Tuesday
March 3, 1992
Part IV
Environmental
Protection Agency
40 CFR Part 261
Hazardous Waste Management System;
Definition of Hazardous Waste; "Mixture"
and "Derived-From" Rules; Interim Final
Rule
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Federal Register / Vol. 57, No. 42 / Tuesday, March 3, 1992 / Rules and Regulation^
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[FRL-4108-9]
Hazardous Waste Management
System; Definition of Hazardous
Waste; "Mixture" and "Derived-From"
Rules
AGENCY: Environmental Protection
Agency.
ACTION: Response to court remand:
interim final rule.
SUMMARY: On May 19, I960 (45 FR
33066), EPA promulgated regulations to
govern the management of hazardous
waste under subtitle C of the Resource
Conservation and Recovery Act
(RCRA). As part of these rules, EPA
defined "hazardous waste" to include,
among other things, mixing hazardous
waste with other solid waste or
otherwise managing hazardous waste
(40 CFR 261.3). These rules are known,
respectively, as the "mixture" and
"derived-from" rules. The Agency
promulgated these rules to close a
potentially major loophole in the
hazardous waste management system.
Without a "mixture" rule, generators of
hazardous waste could perhaps evade
regulatory requirements by mixing
hazardous waste with non-hazardous
waste and claiming that the mixture was
no longer hazardous, even though it
poses environmental hazards. Without a
"derived-from" rule, owners and
operators of treatment, storage, and
disposal facilities could perhaps evade
regulation by minimally processing a
hazardous waste and claiming that the
residue was no longer hazardous.
On December 6,1991, a panel of the
United States Court of Appeals for the
District of Columbia Circuit ruled that
EPA had failed to give sufficient notice
and opportunity for comment in
promulgating the "mixture" and
"derived-from" rules. The court
therefore vacated the rules and
remanded them to the Agency. On
January 21,1992, EPA filed a petition for
rehearing with the court. This petition
was denied on February 12,1992. At the
invitation of the court, EPA is today
simultaneously removing and reissuing
40 CFR 261.3, including the "mixture"
and "derived-frorn" rules, on an interim
basis under section 553(b)(3)(B) of the
Administrative Procedure Act (APA).
Elsewhere in today's Federal Register,
the Agency is soliciting comment on
these rules and on other ways to
regulate waste mixtures and residues.
DATES: Effective date: This rule is
effective on February 18,1992.
Expiration date: Paragraphs (a)(2)(iv)
and (c)(2)(i) of 40 CFR 261.3 shall expire
on April 28,1993.
FOR FURTHER INFORMATION CONTACT:
The RCRA/Superfund Hotline at (800)
424-9346 or (703) 920-9810. For technical
information contact Ms. Marilyn Goode,
Office of Solid Waste (OS-332), U.S.
Environmental Protection Agency, 401 M
St., SW., Washington, DC 20460, (202)
260-8551.
SUPPLEMENTARY INFORMATION:
Outline
I. Authority
II. Background
A. Statutory Framework
B. EPA's Definition of "Hazardous Waste
C. Court Decision
III. EPA's Response to the Court Decision:
Reason for Reinstatement
IV. Retroactive Effect of Court Decision
V. Solite Decision
VI. Compliance with Other Requirements
A. Administrative Procedure Act [APA]
B. Executive Order 12291
C. Regulatory Flexibility Act
D. Paperwork Reduction Act
I. Authority
These regulations are promulgated
under the authority of sections 1006,
2002(a), and 3001-3005 of the Solid
Waste Disposal Act of 1970, 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. 6905, 6912(a), and 6921-6925..
II. Background
A. Statutory Framework
Subtitle C of RCRA required EPA to
establish a comprehensive national
program for safely treating, storing, and
disposing of hazardous waste. The
statute defined "hazardous waste," in
part, as a "solid waste" which may
"pose a substantial present or potential
hazard to human health and the
environment when improperly treated,
stored, transported, or disposed of, or
otherwise managed." Pursuant to
subtitle C, the Agency was required to
develop and promulgate criteria for
identifying characteristics of hazardous
waste and to list particular wastes as
hazardous. Subtitle C also required EPA
to promulgate regulations governing the
management practices of generators,
transporters and those who own or
operate hazardous waste treatment,
storage, or disposal facilities.
B. EPA's Definition of "Hazardous
Waste"
- On May 19,1980 (45 FR 33066), the
Agency published final rules governing
the management of hazardous waste.
Under the final rules, the definition of
hazardous waste included characteristic
hazardous wastes, listed hazardous
wastes, and mixtures of solid waste and
one or more listed hazardous wastes.
Wastes are characteristically hazardous
if they exhibit any of four
characteristics: Ignitability, corrosivity,
reactivity, or toxicity. Wastes are listed
as hazardous if they exhibit any of the
four characteristics, if they meet toxicity
criteria, or if they contain certain toxic
constituents (see 40 CFR 261.10-24.)
The provision governing mixtures of
solid waste and listed hazardous waste
is known as the "mixture rule"
(currently 40 CFR 261.3(a)(2)(iv)). As
promulgated in May 1980, it required
that a waste be managed as hazardous
if it is a mixture of solid waste and one
or more listed hazardous wastes and
has not been delisted. "Delisting" is a
procedure whereby a person may file a
petition with EPA to remove a specific
waste from the hazardous waste listing
by demonstrating that the waste in
question does not pose a hazard (see 40
CFR 260.22).
In addition, the May 19,1980 final
rules included the "derived-from" rule
(currently 40 CFR 261.3(c)(2)(i) and
(d)(2)). It states that any solid waste
generated from the treatment, storage, or
disposal of a listed hazardous waste,
including any sludge, spill residue, ash,
emission control dust or leachate,
remains a hazardous waste unless and
until delisted. Under these rules, the
person who manages the wastes has the
burden of proving that they are no
longer hazardous.
The Agency promulgated the
"mixture" and "derived-from" rules to
close potentially major loopholes in the
subtitle C management system. Without
a "mixture" rule, generators of
hazardous waste could potentially
evade regulatory requirements by
mixing listed hazardous waste with non-
hazardous solid waste to create a waste
that arguably no longer meets the listing
description but continues to pose a
serious hazard and does not exhibit any
of the four characteristics. Likewise,
without a "derived-from" rule, owners
and operators of hazardous waste
treatment, storage, and disposal
facilities (TSDFs) could potentially
evade regulation by minimally
processing or managing a hazardous
waste and claiming that the resulting
residue was no longer the listed waste,
despite the continued hazards that could
be posed by the residue even though it
does not exhibit a characteristic.
EPA promulgated the "mixture" and
"derived-from" rules in interim final
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7629
form, while requesting comment on
them. The Agency received many
comments on the rales, and also
participated in settlement discussions
with all of the petitioners who
challenged the rules. As a result of the
comments and discussions, EPA
amended the rules in 1981 to exempt
certain wastewater management
practices from the "mixture" rule and to
make certain other changes (see CFR
261.3(a)(2) (iii) and (iv), 46 FR 56588,
November 17,. 1981). The Agency has
also amended these rules several times
since 1981 to create other exceptions to
the "mixture" and "derived-from" rules
(see 40 CFR 261.2(c)(ii)).
C. Court Decision
Numerous petitions for judicial review
were brought to challenge the May 19,
1980 final rules. One of the challenges
alleged that the definition of hazardous
waste proposed on December 18,1978
did not adequately discuss the
"mixture" and "derived-from" rules
promulgated in the final regulations. The
petitioners thus argued that they were
deprived of adequate notice and
opportunity to comment as required by
the Administrative Procedure Act (APA)
(5 U.S.C. 553(b)).
On December 6,1991, the court ruled
that the 1978 proposal did not
adequately provide notice of either rule
and that the petitioners thus did not
have sufficient opportunity to comment
(Shell Oil Co. v. EPA, no. 80-1532 et al.
(D.C. Cir., December 6,1991)). The court
vacated the rules and remanded them to
the Agency because of procedural
defects. However, the court did not
address any of the substantive issues
raised by the petitioners concerning the
rules. On January 21,1992, EPA filed a
petition requesting that the court
reconsider its decision. The court denied
this petition on February 12,1992.
In its December 6,1991 decision, the
court recognized the dangers that may
be posed by a discontinuity in the
regulation of hazardous waste, and
suggested that the Agency could
reinstate the rules in whole or in part on
an emergency basis under the "good
cause" exemption of the APA. Such a; ,
reinstatement would prevent disruption
in ongoing implementation of the
hazardous waste program while
allowing EPA to request comment on the
rules and cure the procedural defect.
III. EPA's Response to the Court
Decision: Reasons for Reinstatement
Today's rule responds to the court's
suggestion that EPA reinstate the rules
on an interim basis pending full notice
and comment. EPA is aware of concerns
that have arisen about the rules since
they were first promulgated in 1980.
Nevertheless, EPA believes that interim
reinstatement is important because
human health and the environment
could be harmed and the national '.
hazardous waste program significantly
disrupted if the rules were allowed to
lapse. The total effect of a
disappearance of the "mixture" and
"derived-from" rules is difficult to
foresee, but it is clear that the
consequences could be serious.
Following are some possible effects of a
lapse in the rules.
En vironm en tal Effects
If the rules were not in effect, the
federal regulations would still apply to
listed hazardous wastes when the
wastes were generated, but the status of
these wastes under subtitle C after they
were managed or mixed would be
thrown into question. The Agency has
acknowledged that, in some cases, these
wastes may present little risk.
Nevertheless, many wastes are still
toxic after they are managed or mixed,
often presenting the same hazard as
when the waste was generated. EPA
notes that some hazardous waste
listings were based.on information
about environmental damage caused in
the mixed or derived-from state of the
waste. For example, leachate from
hazardous waste which has been
disposed of is produced by liquid
percolating through the waste; it
sometimes contains heavy metals and
organic materials which render it highly
toxic. Treatment residues, by definition,
contain waste constituents which were
removed during treatment or which
were not completely destroyed by
treatment. Wastewaters from facilities
that treat hazardous waste may contain
significant amounts of the toxic
substances that were in the wastes. Ash
from incinerating hazardous wastes
often contains heavy metals and, if
combustion is not complete, .
undestroyed toxic organic materials.
EPA has placed in the docket for this
notice data indicating that "mixture"
and "derived-from" wastes can contain
high concentrations of hazardous
constituents.
The Agency acknowledges that some
"mixture" and "derived-from" wastes
would still be covered under existing
regulations. An interpretation of the
regulations under which the slightest
mixing or management rendered a listed
waste non-hazardous would clearly be
unreasonable. Nevertheless, if the rules
were no longer in effect, the possibility
of confusion and erroneous waste
classifications would surely increase,
resulting in greater potential for harm to
human health and the environment.
For example, if the "mixture" and
"derived-from" rules were not in effect,
some wastes might be mistakenly
classified as non-hazardous and
disposed of in a municipal landfill or
unregulated industrial landfill. EPA
• could find it extremely difficult to track
these disposals, so that any
environmental problems they caused
might be exacerbated by delay and
could ultimately require more costly
cleanups. It is true that the current land
disposal restrictions (LDR) program
would require treatment and tracking of
certain mixed and derived-from wastes,
since the LDR restrictions apply at the ,
point of a waste's generation (see 55 FR
at 22651-52, June 1,1990). Likewise, the
prohibition on dilution as a substitute
for adequate treatment likewise
normally applies at the point of
generation (see 40. CFR 268.3(a)). As a
result, those wastes restricted from land
disposal which clearly meet the listing
description at the point of generation
would still be subject to the treatment
standards of RCRA at 40 CFR part 268
(as well as the waste analysis, tracking
and recordkeeping requirements
associated with that program) even if
the wastes were later mixed with other
wastes, or, in some cases, even if
subsequently managed (see 55 FR
22661).
However, wastes may be mixed with
other wastes at the point of generation,
so that they arguably would not meet
the listing description at that point and
so would not be subject to LDRs. In
addition, the Agency's interpretation
that the LDR program applies to wastes
which are hazardous as generated, even
if they are later rendered "non-
hazardous" (i.e., they no longer meet the
listing description) is subject of litigation
in the D.C. Circuit Court of Appeals (see
Chemical Waste Management v. EPA,
No. 90-1230 (D.C. Cir.)). Some members
of the regulated community will argue
that their "derived-from" wastes no
longer meet the listing description and
thus would no longer be subject to
LDRs. Moreover, the treatment process
itself would not be regulated if only the
LDRs applied to the waste. And finally,
even if some wastes would be tracked
under the LDR program, that program
was not designed as a manifest system
and would provide limited information.
For "example, LDR tracking does not
require discrepancy reports, so that
wastes which have allegedly been sent
to a disposal facility but which do not
arrive would not be accounted for.
Similarly, many mixed and derived-
from wastes are not restricted from land
disposal and thus are not subject to
LDRs. If they were not hazardous
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wastes, mixed wastes could be burned
as fuel in schools and homes, and
processed into consumer and
commercial products, all without any
federal controls. Some surface
impoundments receiving mixed or
derived-from waste might no longer be
subject to groundwater monitoring and
corrective action. In addition, if the
"mixture" and "derived-from" rules
were no longer in effect, many facilities
that currently require RCRA permits
would no longer need them;
consequently, hazardous waste
management facilities would no longer
need to clean up any contamination at
their sites as a condition of their RCRA
permits. Waste derived from managing
the original waste (e.g., leachate,
residues from storage, and concentrated
treatment reisdues such as distillation
bottoms) many likewise go unregulated.
If the "mixture" and "derived-from"
rules were not in effect, the Agency's
RCRA enforcement program would also
be damaged, with potential danger to
human health and the environment. EPA
has preliminarily identified over 100
federal administrative, civil, and
criminal enforcement cases based in
whole or in part on the mixture and
derived from rules currently pending or
recently concluded. Many of these cases
involved the possibility of contaminated
groundwater, soil, or air from wastes
defined as hazardous under the
"mixture" and "derived-from" rules.
Further, in most of the latter cases, the
wastes could cause potential harm to
humans due to the possibility of
immediate direct exposure or off-site
migration leading to subsequent
exposure. In addition, the "mixture" and
"derived-from" rules play a major part
in facilitating the Agency's enforcement
actions. Without these rules, extensive
\vaste sampling and analysis would be
needed in many enforcement cases.
These procedures would require
significant reallocation of Agency
enforcement resources and would often
impede prompt enforcement action,
leading to environmental hazards in
cases where prompt action was
necessary.
Implementation of RCRA
requirements is, in large part, carried out
by authorized State hazardous waste
management programs, many of which
currently have "mixture" and "derived-
from" rules as a matter of independent
State law. However, many of the wastes
lost to the national program might not be
captured by State hazardous waste
programs. Many of the State "mixture"
and "derived-from" rules may be tied to
or refer to the scope of the federal rules.
For example, many States simply
incorporate the federal rules by
reference. Some forms of incorporation
by reference might be adversely affected
by the removal of the federal rules.
Other States are prohibited from
providing requirements more stringent
than the federal government. Changes in
the scope of the federal program could
cause contractions in the scope of many
State programs. Such a contraction has
already occurred in at least one State
where a court has invalidated the
"mixture" and "derived-from" rules.
These changes could cause some
persons to shift disposal of hazardous
waste to States with less stringent rules.
Even where States' independent
authorities were not directly
undermined by removal of the rules,
confusion among the regulated
community could undermine
compliance with State laws.
The Agency also believes that
removal of the "mixture" and "derived-
from" rules could undermine incentives
to prevent pollution and minimize the
generation of hazardous waste. Some
firms currently segregate highly toxic
waste from their wastewater streams to
minimize the generation of hazardous
waste, or to make resource recovery
easier. Without these rules, the
incentives to segregate these wastes will
be changed, even in cases where
segregation would facilitate more cost-
effective treatment or reduction in the
generation of hazardous wastewaters.
Program Disruption
The absence of clear federal rules
governing the status of mixed and
derived-from wastes over the interim
could disrupt existing programs,
presenting the regulators, the regulated
community, and the public with
considerable uncertainty about the
scope and effect of Subtitle C regulation.
In support of this view, several
interested parties have urged the
Agency to reinstate the rules as quickly
as possible. Thirty-eight State Attorneys
General and many State solid waste
management officials have stated that if
the rules are allowed to lapse, the
regulatory structure would be thrown
into chaos. As the Agency responsible
for carrying out the national hazardous
waste program, EPA believes that
allowing the sudden and extreme
disruption of the program would not be
justified. Instead, EPA agrees with the
State officials that the best course of
action under the circumstances is to
reinstate the rules on an interim basis,
while seeking comment on future
regulatory changes.
For all of the above reasons, the
Agency has decided to reinstate the
"mixture" and "derived-from" rules on
an interim basis under the "good cause"
exemption of 5 U.S.C. 553(b)(3)(B),
pending full notice and opportunity for
comment. EPA is soliciting comment ori
these rules and on other ways to
regulate waste mixtures and residues
elsewhere in today's Federal Register.
This reinstatement will give the Agency
the time to sort through more fully the
implications of alternative regulatory
approaches and understand the scope
and effect of current subtitle C rules.
While today's reinstatement is based
on the importance of the "mixture" and
"derived-from" rules and the need to
avoid sudden disruption in the RCRA
regulatory framework, the Agency
recognized that the court has ruled that
these extremely important rules did not
receive adequate notice and comment.
As noted earlier, the Agency is already
•considering modifications to the rules
and will also examine comments
received on today's notices. Therefore,
EPA has determined that this interim
final reinstatement should not remain in
effect indefinitely. Because EPA
anticipates that it may take until late
April 1993 to reconsider these rules, it
has added a termination date of April
28,1993 to this reinstatement. However,
the Agency will make every effort to
expedite this rulemaking. By April 28,
1992, EPA will publish a Federal
Register notice further explaining
options it is considering and seeking
public comment on those options. The
unmodified "mixture" and "derived-
from" rules will expire April 28,1993
unless EPA, after considering comments,
makes a final determination to retain
these rules in their current form.
IV. Retroactive Effect of Court Decision
Since the issuance of the Shell Oil
decision, EPA has received many
questions about whether the court's
vacature of the rules is retroactive, thus
nullifying the "mixture" and "derived-
from" rules as of 1980. As explained
below, the Agency believes that the
Shell Oil decision is not intended to be
retroactive. As a result, today's decision
to retain action to reinstate the
"mixture" and "derived-from" rules
maintains without interruption the legal
framework for the regulation of
hazardous waste originally established
under RCRA in 1980, EPA is also
maintaining the Agency's past policy
interpretations of these rules.
The Agency has interpreted the
court's decision in this manner for
several reasons. The court's opinion
suggests that it was not intended to void
the rules from the date of their 1980
promulgation. The court was fully aware
that the rules had remained in effect
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7631
during the lengthy litigation (Shell Oil v.
EPA, no. 80-1532 et al. (D.C. Cir.,
December 6,1991) [slip op. at 7)). In
remanding the rule's to the Agency, the
court suggested that they be
immediately reenacted by EPA on an
interim basis to avoid dangers from any
discontinuity in the regulation of
hazardous wastes. Slip op. at 20-21. EPA
believes that the court's concern about
regulatory discontinuity would be
inconsistent with a decision that
retroactively voided the rules. If the
rules have been void since 1980, their
reinstatement would greatly change,
rather than preserve, the current
program.
Moreover, the Agency believes that its
interpretation of the court's decision is
consistent both with relevant case law
concerning the retroactivity of judicial
decisions [see Chevron Oil Co. v. Huson,
404 U.S. 97 (1971), and with the general
practice of the D.C. Circuit (see, e.g.,
American Gas Association v. FERC, 888
F. 2d 136,150 (D.C. Cir. 1989)). EPA's
action today to reinstate the rule and
cure any procedural defect through
notice and comment thus maintains the
legal definition of "hazardous waste,"
along with the Agency's past
interpretations of that definition.
V. Solite Decision
On December 31,1991, the U.S. Court
of Appeals for the D.C. Circuit issued a
decision concerning mixtures of
hazardous waste and wastes subject to
the "Bevill" exclusion for mineral
processing wastes (see Solite Corp, v.
EPA, No. 89-1629 (D.C. Cir., December
31,1991)). Following is the background
of the Solite decision and EPA's
interpretation of how the decision is
related to today's rule.
On September 1,1989 (54 FR 36592),
EPA issued rules defining the scope of
the "Bevill" exclusion for mineral
processing wastes. In the context of that
rulemaking, EPA announced that the
"mixture rule" would apply to mixtures
of listed hazardous wastes and Bevill-
exempt solid wastes from mining and
mineral processing, just as the rule
applies to mixtures of listed wastes and
any other non-hazardous solid waste.
The Agency explained that its
interpretation was consistent with the
rationale for the "mixture rule," and
would ensure that hazardous wastes
would not be improperly excluded from
subtitle C regulation merely by being
mixed with a Bevill-exempt waste.
EPA also confirmed that the
hazardous wastes characteristics also
apply to mixtures of characteristically
hazardous wastes and Bevill-exempt
wastes from mining and mineral
processing, unless the resulting mixture
did not exhibit a characteristic or
exhibited a characteristic imparted to
the mixture solely from the Bevill-
exempt wastes (see 40 CFR 261.3(a)(2)
(i) and (iii)). The Agency was concerned
that facilities would improperly dilute
their non-exempt hazardous wastes
under the protection of the Bevill
amendment. EPA did, however, allow
the mixing of characteristic wastes and
Bevill-exempt wastes where the
resulting mixture no longer exhibits the
characteristic of the unmixed waste,
giving some relief for Bevill facilities
which manage exempt and non-exempt
wastes together.
Several industry petitioners
challenged the September 1,1989 rules.
Among the issues raised were the
application of the "mixture rule" to
Bevill-exempt mining and mineral
processing wastes and the status of
mixtures of characteristic wastes and
Bevill-exempt wastes. On December 31,
1991, the U.S. Court of Appeals for the
D.C. Circuit issued the Solite decision,
which upheld the September 1,1989
rules in nearly all respects. With respect
to the "mixture rule," however, the court
remanded the issue to the Agency
"without opinion. The court noted that—
(I)n extending the Subtitle C mixture rule to
the Bevill context, EPA assumed the validity
of that rule.... Were the Subtitle C mixture
rule still in place, the Bevill mixture rule
might well constitute a reasonable extension
of it If the EPA desires to and
successfully does repromulgate the Subtitle C
rule, it will similarly be able to repromulgate
the Bevill rule, and attempt to justify the
latter by reference to the former.
Alternatively, the Agency may wish to justify
the Bevill rule on independent grounds.
(slip op. at 38-39).
The court's opinion did not explicitly
address the status of EPA's rule change
regarding the application of the
hazardous waste characteristics to
mixtures of Bevill-exempt wastes. The
court in Shell Oil vacated the "mixture
rule" of 40 CFR § 261.3(a)(2)(iv), which
addresses mixtures of listed wastes and
other solid wastes. Thus, to the extent
that the Solite court addressed mixtures
involving listed and Bevill wastes,
today's action will reinstate the affected
rules. However, since the Shell Oil court
did not address mixtures of
characteristic and Bevill wastes, that
part of the decision by the Solite court
appears to be in error. EPA is
considering requesting clarification of
this issue from the Solite court.
VI. Compliance With Other
Requirements
A. Administrative Procedure Act (APA)
Section 553 of the APA generally
requires federal agencies to provide
notice in the Federal Register and
opportunity for public comment before
promulgating a rule. However, section
553(b)(3)(B) provides that the agency
may promulgate a rule without prior
notice and opportunity for public
comment if the agency finds that such
procedures would be "impracticable,
unnecessary, or contrary to the public
interest" with respect to the rule at
issue. The finding of "good cause" and
the reasons for the finding must be
published with the rule.
EPA has ample "good cause" to
repromulgate the RCRA "mixture" and
"derived-from" rules without prior
notice and comment. The court in Shell
Oil specifically suggested that to avoid
potential disruption of the hazardous
waste management program from the
remand, EPA should immediately
reinstate the rules on an interim basis
under the "good cause" exemption of
the APA. Shell Oil v. EPA, No. 80-1532
et al. (D.C. Cir., December 6,1991), slip
op. at 21. This immediate reinstatement
thus allows EPA to maintain the status
quo until the Agency can cure the
procedural defect identified by the court
through notice and comment.
As discussed in detaiLearlier in
today's notice, EPA believes that
reinstating these rules on an interim
basis is essential to prevent serious
harm to human health and the
environment and to avoid substantial
confusion for the regulated community.
As noted above, many States which
implement the RCRA hazardous waste
program support the Agency's
assessment of the need for
reinstatement. The Agency also believes
that the need for reinstatement is
immediate. The court's mandate
vacating the rules may take effect seven
days after denial of EPA's request for
rehearing. Therefore, prior notice and
opportunity for comment on the
remanded rules is impracticable.-If the
Agency employed the full notice and
comment procedures of section 553' of
the APA before reinstatement, a lapse in
the "mixture" and "derived-from" rules
would be inevitable, with subsequent
potential for serious damage to the
environment. This would be contrary to
the public interest. In addition, EPA
believes that the necessity for prior
notice and comment is significantly
lessened by the fact that the rules in
question have been implemented for •
over a decade, they are reinstated on an
interim basis, and today's notice
requests comment on the "mixture" and
"derived-from" rules. Moreover, the
Agency has already received a great
deal of comment on these rules over the
past 11 years. As noted above, much of
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7632 Federal Register / Vol. 57, No. 42 /Tuesday, March 3, 1992 /Rules and Regulations
this comment was in response to the
1980 rules themselves, and has resulted
in several amendments to the mixture
rule. In addition, EPA had several
meetings with interested parties before
promulgation of this reinstatement to
discuss the Agency's response to the
court decision and received extensive
comment on reinstatement. The
substantial body of existing comments
provides a further reason for finding
"good cause." For the reasons noted
above, EPA also believes that it has
good cause to make these rules
immediately effective. See 5 U.S.C.
553(d)(3).
B. Executive Order 12291
Under Executive Order 12291, EPA
must judge whether a regulation is
"Major" and therefore subject to the
requirement of a Regulatory Impact
Analysis [RIA). This rule reinstates on
an interim basis rules that were first
promulgated in 1980, before the
enactment of Executive Order 12291.
Thus, EPA did not perform and does not
now have reliable estimates of the
potential costs and benefits expected to
have resulted from these rules. While
EPA does not believe an RIA is needed
for this reinstatement given that it
imposes no new costs beyond what has
been in place for some time, the Office
of Management and Budget has declared
modifications to the "mixture" and
"derived-from" rule to be major rules.
Thus, EPA will complete a regulatory
Impact Assessment for the
modifications.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5
U.S.C, 601 et seq., requires EPA and
other agencies to prepare an initial
regulatory flexibility analysis for all
proposed regulations that have a
significant impact on a substantial
number of small entities. No regulatory .
flexibility analysis is required, however,
where the head of the Agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Because
today's rule merely reinstates existing
requirements on an interim basis, I
hereby certify, pursuant to 5 U.S.C.
605(b), that this regulation will not have
a significant impact on a substantial
number of small entities.
D. Paperwork Reduction Act '
This rule contains no information
collection requirements which need
approval by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 261
Hazardous Waste, Recycling,
Reporting and recordkeeping
requirements. ,
Dated: February 18,1992.
William K. Reilly,
Administrator.
40 CFR part 261 is amended as ;
follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation.for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6933.
2. Section 261.3 is revised to read as
follows:
§ 261.3 Definition of hazardous waste.
(a) A solid waste, as defined in
§ 261.2, is a hazardous waste if:
(1) It is not excluded from regulation
as a hazardous waste under § 261.4(b);
and
(2) It meets any of the following
criteria:
(i) It exhibits any of the
characteristics of hazardous waste
identified in subpart C except that any
mixture of a waste from the extraction,
beneficiation, and processing of ores
and minerals excluded under
§ 261.4(b)(7) and any other solid waste
exhibiting a characteristic of hazardous
waste under subpart C of this part only
if it exhibits a characteristic that would
not have been exhibited by the excluded
waste alone if such mixture had not
occurred or if it continues to exhibit any
of the characteristics exhibited by the
non-excluded wastes prior to mixture.
Further, for the purposes of applying the
Extraction Procedure Toxicity
characteristic to such mixtures, the
mixture is also a hazardous waste if it
exceeds the maximum concentration for
any contaminant listed in table I to
§ 261.24 that would not have been
exceeded by the excluded waste alone if
the mixture had not occurred or if it
continues to exceed the maximum
concentration for any contaminant
exceeded by the nonexempt waste prior
to mixture.
(ii) It is listed in subpart D of this part
and has not been excluded from the lists
in subpart D of this part under §§ 260.20
and 260.22 of this chapter.
(iii) It is a mixture of a solid waste
and a hazardous waste that is listed in
subpart D of this part solely because it
exhibits one or more of the
characteristics of hazardous waste
identified in subpart C of this part,
unless the resultant mixture no longer
exhibits any characteristic of hazardous
waste identified in subpart C of this part
or unless the solid waste is excluded
from regulation under § 261.4[b)(7) and
the resultant mixture no longer exhibits -,
any characteristic of hazardous waste
identified in subpart C of this part for
which the hazardous waste listed in
subpart D of this part was listed.
[iv) It is a mixture of solid waste and
one or more hazardous wastes listed in
subpart D of this part and has not been
excluded from paragraph (a)(2) of this
section under §§ 260.20 and 260.22 of
this chapter; however, the following ,
mixtures of solid wastes and hazardous
wastes listed in subpart D of this part
are not hazardous wastes (except by
application of paragraph (a] (2] (i) or (ii]
of this section) if the generator can
demonstrate that the mixture consists of
wastewater the discharge of which is
subject to regulation under either
section 402 or section 307(b) of the
Clean Water Act (including wastewater
at facilities which have eliminated the
discharge of wastewater) and:
(A) One or more of the following
solvents listed in § 261.31—carbon
tetrachloride, tetrachloroethylene,
trichloroethylene—Provided, That the
maximum total weekly usage of these
solvents (other than the amounts that
can be demonstrated not to be
discharged to wastewater) divided by
the average weekly flow of wastewater
into the headworks of the facility's
wastewater treatment or pretreatment
system does not exceed 1 part per
million; or
(B) One or more of the following spent
solvents listed in § 261.31—methylene
chloride, 1,1,1-trichloroethane,
chlorobenzene, o-dichlorobenzene,
cresols, cresylic acid, nitrobenzene,
toluene, methyl ethyl ketone, carbon
disulfide, isobutanol, pyridine, spent
chlorofluorocarbon solvents—provided
that the maximum total weekly usage of
these solvents (other than the amounts
that can be demonstrated not to be
discharged to wastewater) divided by
the average weekly flow of wastewater
into the headworks of the facility's
wastewater treatment or pretreatment ..
system does not exceed 25 parts per
million; or
(C) One of the following wastes listed
in § 261.32—heat exchanger bundle
cleaning sludge from the petroleum .
refining industry (EPA Hazardous
Waste No.. K050); or
(D) A discarded commercial chemical
product, or chemical intermediate liste.d
in § 261.33, arising from de minimi's
losses of these materials from
manufacturing operations in which these
materials are used as raw materials or
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7633
are produced in the manufacturing
process. For purposes of this paragraph
(a)(2)(iv)(D), "de minimis" losses
include those from normal material
handling operations (e.g., spills from the
unloading or transfer of materials from
bins or other containers, leaks from
pipes, valves or other devices used to
transfer materials); minor leaks of
process equipment, storage tanks or
containers; leaks from well maintained
pump packings and seals; sample
purgings; relief device discharges;
discharges from safety showers and
rinsing and cleaning of personal safety
equipment; and rinstate from empty
containers or from containers that are
rendered empty by that rinsing; or
(E) Wastewater resulting from
laboratory operations containing toxic
(T) wastes listed in Subpart D of this
part, Provided, That the annualized
average flow of laboratory wastewater
does not exceed one percent of total
wastewater flow into the headworks of
the facility's wastewater treatment or
pre-treatment system, or provided the
wastes, combined annualized average
concentration does not exceed one part
per million in the headworks of the
facility's wastewater treatment or pre-
treatment facility. Toxic (T) wastes used
in laboratories that are demonstrated
not to be discharged to wastewater are
not to be included in this calculation.
(b] A solid waste which is not
excluded from regulation under
paragraph (a)(l) of this section becomes
a hazardous waste when any of the
following events occur:
(1) In the case of a waste listed in
Subpart D of this part, when the waste
first meets the listing description set
forth in subpart D of this part.
(2) In the case of a mixture of solid
waste and one or more listed hazardous
wastes, when a hazardous waste listed
in subpart D is first added to the solid
waste.
(3) In the case of any other waste
(including a waste mixture], when the
waste exhibits any of the characteristics
identified in subpart C of this part.
(c) Unless and until it meets the
criteria of paragraph (d) of this section:
(1) A hazardous waste will remain a
hazardous waste.
(2)(i) Except as otherwise provided in
paragraph (c)(2)(ii) of this section, any
solid waste generated from the
treatment, storage, or disposal of a
hazardous waste, including any sludge,
spill residue, ash, emission control dust,
or leachate (but not including
precipitation run-off) is a hazardous
waste. (However, materials that are
reclaimed from solid wastes and that
are used beneficially are not solid
wastes and hence are not hazardous
wastes under this provision unless the
reclaimed material is burned for energy
recovery or used in a manner
constituting disposal.)
(ii) The following solid wastes are not
hazardous even though they are
generated from the treatment, storage, or
disposal of a hazardous waste, unless
they exhibit one or more of the
characteristics of hazardous waste:
(A) Waste pickle liquor sludge
generated by lime stabilization of spent
pickle liquor from the iron and steel
industry (SIC Codes 331 and 332).
(B) Waste from burning any of the
materials exempted from regulation by
§ 261.6(a)(3)(v) through (ix).
(d) Any solid waste described in
paragraph (c) of this section is not a
hazardous waste if it meets the
following criteria:
(1) In the case of any solid waste, it
does not exhibit any of the
characteristics of hazardous waste
identified in subpart C of this part.
(2) In the case of a waste which is a
listed waste under subpart D of this
part, contains a waste listed under
subpart D of this part or is derived from
a waste listed in subpart D of this part,
it also has been excluded from
paragraph (c) of this section under
§§ 260.20 and 260.22 of this chapter.
(e) Sunset provision. Paragraphs
(a)(2)(iv) and (c)(2)(i) of this section
shall remain in effect only until April 28,
1993.
[FR Doc. 91-4255 Filed 3-2-91; 8:45 am]
BILLING CODE 6560-50-M
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