots
or dead vegetation). As required by Sec. 265.15(c) of this chapter,
the small quantity generator must remedy any deterioration or
malfunction it finds.
(iv) A small quantity generator accumulating hazardous waste in
tanks or tank systems that have full secondary containment and that
either use leak detection equipment to alert personnel to leaks, or
implement established workplace practices to ensure leaks are promptly
identified, must inspect at least weekly, where applicable, the areas
identified in paragraphs (a)(3)(iii)(A) through (E) of this section.
Use of the alternate inspection schedule must be documented in the
site's operating record. This documentation must include a description
of the established workplace practices at the site.
(v) [Reserved.]
(vi) A small quantity generator accumulating hazardous waste in
tanks must, upon closure of the site, remove all hazardous waste from
tanks, discharge control equipment, and discharge confinement
structures. At closure, as throughout the operating period, unless the
small quantity generator can demonstrate, in accordance with Sec.
261.3(c) or (d) of this chapter, that any solid waste removed from its
tank is not a hazardous waste, then it must manage such waste in
accordance with all applicable provisions of parts 262, 263, and 265 of
this chapter.
(vii) A small quantity generator must comply with the following
special conditions for accumulation of ignitable or reactive waste:
(A) Ignitable or reactive waste must not be placed in a tank,
unless:
(1) The waste is treated, rendered, or mixed before or immediately
after placement in a tank so that the resulting waste, mixture, or
dissolution of material no longer meets the definition of ignitable or
reactive waste under Sec. 261.21 or 261.23 of this chapter and Sec.
265.17(b) of this chapter is complied with; or
(2) The waste is accumulated or treated in such a way that it is
protected from any material or conditions that may cause the waste to
ignite or react; or
(3) The tank is used solely for emergencies.
(B) A small quantity generator which treats or accumulates
ignitable or reactive waste in covered tanks must comply with the
buffer zone requirements for tanks contained in Tables 2-1 through 2-6
of the National Fire Protection Association's ``Flammable and
Combustible Liquids Code,'' (1977 or 1981) (incorporated by reference,
see Sec. 260.11).
(C) A small quantity generator must comply with the following
special conditions for incompatible wastes:
(1) Incompatible wastes, or incompatible wastes and materials, (see
part 265 appendix V for examples) must not be placed in the same tank,
unless Sec. 265.17(b) of this chapter is complied with.
(2) Hazardous waste must not be placed in an unwashed tank that
previously held an incompatible waste or material, unless Sec.
265.17(b) of this chapter is complied with.
(4) Accumulation of hazardous waste on drip pads. A small quantity
generator may accumulate hazardous waste on drip pads for 90 days or
less without a permit or without having interim status provided that it
complies with 40 CFR part 265 subpart W. The generator must maintain at
the facility the following records by use of inventory logs, monitoring
equipment, or any other effective means:
(i) A written description of procedures that will identify the date
hazardous waste first entered the drip pad and ensure that all wastes
are removed from the drip pad and associated collection system at least
once every 90 days; and
[[Page 57997]]
(ii) Documentation of each waste removal, including the quantity of
waste removed from the drip pad and the sump or collection system and
the date and time of removal.
(5) Accumulation of hazardous waste in containment buildings. A
small quantity generator may accumulate hazardous waste in containment
buildings for 90 days or less without a permit or without having
interim status provided that it complies with 40 CFR part 265 subpart
DD. The generator must also maintain the following records by use of
inventory logs, monitoring equipment records, or any other effective
means:
(i) The professional engineer certification that the building
complies with the design standards specified in 40 CFR 265.1101. This
certification must be in the facility's operating record prior to
operation of the unit; and
(ii) A written description of procedures to ensure that each waste
volume remains in the unit for no more than 90 days, a written
description of the waste generation and management practices for the
site showing that they are consistent with maintaining the 90 day
limit, and documentation that the procedures are complied with; or
(iii) Documentation that the unit is emptied at least once every 90
days.
(6) Labeling and marking of containers, tanks, drip pads, and
containment buildings. (i) A small quantity generator must mark its
containers with the following:
(A) The words ``Hazardous Waste'';
(B) Other words that identify the contents of the containers
(examples may include, but are not limited to, the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D);''
(C) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(D) The date upon which each period of accumulation begins clearly
visible for inspection on each container.
(ii) A small quantity generator accumulating hazardous waste in
tanks, drip pads and containment buildings must do the following:
(A) Mark or label its waste accumulation units with the words
``Hazardous Wastes.'' In the case of hazardous wastes accumulated in
drip pads and containment buildings, generators must label their drip
pads and containment buildings with the words ``Hazardous Wastes'' in a
conspicuous place easily visible to employees, visitors, emergency
responders, waste handlers, or other persons on site;
(B) Use inventory logs, monitoring equipment, or records to
identify the contents of the tank, drip pad or containment building and
its associated hazards;
(C) Use inventory logs, monitoring equipment or records to identify
the date upon which each period of accumulation begins; and
(D) Keep inventory logs or records with the above information in
close proximity to the tank, drip pad, or containment building.
(7) Land disposal restrictions. The generator complies with all the
applicable requirements under 40 CFR part 268.
(8) Preparedness and prevention--(i) Maintenance and operation of
site. A small quantity generator must maintain and operate its site to
minimize the possibility of a fire, explosion, or any unplanned sudden
or non-sudden release of hazardous waste or hazardous waste
constituents to air, soil, or surface water which could threaten human
health or the environment.
(ii) Required equipment. All areas where hazardous waste is either
generated or accumulated must be equipped with the items in paragraphs
(b)(8)(ii)(A) through (D) of this section (unless none of the hazards
posed by waste handled at the site could require a particular kind of
equipment specified below or the actual waste generation or
accumulation area does not lend itself for safety reasons to have a
particular kind of equipment specified below). A small quantity
generator may determine the most appropriate locations within its
generator site to locate equipment necessary to prepare for and respond
to emergencies.
(A) An internal communications or alarm system capable of providing
immediate emergency instruction (voice or signal) to site personnel;
(B) A device, such as a telephone (immediately available at the
scene of operations) or a hand-held two-way radio, capable of summoning
emergency assistance from local police departments, fire departments,
or State or local emergency response teams;
(C) Portable fire extinguishers, fire control equipment (including
special extinguishing equipment, such as that using foam, inert gas, or
dry chemicals), spill control equipment, and decontamination equipment;
and
(D) Water at adequate volume and pressure to supply water hose
streams, or foam producing equipment, or automatic sprinklers, or water
spray systems.
(iii) Testing and maintenance of equipment. All communications or
alarm systems, fire protection equipment, spill control equipment, and
decontamination equipment, where required, must be tested and
maintained as necessary to assure its proper operation in time of
emergency.
(iv) Access to communications or alarm system. (A) Whenever
hazardous waste is being poured, mixed, spread, or otherwise handled,
all personnel involved in the operation must have immediate access
(e.g., direct or unimpeded access) to an internal alarm or emergency
communication device, either directly or through visual or voice
contact with another employee, unless such a device is not required
under paragraph (a)(8)(ii) of this section.
(B) In the event there is just one employee on the premises while
the site is operating, the employee must have immediate access (e.g.,
direct or unimpeded access) to a device, such as a telephone
(immediately available at the scene of operation) or a hand-held two-
way radio, capable of summoning external emergency assistance, unless
such a device is not required under paragraph (a)(8)(ii) of this
section.
(v) Required aisle space. The small quantity generator must
maintain aisle space to allow the unobstructed movement of personnel,
fire protection equipment, spill control equipment, and decontamination
equipment to any area of site operation in an emergency, unless aisle
space is not needed for any of these purposes.
(vi) Arrangements with local authorities. (A) The small quantity
generator must make arrangements with the Local Emergency Planning
Committee for the types and quantities of hazardous waste handled at
the site, as well as the potential need for the
[[Page 57998]]
services of the local police department, other emergency response
teams, emergency response contractors, equipment suppliers and local
hospitals. Should there be no Local Emergency Planning Committee,
should it not respond, or should the Local Emergency Planning Committee
determine that it is not the appropriate organization to make
arrangements with, then the small quantity generator must make
arrangements with the local fire department and other relevant
emergency responders, (e.g., police and hospitals).
(1) A small quantity generator that must make arrangements with its
local fire department must determine the potential need for the
services of the local police department, other emergency response
teams, emergency response contractors, equipment suppliers and local
hospitals.
(2) As part of this coordination, the small quantity generator
shall make arrangements, as necessary, to familiarize the above
organizations with the layout of the site, the properties of hazardous
waste handled at the site and associated hazards, places where site
personnel would normally be working, entrances to roads inside the
site, and possible evacuation routes as well as the types of injuries
or illnesses that could result from fires, explosions, or releases at
the site.
(3) Where more than one police or fire department might respond to
an emergency, the small quantity generator shall enter into agreements
designating primary emergency authority to a specific fire or police
department, and agreements with any others to provide support to the
primary emergency authority.
(B) A small quantity generator shall maintain records documenting
the arrangements with the Local Emergency Planning Committee, or if
appropriate, with the local fire department as well as any other
organization necessary to respond to an emergency. This documentation
must include a certified letter or any other documentation that
confirms such arrangements actively exist.
(9) Emergency procedures. The small quantity generator complies
with the following conditions for those areas of the generator site
where hazardous waste is generated and accumulated:
(i) At all times there must be at least one employee either on the
premises or on call (i.e., available to respond to an emergency by
reaching the site within a short period of time) with the
responsibility for coordinating all emergency response measures
specified in paragraph (b)(9)(iv) of this section. This employee is the
emergency coordinator.
(ii) The small quantity generator must post the following
information next to telephones or in areas directly involved in the
generation and accumulation of hazardous waste:
(A) The name and emergency telephone number of the emergency
coordinator;
(B) Location of fire extinguishers and spill control material, and,
if present, fire alarm; and
(C) The telephone number of the fire department, unless the site
has a direct alarm.
(iii) The small quantity generator must ensure that all employees
are thoroughly familiar with proper waste handling and emergency
procedures, relevant to their responsibilities during normal site
operations and emergencies;
(iv) The emergency coordinator or his designee must respond to any
emergencies that arise. The applicable responses are as follows:
(A) In the event of a fire, call the fire department or attempt to
extinguish it using a fire extinguisher;
(B) In the event of a spill, the small quantity generator is
responsible for containing the flow of hazardous waste to the extent
possible, and as soon as is practicable, cleaning up the hazardous
waste and any contaminated materials or soil. Such containment and
cleanup can be conducted either by the small quantity generator or by a
contractor on behalf of the small quantity generator;
(C) In the event of a fire, explosion, or other release that could
threaten human health outside the site or when the small quantity
generator has knowledge that a spill has reached surface water, the
small quantity generator must immediately notify the National Response
Center (using their 24-hour toll free number 800/424-8802). The report
must include the following information:
(1) The name, address, and U.S. EPA Identification Number of the
small quantity generator;
(2) Date, time, and type of incident (e.g., spill or fire);
(3) Quantity and type of hazardous waste involved in the incident;
(4) Extent of injuries, if any; and
(5) Estimated quantity and disposition of recovered materials, if
any.
(c) Mixing hazardous waste with non-hazardous waste. A small
quantity generator may mix its hazardous waste with non-hazardous waste
and remain eligible for the conditional exemption applicable to a small
quantity generator provided that either paragraph (c)(1) or (2) of this
section is met.
(1) The mixture is not a hazardous waste according to the mixture
rules in Sec. Sec. 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i); or
(2) If the mixture is a hazardous waste, the mixture does not cause
the generator to exceed the small quantity generator quantity limits
for a calendar month, as identified in the definition of small quantity
generator at Sec. 260.10 of this chapter. If the mixture does exceed
the small quantity generator quantity limits, a small quantity
generator, to remain exempt from the permitting and interim status
standards, must meet the conditions for exemption applicable to a large
quantity generator.
(d) Transporting over 200 miles. A small quantity generator who
must transport its waste, or offer its waste for transportation, over a
distance of 200 miles or more for off-site treatment, storage or
disposal may accumulate hazardous waste on site for 270 days or less
without a permit or without having interim status provided that the
generator complies with the conditions of paragraph (a) of this
section.
(e) Accumulation time limit extension. A small quantity generator
who accumulates hazardous waste for more than 180 days (or for more
than 270 days if it must transport its waste, or offer its waste for
transportation, over a distance of 200 miles or more) is an operator of
a storage facility and is subject to the requirements of 40 CFR parts
264, 265, 267, 268, and 270 and the permit requirements of 40 CFR part
270 unless it has been granted an extension to the 180-day (or 270-day
if applicable) period. Such extension may be granted by EPA if
hazardous wastes must remain on site for longer than 180 days (or 270
days if applicable) due to unforeseen, temporary, and uncontrollable
circumstances. An extension of up to 30 days may be granted at the
discretion of the Regional Administrator on a case-by-case basis.
(f) Rejected load. A small quantity generator who sends a shipment
of hazardous waste to a designated facility with the understanding that
the designated facility can accept and manage the waste and later
receives that shipment back as a rejected load or residue in accordance
with the manifest discrepancy provisions of Sec. 264.72 or 265.72 of
this chapter may accumulate the returned waste on site in accordance
with paragraphs (a), (c), and (d) of this section. Upon receipt of the
returned shipment, the generator must:
(i) Sign Item 18c of the manifest, if the transporter returned the
shipment using the original manifest; or
(ii) Sign Item 20 of the manifest, if the transporter returned the
shipment using a new manifest.
[[Page 57999]]
(g) A small quantity generator experiencing an episodic event may
accumulate hazardous waste in accordance with subpart L of this part in
lieu of Sec. 262.17.
Sec. 262.17 Conditions for exemption for a large quantity generator
that accumulates hazardous waste.
A large quantity generator may accumulate hazardous waste on-site
without a permit or interim status, and without complying with the
independent requirements of parts 124, 264 through 268, and 270 of this
chapter, provided that all of the conditions for exemption listed in
this section are met:
(a) Accumulation. A large quantity generator accumulates hazardous
waste on site for no more than 90 days, unless in compliance with the
accumulation time limit extension or F006 accumulation conditions for
exemption in Sec. 262.17(b) through (e). The following accumulation
conditions also apply:
(1) Accumulation in containers. If the hazardous waste is placed in
containers, the large quantity generator must comply with the
following:
(i) Air emission standards. The applicable requirements of subparts
AA, BB, and CC of 40 CFR part 265;
(ii) Condition of containers. If a container holding hazardous
waste is not in good condition, or if it begins to leak, the large
quantity generator must transfer the hazardous waste from this
container to a container that is in good condition, or manage the waste
in some other way that complies with the conditions for exemption of
this section;
(iii) Compatibility of waste with container. The large quantity
generator must use a container made of or lined with materials that
will not react with, and are otherwise compatible with, the hazardous
waste to be stored, so that the ability of the container to contain the
waste is not impaired;
(iv) Management of containers. (A) A container holding hazardous
waste must always be closed during accumulation, except when it is
necessary to add or remove waste.
(B) A container holding hazardous waste must not be opened,
handled, or stored in a manner that may rupture the container or cause
it to leak.
(v) Inspections. At least weekly, the large quantity generator must
inspect central accumulation areas. The large quantity generator must
look for leaking containers and for deterioration of containers caused
by corrosion or other factors. See paragraph (a)(1)(ii) of this section
for remedial action required if deterioration or leaks are detected.
(vi) Special conditions for accumulation of ignitable and reactive
wastes. (A) Containers holding ignitable or reactive waste must be
located at least 15 meters (50 feet) from the site's property line
unless a written waiver is obtained from the local fire department
allowing hazardous waste accumulation to occur within this restricted
area. Record of this approval must be maintained as long as ignitable
or reactive hazardous waste is accumulated in this area.
(B) The large quantity generator must take precautions to prevent
accidental ignition or reaction of ignitable or reactive waste. This
waste must be separated and protected from sources of ignition or
reaction including but not limited to the following: open flames,
smoking, cutting and welding, hot surfaces, frictional heat, sparks
(static, electrical, or mechanical), spontaneous ignition (e.g., from
heat-producing chemical reactions), and radiant heat. While ignitable
or reactive waste is being handled, the large quantity generator must
confine smoking and open flame to specially designated locations. ``No
Smoking'' signs must be conspicuously placed wherever there is a hazard
from ignitable or reactive waste.
(vii) Special conditions for accumulation of incompatible wastes.
(A) Incompatible wastes, or incompatible wastes and materials, (see
appendix V of part 265 for examples) must not be placed in the same
container, unless Sec. 265.17(b) of this chapter is complied with.
(B) Hazardous waste must not be placed in an unwashed container
that previously held an incompatible waste or material (see appendix V
of part 265 for examples), unless Sec. 265.17(b) of this chapter is
complied with.
(C) A container holding a hazardous waste that is incompatible with
any waste or other materials accumulated or stored nearby in other
containers, piles, open tanks, or surface impoundments must be
separated from the other materials or protected from them by means of a
dike, berm, wall, or other device.
(2) Accumulation in tanks. If the waste is placed in tanks, the
large quantity generator must comply with the applicable requirements
of subparts J, AA, BB, and CC of 40 CFR part 265 except Sec.
265.197(c) of Closure and post-closure care and Sec. 265.200--Waste
analysis and trial tests.
(3) Accumulation on drip pads. If the waste is placed on drip pads,
the large quantity generator must comply with subpart W of 40 CFR part
265 and maintain at the facility the following records by use of
inventory logs, monitoring equipment records, or any other effective
means:
(i) A written description of procedures that will identify the date
hazardous waste first entered the drip pad and ensure that all wastes
are removed from the drip pad and associated collection system at least
once every 90 days; and
(ii) Documentation of each waste removal, including the quantity of
waste removed from the drip pad and the sump or collection system and
the date and time of removal.
(4) Accumulation in Containment Buildings. (i) If the waste is
placed in containment buildings, the large quantity generator must
comply with subpart DD of 40 CFR part 265 and must place its
professional engineer certification that the building complies with the
design standards specified in 40 CFR 265.1101 in the generator's files
prior to operation of the unit.
(ii) The large quantity generator shall maintain the following
records by use of inventory logs, monitoring equipment records, or any
other effective means:
(A) A written description of procedures to ensure that each waste
volume remains in the unit for no more than 90 days, a written
description of the waste generation and management practices for the
site showing that they are consistent with respecting the 90 day limit,
and documentation that the procedures are complied with; or
(B) Documentation that the unit is emptied at least once every 90
days.
(5) Labeling and marking of containers, tanks, drip pads, and
containment buildings--(i) Containers. A large quantity generator must
mark its containers with the following:
(A) The words ``Hazardous Waste'';
(B) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D)'';
(C) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard
[[Page 58000]]
Communication Standard at 29 CFR 1920.1200; a chemical hazard label
consistent with the National Fire Protection Association code 704; a
hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(D) The date upon which each period of accumulation begins clearly
visible for inspection on each container.
(ii) Tanks, drip pads, and containment buildings. A large quantity
generator accumulating hazardous waste in tanks, drip pads, and
containment buildings must do the following:
(A) Mark or label its waste accumulation units with the words
``Hazardous Waste.'' In the case of hazardous wastes accumulated in
drip pads and containment buildings, generators must label their drip
pads and containment buildings with the words ``Hazardous Waste'' in a
conspicuous place easily visible to employees, visitors, emergency
responders, waste handlers, etc.
(B) Use inventory logs, monitoring equipment, or records to
identify the contents of the tank, drip pad or containment building and
its associated hazards.
(C) Use inventory logs, monitoring equipment or records to identify
the date upon which each period of accumulation begins; and
(D) Keep inventory logs or records with the above information in
close proximity to the tank, drip pad, or containment building.
(6) Emergency procedures. The large quantity generator complies
with the standards in subpart M of this part, Preparedness, Prevention
and Emergency Procedures for Large Quantity Generators.
(7) Personnel training. (i)(A) Site personnel must successfully
complete a program of classroom instruction, online training, or on-
the-job training that teaches them to perform their duties in a way
that ensures compliance with this part. The large quantity generator
must ensure that this program includes all the elements described in
the document required under paragraph (a)(7)(iv) of this section.
(B) This program must be directed by a person trained in hazardous
waste management procedures, and must include instruction which teaches
site personnel hazardous waste management procedures (including
contingency plan implementation) relevant to the positions in which
they are employed.
(C) At a minimum, the training program must be designed to ensure
that site personnel are able to respond effectively to emergencies by
familiarizing them with emergency procedures, emergency equipment, and
emergency systems, including where applicable:
(1) Procedures for using, inspecting, repairing, and replacing site
emergency and monitoring equipment;
(2) Key parameters for automatic waste feed cut-off systems;
(3) Communications or alarm systems;
(4) Response to fires or explosions;
(5) Response to ground-water contamination incidents; and
(6) Shutdown of operations.
(D) For site employees that receive emergency response training
pursuant to Occupational Safety and Health Administration regulations
29 CFR 1910.120(p)(8) and 1910.120(q), the large quantity generator is
not required to provide separate emergency response training pursuant
to this section, provided that the overall site training meets all the
conditions of exemption in this section.
(ii) Site personnel must successfully complete the program required
in paragraph (a)(7)(i) of this section within six months after the
effective date of these regulations or six months after the date of
their employment or assignment to the site, or to a new position at the
site, whichever is later. Employees hired after the effective date of
these regulations must not work in unsupervised positions until they
have completed the training standards of paragraph (a)(7)(i) of this
section.
(iii) Site personnel must take part in an annual review of the
initial training required in paragraph (a)(7)(i) of this section.
(iv) The large quantity generator must maintain the following
documents and records at the site:
(A) The job title for each position at the site related to
hazardous waste management, and the name of the employee filling each
job;
(B) A written job description for each position listed under
paragraph (a)(7)(iv)(A) of this section. This description may be
consistent in its degree of specificity with descriptions for other
similar positions in the same company location or bargaining unit, but
must include the requisite skill, education, or other qualifications,
and duties of site personnel assigned to each position;
(C) A written description of the type and amount of both
introductory and continuing training that will be given to each person
filling a position listed under paragraph (a)(7)(iv)(A) of this
section;
(D) Records that document that the training or job experience,
required under paragraphs (a)(7)(i), (ii), and (iii) of this section,
has been given to, and completed by, site personnel.
(v) Training records on current personnel must be kept until
closure of the site. Training records on former employees must be kept
for at least three years from the date the employee last worked at the
site. Personnel training records may accompany personnel transferred
within the same company.
(8) Closure. A large quantity generator accumulating hazardous
wastes in containers, tanks, drip pads, and containment buildings,
prior to closing a unit that accumulates hazardous waste at the site or
prior to closing the site must meet the following conditions:
(i) Notification. (A) Notify EPA no later than 30 days prior to
closing a unit that accumulates hazardous waste at the site or prior to
closing the site.
(B) Notify EPA within 90 days after closure of a unit that
accumulates hazardous waste at the site or prior to closing the site
that it has either clean closed (e.g., complied with the applicable
closure performance standards of Sec. 262.17(a)(8)(ii)) or, if it
cannot clean close, notify as a landfill under Sec. 265.310 of this
chapter.
(ii) Closure performance standards. (A) At closure, the generator
must close the waste accumulation unit or site in a manner that:
(1) Minimizes the need for further maintenance by controlling,
minimizing, or eliminating, to the extent necessary to protect human
health and the environment, the post-closure escape of hazardous waste,
hazardous constituents, leachate, contaminated run-off, or hazardous
waste decomposition products to the ground or surface waters or to the
atmosphere,
(2) Properly disposes of or decontaminates all contaminated
equipment, structures and soil and any remaining hazardous waste
residues from waste accumulation units including containment system
components (pads, liners, etc.), contaminated soils and subsoils,
bases, and structures and equipment contaminated with waste. Any
hazardous waste residues remaining in the unit(s) being closed must be
removed from the unit(s). Any leakage must also be decontaminated or
removed and managed as a hazardous waste unless Sec. 261.3(d) of this
chapter applies.
(3) Any hazardous waste generated in the process of closing either
the
[[Page 58001]]
generator's site or unit(s) accumulating hazardous waste must be
managed in accordance with all applicable standards of parts 260
through 270 of this chapter, including removing any hazardous waste
contained in these units within 90 days of generating it and managing
these wastes in a RCRA Subtitle C hazardous waste permitted treatment,
storage and disposal facility or interim status facility.
(4) If the generator demonstrates that any contaminated soils and
wastes cannot be practicably removed or decontaminated as required in
paragraph (a)(8)(ii)(A)(2) of this section, then the waste accumulation
unit is considered to be a landfill and the generator must close the
waste accumulation unit and perform post-closure care in accordance
with the closure and post-closure care requirements that apply to
landfills (Sec. 265.310 of this chapter). In addition, for the
purposes of closure, post-closure, and financial responsibility, such a
waste accumulation unit is then considered to be a landfill, and the
generator must meet all of the requirements for landfills specified in
subparts G and H of part 265 of this chapter.
(9) Land disposal restrictions. The large quantity generator
complies with all applicable requirements under 40 CFR part 268.
(b) Accumulation time limit extension. A large quantity generator
who accumulates hazardous waste for more than 90 days is an operator of
a storage facility and is subject to the requirements of 40 CFR parts
264, 265, 267, and 268, and the permit requirements of 40 CFR part 270
unless it has been granted an extension to the 90-day period. Such
extension may be granted by EPA if hazardous wastes must remain on site
for longer than 90 days due to unforeseen, temporary, and
uncontrollable circumstances. An extension of up to 30 days may be
granted at the discretion of the Regional Administrator on a case-by-
case basis.
(c) Accumulation of F006. A large quantity generator who also
generates wastewater treatment sludges from electroplating operations
that meet the listing description for the EPA hazardous waste number
F006, may accumulate F006 waste on site for more than 90 days, but not
more than 180 days without a permit or without having interim status
provided that it complies with all of the following conditions:
(1) The large quantity generator has implemented pollution
prevention practices that reduce the amount of any hazardous
substances, pollutants, or contaminants entering F006 or otherwise
released to the environment prior to its recycling;
(2) The F006 waste is legitimately recycled through metals
recovery;
(3) No more than 20,000 kilograms of F006 waste is accumulated on
site at any one time; and
(4) The F006 waste is managed in accordance with the following:
(i)(A) If the F006 waste is placed in containers, the large
quantity generator must comply with the applicable conditions for
exemption in Sec. 262.17(a)(1); and/or
(B) If the F006 is placed in tanks, the large quantity generator
must comply with the applicable conditions for exemption of Sec.
262.17(a)(2); and/or
(C) If the F006 is placed in containment buildings, the large
quantity generator must comply with subpart DD of 40 CFR part 265, and
has placed its professional engineer certification that the building
complies with the design standards specified in 40 CFR 265.1101 in the
site's files prior to operation of the unit. The large quantity
generator must maintain the following records:
(1) A written description of procedures to ensure that the F006
waste remains in the unit for no more than 180 days, a written
description of the waste generation and management practices for the
site showing that they are consistent with the 180-day limit, and
documentation that the large quantity generator is complying with the
procedures; or
(2) Documentation that the unit is emptied at least once every 180
days.
(ii) The large quantity generator is exempt from all the
requirements in subparts G and H of 40 CFR part 265, except for those
referenced in Sec. 262.17(a)(8).
(iii) The date upon which each period of accumulation begins is
clearly marked and must be clearly visible for inspection on each
container;
(iv) While being accumulated on site, each container and tank is
labeled or marked clearly with:
(A) The words ``Hazardous Waste'';
(B) Other words that identify the contents of the container or
tank; and
(C) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(v) The large quantity generator complies with the requirements in
Sec. Sec. 262.17(a)(6) and (7).
(d) F006 transported over 200 miles. A large quantity generator who
also generates wastewater treatment sludges from electroplating
operations that meet the listing description for the EPA hazardous
waste number F006, and who must transport this waste, or offer this
waste for transportation, over a distance of 200 miles or more for off-
site metals recovery, may accumulate F006 waste on site for more than
90 days, but not more than 270 days without a permit or without having
interim status if the large quantity generator complies with all of the
conditions for exemption of paragraphs (c)(1) through (4) of this
section.
(e) F006 accumulation time extension. A large quantity generator
accumulating F006 in accordance with paragraphs (c) and (d) of this
section who accumulates F006 waste on site for more than 180 days (or
for more than 270 days if the generator must transport this waste, or
offer this waste for transportation, over a distance of 200 miles or
more), or who accumulates more than 20,000 kilograms of F006 waste on
site is an operator of a storage facility and is subject to the
requirements of 40 CFR parts 264, 265, and 267, and the permit
requirements of 40 CFR part 270 unless the generator has been granted
an extension to the 180-day (or 270-day if applicable) period or an
exception to the 20,000 kilogram accumulation limit. Such extensions
and exceptions may be granted by EPA if F006 waste must remain on site
for longer than 180 days (or 270 days if applicable) or if more than
20,000 kilograms of F006 waste must remain on site due to unforeseen,
temporary, and uncontrollable circumstances. An extension of up to 30
days or an exception to the accumulation limit may be granted at the
discretion of the Regional Administrator on a case-by-case basis.
(f) Mixing hazardous waste with non-hazardous waste. Mixtures of
hazardous waste with non-hazardous waste are subject to the mixture
rule in Sec. Sec. 261.3(a)(2)(iv), (b)(2) and (3), and (g)(2)(i).
(g) Consolidation of hazardous waste received from very small
quantity generators. Large quantity generators may receive hazardous
waste from very
[[Page 58002]]
small quantity generators under control of the same person (as defined
in Sec. 260.10), provided that they comply with the following
conditions. ``Control,'' for the purposes of this section, means the
power to direct the policies of the generator site, whether by the
ownership of stock, voting rights, or otherwise, except that
contractors who operate generator sites on behalf of a different person
shall not be deemed to ``control'' such generator sites.
(1) The large quantity generator notifies EPA thirty (30) days
prior to receiving the first shipment from a very small quantity
generator(s) using EPA form 8700-12; and
(i) Identifies on the form the name(s) and site address(es) for the
very small quantity generator(s) as well as the name and business
telephone number for a contact person for the very small quantity
generator(s); and
(ii) Submits an updated Site ID form (EPA form 8700-12) within 30
days after a change in the name, site address, or contact information
for the very small quantity generator.
(2) The large quantity generator maintains records of shipments for
three years from the date the hazardous waste was received from the
very small quantity generator. These records must identify the name,
site address, and contact information for the very small quantity
generator and include a description of the hazardous waste received,
including the quantity, all applicable EPA hazardous waste number(s)
(EPA hazardous waste codes) in subparts C and D of part 261 for the
hazardous waste, and the date the waste was received.
(3) The large quantity generator manages all hazardous waste
received from a very small quantity generator in compliance with the
independent requirements in Sec. 262.10(a)(1)(ii) and conditions for
exemption in Sec. 262.17 applicable to a large quantity generator. For
purposes of the labeling and marking regulations in Sec. 262.17(a)(5),
the large quantity generator must label the container or unit with the
date accumulation started (i.e., the date the hazardous waste was
received from the very small quantity generator). If the large quantity
generator is consolidating incoming hazardous waste from a very small
quantity generator with either its own hazardous waste or with
hazardous waste from other very small quantity generators, the large
quantity generator must label each container or unit with the earliest
date any hazardous waste in the container was accumulated on site.
(h) Rejected load. A large quantity generator who sends a shipment
of hazardous waste to a designated facility with the understanding that
the designated facility can accept and manage the waste and later
receives that shipment back as a rejected load or residue in accordance
with the manifest discrepancy provisions of Sec. 264.72 or 265.72 of
this chapter may accumulate the returned waste on site in accordance
with paragraphs (a) and (b) of this section. Upon receipt of the
returned shipment, the generator must:
(1) Sign Item 18c of the manifest, if the transporter returned the
shipment using the original manifest; or
(2) Sign Item 20 of the manifest, if the transporter returned the
shipment using a new manifest.
Sec. 262.18 EPA identification numbers and re-notification for small
quantity generators and large quantity generators.
(a) A generator must not treat, store, dispose of, transport, or
offer for transportation, hazardous waste without having received an
EPA identification number from the Administrator.
(b) A generator who has not received an EPA identification number
may obtain one by applying to the Administrator using EPA form 8700-12.
Upon receiving the request the Administrator will assign an EPA
identification number to the generator.
(c) A generator must not offer its hazardous waste to transporters
or to treatment, storage, or disposal facilities that have not received
an EPA identification number.
(d) Re-notification. (i) A small quantity generator must notify EPA
by February 1 of each even-numbered year thereafter using EPA Form
8700-12.
(ii) A large quantity generator must notify EPA by March 1 of each
even-numbered year thereafter using EPA Form 8700-12. A large quantity
generator may submit this re-notification as part of its biennial
report required under Sec. 262.41.
0
18. Revise the heading for subpart B to read as follows:
Subpart B--Manifest Requirements Applicable to Small and Large
Quantity Generators
0
19. Revise the heading for subpart C to read as follows:
Subpart C--Pre-Transport Requirements Applicable to Small and Large
Quantity Generators
0
20. Amend Sec. 262.32 by adding paragraph (c) to read as follows:
Sec. 262.32 Marking.
* * * * *
(c) Before transporting or offering hazardous waste for
transportation off site, a generator must mark each container with the
applicable EPA hazardous waste numbers (EPA hazardous waste codes) in
subparts C and D of part 261 of this chapter.
Sec. 262.34 [Removed and reserved]
0
21. Remove and reserve Sec. 262.34.
0
22. Add Sec. 262.35 to subpart C read as follows:
Sec. 262.35 Liquids in landfills prohibition.
The placement of bulk or non-containerized liquid hazardous waste
or hazardous waste containing free liquids (whether or not sorbents
have been added) in any landfill is prohibited.
0
23. Revise the heading for subpart D to read as follows:
Subpart D--Recordkeeping and Reporting Applicable to Small and
Large Quantity Generators
Sec. 262.40 [Amended]
0
24. Amend Sec. 262.40 by removing and reserving paragraph (c).
0
25. Section 262.41 and its section heading are revised to read as
follows:
Sec. 262.41 Biennial report for large quantity generators.
(a) A generator who is a large quantity generator for at least one
month of the reporting year must complete and submit EPA form 8700-13
to the Regional Administrator by March 1 of each even numbered year for
all hazardous wastes generated during the previous calendar year. This
requirement also applies to generators who treat, store, or dispose of
hazardous waste on site in accordance with the provisions of 40 CFR
parts 264, 265, 266, 267, and 270 and to large quantity generators that
receive hazardous waste from very small quantity generators pursuant to
Sec. 262.17(g).
(b) Exports of hazardous waste to foreign countries are not
required to be reported on the Biennial Report form. A separate annual
report requirement is set forth at 40 CFR 262.56 for hazardous waste
exporters.
0
26. Section 262.43 is revised to read as follows:
Sec. 262.43 Additional reporting.
The Administrator, as deemed necessary under sections 2002(a) and
3002(a)(6) of the Act, may require generators to furnish additional
reports concerning the quantities and disposition of wastes identified
or listed in 40 CFR part 261.
0
27. Section 262.44 is amended by revising the introductory paragraph
and section heading to read as follows:
[[Page 58003]]
Sec. 262.44 Recordkeeping for small quantity generators.
A small quantity generator is subject only to the following
independent requirements in this subpart:
* * * * *
Subparts I and J [Removed and Reserved]
0
28. Remove and reserve subparts I and J.
Subpart K--Alternative Requirements for Hazardous Waste
Determination and Accumulation of Unwanted Material for
Laboratories Owned by Eligible Academic Entities
0
29. Section 262.200 is amended by removing the definition of ``Central
accumulation area'' and revising the definition of ``Trained
professional'' to read as follows:
Sec. 262.200 Definitions for this subpart.
* * * * *
Trained professional means a person who has completed the
applicable RCRA training requirements of Sec. 262.17 for large
quantity generators, or is knowledgeable about normal operations and
emergencies in accordance with Sec. 262.16 for small quantity
generators and very small quantity generators. A trained professional
may be an employee of the eligible academic entity or may be a
contractor or vendor who meets the requisite training requirements.
* * * * *
0
30. Section 262.201 is revised to read as follows:
Sec. 262.201 Applicability of this subpart.
(a) Large quantity generators and small quantity generators. This
subpart provides alternative requirements to the requirements in
Sec. Sec. 262.11 and 262.15 for the hazardous waste determination and
accumulation of hazardous waste in laboratories owned by eligible
academic entities that choose to be subject to this subpart, provided
that they complete the notification requirements of Sec. 262.203.
(b) Very small quantity generators. This subpart provides
alternative requirements to the conditional exemption in Sec. 262.14
for the accumulation of hazardous waste in laboratories owned by
eligible academic entities that choose to be subject to this subpart,
provided that they complete the notification requirements of Sec.
262.203.
0
31. Section 262.202 is revised to read as follows:
Sec. 262.202 This subpart is optional.
(a) Large quantity generators and small quantity generators.
Eligible academic entities have the option of complying with this
subpart with respect to its laboratories, as an alternative to
complying with the requirements of Sec. Sec. 262.11 and 262.15.
(b) Very small quantity generators. Eligible academic entities have
the option of complying with this subpart with respect to laboratories,
as an alternative to complying with the conditional exemption of Sec.
262.14.
0
32. Section 262.203 is amended by revising paragraphs (a) and (b)(2) to
read as follows:
Sec. 262.203 How an eligible academic entity indicates it will be
subject to the requirements of this subpart.
(a) An eligible academic entity must notify the appropriate EPA
Regional Administrator in writing, using the RCRA Subtitle C Site
Identification Form (EPA Form 8700-12), that it is electing to be
subject to the requirements of this subpart for all the laboratories
owned by the eligible academic entity under the same EPA Identification
Number. An eligible academic entity that is a very small quantity
generator and does not have an EPA Identification Number must notify
that it is electing to be subject to the requirements of this subpart
for all the laboratories owned by the eligible academic entity that are
on site, as defined by Sec. 260.10. An eligible academic entity must
submit a separate notification (Site Identification Form) for each EPA
Identification Number (or site, for very small quantity generators)
that is electing to be subject to the requirements of this subpart, and
must submit the Site Identification Form before it begins operating
under this subpart.
(b) * * *
(2) Site EPA Identification Number (except for very small quantity
generators).
* * * * *
0
33. Section 262.204 is amended by revising paragraph (a) to read as
follows:
Sec. 262.204 How an eligible academic entity indicates it will
withdraw from the requirements of this subpart.
(a) An eligible academic entity must notify the appropriate EPA
Regional Administrator in writing, using the RCRA Subtitle C Site
Identification Form (EPA Form 8700-12), that it is electing to no
longer be subject to the requirements of this subpart for all the
laboratories owned by the eligible academic entity under the same EPA
Identification Number and that it will comply with the requirements of
Sec. Sec. 262.11 and 262.15 for small quantity generators and large
quantity generators. An eligible academic entity that is a very small
quantity generator and does not have an EPA Identification Number must
notify that it is withdrawing from the requirements of this subpart for
all the laboratories owned by the eligible academic entity that are on
site and that it will comply with the conditional exemption in Sec.
262.14. An eligible academic entity must submit a separate notification
(Site Identification Form) for each EPA Identification Number (or site,
for very small quantity generators) that is withdrawing from the
requirements of this subpart and must submit the Site Identification
Form before it begins operating under the standards in Sec. Sec.
262.11 and 262.15 for small quantity generators and large quantity
generators or Sec. 262.14 for very small quantity generators.
* * * * *
Sec. 262.206 [Amended]
0
34. Amend Sec. 262.206 in paragraph (b)(3)(iii) by removing the period
at the end of the sentence and inserting ``:'' in its place.
0
35. Section 262.207 is amended by revising paragraph (d)(2) to read as
follows:
Sec. 262.207 Training.
* * * * *
(d) * * *
(2) Make the hazardous waste determination, pursuant to Sec.
262.11(a) through (d), for unwanted material.
0
36. Section 262.208 is amended by revising paragraphs (a)(1) and (2) to
read as follows:
Sec. 262.208 Removing containers of unwanted material from the
laboratory.
(a) * * *
(1) Remove all containers of unwanted material from each laboratory
on a regular interval, not to exceed 12 months; or
(2) Remove containers of unwanted material from each laboratory
within 12 months of each container's accumulation start date.
* * * * *
0
37. Section 262.209 is amended by revising paragraph (b) to read as
follows:
Sec. 262.209 Where and when to make the hazardous waste determination
and where to send containers of unwanted material upon removal from the
laboratory.
* * * * *
(b) Very small quantity generators. An eligible academic entity
must ensure that a trained professional makes a hazardous waste
determination,
[[Page 58004]]
pursuant to Sec. 262.11(a) through (d), for unwanted material in the
laboratory before the unwanted material is removed from the laboratory,
in accordance with Sec. 262.210.
0
38. Section 262.210 is amended by revising paragraphs (a), (b)(3), and
(d)(2) to read as follows:
Sec. 262.210 Making the hazardous waste determination in the
laboratory before the unwanted material is removed from the laboratory.
* * * * *
(a) A trained professional must make the hazardous waste
determination, pursuant to Sec. 262.11(a) through (d), before the
unwanted material is removed from the laboratory.
(b) * * *
(3) Count the hazardous waste toward the eligible academic entity's
generator category, pursuant to Sec. 262.13, in the calendar month
that the hazardous waste determination was made.
* * * * *
(d) * * *
(2) Very small quantity generators must ensure it is taken directly
from the laboratory(ies) to any of the types of facilities listed in
Sec. 262.14.
* * * * *
0
39. Section 262.211 is amended by revising paragraphs (c), (d), and
(e)(3) to read as follows:
Sec. 262.211 Making the hazardous waste determination at an on-site
central accumulation area.
* * * * *
(c) The unwanted material becomes subject to the generator
accumulation regulations of Sec. 262.16 for small quantity generators
or Sec. 262.17 for large quantity generators as soon as it arrives in
the central accumulation area, except for the ``hazardous waste''
labeling conditions of Sec. 262.16(b)(6) and Sec. 262.17(a)(5).
(d) A trained professional must determine, pursuant to Sec.
262.11(a) through (d), if the unwanted material is a hazardous waste
within 4 calendar days of the unwanted materials' arrival at the on-
site central accumulation area.
(e) * * *
(3) Count the hazardous waste toward the eligible academic entity's
generator category, pursuant to Sec. 262.13 in the calendar month that
the hazardous waste determination was made, and
* * * * *
0
40. Section 262.212 is amended by revising paragraph (d) to read as
follows:
Sec. 262.212 Making the hazardous waste determination at an on-site
interim status or permitted treatment, storage, or disposal facility.
* * * * *
(d) A trained professional must determine, pursuant to Sec.
262.11(a) through (d), if the unwanted material is a hazardous waste
within 4 calendar days of the unwanted materials' arrival at an on-site
interim status or permitted treatment, storage, or disposal facility.
* * * * *
0
41. Section 262.213 is amended by revising paragraphs (a)(2) and (3)
and (b)(2) to read as follows:
Sec. 262.213 Laboratory clean-outs.
(a) * * *
(2) For the purposes of on-site accumulation, an eligible academic
entity is not required to count a hazardous waste that is an unused
commercial chemical product (listed in 40 CFR part 261, subpart D or
exhibiting one or more characteristics in 40 CFR part 261, subpart C)
generated solely during the laboratory clean-out toward its hazardous
waste generator category, pursuant to Sec. 262.13. An unwanted
material that is generated prior to the beginning of the laboratory
clean-out and is still in the laboratory at the time the laboratory
clean-out commences must be counted toward hazardous waste generator
category, pursuant to Sec. 262.13, if it is determined to be hazardous
waste; and
(3) For the purposes of off-site management, an eligible academic
entity must count all its hazardous waste, regardless of whether the
hazardous waste was counted toward generator category under paragraph
(a)(2) of this section, and if it generates more than 1 kg/month of
acute hazardous waste or more than 100 kg/month of non-acute hazardous
waste (i.e., the very small quantity generator limits as defined in
Sec. 260.10), the hazardous waste is subject to all applicable
hazardous waste regulations when it is transported off site; and
* * * * *
(b) * * *
(2) The requirement to count all hazardous waste, including unused
hazardous waste, generated during the laboratory clean-out toward its
hazardous waste generator category, pursuant to Sec. 262.13.
0
42. Section 262.214 is amended by revising paragraph (b)(5) to read as
follows:
Sec. 262.214 Laboratory management plan.
* * * * *
(b) * * *
(5) Describe its intended best practices for making hazardous waste
determinations, including specifying the duties of the individuals
involved in the process (see the required standards at Sec. 262.11(a)
through (d) and Sec. Sec. 262.209 through 262.212).
* * * * *
0
43. Section 262.216 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 262.216 Non-laboratory hazardous waste generated at an eligible
academic entity.
* * * * *
(a) Remains subject to the generator requirements of Sec. Sec.
262.11 and 262.15 for large quantity generators and small quantity
generators (if the hazardous waste is managed in a satellite
accumulation area), and all other applicable generator requirements of
40 CFR part 262, with respect to that hazardous waste; or
(b) Remains subject to the conditional exemption of Sec. 262.14
for very small quantity generators, with respect to that hazardous
waste.
0
44. Subpart L is added to read as follows:
Subpart L--Alternative Standards for Episodic Generation
Sec.
262.230 Applicability.
262.231 Definition of an episodic event.
262.232 Conditions for a generator managing hazardous waste from an
episodic event.
262.233 Petition to manage one additional episodic event per
calendar year.
262.234 Petition for a 30-day extension to an episodic event.
Subpart L--Alternative Standards for Episodic Generation
Sec. 262.230 Applicability.
This subpart is applicable to very small quantity generators and
small quantity generators as defined in Sec. 260.10.
Sec. 262.231 Definition of an episodic event.
An episodic event is an activity or activities, either planned or
unplanned, that does not normally occur during generator operations,
resulting in an increase in the generation of hazardous wastes that
exceeds the calendar month quantity limits for the generator's usual
category.
Sec. 262.232 Conditions for a generator managing hazardous waste from
an episodic event.
(a) Very small quantity generator. A very small quantity generator
may maintain its existing generator category during an episodic event
provided that
[[Page 58005]]
the generator complies with the following conditions:
(1) The very small quantity generator is limited to one episodic
event per calendar year unless a petition is granted under Sec.
262.233;
(2) The very small quantity generator must notify EPA no later than
thirty (30) calendar days prior to initiating a planned episodic event
using EPA form 8700-12. In the event of an unplanned episodic event,
the generator must notify EPA within 24 hours of the unplanned event or
as soon as possible via phone or email and subsequently submit EPA form
8700-12. The generator shall include the start date of the episodic
event, the reason(s) for the event, types and estimated quantities of
hazardous waste expected to be generated as a result of the episodic
event, and shall identify a facility contact and emergency coordinator
with 24-hour telephone access to discuss the notification submittal or
respond to an emergency;
(3) The very small quantity generator must have an EPA
identification number or obtain an EPA identification number using EPA
form 8700-12;
(4) Accumulation. A very small quantity generator is prohibited
from accumulating hazardous waste generated from an episodic event on
drip pads and in containment buildings. When accumulating hazardous
waste in containers and tanks the following conditions apply:
(i) Containers. A very small quantity generator accumulating in
containers must mark its containers with the following:
(A) The words ``Episodic Hazardous Waste;''
(B) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D);
(C) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; or a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(D) The date upon which the episodic event began, clearly visible
for inspection on each container.
(ii) Tanks. A very small quantity generator accumulating episodic
hazardous waste in tanks must do the following:
(A) Mark or label the tank with the words ``Episodic Hazardous
Waste;''
(B) Use inventory logs, monitoring equipment, or records to
identify the contents of the tank and its associated hazards;
(C) Use inventory logs, monitoring equipment or records to identify
the date upon which each episodic event begins; and
(D) Keep inventory logs or records with the above information in
close proximity to the tank.
(iii) Hazardous waste must be managed in a manner that minimizes
the possibility of a fire, explosion, or release of hazardous waste or
hazardous waste constituents to the air, soil, or water;
(A) Containers must be in good condition and compatible with the
hazardous waste being accumulated therein. Containers must be kept
closed except to add or remove waste.
(B) Tanks must be in good condition and compatible with the
hazardous waste accumulated therein. Tanks must have procedures in
place to prevent the overflow (e.g., be equipped with a means to stop
inflow with systems such as a waste feed cutoff system or bypass system
to a standby tank when hazardous waste is continuously fed into the
tank). Tanks must be inspected at least once each operating day to
ensure all applicable discharge control equipment, such as waste feed
cutoff systems, bypass systems, and drainage systems are in good
working order and to ensure the tank is operated according to its
design by reviewing the data gathered from monitoring equipment such as
pressure and temperature gauges from the inspection.
(5) The very small quantity generator must comply with the
hazardous waste manifest provisions of 40 CFR part 262 subpart B when
it sends its episodic event hazardous waste off site to a RCRA-
designated facility.
(6) The very small quantity generator has up to forty-five (45)
calendar days from the start of the episodic event to manifest and send
its hazardous waste generated from the episodic event to a RCRA-
designated facility unless an extension is granted pursuant to Sec.
262.233.
(7) Very small quantity generators must maintain the following
records for three (3) years from the end date of the episodic event:
(i) Beginning and end dates of the episodic event;
(ii) A description of the episodic event;
(iii) A description of the types and quantities of hazardous wastes
generated during the event;
(iv) A description of how the hazardous waste was managed as well
as the name of the RCRA designated facility that received the hazardous
waste;
(v) Name(s) of hazardous waste transporters;
(vi) An approval letter from EPA if the generator petitioned to
conduct one additional episodic event per calendar year; and
(vii) An approval letter from EPA if the generator petitioned for
an additional thirty (30) calendar day extension.
(b) Small quantity generators. A small quantity generator may
maintain its existing generator category during an episodic event
provided that the generator complies with the following conditions:
(1) The small generator is limited to one episodic event per
calendar year unless a petition is granted under Sec. 262.233;
(2) The small quantity generator must notify EPA no later than
thirty (30) calendar days prior to initiating a planned episodic event
using EPA form 8700-12. In the event of an unplanned episodic event,
the small quantity generator must notify EPA within 24 hours of the
unplanned event or as soon as possible via phone or email and
subsequently submit EPA form 8700-12. The small quantity generator
shall include the start date of the episodic event and the reason(s)
for the event, types and estimated quantities of hazardous wastes
expected to be generated as a result of the episodic event, and
identify a facility contact and emergency coordinator with 24-hour
telephone access to discuss the notification submittal or respond to
emergency;.
(3) The small quantity generator must have an EPA identification
number or obtain an EPA identification number using EPA form 8700-12.
(4) Accumulation by small quantity generators. A small quantity
generator is prohibited from accumulating
[[Page 58006]]
hazardous wastes generated from an episodic event waste on drip pads
and in containment buildings. When accumulating hazardous waste
generated from an episodic event in containers and tanks, the following
conditions apply:
(i) Containers. A small quantity generator accumulating episodic
hazardous waste in containers that meet the standards at part 265
subpart I of this chapter, except Sec. Sec. 265.176 and 265.178 of
this chapter, must mark its containers with the following:
(A) The words ``Episodic Hazardous Waste'';
(B) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or halogenated
organic solvents'' or, as applicable, the proper shipping name and
technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D);
(C) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; or a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking or labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit); and
(D) The date upon which the episodic event began, clearly visible
for inspection on each container.
(ii) Tanks. A small quantity generator accumulating episodic
hazardous waste in tanks that meet the standards at Sec. 265.201 in
subpart J must do the following:
(A) Mark or label its tank with the words ``Episodic Hazardous
Waste;''
(B) Use inventory logs, monitoring equipment, or records to
identify the contents of the tank and its associated hazards;
(C) Use inventory logs, monitoring equipment or records to identify
the date upon which each period of accumulation begins and ends; and
(D) Keep inventory logs or records with the above information
immediately accessible.
(iii) Comply with the applicable conditions listed in Sec. 262.16.
(5) The small quantity generator must treat hazardous waste
generated from an episodic event on site or manifest and ship such
hazardous waste off site to a RCRA-designated facility within forty-
five (45) calendar days from the start of the episodic event, unless an
extension is granted pursuant to Sec. 262.233.
(6) The small quantity generator must maintain the following
records for three (3) years from the end date of the episodic event:
(i) Beginning and end dates of the episodic event;
(ii) A description of the episodic event;
(iii) A description of the types and quantities of hazardous wastes
generated during the event;
(iv) A description of how the hazardous waste was managed as well
as the name of the RCRA designated facility that received the hazardous
waste;
(v) Name(s) of hazardous waste transporters;
(vi) An approval letter from EPA if the generator petitioned to
conduct one additional episodic event per calendar year; and
(vii) An approval letter from EPA if the generator petitioned for
an additional thirty (30) calendar day extension.
Sec. 262.233 Petition to manage one additional episodic event per
calendar year.
(a) A very small quantity generator or a small quantity generator
may petition EPA for one additional episodic event per calendar year
without it impacting its generator category. The petition must include
the following:
(1) The reason(s) why an additional episodic event is needed and
the nature of the episodic event;
(2) The estimated amount of hazardous waste to be managed from the
event;
(3) How the hazardous waste is to be managed;
(4) The estimated length of time needed to complete management of
the hazardous waste generated from the episodic event--not to exceed 45
days; and
(5) Information regarding the previous episodic event managed by
the generator, including the nature of the event and whether it was a
planned or unplanned event.
(b) The petition must be made via fax, email, or letter.
(c) The generator cannot manage the hazardous waste generated from
an additional episodic event under subpart L until written approval by
EPA, including email, has been received.
(d) The generator must retain written approval in its records for
three years from the date the episodic event ended.
Sec. 262.234 Petition for a 30-day extension to an episodic event.
(a) The very small quantity generator or a small quantity generator
may petition EPA for a thirty (30) calendar day extension to complete
the management of hazardous waste generated by an episodic event. The
petition must include the following:
(1) The nature of the episodic event;
(2) The estimated amount of additional hazardous waste to be
managed from the episodic event if the extension is granted; and
(3) The generator's rationale for needing an extension of an
additional 30 days beyond the 45-day limit to complete management of
the hazardous waste generated from the episodic event.
(b) The generator must petition EPA via fax, email, or letter
within fifteen (15) calendar days of the event ending.
(c) The generator cannot go beyond the 45-day limit unless written
approval from EPA has been received.
(d) The generator must retain written approval in its records for
three years from the date the episodic event ended.
0
45. Subpart M is added to read as follows:
Subpart M--Preparedness, Prevention, and Emergency Procedures for Large
Quantity Generators
Sec.
262.250 Applicability.
262.251 Maintenance and operation of facility.
262.252 Required equipment.
262.253 Testing and maintenance of equipment.
262.254 Access to communications or alarm system.
262.255 Required aisle space.
262.256 Arrangements with local authorities.
262.260 Purpose and implementation of contingency plan.
262.261 Content of contingency plan.
262.262 Copies of contingency plan.
262.263 Amendment of contingency plan.
262.264 Emergency coordinator.
262.265 Emergency procedures.
Subpart M--Preparedness, Prevention, and Emergency Procedures for
Large Quantity Generators
Sec. 262.250 Applicability.
The regulations of this subpart apply to those areas of a large
quantity generator where hazardous waste is generated or accumulated on
site in
[[Page 58007]]
accordance with the conditions in Sec. 262.17.
Sec. 262.251 Maintenance and operation of facility.
A large quantity generator must maintain and operate its site to
minimize the possibility of a fire, explosion, or any unplanned sudden
or non-sudden release of hazardous waste or hazardous waste
constituents to air, soil, or surface water which could threaten human
health or the environment.
Sec. 262.252 Required equipment.
All areas where hazardous waste is being either generated or
accumulated must be equipped with the items in paragraphs (a) through
(d) of this section (unless none of the hazards posed by waste handled
at the site could require a particular kind of equipment specified
below or the actual waste generation or accumulation area does not lend
itself for safety reasons to have a particular kind of equipment
specified below). A large quantity generator may determine the most
appropriate locations within its generator site to locate equipment
necessary to prepare for and respond to emergencies:
(a) An internal communications or alarm system capable of providing
immediate emergency instruction (voice or signal) to site personnel;
(b) A device, such as a telephone (immediately available at the
scene of operations) or a hand-held two-way radio, capable of summoning
emergency assistance from local police departments, fire departments,
or state or local emergency response teams;
(c) Portable fire extinguishers, fire control equipment (including
special extinguishing equipment, such as that using foam, inert gas, or
dry chemicals), spill control equipment, and decontamination equipment;
and
(d) Water at adequate volume and pressure to supply water hose
streams, or foam producing equipment, or automatic sprinklers, or water
spray systems.
Sec. 262.253 Testing and maintenance of equipment.
All communications or alarm systems, fire protection equipment,
spill control equipment, and decontamination equipment, where required,
must be tested and maintained as necessary to assure its proper
operation in time of emergency.
Sec. 262.254 Access to communications or alarm system.
(a) Whenever hazardous waste is being poured, mixed, spread, or
otherwise handled, all personnel involved in the operation must have
immediate access (e.g., direct or unimpeded access) to an internal
alarm or emergency communication device, either directly or through
visual or voice contact with another employee, unless such a device is
not required under Sec. 265.252 of this chapter.
(b) In the event there is just one employee on the premises while
the site is operating, the employee must have immediate access (e.g.,
direct or unimpeded access) to a device, such as a telephone
(immediately available at the scene of operation) or a hand-held two-
way radio, capable of summoning external emergency assistance, unless
such a device is not required under Sec. 265.252 of this chapter.
Sec. 262.255 Required aisle space.
The large quantity generator must maintain aisle space to allow the
unobstructed movement of personnel, fire protection equipment, spill
control equipment, and decontamination equipment to any area of site
operation in an emergency, unless aisle space is not needed for any of
these purposes.
Sec. 262.256 Arrangements with local authorities.
(a) The large quantity generator must make arrangements with the
Local Emergency Planning Committee for the types and quantities of
hazardous waste handled at the site, as well as the potential need for
the services of the local police department, other emergency response
teams, emergency response contractors, equipment suppliers, and local
hospitals. Should there be no Local Emergency Planning Committee,
should it not respond, or should the Local Emergency Planning Committee
determine that it is not the appropriate organization to make
arrangements with, then the large quantity generator must make
arrangements with the local fire department and other relevant
emergency responders (e.g., police and hospitals).
(1) A large quantity generator that must make arrangements with its
local fire department must determine the potential need for the
services of the local police department, other emergency response
teams, emergency response contractors, equipment suppliers and local
hospitals.
(2) As part of this coordination, the large quantity generator
shall make arrangements, as necessary, to familiarize the above
organizations with the layout of the site, the properties of the
hazardous waste handled at the site and associated hazards, places
where personnel would normally be working, entrances to roads inside
the site, and possible evacuation routes as well as the types of
injuries or illnesses which could result from fires, explosions, or
releases at the site.
(3) Where more than one police or fire department might respond to
an emergency, the large quantity generator shall enter into agreements
designating primary emergency authority to a specific fire or police
department, and agreements with any others to provide support to the
primary emergency authority.
(b) The large quantity generator shall maintain records documenting
the arrangements with the Local Emergency Planning Committee, or if
appropriate, with the local fire department as well as any other
organization necessary to respond to an emergency. This documentation
must include a certified letter or any other documentation that
confirms such arrangements actively exist.
Sec. 262.260 Purpose and implementation of contingency plan.
(a) A large quantity generator must have a contingency plan for the
site. The contingency plan must be designed to minimize hazards to
human health or the environment from fires, explosions, or any
unplanned sudden or non-sudden release of hazardous waste or hazardous
waste constituents to air, soil, or surface water.
(b) The provisions of the plan must be carried out immediately
whenever there is a fire, explosion, or release of hazardous waste or
hazardous waste constituents which could threaten human health or the
environment.
Sec. 262.261 Content of contingency plan.
(a) The contingency plan must describe the actions site personnel
must take to comply with Sec. Sec. 262.260 and 262.265 in response to
fires, explosions, or any unplanned sudden or non-sudden release of
hazardous waste or hazardous waste constituents to air, soil, or
surface water at the site.
(b) If the generator has already prepared a Spill Prevention,
Control, and Countermeasures (SPCC) Plan in accordance with part 112 of
this chapter, or some other emergency or contingency plan, it need only
amend that plan to incorporate hazardous waste management provisions
that are sufficient to comply with the standards of this part. The
generator may develop one contingency plan that meets all regulatory
standards. EPA recommends that the plan be based on the National
Response Team's Integrated Contingency Plan Guidance (``One Plan'').
[[Page 58008]]
(c) The plan must describe arrangements agreed to with the Local
Emergency Planning Committee. Should there be no Local Emergency
Planning Committee, should it not respond, or should the Local
Emergency Planning Committee determine that it is not the appropriate
organization to make arrangements with, then the plan must describe
arrangements agreed to by local fire departments and other relevant
emergency responders (e.g., police and hospitals) to coordinate
emergency services, pursuant to Sec. 262.256.
(d) The plan must list names and emergency telephone numbers of all
persons qualified to act as emergency coordinator (see Sec. 262.264),
and this list must be kept up to date. Where more than one person is
listed, one must be named as primary emergency coordinator and others
must be listed in the order in which they will assume responsibility as
alternates. In situations where the generator site has an emergency
coordinator continuously on duty because it operates 24 hours per day,
every day of the year, the plan may list the staffed position (e.g.,
operations manager, shift coordinator, shift operations supervisor) as
well as an emergency telephone number that can be guaranteed to be
answered at all times.
(e) The plan must include a list of all emergency equipment at the
site (such as fire extinguishing systems, spill control equipment,
communications and alarm systems (internal and external), and
decontamination equipment), where this equipment is required. This list
must be kept up to date. In addition, the plan must include the
location and a physical description of each item on the list, and a
brief outline of its capabilities.
(f) The plan must include an evacuation plan for generator
personnel where there is a possibility that evacuation could be
necessary. This plan must describe signal(s) to be used to begin
evacuation, evacuation routes, and alternate evacuation routes (in
cases where the primary routes could be blocked by releases of
hazardous waste or fires).
Sec. 262.262 Copies of contingency plan.
A copy of the contingency plan and all revisions to the plan must
be maintained at the large quantity generator's site and--
(a) The large quantity generator must submit a copy of the
contingency plan to the Local Emergency Planning Committee. Should
there be no Local Emergency Planning Committee, should it not respond,
or should the Local Emergency Planning Committee determine that it is
not the appropriate organization to make arrangements with, the large
quantity generator must submit the copy to the local emergency
responders.
(b) A generator that first becomes subject to these provisions
after [date 6 months after the date of publication of the final rule in
the Federal Register] must submit an executive summary of the
contingency plan to the Local Emergency Planning Committee. Should
there be no Local Emergency Planning Committee, should it not respond,
or should the Local Emergency Planning Committee determine that it is
not the appropriate organization to make arrangements with, the
generator must submit the copy to the local emergency responders. The
executive summary must include the following elements:
(1) The types/names of hazardous wastes in layman's terms and the
associated hazard associated with each waste present at any one time
(e.g., toxic paint wastes, spent ignitable solvent, corrosive acid);
(2) The estimated maximum amount of each hazardous waste that may
be present at any one time;
(3) The identification of any hazardous wastes where exposure would
require unique or special treatment by medical or hospital staff;
(4) A map of the site showing where hazardous wastes are generated
and accumulated and routes for accessing these wastes;
(5) A street map of the site in relation to surrounding businesses,
schools and residential areas to understand how best to get to the
facility and also evacuate citizens and workers;
(6) The locations of water supply (e.g., fire hydrant and its flow
rate);
(7) The identification of on-site notification systems (e.g., a
fire alarm that rings off site, smoke alarms); and
(8) The name of the emergency coordinator and 7/24-hour emergency
telephone number.
Sec. 262.263 Amendment of contingency plan.
The contingency plan must be reviewed, and immediately amended, if
necessary, whenever:
(a) Applicable regulations are revised;
(b) The plan fails in an emergency;
(c) The generator site changes--in its design, construction,
operation, maintenance, or other circumstances--in a way that
materially increases the potential for fires, explosions, or releases
of hazardous waste or hazardous waste constituents, or changes the
response necessary in an emergency;
(d) The list of emergency coordinators changes; or
(e) The list of emergency equipment changes.
Sec. 262.264 Emergency coordinator.
At all times, there must be at least one employee either on the
generator's premises or on call (i.e., available to respond to an
emergency by reaching the site within a short period of time) with the
responsibility for coordinating all emergency response measures and
implementing the necessary emergency procedures outlined in Sec.
262.265. This emergency coordinator must be thoroughly familiar with
all aspects of the generator's contingency plan, all operations and
activities at the site, the location and characteristics of waste
handled, the location of all records within the site, and the site's
layout. In addition, this person must have the authority to commit the
resources needed to carry out the contingency plan.
Sec. 262.265 Emergency procedures.
(a) Whenever there is an imminent or actual emergency situation,
the emergency coordinator (or his designee when the emergency
coordinator is on call) must immediately:
(1) Activate internal site alarms or communication systems, where
applicable, to notify all site personnel; and
(2) Notify appropriate state or local agencies with designated
response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency
coordinator must immediately identify the character, exact source,
amount, and areal extent of any released materials. The emergency
coordinator may do this by observation or review of the site records or
manifests and, if necessary, by chemical analysis.
(c) Concurrently, the emergency coordinator must assess possible
hazards to human health or the environment that may result from the
release, fire, or explosion. This assessment must consider both direct
and indirect effects of the release, fire, or explosion (e.g., the
effects of any toxic, irritating, or asphyxiating gases that are
generated, or the effects of any hazardous surface water run-offs from
water or chemical agents used to control fire and heat-induced
explosions).
(d) If the emergency coordinator determines that the site has had a
release, fire, or explosion which could threaten human health, or the
environment, outside the facility, the emergency coordinator must
report the findings as follows:
(1) If the assessment indicates that evacuation of local areas may
be
[[Page 58009]]
advisable, the emergency coordinator must immediately notify
appropriate local authorities. The emergency coordinator must be
available to help appropriate officials decide whether local areas
should be evacuated; and
(2) The emergency coordinator must immediately notify either the
government official designated as the on-scene coordinator for that
geographical area, or the National Response Center (using their 24-hour
toll free number 800/424-8802). The report must include:
(i) Name and telephone number of reporter;
(ii) Name and address of the generator;
(iii) Time and type of incident (e.g., release, fire);
(iv) Name and quantity of material(s) involved, to the extent
known;
(v) The extent of injuries, if any; and
(vi) The possible hazards to human health, or the environment,
outside the site.
(e) During an emergency, the emergency coordinator must take all
reasonable measures necessary to ensure that fires, explosions, and
releases do not occur, recur, or spread to other hazardous waste at the
generator's site. These measures must include, where applicable,
stopping processes and operations, collecting and containing released
waste, and removing or isolating containers.
(f) If the generator's site stops operations in response to a fire,
explosion or release, the emergency coordinator must monitor for leaks,
pressure buildup, gas generation, or ruptures in valves, pipes, or
other equipment, wherever this is appropriate.
(g) Immediately after an emergency, the emergency coordinator must
provide for treating, storing, or disposing of recovered waste,
contaminated soil or surface water, or any other material that results
from a release, fire, or explosion at the facility. Unless the
generator can demonstrate, in accordance with Sec. 261.3(c) or (d) of
this chapter, that the recovered material is not a hazardous waste,
then it is a newly generated hazardous waste that must be managed in
accordance with all the applicable independent requirements and
conditions for exemption in parts 262, 263, and 265 of this chapter.
(h) The emergency coordinator must ensure that, in the affected
area(s) of the site:
(1) No waste that may be incompatible with the released material is
treated, stored, or disposed of until cleanup procedures are completed;
and
(2) All emergency equipment listed in the contingency plan is
cleaned and fit for its intended use before operations are resumed.
(i) The generator must note in the operating record the time, date,
and details of any incident that requires implementing the contingency
plan. Within 15 days after the incident, the generator must submit a
written report on the incident to the Regional Administrator. The
report must include:
(1) Name, address, and telephone number of the generator;
(2) Date, time, and type of incident (e.g., fire, explosion);
(3) Name and quantity of material(s) involved;
(4) The extent of injuries, if any;
(5) An assessment of actual or potential hazards to human health or
the environment, where this is applicable; and
(6) Estimated quantity and disposition of recovered material that
resulted from the incident.
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
0
46. The authority citation for part 263 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
0
47. Section 263.12 is revised to read as follows:
Sec. 263.12 Transfer facility requirements.
(a) A transporter who stores manifested shipments of hazardous
waste in containers meeting the independent requirements of Sec.
262.30 of this chapter at a transfer facility for a period of ten days
or less is not subject to regulation under parts 264, 265, 267, 268,
and 270 of this chapter with respect to the storage of those wastes.
(b) The transporter must hold hazardous wastes that are stored at
transfer facilities in containers marked with the following
information:
(1) The words ``Hazardous Waste;''
(2) The applicable EPA hazardous waste number(s) (EPA hazardous
waste codes) in subparts C and D of part 261 of this chapter;
(3) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D); and
(4) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety and Health Administration
Hazard Communication Standard at 29 CFR 1920.1200; a chemical hazard
label consistent with the National Fire Protection Association code
704; a hazard pictogram consistent with the United Nations' Globally
Harmonized System; or any other marking and labeling commonly used
nationwide in commerce that identifies the nature of the hazards
associated with the contents of the waste accumulation unit).
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
48. The authority citation for part 264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
0
49. Section 264.1 is amended by revising paragraphs (g)(1) and (3) to
read as follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(1) The owner or operator of a facility permitted, licensed, or
registered by a state to manage municipal or industrial solid waste, if
the only hazardous waste the facility treats, stores, or disposes of is
excluded from regulation under this part by Sec. 262.14 of this
chapter;
* * * * *
(3) A generator accumulating waste on site in compliance with Sec.
262.14, 262.15, 262.16, or 262.17 of this chapter.
* * * * *
0
50. Section 264.15 is amended by revising paragraph (b)(4) and removing
the comment to paragraph (b)(4) and paragraph (b)(5).
The revision reads as follows:
Sec. 264.15 General inspection requirements.
* * * * *
(b) * * *
(4) The frequency of inspection may vary for the items on the
schedule. However, the frequency should be based on the rate of
deterioration of the equipment and the probability of an environmental
or human health incident if the deterioration, malfunction, or operator
error goes undetected between inspections. Areas
[[Page 58010]]
subject to spills, such as loading and unloading areas, must be
inspected daily when in use. At a minimum, the inspection schedule must
include the items and frequencies called for in Sec. Sec. 264.174,
264.193, 264.195, 264.226, 264.254, 264.278, 264.303, 264.347, 264.602,
264.1033, 264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089,
where applicable. Part 270 of this chapter requires the inspection
schedule to be submitted with part B of the permit application. EPA
will evaluate the schedule along with the rest of the application to
ensure that it adequately protects human health and the environment. As
part of this review, EPA may modify or amend the schedule as may be
necessary.
* * * * *
0
51. Section 264.71 is amended by revising paragraph (c) and removing
the comment following paragraph (c).
The revision reads as follows:
Sec. 264.71 Use of manifest system.
* * * * *
(c) Whenever a shipment of hazardous waste is initiated from a
facility, the owner or operator of that facility must comply with the
requirements of part 262 of this chapter. The provisions of Sec. Sec.
262.15, 262.16, and 262.17 of this chapter are applicable to the on-
site accumulation of hazardous wastes by generators. Therefore, the
provisions of Sec. Sec. 262.15, 262.16, and 262.17 of this chapter
only apply to owners or operators who are shipping hazardous waste
which they generated at that facility.
* * * * *
0
52. Section 264.75 is revised to read as follows:
Sec. 264.75 Biennial report.
The owner or operator must complete and submit EPA form 8700-13 to
the Regional Administrator by March 1 of each even numbered year for
facility activities during the previous calendar year.
0
53. Section 264.170 is revised to read as follows:
Sec. 264.170 Applicability.
The regulations in this subpart apply to owners and operators of
all hazardous waste facilities that store hazardous waste in
containers, except as Sec. 264.1 provides otherwise.
0
54. Section 264.174 is revised to read as follows:
Sec. 264.174 Inspections.
At least weekly, the owner or operator must inspect areas where
containers are stored. The owner or operator must look for leaking
containers and for deterioration of containers and the containment
system cause by corrosion or other factors. See Sec. Sec. 264.15(c)
and 264.171 for remedial action required if deterioration or leaks are
detected.
0
55. Section 264.191 is amended by revising paragraph (a) to read as
follows:
Sec. 264.191 Assessment of existing tank system's integrity.
(a) For each existing tank system that does not have secondary
containment meeting the requirements of Sec. 264.193, the owner or
operator must determine that the tank system is not leaking or is fit
for use. Except as provided in paragraph (c) of this section, the owner
or operator must obtain and keep on file at the facility a written
assessment reviewed and certified by a qualified Professional Engineer,
in accordance with Sec. 270.11(d) of this chapter, that attests to the
tank system's integrity by January 12, 1988.
* * * * *
Sec. 264.195 [Amended]
0
56. Section 264.195 is amended by removing and reserving paragraph (e).
0
57. Section 264.1030 is amended by revising paragraph (b)(2) to read as
follows:
Sec. 264.1030 Applicability.
* * * * *
(b) * * *
(2) A unit (including a hazardous waste recycling unit) that is not
exempt from permitting under the provisions of 40 CFR 262.17 (i.e., a
hazardous waste recycling unit that is not a 90-day tank or container)
and that is located at a hazardous waste management facility otherwise
subject to the permitting requirements of 40 CFR part 270; or
* * * * *
0
58. Section 264.1050 is amended by revising paragraph (b)(3) to read as
follows:
Sec. 264.1050 Applicability.
* * * * *
(b) * * *
(3) A unit that is exempt from permitting under the provisions of
40 CFR 262.17 (i.e., a ``90-day'' tank or container) and is not a
recycling unit under the provisions of 40 CFR 261.6.
* * * * *
0
59. Section 264.1101 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 264.1101 Design and operating standards.
* * * * *
(c) * * *
(4) Inspect and record in the facility operating record, at least
once every seven days, data gathered from monitoring and leak detection
equipment as well as the containment building and the area immediately
surrounding the containment building to detect signs of releases of
hazardous waste.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
60. The authority citation for part 265 continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
0
61. Section 265.1 is amended by revising paragraphs (c)(5) and (7) to
read as follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(5) The owner or operator of a facility permitted, licensed, or
registered by a State to manage municipal or industrial solid waste, if
the only hazardous waste the facility treats, stores, or disposes of is
excluded from regulation under this part by Sec. 262.14 of this
chapter;
* * * * *
(7) A generator accumulating waste on site in compliance with
Sec. Sec. 262.15, 262.16, and 262.17 of this chapter, except to the
extent the provisions are included in Sec. 262.15, 262.16, or 262.17
of this chapter;
* * * * *
0
62. Section 265.15 is amended by revising paragraph (b)(4) and removing
paragraph (b)(5).
The revision reads as follows:
Sec. 265.15 General inspection requirements.
* * * * *
(b) * * *
(4) The frequency of inspection may vary for the items on the
schedule. However, the frequency should be based on the rate of
deterioration of the equipment and the probability of an environmental
or human health incident if the deterioration, malfunction, or operator
error goes undetected between inspections. Areas subject to spills,
such as loading and unloading areas, must be inspected daily when in
use. At a minimum, the inspection schedule must include the items and
frequencies called for in Sec. Sec. 265.174, 265.193, 265.195,
265.226, 265.260, 265.278, 265.304, 265.347, 265.377, 265.403,
265.1033, 265.1052,
[[Page 58011]]
265.1053, 265.1058, and 265.1084 through 265.1090, where applicable.
* * * * *
0
63. Section 265.71 is amended by revising paragraph (c) to read as
follows:
Sec. 265.71 Use of manifest system.
* * * * *
(c) Whenever a shipment of hazardous waste is initiated from a
facility, the owner or operator of that facility must comply with the
requirements of part 262 of this chapter. The provisions of Sec. Sec.
262.15, 262.16, and 262.17 of this chapter are applicable to the on-
site accumulation of hazardous wastes by generators. Therefore, the
provisions of Sec. Sec. 262.15, 262.16, and 262.17 only apply to
owners or operators who are shipping hazardous waste which they
generated at that facility.
* * * * *
0
64. Section 265.75 is revised to read as follows:
Sec. 265.75 Biennial report.
The owner or operator must complete and submit EPA form 8700-13 to
the Regional Administrator by March 1 of each even numbered year for
facility activities during the previous calendar year.
0
65. Section 265.111 is amended by revising paragraph (c) to read as
follows:
Sec. 265.111 Closure performance standard.
* * * * *
(c) Complies with the closure requirements of this subpart,
including, but not limited to, the requirements of Sec. Sec. 265.197,
265.228, 265.258, 265.280, 265.310, 265.351, 265.381, 265.404, 265.445,
and 265.1102.
0
66. Section 265.114 is revised to read as follows:
Sec. 265.114 Disposal or decontamination of equipment, structures and
soils.
During the partial and final closure periods, all contaminated
equipment, structures and soil must be properly disposed of, or
decontaminated unless specified otherwise in Sec. 265.197, 265.228,
265.445, 265.258, 265.280, 265.310, or 265.1102. By removing all
hazardous wastes or hazardous constituents during partial and final
closure, the owner or operator may become a generator of hazardous
waste and must handle that hazardous waste in accordance with all
applicable requirements of part 262 of this chapter.
0
67. Section 265.174 is revised to read as follows:
Sec. 265.174 Inspections.
At least weekly, the owner or operator must inspect areas where
containers are stored. The owner or operator must look for leaking
containers and for deterioration of containers caused by corrosion or
other factors. See Sec. 265.171 for remedial action required if
deterioration or leaks are detected.
Sec. 265.195 [Amended]
0
68. Section 265.195 is amended by removing and reserving paragraph (d).
Sec. 265.201 [Removed and reserved]
0
69. Remove and reserve Sec. 265.201.
0
70. Section 265.1030 is amended by revising paragraphs (b)(2) and (3)
and removing the Note to (b)(3).
The revisions read as follows:
Sec. 265.1030 Applicability.
* * * * *
(b) * * *
(2) A unit (including a hazardous waste recycling unit) that is not
exempt from permitting under the provisions of 40 CFR 262.17 (i.e., a
hazardous waste recycling unit that is not a 90-day tank or container)
and that is located at a hazardous waste management facility otherwise
subject to the permitting requirements of 40 CFR part 270, or
(3) A unit that is exempt from permitting under the provisions of
40 CFR 262.17 (i.e., a ``90-day'' tank or container) and is not a
recycling unit under the requirements of 40 CFR 261.6.
* * * * *
0
71. Section 265.1101 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 265.1101 Design and operating standards.
* * * * *
(c) * * *
(4) Inspect and record in the facility's operating record at least
once every seven days data gathered from monitoring and leak detection
equipment as well as the containment building and the area immediately
surrounding the containment building to detect signs of releases of
hazardous waste.
* * * * *
PART 268--LAND DISPOSAL RESTRICTIONS
0
72. The authority citation for part 268 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
0
73. Section 268.1 is amended by revising paragraph (e)(1) to read as
follows:
Sec. 268.1 Purpose, scope, and applicability.
* * * * *
(e) * * *
(1) Waste generated by very small quantity generators, as defined
in Sec. 260.10 of this chapter;
* * * * *
0
74. Section 268.7 is amended by revising paragraph (a)(5) introductory
paragraph to read as follows:
Sec. 268.7 Testing, tracking, and recordkeeping requirements for
generators, treaters, and disposal facilities.
(a) * * *
(5) If a generator is managing and treating prohibited waste or
contaminated soil in tanks, containers, or containment buildings
regulated under 40 CFR 262.15, 262.16, and 262.17 to meet applicable
LDR treatment standards found at Sec. 268.40, the generator must
develop and follow a written waste analysis plan which describes the
procedures they will carry out to comply with the treatment standards.
(Generators treating hazardous debris under the alternative treatment
standards of Table 1 to Sec. 268.45, however, are not subject to these
waste analysis requirements.) The plan must be kept on site in the
generator's records, and the following requirements must be met:
* * * * *
0
75. Section 268.50 is amended by revising paragraph (a)(2)(i) to read
as follows:
Sec. 268.50 Prohibitions on storage of restricted waste.
(a) * * *
(2) * * *
(i) Each container is clearly marked with:
(A) The words ``Hazardous Waste;''
(B) The applicable EPA hazardous waste number(s) (EPA hazardous
waste codes) in subparts C and D of part 261 of this chapter;
(C) Other words that identify the contents of the containers
(examples may include, but are not limited to the name of the
chemical(s), such as ``acetone'' or ``methylene dichloride''; or the
type or class of chemical, such as ``organic solvents'' or
``halogenated organic solvents'' or, as applicable, the proper shipping
name and technical name markings used to comply with Department of
Transportation requirements at 49 CFR part 172 subpart D); and
(D) An indication of the hazards of the contents (examples include,
but are not limited to, the applicable hazardous waste
characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); a
hazard class label consistent with the Department of Transportation
requirements at 49 CFR part 172 subpart E (labeling); a label
consistent with the Occupational Safety
[[Page 58012]]
and Health Administration Hazard Communication Standard at 29 CFR
1920.1200; a chemical hazard label consistent with the National Fire
Protection Association code 704; a hazard pictogram consistent with the
United Nations' Globally Harmonized System; or any other marking and
labeling commonly used nationwide in commerce that identifies the
nature of the hazards associated with the contents of the waste
accumulation unit); and
(E) The date each period of accumulation begins.
* * * * *
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
0
76. The authority citation for part 270 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
0
77. Section 270.1 is amended by revising paragraphs (a)(3), (c)(2)
introductory text, (c)(2)(i), and (c)(2)(iii) to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
(a) * * *
(3) Technical regulations. The RCRA permit program has separate
additional regulations that contain technical requirements. These
separate regulations are used by permit issuing authorities to
determine what requirements must be placed in permits if they are
issued. These separate regulations are located in 40 CFR parts 264,
266, 267, and 268.
* * * * *
(c) * * *
(2) Specific exclusions and exemptions. The following persons are
among those who are not required to obtain a RCRA permit:
(i) Generators who accumulate hazardous waste on site in compliance
with all of the conditions for exemption provided in 40 CFR 262.14,
262.15, 262.16, and 262.17.
* * * * *
(iii) Persons who own or operate facilities solely for the
treatment, storage, or disposal of hazardous waste excluded from
regulations under this part by 40 CFR 261.4.
* * * * *
Sec. 270.42 [Amended]
0
78. Section 270.42 is amended by removing and reserving paragraph (l)
and the entries under O.1. in the table of appendix I to Sec. 270.42.
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
0
79. The authority citation for part 273 continues to read as follows:
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
0
80. Section 273.8 is amended by revising the section heading and
paragraph (a)(2) to read as follows:
Sec. 273.8 Applicability--household and very small quantity generator
waste.
(a) * * *
(2) Very small quantity generator wastes that are exempt under
Sec. 262.14 of this chapter and are also of the same type as the
universal wastes defined at Sec. 273.9.
* * * * *
0
81. Section 273.81 is amended by revising paragraph (b) to read as
follows:
Sec. 273.81 Factors for petitions to include other wastes under 40
CFR part 273.
* * * * *
(b) The waste or category of waste is not exclusive to a specific
industry or group of industries, is commonly generated by a wide
variety of types of establishments (including, for example, households,
retail and commercial businesses, office complexes, very small quantity
generators, small businesses, government organizations, as well as
large industrial facilities);
* * * * *
PART 279--STANDARDS FOR MANAGEMENT OF USED OIL
0
82. The authority citation for part 279 continues to read as follows:
Authority: Sections 1006, 2002(a), 3001 through 3007, 3010,
3014, and 7004 of the Solid Waste Disposal Act, as amended (42
U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974) ; and
sections 101(37) and 144(c) of CERCLA (42 U.S.C. 9601(37) and
9614(c)).
0
83. Section 279.10 is amended by revising paragraph (b)(3) to read as
follows:
Sec. 279.10 Applicability.
* * * * *
(b) * * *
(3) Very small quantity generator hazardous waste. Mixtures of used
oil and very small quantity generator hazardous waste regulated under
Sec. 262.14 of this chapter are subject to regulation as used oil
under this part.
* * * * *
[FR Doc. 2015-23166 Filed 9-24-15; 8:45 am]
BILLING CODE 6560-50-P